Scots lawyer wins appeal against Law Society’s ‘unsatisfactory conduct’ ruling

Scottish Legal News

A Scots lawyer has successfully challenged a decision of the Council of the Law Society of Scotland to uphold a complaint of “unsatisfactory conduct” made against him.

Alan Strain was ordered to pay a fine of £1,000 after he was found to have made a “misrepresentation” to a client in preparing a tender, over the potential involvement of another solicitor in providing certain legal services.

However, the Scottish Solicitors’ Discipline Tribunal quashed the determination and the direction after accepting his explanation for the basis of the tender.

The tribunal heard that the appellant, who was admitted as a solicitor in Scotland in 1990, was a partner with various firms including Biggart Baillie LLP from December 1997 until November 2010.

He also worked as a fee paid employment judge before emigrating in September 2014 to Australia, where he was now employed as special counsel by Mullans Lawyers in Brisbane.

While working at Biggart Baillie in April 2009, he was the solicitor responsible for preparing and lodging a tender for legal services made by the firm.

The appellant, who was a partner in the litigation department, had prepared a tender for the Scottish Children’s Reporter Administration as the firm’s contract with the agency was up for renewal.

The tender was divided into four areas of services with a team of personnel designed for each area.

One of these teams was described as the core team and included in the list the name of the complainer David Kidd, but he was off work due to ill health at the time and had been suspended from sharing in the firm’s profits, but remained a partner of the firm.

At the time of completing the tender for the SCRA, which was one of Mr Kidd’s main clients, the appellant was advised by a partner of the firm who was involved in the negotiations with the complainer that there was a possibility of him returning to work as a consultant.

The lead person for the team was Mr Kidd’s associate and no specific function was allocated to the complainer, although he was the only partner listed in the core team.

However, Mr Kidd left the firm in 2010 and complained about his former colleague’s conduct.

The crux of the complaint taken by the Law Society’s Professional Practice Sub-Committee was whether or not the content of the tender amounted to a misrepresentation to the client, although the clients themselves had not suggested that they were misled by the content of the tender.

They concluded that the complainer would never be a partner in the firm providing the services outlined in the tender where he was the only partner listed.

But Mr Strain considered that the decision was “so wrong he had to challenge it”.

An investigating reporter had recommended that there was “no case to answer” and he had anticipated that the sub-committee would endorse that recommendation.

He argued that the decision “didn’t set out a proper basis for the conclusion”.

It had “completely disregarded” the evidence from him and another colleague regarding a meeting with SCRA in 2009, during which Mr Strain explained to the agency that Mr Kidd was off work due to ill health and they did not know when or if he would be back.

The tribunal allowed his appeal after concluding that the appellant’s conduct as described in his evidence supported that the content of the tender “reflected the appellant’s state of knowledge at the time”.

In a written decision, tribunal chairman Alistair Cockburn said: “The tribunal accepted the appellant’s evidence that he had been advised that negotiations were taking place that included the possibility of a consultancy.

“That being the case the tribunal were unable to say that the appellant in including the complainer in the core team list had done so where he was aware that there was no prospect of the complainer ever becoming available to provide the core services.”

The tribunal concluded unanimously that the complaint of unsatisfactory professional conduct was not made out.

Mr Cockburn added: “On that basis, the tribunal unanimously decided to quash the determination and direction of the Council of the Law Society of Scotland.”