EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
	[2014] CSIH 59
Lady Paton Lord Drummond Young Lord Wheatley	XA54/13   OPINION OF THE COURT   delivered by LORD DRUMMOND YOUNG   in the Appeal   by   MICHAEL LOUIS KARUS Appellant;   against   SCOTTISH LEGAL COMPLAINTS COMMISSION First Respondent:   And   LAW SOCIETY OF SCOTLAND Second Respondent _______________

 

Appellant: Kelly; Leslie and Co, for Hughes Dowdall, Glasgow

First respondent: Lindsay, QC; Anderson Strathern LLP

Second respondent: Duncan, QC; Balfour and Manson LLP

 

4 July 2014

 

[1]        The appellant was admitted as a solicitor qualified to practise in Scotland and his name was enrolled on the roll of solicitors kept by the second respondent in terms of section 7(1) of the Solicitors (Scotland) Act 1980.  He has not held a practising certificate since 2002.  In 2002 he made a request to the second respondent that his name be removed from the roll of solicitors, but the second respondent did not accede to the request and his name remained and still remains on the roll.  The first respondent is responsible for the primary consideration of complaints made about the conduct of legal practitioners in Scotland.  In doing so it exercises powers under section 2(4) of the Legal Profession and Legal Aid (Scotland) Act 2007.  The present proceedings relate to a complaint made about the conduct of the appellant.

[2]        The first respondent will not generally accept a complaint if the complaint has been received more than one year after the professional conduct complained about has taken place unless the circumstances are exceptional:  Rules of the Scottish Legal Complaints Commission 2009, rule 4(6).  Subject to that limitation, if the first respondent determines that a complaint about the conduct of a solicitor is not frivolous, vexatious or totally without merit, and that the conduct amounts to a conduct complaint within the meaning of section 2(1)(a) of the 2007 Act, it must remit the complaint to the second respondent in order that it may be dealt with: 2007 Act, sections 2(4), 5(1) and 6(a).

[3]        On 25 August 2009 the appellant pled guilty at Edinburgh Sheriff Court to a charge on indictment that between March and May 2003 and in January 2004 he had embezzled the sum of £413,052.81 while acting as the executor of a deceased client.  On 5 October 2009 he was sentenced to 3½ years’ imprisonment.  On 26 October 2009 solicitors acting for the appellant wrote to the second respondent to advise it formally of the conviction and to renew a request that had been made previously that the appellant’s name should be removed from the roll of solicitors.

[4]        On 15 June 2011 the second respondent made a complaint to the first respondent based on the conduct of the appellant that had formed the subject of the criminal charges.  They had not made any complaint prior to that date.  On 4 July 2011 the first respondent accepted the complaint for consideration, and it was intimated to the appellant.  The first respondent determined that the complaint was an eligible conduct complaint for the purposes of the Legal Profession and Legal Aid (Scotland) Act 2007, and referred it to the second respondent.  The decision of 4 July 2011 was intimated to the appellant.  Thereafter the appellant’s solicitor corresponded with the first respondent and raised the question of whether the complaint had been lodged timeously and in accordance with rule 4(6) of the 2009 Rules.  The first respondent was asked to reconsider its decision, but the second respondent refused to agree to such reconsideration.  Consequently it was necessary for the appellant to apply to the court for leave to appeal against the first respondent’s decision of 4 July 2011.  The appeal was ultimately not contested and, following the lodging of a joint minute, the first respondent’s decision of 4 July 2011 was recalled.  In essence, the first respondent acknowledged that its acceptance of the complaint had been based on incorrect information provided by the second respondent; the second respondent stated that it had first heard about the appellant’s conviction in May 2011, but it was clear that it had been aware of the conviction by October 2009.  The complaint was remitted to the first respondent to consider afresh whether it had been made timeously or whether in terms of rule 4(6) of the 2009 Rules there were exceptional circumstances that would make it just and equitable for the first respondent to accept the complaint for investigation.

[5]        The first respondent then reconsidered the complaint.  By letters dated 7 December 2011 to the appellant’s solicitor and the second respondent, it indicated an initial view that the complaint might not have been lodged within the time limit in rule 4(6), that the first respondent could only accept complaints outwith the time limit in exceptional circumstances, and that a decision not to accept the complaint for investigation might be made on the ground that it was outside the time limit.  By letter dated 15 December 2011 the second respondent submitted that there were exceptional reasons why the complaint ought to be admitted as an eligible conduct complaint and remitted back to them for investigation.  In that letter, after a reference to the appellant’s conviction, the writer stated:

“The conviction is of an extremely serious nature.  There have been no disciplinary proceedings in respect of that conviction and sentence.

