Scottish Solicitors' Discipline Tribunal

A complaint was made by the Council of the Law Society of Scotland against Gerard James McCarron, McCarron & Co, Airdrie. The Tribunal found the respondent guilty of professional misconduct in respect of his accepting and acting on instructions where he had insufficient competence and appropriate skills, acting for two clients in drawing up a separation agreement where there was a clear conflict of interest at the outset, continuing to act when parties were clearly no longer in an amicable situation, and thereafter continuing to act for one client where the other had instructed alternative solicitors and had complained to the SLCC. The Tribunal censured the respondent.

Issues of conflict of interest are fundamental to a solicitor’s practice. It is for the solicitor to identify any conflict, not a client. It should have been clear from the outset that there was a conflict of interest between both clients in drawing the separation agreement. Whilst it was said that the solicitor was persuaded to act as the clients had stated they were agreed as to the content of any agreement, any experienced solicitor should have recognised the potential for conflict of interest. Continuing to act for both clients when things between them were no longer amicable was clearly inexcusable and fell below the standard to be expected of a competent and reputable solicitor to a degree that could only be considered serious and reprehensible. Separately, the respondent had agreed to act in an area of law where he had no experience. This had no doubt contributed to his failure to identify a blatant conflict of interest. This should emphasise the importance of a solicitor only accepting instructions in an area of law where he has some experience and competence. Whilst the respondent might have taken on these instructions as a result of a desire to help both clients, a desire to help a long established client could not justify a departure from his professional obligations, duties and standards. The Tribunal concluded that the matter could be dealt with appropriately by way of a censure.