Scottish Solicitors Discipline Tribunal

Lynsey Ann McLean

A complaint was made by the Council of the Law Society of Scotland against Lynsey Ann McLean, solicitor, Falkirk. The Tribunal found the respondent not guilty of professional misconduct and remitted the complaint to the Society in terms of s 53ZA of the Solicitors (Scotland) Act 1980.

There was a secondary complainer in the case, Simon John Black Hutchison, Hutchison Law, Falkirk, with whom the respondent had been in partnership. The Tribunal heard evidence over a number of days from a number of witnesses including the respondent and the secondary complainer. It generally preferred the evidence of the respondent to that of the secondary complainer. In this case the respondent had removed files from the partnership office, but the Tribunal accepted that when she did so she thought that this would be temporary depending on the outcome of sequestration proceedings against the secondary complainer. The Tribunal did not find that the respondent’s conduct in taking the files was reckless. It accepted that she took the files covertly and without knowledge of her partner, but found that the secondary complainer, by his actings, had breached the duty to communicate with other members of the profession and was himself in breach of the standards of conduct, in particular rule 1.14.1. Accordingly in the exceptional circumstances the Tribunal did not find the respondent’s action in taking the files dishonest.

The Tribunal is not indicating that it is in order for solicitors to embark on removing files from partnership offices, either before or during a dissolution of a partnership. But where a partner through their conduct indicates that they are not prepared to be bound by their obligations as a partner, this destroys the required trust and confidence that must exist in a partnership and it is difficult to expect that the innocent partner should act with propriety to the benefit of the partner who acts improperly, provided always that the client’s interests are protected and any real risk to clients is properly managed and controlled. Any individual partner however, if contemplating removing files from an office in such a situation, will remain at risk that his/her conduct may amount to professional misconduct. The Tribunal considered that the respondent’s conduct in this case might amount to unsatisfactory professional conduct and accordingly remitted the case to the Society.

Solicitor B

A complaint was made by the Council of the Law Society of Scotland against solicitor B. The Tribunal found the respondent guilty of professional misconduct in respect of his entering into a sexual relationship with a vulnerable client referred to him by Organisation 1 and his acting in a manner that raised issues as to his trustworthiness and placed into question his personal and/or professional integrity; and in respect of his entering into a sexual relationship with a client who was vulnerable thereby allowing his independence to be impaired, failing to act in the best interests of his client, allowing his own personal interests to influence his actings on behalf of his client, creating a potential conflict of interest situation and failing in his duty of utmost trust and confidence. The Tribunal censured the respondent and fined him in the sum of £5,000.

The Tribunal found this to be a difficult case and considered its decision on sanction very carefully. It noted that the complaint from the client was not raised until the relationship had ended. However the Tribunal was considering the respondent’s conduct in continuing to act after he had entered into a sexual relationship with his client. The respondent was dealing with a vulnerable client in a divorce action. He should have known better and committed a serious error of judgment by continuing to act. The Tribunal did not consider that the respondent acted improperly from a legal point of view, as he just kept matters ticking over. However, it considered that the most serious aspect of the respondent’s misconduct was his breach of Organisation 1’s trust. The respondent was considered to be a trusted adviser and the Tribunal considered his abuse of this position to be very damaging to the reputation of the profession.

Having found the respondent guilty of professional misconduct and that Organisation 1 was directly affected, the Tribunal directed that the respondent provide a verbal apology to the manager and board, to be followed up with a written apology. The Tribunal found that the client had been directly affected by the respondent’s misconduct and ordained the respondent in terms of s 53(2)(bb) of the Solicitors (Scotland) Act 1980 to pay her the sum of £250 by way of compensation.

As the matter had had a high profile in the local area and the Tribunal considered there was a real risk that further publicity would adversely affect the client and her children as well as Organisation 1, in the exceptional circumstances it ordered that the parties’ names be not publicised.