 

In light of the nature of the complaint/conviction, it is considered essential, following the fundamental regulatory principles of protection of the public; maintaining public trust [and] confidence in the profession as well as maintaining the reputation of the profession, that the conduct complaint submitted by Society is accepted and passed to the Society for investigation…

 

Accordingly, I would submit that there are strong exceptional circumstances which I would ask the SLCC to consider and reach the view that this complaint ought properly to be admitted for investigation”.

 

[6]        On 7 February 2012 the appellant’s solicitor sent detailed submissions to the first respondent as to why the complaint should not be accepted.  A number of arguments were advanced in the letter.  It was claimed, in particular, that the appellant had not been a solicitor at the time when he committed the embezzlement or on the dates when he was convicted and sentenced, and was not a solicitor at the time of the letter.  Consequently it was said that the second respondent had no locus in the matter because the appellant had ceased to be a solicitor prior to the offence for which he was imprisoned.  The appellant had tendered his resignation from the roll of solicitors on 8 April 2002, but that resignation had not been accepted pending resolution of certain outstanding matters; those matters had, however, been concluded and consequently, it was submitted, the resignation had become effective.  Furthermore, the appellant had again tendered his resignation on 20 May 2005, when there were no matters pending.  He had again tendered his resignation on 6 June 2005 and again in November 2009, he had not renewed his practising certificate since 2002, and he had not attempted to act as a solicitor since February 2002.  On that basis he was not a solicitor and was not subject to the jurisdiction of the second respondent.  It was also indicated that the appellant had served his sentence and had repaid the sum that he had embezzled.  Moreover, the second respondent had been aware of the criminal prosecution for a very substantial time and had failed to take disciplinary proceedings.  Reference was made to the fundamental objectives of time bar and to the European Convention on Human Rights and the principles that underlie articles of the Convention.

[7]        On 19 March 2012 the first respondent issued its determination under section 4(1) of the 2007 Act.  It was to the effect that, although the normal time-limit of one year had not been met, there were exceptional circumstances for accepting the complaint against the appellant for investigation.  Consequently it was determined that the complaint should not be rejected under section 4(1) but should be remitted to the second respondent for consideration.

[8]        The appellant has appealed to the court against the foregoing determination of the first respondent.  He originally advanced eight separate grounds, but at the hearing no reliance was placed on two grounds based on article 11 of the European Convention on Human Rights.  We propose to deal with the six remaining grounds individually.

1.  Whether the appellant remained a solicitor at the time of the conduct complained of or at the time of conviction: consequences for first and second respondents’ jurisdiction

[9]        As already mentioned, the appellant tendered his resignation from the roll of solicitors on 8 February 2002, before the acts of embezzlement that formed the subject of the charges against him and before he was convicted and sentenced for those charges.  He tendered his resignation on a number of subsequent occasions, by which time, it is said, there were no outstanding matters that might justify retaining his name on the roll of solicitors.  The second respondent did not accept the appellant’s resignation at any point and his name remains on the roll of solicitors.  Nevertheless, the appellant contends that as a result of his resignation he was no longer a solicitor at the time of the relevant conduct, and his retention on the roll of solicitors was unlawful.  Consequently, it is said, neither the second respondent nor the first respondent had any jurisdiction to embark upon disciplinary proceedings against him;  the first respondent’s decision of 19 March 2012 to accept the second respondent’s complaint against the appellant was therefore vitiated.

[10]      In our opinion this contention is erroneous.  As a starting point, it must be emphasized that both the roll of solicitors and the powers, duties and responsibilities of the first respondent are statutory in origin.  Consequently responsibility for the terms of any entry on the roll and responsibility for correcting any inaccuracy in the roll must depend on the terms of the relevant statute, in this case sections 7-11 of the Solicitors (Scotland) Act 1980.  Likewise, the powers, duties and responsibilities of the first respondent are dependent on the provisions of Part 1 of the Legal Profession and Legal Aid (Scotland) Act 2007 (sections 1-46).

