Scottish Court of Session Decisions

Robson v. the Council of the Law Society of Scotland & Anor [P1459_01.html] ScotCS 1 [2002] ScotCS 122 (1st May, 2002)

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
Lord Hamilton Lady Cosgrove Lord Reed	P1459/01 OPINION OF THE COURT delivered by LORD HAMILTON in PETITION of MICHAEL GORDON ROBSON Petitioners; against THE COUNCIL OF THE LAW SOCIETY OF SCOTLAND and ANOTHER Respondents: _______

 

Act: Jones, Q.C., Logan; Robsons, W.S. (Petitioner)

Alt: Skinner; Balfour & Manson (Respondents)

15 March 2002

1. The petitioner is an enrolled solicitor who, after a professional history later described, has in more recent times practised on his own account from his home in Ratho. A complaint at the instance of the Council of the Law Society was made against him in which it was alleged that he had been guilty of professional misconduct in a number of respects. When the complaint called before the Scottish Solicitors Discipline Tribunal ("the Tribunal") at a hearing on 7 November 2001 the petitioner was represented by counsel. Certain amendments were then made to the complaint and, on that being done, the petitioner admitted the factual accuracy of the complaint as so amended. The matters admitted included the petitioner's failure, as later summarised, to reply to correspondence from the Law Society of Scotland and to respond to statutory notices served by it. They also included certain breaches of the Solicitors (Scotland) Accounts Rules 1997. In respect of the latter breaches the Tribunal did not find that they of themselves amounted to professional misconduct. Nothing further need be said about that aspect. The Tribunal, however, found the petitioner guilty of professional misconduct in respect of his failure to reply to correspondence and other communications from the Law Society. The finding of professional misconduct is not in dispute. In respect of it the Tribunal censured the petitioner and fined him in the sum of £5,000. It also directed, in terms of section 53(5) of the Solicitors (Scotland) Act 1980,

"that for a period of three years any Practising Certificate held or issued to the [petitioner] shall be subject to such restriction as will limit him to acting as a qualified assistant to such employer as may be approved by the Council of the Law Society of Scotland and thereafter until such time as he satisfies the Tribunal that he is fit to hold a full Practising Certificate".

The Tribunal further found the petitioner liable in expenses.

2. Against that disposal the petitioner has appealed by way of petition to this court under section 54 of the 1980 Act. At the hearing of the appeal Mr. Jones on his behalf, while observing that the fine imposed represented half the maximum fine available to the Tribunal, intimated that no issue was to be taken about the censure or the amount of the fine. The part of the disposal which was sought to be brought under review was limited to the direction concerning the restriction placed on the petitioner's practising certificate. That direction, Mr. Jones submitted, was neither appropriate nor necessary in the public interest. It was, in the circumstances of the whole case, excessive and disproportionate.
3. Before narrating the arguments advanced in support of that submission it is appropriate first to summarise the agreed facts upon which the finding of professional misconduct proceeded and then to set forth the Tribunal's reasoning, in so far as material, for the disposal it adopted. The complaint arose out of the petitioner's dealings with seven persons or bodies, including five individual clients or former clients. The first client had instructed the petitioner to act on his behalf in relation to certain litigations. In November 2000 that client invoked the aid of the Law Society, alleging that the petitioner had failed to report to him or to answer any enquiries made by him in relation to the progress of these litigations. Thereafter, on three occasions, the Law Society wrote to the petitioner requesting a response in relation to the client's complaint. The petitioner did not reply to any of these letters. Eventually, in May 2001, a formal notification in writing under section 15(2)((i) of the 1980 Act was made to him in relation to that matter. To that notification he did not respond. The second client invoked the aid of the Law Society in relation to a litigation in which he had instructed the petitioner and in respect of which he complained that due progress was not being made. The Law Society intimated that complaint to the petitioner and subsequently sent to him three separate reminders in respect of it. To none of these did he reply. The third client invoked the aid of the Law Society complaining that the petitioner had failed to communicate or respond to enquiries made by him or to implement a mandate sent by another firm of solicitors whom the client had instructed. In this matter the Law Society wrote to the petitioner on eight separate occasions but received no reply. The fourth client invoked the aid of the Law Society in respect of his dealings with the estate of a deceased relative. The Law Society wrote to the petitioner on this matter on five occasions but received no reply. The fifth client invoked the aid of the Law Society in relation to the conduct of a litigation in which he had instructed the petitioner. The Law Society wrote to the petitioner on this matter on fourteen occasions but received no reply. The finding of professional misconduct also related to complaints by the Scottish Legal Aid Board and, separately, by a firm of solicitors. In the case of the former the Board invoked the aid of the Law Society regarding the conduct of the petitioner in dealing with the affairs of certain clients. The Board complained that the petitioner had failed to reply to repeated correspondence regarding the existence and whereabouts of an award of expenses. The Law Society in turn wrote on two separate occasions to the petitioner about this matter and ultimately, in May 2001, sent to him notification in writing in respect of it under section 15(2)(i) of the Act. To none of these communications did the petitioner respond. In the case of the firm of solicitors it had complained to the Law Society that the petitioner had failed to implement a mandate. Thereafter the Law Society intimated that complaint to the petitioner and wrote to him subsequently on eleven occasions requesting a response. The Society ultimately, in May 2001, gave to him notification in writing in respect of this matter under section 15(2)(i) of the Act. To none of these communications did the petitioner reply. As a consequence of the petitioner's failure to co-operate and respond to the Law Society's reasonable enquiries the Law Society was unable to carry out its statutory duty to investigate the complaints of these various persons.
4. In the Note appended to its Findings the Tribunal observed -

