Act: Party; Fyfe Ireland LLP

Alt M Ross; Shepherd & Wedderburn LLP

22 November 2011

[1] This is an application for leave to appeal brought under Section 21 of the Legal Profession and Legal Aid (Scotland) Act 2007 in respect of a Determination made by the Scottish Legal Complaints Commission ("the respondents") arising out of a Complaint made by Walter George Semple ("the applicant").

[2] In deciding that the applicant's Complaint was "totally without merit" the respondents summarised the Complaint for their determination in the following terms:

"Issue 1: Mr Millar deliberately misled the profession in a communication of 16 March 2011 addressed to Law Society of Scotland's Council Members for Glasgow where he stated 'We must change our constitution to create this [new regulatory] committee. Without it, we will be unable to continue regulating the existing solicitor profession when the relevant parts of the Act commences (sic) over the summer.' Mr Millar knew this statement to be incorrect as he was aware that the Council had the necessary powers under the Law Society of Scotland's existing constitution. In making this statement, Mr Millar has breached Rule 14(1) of the Solicitors (Scotland) (Standards of Conduct) Practice Rules 2008 which states that solicitors must not knowingly mislead other solicitors.

Issue 2: Mr Millar went back on his word given at a meeting of the Council of the Law Society held on 25 March 2011 following the Law Society of Scotland's Annual General Meeting, where he stated that he would investigate the allegation of misleading the profession in terms of the communication of 16 March 2011 and would resign as President if the complaint was justified, in that he has failed to resign despite his investigation showing the complaint to be justified. In going back on his word, Mr Millar has breached Rule 14(1) of the Solicitors (Scotland) (Standards of Conduct) Practice Rules 2008 which states that solicitors must not knowingly mislead other solicitors."

As regards the first of these issues, it was pointed out that the communication referred to was in fact an e-mail, not addressed to the Law Society of Scotland's Council Members for Glasgow, but sent by way of a Council newsletter by three of those Council Members to their constituency members in Glasgow and Strathkelvin. There is, however, no doubt that, in reaching their determination on issue 1, the respondents had regard to the correct document. In this connection, it should be made clear, for the avoidance of doubt, that Mr Millar, against whom the Complaint was raised, was at the time of the events complained of the President of the Law Society of Scotland and a Council Member for Glasgow and Strathkelvin.

[3] Turning, then, to the first issue it appears to us that in those parts of the e-mail or newsletter complained of what was said in no way represented statements of fact but, on the contrary, can only be regarded as expressions of opinion regarding the relevant law. References in the Complaint and in the reasoning of the respondents to whether what was said was "accurate" or "inaccurate" or "true" or "untrue" are accordingly inappropriate, the real question being whether the opinion was or was not honestly expressed. In the course of the hearing before us Mr Semple and, we think, also counsel for the respondents were good enough to accept that that was so. Once the question is so framed, however, the considerations that the e-mail or newsletter was signed by three practising solicitors and that the opinion expressed has since had the support of senior counsel strongly suggest that the answer to that question lies in the affirmative. Mr Clancy, who apparently advised the Law Society in relation to legal matters, may or may not have agreed with that opinion and may or may not have been consulted but what is certainly clear is that neither the President nor his other two colleagues were in any way bound by what Mr Clancy may have said. In any event, as can be seen from the newsletter, the members of the Society were being encouraged to attend the imminent annual general meeting at which the principal business was to discuss the proposed changes to the constitution. In our opinion, the holding of an open debate on the question at issue can only mean that, while what was said in the newsletter may well have been intended to influence the membership, it cannot have been calculated to "mislead" the membership. It may be true, as Mr Semple submitted, that those who voted by proxy did not have the advantage of hearing the debate, but it is equally true that Mr Millar and his co-signatories were prepared to have the validity of their opinion discussed and examined by their peers. What is more, it is clear that when the meeting actually took place the applicant, Mr Semple, was allowed to express his own contrary opinion.

[4] Turning now to the second issue, it seems to us that, whatever may have been said at the time, it cannot have been within the contemplation of any of those present that the President should offer his resignation in a situation where the opinion which had been expressed had the support of senior counsel. In any event, we are of the opinion that, properly construed, and with particular reference to the phrase "offered to resign", what was said amounted to no more than a statement of intent. As such, it was capable of being withdrawn at a later date, particularly where circumstances had altered in the interim.

[5] What we have said above is in large measure contained within the reasons given by the respondents for their decision and on the whole matter we do not consider that they either erred in law or acted irrationally in holding on the material before them that the Complaint in question was wholly without merit. In our opinion, therefore, the present application falls to be dismissed.