[11]      As to the legislation governing the roll of solicitors, it is clear in our opinion that responsibility for the roll, both generally and for individual entries, rests entirely with the second respondent.  As we have noted, the roll of solicitors is governed by sections 7-11 of the Solicitors (Scotland) Act 1980.  Section 7(1) provides that the Council of the second respondent “shall continue to be the registrar of solicitors and shall keep at the office of their secretary a roll of solicitors (in this Act referred to as ‘the roll’)”.  Section 7 further provides that the roll is to consist of the names of all solicitors entered on it, with their places of business.  Section 8 obliges the Council of the second respondent to enter the name of a person on the roll when he or she is admitted as a solicitor.  Section 9(1) in its present form provides that an enrolled solicitor who wishes his name to be removed from the roll may make an application to the Council of the second respondent in that behalf, and the Council “shall remove the name of that solicitor…from the roll”.  Section 9(2) goes on, however, to state that the Council are required to remove the name

“only if they are satisfied that –

(a) the solicitor has made adequate arrangements with respect to the business which the solicitor then has in hand, and

 (b) it is otherwise appropriate to do so”.

 

Prior to 1 May 2011, section 9 was in somewhat different terms, as follows:

“An enrolled solicitor who wishes his name to be removed from the roll of solicitors may make an application to the Council in that behalf, and the Council shall…on the solicitor [sic] satisfying the Council that he has made adequate arrangements with respect to the business he has then in hand, remove the name of that solicitor…”.

[12]      Those provisions make it clear that it is the second respondent, and the second respondent alone, who is responsible for maintenance of the roll of solicitors.  Nothing in the legislation governing the roll gives the first respondent any powers or duties in respect of entries on the roll.  The second respondent is given wide powers of control over the roll, and accordingly there is no reason to imply any incidental powers of control on the part of the first respondent.  Indeed, it would make little sense administratively to have more than one body responsible for keeping the roll.  It follows that the first respondent cannot be compelled to make any correction to the roll of solicitors.  To the extent that a person may wish to challenge or correct or alter an entry on the roll, he must apply to the second respondent.  If the second respondent refuses or fails to take action, the appropriate remedy is judicial review of the decision of the second respondent.  An example of such procedure is found in Danskin v Council of the Law Society, 2002 SLT 900, discussed below at paragraph [19].

[13]      As noted above, the powers, rights and duties of the first respondent are found in Part 1 of the Legal Profession and Legal Aid (Scotland) Act 2007.  Section 2 of that Act provides as follows:

“Receipt of complaints: preliminary steps

(1) Where the Commission receives a complaint by or on behalf of any of the persons mentioned in subsection (2) -

(a) suggesting -

(i) professional misconduct or unsatisfactory professional conduct by a practitioner other than a firm of solicitors or an incorporated practice;

…

it must… take the preliminary steps mentioned in subsection (4).

(2) The persons are  -

(a) as respects a conduct complaint, any person;…

…

(4) The preliminary steps are –

(a) to determine whether or not the complaint is frivolous, vexatious or totally without merit;

(b) where the Commission determines that the complaint is any or all of these things, to –

(i) reject the complaint;

(ii) give notice in writing to the complainer and the practitioner that it has rejected the complaint as frivolous, vexatious or totally without merit…”.

 

Section 46(1) defines “practitioner”, the crucial word used in section 2(1)(a)(i), as including

“(g) a solicitor, whether or not the solicitor had a practising certificate in force at that time and notwithstanding that subsequent to that time the name of the solicitor has been removed from or struck off the roll or the solicitor has ceased to practice or has been suspended from practice”.

 

If the complaint is not rejected as frivolous, vexatious or totally without merit within the terms of section 2(4)(a), the first respondent is obliged by section 5 to determine whether it is a conduct complaint or a services complaint.  If it is a conduct complaint, the relevant category in the present case, the first respondent is obliged by section 6 to remit the complaint to the relevant professional organization, which in the case of the appellant would be the second respondent.

[14]      Thus section 2, read with the following sections, sets out the sifting jurisdiction of the first respondent.  It says nothing about the roll of solicitors, and confers no powers or responsibilities in relation to the roll.  The sifting jurisdiction applies to a “practitioner”, a term defined in section 46(1)(g).  At this point reference is made to the roll:  it is provided that the definition applies to a solicitor even after he has been removed from or struck off the roll.  That is a clear indication that the definition of “practitioner” in relation to solicitors is intended to be of wide application.  That conclusion is further reinforced by the statements that it is irrelevant whether or not the solicitor has had a practising certificate or has ceased to practice or has been suspended from practice. 