"In terms of section 1 of the Solicitors (Scotland) Act 1980, the Law Society has a statutory duty to have regard to the interests of the public in relation to the Profession of Solicitors in Scotland and in fulfilling that duty the Law Society was entitled to make enquiries of the Respondent. Due to the Respondent's failure to reply to the reasonable enquiries made of him by the Law Society, the Law Society was unable to deal with the particular letters of complaint, and the inability of the Law Society to provide a statutory reply would undoubtedly have been damaging to the reputation of the profession. It is with this background that the Tribunal find the relative charges of professional misconduct to have been established".

After discussing the breaches of the Accounts Rules the Tribunal continued -

"Regrettably the events recorded in relation to the present matters indicate that the Respondent had a wilful disregard for the Law Society and its duty to investigate complaints; and was susceptible to influences by individual clients to ignore obligations incumbent upon him; it is therefore appropriate that the Respondent should be censured and bear a substantial fine. The Tribunal were also concerned by the Respondent's cavalier attitude towards the Law Society and his disrespect for authority and susceptibility to improper influences and it was with this background that the Tribunal has directed a restriction on the Respondent's Practising Certificate. After three years it will be open to the Respondent to return to the Tribunal, and he would be expected to demonstrate that he then has a maturity and responsibility such as is expected of a principal solicitor in private practice".

