Scottish Court of Session Decisions

On 5th May 1886, Andrew Clark, S.S.C., was charged along with another person under a complaint at the instance of the Procurator-Fiscal of Midlothian before the Sheriff-Substitute of the Lothians, under the Summary Jurisdiction (Scotland) Acts, with a crime and offence under section 11 of the Criminal Law Amendment Act 1885, said to have been committed on 20th April 1886.

After trial, Clark and the other person named in the charge were convicted of an offence under section 11, and sentenced to imprisonment for thirty days.

Clark brought a bill of suspension and liberation before the High Court of Justiciary, which bill was upon 8th June 1886 ( ante, p. 690) refused, and warrant of imprisonment granted against Clark, who had obtained interim liberation.

Upon 16th June 1886 the Council of the Society of Solicitors in the Supreme Courts held a meeting to consider what steps should be adopted in consequence of the conviction of Clark. They passed a resolution that the Council “were of opinion that the conduct of the said Andrew Clark had been such as to warrant his expulsion from the Society,” and they directed the Society's fiscal to present a petition setting forth their resolution, and craving sentence of expulsion. This petition of the Solicitors in the Supreme Courts was then presented, praying the Court after such intimation, if any, as the Court should order, to pronounce sentence of expulsion against Clark, and to direct his name to be struck off the roll of members of the said Society.

The petitioners stated that their Society was originally incorporated by charter under the Great Charter, and that by statute of 1871 (35 and 35 Vict. c. 107) the charter was of new confirmed and ratified so far as not altered by the Act, and the petitioners of new incorporated into a body corporate and politic. Section 29 of this statute provides—“The Council may, on a report by the fiscal of the Society, or on the presentation of a complaint by any person aggrieved by the conduct of a member, inquire into any allegations affecting the professional character of a member, and if they shall see cause, after such inquiry, may suspend such member from practising as a solicitor in the Supreme Courts for any period not exceeding two years; and such member shall during the period of such suspension be debarred from exercising or enjoying any of the rights or privileges of a member; and if it shall appear to the Council that the conduct of the member has been such as to warrant his expulsion from the Society, they shall direct their fiscal to present a petition to the Lord President and the other Judges of the Court of Session, setting forth the resolution of the Council on the subject, and the Court shall have power by either of its Divisions to deal with the petition as they shall think fit, and if they see cause, pronounce sentence of expulsion; and any member against whom such sentence shall have been pronounced shall from and after the date of such sentence forfeit all his rights and privileges as a member of the Society: Provided always that such expulsion shall not effect the rights, if any, of the widow and children of such member to participate in the fund, nor his obligations as a contributor in terms of the provisions herein contained.”

The Court ordered intimation on the walls and in the minute book, and service on Clark.

Clark lodged answers. He set forth that he had been long in business and a member of various public bodies, and averred that he was innocent of the crime charged; that the full facts were not before the Council; that prior to presenting the petition no inquiry was held by the Council or their fiscal, and that no complaint was ever made to the respondent regarding his conduct; that they made no intimation to him of the proposed proceedings, and gave him no opportunity of making any explanation before passing their resolution; and that they should have given him an opportunity of defending himself. He maintained that in any view the charge did not touch his “professional character” as a member of the, Society, and that the petition was irrelevant, and the action of the Council of the Society oppressive and unjust, and that the Court should not act on the resolution of the Council of the Society in the circumstances in which it has been arrived at; “that the conviction founded on is not perse such evidence of the respondent's guilt as to entitle the Society to proceed upon it in a matter

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affecting his status and civil rights as a member of the Society, without notice, and without giving him an opportunity of clearing himself, and making such explanations as he may be advised.”

Argued for Petitioners—The words in section 29 covered everything affecting professional character, and not merely professional conduct. The Society could deal with any offence in a member which would have entitled them to have excluded him from becoming a member. The application was competent and the prayer of the petition should be granted— Solicitors of Elgin v. Shepherd, February 16, 1881, 18 S.L.R. 303.

Replied for respondent—The application was unwarranted, for the basis of the petition was a report by the Society's fiscal, and there was no averment that such a report was ever prepared; besides, all the proceedings of the Council took place behind the respondent's back. In an application of this kind the Court had a discretionary power, and this was not a case in which it should be exercised against the respondent. “Conduct” in the statute meant exclusively professional conduct. The Society had nothing to do with the moral character of any of its members. The petition should therefore be dismissed, or alternatively there should be a remit for further inquiry.