[15]      These provisions raise a question as to the tempus inspiciendum for the application of the definition of “practitioner”.  In our opinion this must be the time of the conduct about which the relevant complaint has been made.  The intention of the definition is in our view that the jurisdiction of the first respondent to consider and sift a complaint against a solicitor will exist if at the time of the conduct that gives rise to the complaint the solicitor’s name was on the roll; being on the roll at that time is used as the criterion for the first respondent’s powers and jurisdiction.  This is understandable, because the function of the first respondent, and of the second respondent when exercising its disciplinary functions, is to maintain and enforce proper standards of conduct among solicitors.  It is therefore status as a solicitor at the time of the conduct in question that ought to be decisive.  The roll defines who has the status of a solicitor, in a definitive and public manner.  Thus the enforcement of proper standards should apply to all those who are on the roll;  otherwise conduct by persons who are publicly to be regarded as solicitors may fall outwith the disciplinary system.  In this way the existence of a solicitor’s name on the roll is central to the sifting jurisdiction.  Nevertheless, for the reasons discussed in paragraph [12] above, the first respondent has no powers or responsibilities in relation to the roll.

[16]      In the present case the appellant’s name was on the roll of solicitors at the time when the embezzlement occurred, between March and May 2003 and in January 2004.  For the reasons stated above, we are of opinion that for the purposes of the present proceedings that fact is decisive.  In terms of section 46(1)(g) it is irrelevant whether the appellant’s name was or should have been removed from the roll subsequently; he was on the roll at the time of the conduct complained about, and that is all that is required to establish the first respondent’s sifting jurisdiction.  If the appellant had wished to make a complaint about having his name on the roll, he could have raised proceedings for judicial review against the second respondent, as was done in Danskin v Council of the Law Society, supra, but he did not do so.

[17]      Consequently it is not strictly necessary to consider whether the appellant’s name should have been on the roll of solicitors at that time.  It appears to us, however, that his name was properly on the roll.  Power to have a solicitor’s name removed from the roll is found in section 9 of the Solicitors (Scotland) Act 1980, which is quoted at paragraph [11] above, both in its present form and in the form that it had until 30 April 2011.  In its present form the section makes it clear that the second respondent is not obliged to remove a solicitor’s name from the roll unless it is satisfied, first, that the solicitor has made adequate arrangements with respect to his business in hand, and secondly, that “it is otherwise appropriate to do so”.  That provision makes it clear, expressly, that at the present day the second respondent has a wide power to refuse to remove a solicitor’s name from the roll.  In the earlier form of section 9, the words that we have just quoted were absent.  Nevertheless, we are of opinion that even in that earlier form section 9 allowed the second respondent an element of discretion as to whether or not a solicitor’s name should be removed from the roll.  A solicitor who wanted that to happen had to satisfy the second respondent that he had made adequate arrangements with respect to the business that he had in hand, but that was plainly designed to ensure that the solicitor’s current business was properly dealt with, so that clients were not left unrepresented.  In some cases, however, the objection to removing a solicitor’s name from the roll might have nothing to do with protecting existing clients but rather to ensure that proper standards, ethical and professional, were observed by all solicitors.  In particular, we consider that under the old wording the second respondent could quite properly refuse to remove a solicitor’s name from the roll if that were considered necessary to ensure that a complaint of significant wrongdoing was properly investigated.  This conclusion is supported by a purposive and contextual interpretation of the section.  If it were not so there would have been an obvious danger that a solicitor who knew that he faced a complaint of serious misconduct might have his name removed from the roll with a view to avoiding disciplinary proceedings.  (This was at a time prior to the enactment of the Legal Profession and Legal Aid (Scotland) Act 2007, which makes it clear that subsequent removal from the roll will not prevent disciplinary proceedings).  It appears to us to be clear that that is a result that the second respondent was fully entitled to avoid, by refusing for good cause to remove a name from the roll.

[18]      Furthermore, it is obviously of importance that those on the roll of solicitors should be persons with the necessary professional, intellectual and moral qualities.  This is an important purpose underlying the existence of the roll.  It is a purpose, however, that extends not only to those who are on the roll but those who may leave it.  A person who has been on the roll of solicitors may subsequently rely on the fact that he was formerly on the roll.  As a practical example of this, a person whose name has been removed from the roll might attempt to find work in another area where legal qualifications are helpful, such as business or commerce or finance; or he might attempt to find work as an unqualified lawyer in an overseas jurisdiction.  A person seeking work in this way has an obvious interest in presenting himself as someone who has resigned voluntarily from the roll, rather than someone who has been removed from the roll as a result of disciplinary procedures.  It is therefore important that the basis on which a person’s name is removed from the roll should be accurately determined, as it may be relied on in future.  If it were possible to resign from the roll and thus avoid disciplinary procedures, this policy could readily be evaded by a solicitor who knew that he faced disciplinary proceedings.