5. In developing his submission Mr. Jones noted that the findings all concerned failures in respect of dealings with the Law Society. There was no finding of professional misconduct directly in respect of clients or other members of the public. While there had been a substantial number of items of correspondence from the Law Society some of these items had been duplicates. In substance the number of distinct communications not responded to was in the order of 50-55. The test to be applied by this court had recently been considered in McMahon v. Council of the Law Society of Scotland (now reported in 2002 S.L.T. 363) at paragraphs [13] and following. The proper approach was that indicated in Ghosh v. General Medical Council [2001] 1 WLR 1915. Reference was also made to Bijl v. General Medical Council (Privy Council, 2 October 2001, unreported). In the circumstances of this case the court was as able as the Tribunal to form a view as to how any concern about the public interest could appropriately be met. Ghosh illustrated that care should be taken to ensure that any conditions imposed in respect of entitlement to practise were such as would meet the circumstances of the particular case. The disposal should not be one which went further than was necessary. Here it was unnecessary for the protection of the public interest to impose any restriction on the petitioner's practising certificate. The findings did not demonstrate any inadequacy in the petitioner's practice as a lawyer. In any event, the restriction imposed was disproportionate in relation to the public interest to be satisfied. It had been accepted before the Tribunal that the petitioner's attitude towards the Law Society had been influenced by a client who had a particular attitude towards the Law Society. The petitioner, as he later recognised, had been too close to that client. That might in some circumstances suggest a lack of maturity as a practitioner. But in this case the petitioner was not a young and inexperienced lawyer. He was now 49 years of age and had been in practice as a principal solicitor since 1982, most of that time as a partner, successively in three firms and later as a consultant with the last of these. Since 1998 he had been a sole practitioner. Until 2000 he had had an unblemished legal career. His difficulties had arisen from about April of that year when he had suffered a number of bereavements, felt depressed and come under the influence of a client who was extremely antipathetic to the Law Society. The petitioner's judgment at that time had been impaired. He had become partisan and from about May 2000 (when the first of the unanswered communications had been received) had adopted an uncooperative attitude. When the complaint by the Council of the Law Society had been served on him he had come to his senses, co-operated by providing relative materials and admitted (before the Tribunal) his professional misconduct and the relative underlying facts. The misconduct should be regarded as an aberration in an otherwise long and blameless career. It was unnecessary that the restrictions stand on his practising certificate. The punitive element (in the censure and fine) would bring home to the petitioner the seriousness of his past conduct. No parallel case in Scotland had been discovered, though Swift - Proceedings before the Solicitors Disciplinary Tribunal (1996) at p. 36 suggested that in England and Wales a fine might be regarded as appropriate. If any restriction was appropriate, the extent of the restriction imposed by the Tribunal was disproportionate. The petitioner's practice was principally in litigation work. He had, since setting up as a sole practitioner, built up a clientele and expended funds on capital equipment. If the restrictions imposed were to stand he would lose all that. He would be significantly worse off financially as a qualified assistant, assuming he were to obtain such a post. He would sustain adverse tax consequences on the cessation of his business. As he worked from home he could not dispose of the practice as a going concern. Serious detriment would be suffered by his dependent family. His existing clients would also suffer. One in particular had expressed serious concern. If some limitation to his practising certificate was appropriate, that could be achieved by imposing in substitution a condition that the petitioner deal promptly and to the reasonable satisfaction of the Law Society with all reasonable enquiries made by it, with a further condition that failure to comply with the first condition would empower the Tribunal to decide of new whether the petitioner should continue to hold an unrestricted certificate.
6. Mr. Skinner for the Council of the Law Society submitted that the petition should be dismissed. The approach adopted by this court in McMahon v. Council of the Law Society of Scotland was accepted. This court could to a degree look afresh at the circumstances and form its own view. However, the Tribunal's disposal had been wholly appropriate and should not be interfered with. The misconduct amounted to a deliberate and persistent refusal to reply to the Law Society's legitimate enquiries. It had extended over some fifteen months and involved eighty two letters, of which twenty eight had been served by recorded delivery. There was a clear public interest in the Law Society being in a position to deal with complaints directed to it in respect of solicitors by members of the public. Reference was made to section 1 of the 1980 Act and to section 33(1) of the Law Reform (Miscellaneous Provisions)(Scotland) Act 1990. Conduct such as that of the petitioner made it impossible for the Law Society to discharge its statutory duties. That situation undoubtedly damaged the reputation of the solicitors' profession in Scotland. Although on the eve of the Tribunal hearing the petitioner had made available certain boxes of papers, there had been no attempt, even then, to address the specific issues of complaint. The restriction imposed by the Tribunal was a proportionate response which allowed the petitioner to continue working as a lawyer but subject to supervision. If, over the three year period, he demonstrated appropriate maturity and responsibility he would be in a position to apply to the Tribunal for the restoration of an unrestricted certificate. The alternative conditions suggested by Mr. Jones gave rise to practical difficulties and were, in any event, inappropriate.
7. The professional misconduct of the petitioner lay in his persistent failure to respond to legitimate requests made of him by the Law Society. The nature and effect of that misconduct must be seen in the context of the statutory functions and obligations of the Society. Its objects include the promotion of (a) the interests of the solicitors' profession in Scotland and (b) the interests of the public in relation to that profession (Solicitors (Scotland) Act 1980 section 1(2)). Its obligations include the investigation of complaints made by members of the public and by others of conduct by solicitors and the dealing with such complaints by reporting thereon to, among others, the complainers. These obligations cannot be discharged unless enquiries made by the Society following complaints being made to it are promptly and fully responded to by the solicitor in question. The professional responsibility of every solicitor so to respond is well-known. The potential consequences for his practising certificate if he fails to do so are also made clear by the provisions of section 15 of the 1980 Act. Failure to do so not only adversely affects those who have made complaints to the Society and await a report on the matter but brings the whole solicitors' profession into disrepute. Such conduct can in some cases be much more damaging to the standing of the solicitors' profession than isolated instances of professional misconduct directly affecting particular clients.
8. In this case the Tribunal expressed its concern at the "cavalier" attitude of the petitioner to the Society. We regard that adjective as wholly apt. Over a period of some fifteen months the petitioner wilfully and persistently failed to respond at all to legitimate enquiries made by the Society in relation to a range of separate complaints concerning his professional activities. In several of these cases formal steps were taken under section 15(2) of the 1980 Act. Even these, and indications that disciplinary proceedings might follow, failed to elicit any response until the very eve of the Tribunal hearing. Even then the response was inadequate.
9. The petitioner has had many years' experience in practice and must have been fully aware of his professional responsibilities. Yet he deliberately flouted those responsibilities over an extended period. Whatever the cause of that conduct and however remarkable, on the part of an experienced solicitor, it may be, the circumstances demonstrated that the petitioner, during a substantial period of his activity as a sole practitioner, was either unable or unwilling to discharge fundamental aspects of his professional duties. The Tribunal, in our view, was well entitled on the material before it to conclude that the restriction directed on his practising certificate was both necessary and appropriate as a protective measure.
10. We ourselves, in light of McMahon v. Council of the Law Society of Scotland and Ghosh v. General Medical Council, reviewed the undisputed facts which formed the basis of those disciplinary proceedings. Having done so, we concluded that the restriction imposed was neither excessive nor disproportionate but both appropriate and necessary in the circumstances. The alternative special conditions suggested by Mr. Jones would in fact add nothing of substance to the existing professional obligations of the petitioner and, even if capable as conditions of practical operation, would not meet the clearly demonstrated need that the petitioner should, in his professional activities, be subject, at least for some time, to appropriate supervision. Only thus can the public and the profession be duly protected.
11. We should add that in the course of the hearing the court made enquiry of parties as to the current situation in relation to the complaints to which the Law Society's enquiries had been directed. It appeared that some of these for one reason or another had been resolved. Others remained outstanding and some correspondence was produced in respect of them. However, perusal of that did not persuade us that any alternative course was appropriate.
12. It should also be noted that the petitioner's pleadings as amended included a contention that the Tribunal was not an independent tribunal within the meaning of Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. However, that contention was not pressed at the hearing, it being acknowledged that, as in Ghosh v. General Medical Council, the appellate function of the court of review obviated any Convention breach.
13. In the whole circumstances we dismissed the petition and refused the appeal.