[19]      We realize that this approach to the legislation differs to some extent from that taken in Danskin v Council of the Law Society, supra.  In that case a solicitor who had been convicted of sexual offences sought to have his name removed from the roll, but the Law Society refused.  The solicitor then sought judicial review.  It was held that under section 9 all that the solicitor required to do was to satisfy the Law Society that he had made adequate arrangements for the business that he then had in hand, and questions relating to other matters were irrelevant: see in particular paragraph [16].  It was argued on behalf of the Law Society that they had a discretion to refuse to grant the solicitor’s application.  This argument was rejected: see paragraph [41].  The ground for doing so was that section 9 was clear and unambiguous in its terms; that section stated that the Council of the Law Society “shall” remove the name of the solicitor if satisfied as to the arrangements for business then in hand.  It was accepted that, in view of the power in section 1(3) to do anything incidental or conducive to the exercise of the Law Society’s functions, it might be possible to defer consideration of an application, but refusal was not permitted.  In our opinion this involves an excessively literal interpretation of section 9.  The word “shall” has frequently been construed as permissive rather than mandatory; for example, Stroud's Judicial Dictionary of Words and Phrases (7^th ed), volume 3, pages 2522-2525, gives 17 examples of cases where the word has been so construed, usually with reference to the underlying policy of the Act in question.  In the present case, we are of opinion that the policy underlying the existence of the roll of solicitors demands that the second respondent should have an element of discretion as to whether a request to remove a solicitor’s name from the roll should be granted, at least immediately.  Provided that good cause exists for doing so, we consider that the second respondent should be entitled to refuse a request for removal.  The likelihood of significant disciplinary proceedings would clearly provide a sufficient reason.  Under the new wording of section 9, this result seems to be quite clear.

[20]      The appellant originally attempted to resign from the roll of solicitors on 8 April 2002.  Prior to that date, however, the second respondent had written to his solicitor to intimate that its Council had not been satisfied by the appellant as to the arrangements that he had made in connection with the transfer of his practice to another solicitor, as no information had been provided about the specific arrangements that had been completed.  That was of course a reason for refusal that was expressly provided in the older version of section 9.  Further reservations about the transfer of the appellant’s practice were expressed in a letter from the second respondent’s chief accountant to the appellant dated 20 March 2002.  Following the tendering of the appellant’s resignation, the first respondent’s secretary wrote to the appellant’s solicitor on 17 April to state that there was substantial continuing correspondence with the chief accountant, and that many matters remained outstanding that would require to be considered before the application for removal could be determined.  A similar point was made in a letter from the second respondent’s secretary on 19 April.  On 13 June the secretary wrote to the appellant’s solicitor to the effect that the second respondent’s Council had agreed that the request for removal of the appellant’s name should be deferred pending the resolution of a complaint about intromissions with client funds while not in possession of an unrestricted practising certificate.  It seems, therefore, that at this time the appellant had not satisfied the second respondent that he had made satisfactory arrangements for the transfer of his practice.  On that basis the second respondent was in our view entitled to refuse the application, although in fact the application was merely deferred.

[21]      The appellant made further requests to have his name removed by letter dated 20 May 2005 and 6 June 2005.  These were refused as the existing disciplinary proceedings, dealing with intromissions with clients’ funds, had not been concluded.  For the reasons discussed in the last two paragraphs, we are of opinion that this was a perfectly proper course for the second respondent to follow.  The appellant tendered his resignation once again in November 2009.  By that stage the appellant had been convicted of embezzlement, and there was an obvious possibility that disciplinary proceedings might be in contemplation.  On that basis, we are of opinion that the second respondent was fully entitled to refuse the request by the appellant to have his name removed from the roll.  We repeat, however, that this is not necessary for our decision.

 

2.  Whether the first respondent properly addressed issues of jurisdiction raised on the appellant’s behalf

[22]      The appellant further contends that issues of jurisdiction were raised by his solicitor in a letter sent to the first respondent on 7 February 2012, and that in its decision the first respondent failed to deal with those matters.  It is correct that the question of whether or not the first respondent had jurisdiction to consider the complaint against the appellant was raised by the appellant’s solicitor.  The consideration given by the first respondent to those issues is quite immaterial, however.  As a matter of logic, if jurisdiction exists, the first respondent has power to consider the complaint and can proceed to do so.  Its reasons for reaching that conclusion are immaterial; indeed, even if there is an error of law in its reasoning, that does not alter the central proposition that jurisdiction exists.  If, by contrast, no jurisdiction exists, the first respondent has no power to consider a complaint, and once again its reasoning processes are immaterial.  We have held that jurisdiction exists, and that means that the first respondent has power to consider the complaint.  Consequently the present ground of challenge must be rejected.

 

3.  Whether the first respondent was correct to weigh the public interest against questions of jurisdiction

[23]      A further contention for the appellant is that, by purporting to weigh the public interest against questions of jurisdiction, the first respondent acted irrationally.  The answer to this contention is essentially the same as that discussed in the last paragraph.  If as a matter of law jurisdiction exists, the first respondent can consider the complaint, and any error of law that the first respondent may have made in concluding that it had jurisdiction is immaterial.  We have concluded that the first respondent has power to consider the complaint against the appellant for reasons that have nothing to do with the public interest.  We accordingly reject this ground of challenge.  The public interest may be significant, however, when the first respondent considers whether exceptional circumstances exist that justify a complaint’s being received late.  We consider this matter below at paragraphs [30] and [31].

 

4.  Whether the first respondent gave adequate reasons for its decision

[24]      The appellant further argues that the reasons given by the first respondent for its decision were inadequate.  The conduct of the appellant about which the complaint is made took place in 2003 and 2004.  The appellant was convicted of embezzlement on 25 August 2009, following a plea of guilty.  He was sentenced on 5 October 2009.  No complaint was made by the second respondent to the first respondent until 15 June 2011, approximately 22 months after the date of conviction.  Section 4 of the Legal Profession and Legal Aid (Scotland) Act 2007 provides that the first respondent is not to take action in respect of a complaint that is not made timeously.  Rule 4(6) of the Rules of the Scottish Legal Complaints Commission 2009 provides that a complaint made more than one year after the misconduct or conviction appears to have occurred will not be accepted unless the first respondent considers that the circumstances are exceptional.  It had been submitted by the appellant’s solicitor that the test of exceptional circumstances was not satisfied, but the first respondent nevertheless held that that it was.  Before the court, counsel for the appellant submitted that the first respondent had not given adequate reasons for this decision.

[25]      Rule 4(6) of the Rules of the Scottish Legal Complaints Commission 2009 provides as follows:

“A complaint will not be accepted (unless the Commission considers that the circumstances are exceptional) if it is made more than 1 year after the professional misconduct, unsatisfactory professional conduct or conviction suggested by it appears to have occurred…”.

 

The first respondent accordingly required to address the question of whether exceptional circumstances existed so as to justify acceptance of a complaint outwith the one-year time period.  That is a critical element in the decision, and obviously adequate reasons must be given.  In its decision of 19 March 2012, after setting out the terms of rule 4(6) the first respondent gave its reasons as follows:

“3.2 While the complaint was not submitted by the LSS within the SLCC’s time limits, the SLCC has determined that the complaint nevertheless is to be accepted for investigation.  This is because the SLCC considers that the serious nature of the conviction and the requirement to protect the public and maintain their confidence in the profession would amount to an exceptional circumstance.  Accordingly, this complaint is not time-barred in terms of section 4(1) of the Legal Profession and Legal Aid (Scotland) Act 2007.

 

3.3 The SLCC considers that exceptional reasons for not making a complaint earlier may include… being reasonably unaware of the issue being complained about and reasons of public interest.

 

3.4 It is the view of the SLCC that members of the public place their trust in the legal profession, often at times of personal loss and crisis, and expect that their legal representative will act in their best interests.  Members of the legal profession therefore play a critical role in the administration of justice in Scotland and must abide by the law.

 

3.5 Mr Karus was convicted of a serious crime of dishonesty, impinging on the relationship of trust between a client and practitioner.  His actions brought the profession into disrepute and caused serious reputational damage.

 

3.6 The public have a right to be protected from members of the legal profession who act in a criminal fashion and so does the profession.  There is therefore an expectation that the body responsible for regulating the activities of the legal profession should instigate disciplinary proceedings against members who are in serious breach of their standards of conduct.

 

3.7 Having considered the additional documentation received from Mr Karus’ representative on 9 February 2012, it is accepted that the Law Society of Scotland’s complaint has been made more than 12 months after conviction.  However, for all of the reasons given above, the SLCC are of the view that reasons pertaining to public interest in this case outweigh the 9 major considerations detailed by [the appellant’s solicitor] in his letter to the SLCC and this complaint is accordingly not time-barred due to the exceptional circumstances of this complaint”.

 

[26]      The test for assessing the adequacy of reasons given by a body such as the first respondent is well established.  The standard formulations is that of LP Emslie in Wordie Property Co Ltd v Secretary of State for Scotland, 1984 SLT 345, at 348:

“The decision must, in short, leave the informed reader and the court in no real and substantial doubt as to what the reasons for it were and what were the material considerations which were taken into account in reaching it”.

 

That test was recently applied in the context of a decision by the first respondent in Murnin v Scottish Legal Complaints Commission, [2012] CSIH 34; 2013 SC 97.  The complaint was time-barred by approximately one month, but the first respondent decided that exceptional circumstances existed, on the basis of “the need to establish the specifics of the complaint and the gravity of the allegations”.  It was held that such reasoning was adequate to satisfy the Wordie test;  the appellant would have little difficulty in identifying that the gravity of the alleged misconduct was the reason for considering the circumstances to be exceptional: see Lord Carloway at paragraph [37].

[27]      In the present case we are of opinion that the first respondent’s reasoning is plainly sufficient to satisfy the test in Wordie.  It is clear from the statement of reasons quoted above that the primary reason was that the appellant was convicted of a serious crime of dishonesty which impinged directly on the relationship of trust between solicitor and client.  That brought the profession into disrepute, and struck at the trust that the public ought to have in the legal profession.  We do not think that any informed reader could be in any significant doubt as to what the reason was.  For the appellant it was submitted that the reasons given by the first respondent were very short by comparison with the lengthy letter sent by the appellant’s solicitor, which advanced nine separate reasons for not proceeding with the complaint.  We do not think that this is relevant.  In deciding whether exceptional circumstances existed, the first respondent required to look at the case as a whole.  They stated that they had considered the arguments advanced in the letter from the appellant’s solicitor, but in support of their decision to admit the complaint they focused on the serious nature of the appellant’s conduct and the consequences that that had for the profession and the public’s trust in the profession.  In our view that was all that required to be said.  That was the decisive consideration, outweighing all the other factors that had been referred to, and it appears clearly from the terms of the decision.  We also draw attention to the shortness of the reasons given in Murnin, which were held to be sufficient.  We accordingly reject this ground of challenge to the first respondent’s decision.

 

5.  Whether the first respondent erred in law in holding that exceptional circumstances justified receiving the complaint out of time

[28]      The appellant further contends that the first respondent erred in law in holding that there were exceptional circumstances that justified receiving the complaint out of time.  His counsel drew attention to a number of factors that were relevant to the present complaint.  The delay in taking proceedings in the present case was substantial; in Murnin v Scottish Legal Complaints Commission, supra, the complaint had only been one month late, whereas in the present case it was late by about 10 months.  In the present case no reasons had been advanced by the second respondent for the delay in making a complaint; indeed there was no indication that the second respondent had done anything after becoming aware of the misconduct.  The second respondent had supplied the first respondent with inaccurate and misleading information about the time when it became aware of the complaint (see paragraph [4] above).  The appellant had already been the subject of criminal proceedings, which resulted in a substantial period of imprisonment;  thus the requirement that the appellant’s conduct should be investigated and that appropriate punishment should be meted out was irrelevant.  Finally, any sanction imposed by the Scottish Solicitors’ Discipline Tribunal would necessarily be limited because the appellant had not held a practising certificate for more than 10 years.  It was submitted that in its decision to accept the complaint the first respondent had failed to have regard to those factors in a proper manner.

[29]      In Murnin v Scottish Legal Complaints Commission, supra, the first respondent required to consider a complaint that a solicitor was guilty of professional misconduct or unsatisfactory conduct as a result of overcharging of fees, thus creating a deficit on his firm’s client account.  The complaint was time-barred by approximately one month, but the first respondent decided that exceptional circumstances existed.  For the appellant it was submitted that Murnin should be distinguished in the present case, for a number of reasons: the complaint in Murnin was only one month late; an explanation had been given for the delay in that case, namely the need to establish the details of the complaint, but none had been given here; criminal proceedings had taken place in the present case, which meant that events had been investigated and the appellant had been punished; and the sanctions available against the appellant were limited in the present case, but as he had no intention of practising in future.

[30]      Notwithstanding the arguments that were presented, we are of opinion that the first respondent’s decision discloses no error of law.  In considering whether exceptional circumstances existed, the first respondent required to look at all material considerations.  These obviously included the factors that were referred to in the letter from the appellant’s solicitor, which broadly correspond to those advanced by counsel before the court.  In its decision the first respondent stated that these had been taken into account, and we have no reason to disbelieve or disregard that statement.  Nevertheless, the appellant had been convicted of the embezzlement of a large sum, £413,052.81.  An offence of that nature clearly strikes directly at the relationship of trust that must exist between a solicitor and his clients.  Furthermore, it is a matter that affects the standing and public reputation of the legal profession generally.  It is apparent from the first respondent’s decision that this factor was regarded as decisive.  In our opinion it was open to the first respondent to balance a factor of this gravity against the various other arguments that were presented and to conclude that it outweighed them.  That is sufficient to hold that the first respondent did not err in law.

[31]      In addition, we are of opinion that none of the factors relied upon by the appellant is of such weight that it might outweigh the gravity of the offence and the need to maintain public trust in the profession.  The delay in raising proceedings in the present case amounted to one year and 10 months after the date of conviction, which is accepted as the appropriate starting point.  The 10 months beyond the normal limit is unlikely to have caused any significant prejudice to the appellant, as by the loss of evidence.  Even if it did give rise to prejudice, that is a factor that the appellant could rely on in the substantive proceedings before the Scottish Solicitors’ Discipline Tribunal.  The fact that no explanation was given for the delay may be regrettable, but we are unable to say that it outweighs the consideration relied on by the first respondent.  The fact that criminal proceedings resulted in a thorough investigation of the case and the punishment of the appellant is potentially relevant, but it does not address the proposition that the proper regulation of profession requires the relevant professional body to take action, separately from any criminal proceedings.  Professional disciplinary procedures and the criminal law, while they may overlap to some extent, ultimately serve quite different purposes, and in determining an appropriate sanction different factors may be relevant.  For this reason we do not understand how the completion of criminal proceedings can remove the need to consider the disciplinary implications.

[32]      We do not accept that the limitation on the sanctions available to the Scottish Solicitors’ Discipline Tribunal is of decisive importance.  The first respondent held that the disciplinary proceedings were necessary in themselves to retain public confidence in the profession and its system of discipline.  We cannot fault this reason in any way.  Disciplinary proceedings also serve as a deterrent for other solicitors in the future.  Finally, we can easily envisage circumstances in which the imposition of a disciplinary sanction would be important.  As mentioned in paragraph [18] above, a former solicitor might attempt to obtain work in another area where financial probity is important, and the fact that an individual has been struck off the roll of solicitors, rather than leaving the profession voluntarily, may be significant.

 

6.  Whether the first respondent acted irrationally in failing to have regard to the absence of explanation by the second respondent for the delay in lodging the complaint

[33]      It was submitted in behalf of the appellant that the first respondent had failed to have regard to the absence of any explanation from the second respondent as to the delay in making a complaint against him; in that way it is said that the first respondent acted irrationally.  In our opinion this argument is not well founded.  The absence of an explanation for delay is, we accept, a factor that may be relevant in considering whether exceptional circumstances exist to override the time limit.  Nevertheless, the exercise that the first respondent performs is twofold: first, in deciding whether exceptional circumstances exist, and secondly, if such circumstances exist, deciding whether they are sufficient to overcome the normal time-limit.  In the present case the first respondent decided that the gravity of the embezzlement amounted to an exceptional circumstance.

[34]      The second part of the exercise was then relevant: was that factor sufficient to overcome the normal time-limit?  The various factors founded on by the appellant, including those discussed in paragraphs [31] and [32] above, are relevant at this stage.  The absence of an explanation is one such factor.  In some cases it might possibly be a decisive factor.  For example, if an unexplained delay appeared to have caused a significant risk of prejudice, as through the loss of evidence, that might well be critical in holding that the exceptional circumstances did not outweigh the importance of the normal time limit.  This is not such a case, however.  It was not suggested that the delay in this case had caused prejudice, and its total duration, 10 months beyond the normal limit, is not particularly long.  In these circumstances we find it impossible to see how the absence of any explanation could be a decisive factor.  There is delay, but it is not especially serious.  Consequently the first respondent was fully entitled to hold that the seriousness of the complaint and the importance of maintaining public trust in the profession were decisive.  This ground of challenge must accordingly be rejected.

 

Conclusion

[35]      For the foregoing reasons we hold that the appellant has failed to establish any material error of law on the part of the first respondent, nor any other ground of challenge to the first respondent’s decision to accept the complaint against the appellant for investigation.  We will accordingly refuse the appeal.