Inner House refuses appeal against solicitors’ tribunal decision to dismiss complaint

The Inner House of the Court of Session ruled that the Scottish Solicitors’ Discipline Tribunal (SSDT) was “justified” in finding that the lawyer’s actions did not amount to “unsatisfactory professional conduct”.

The Lord Justice Clerk, Lady Dorrian, sitting with Lord Drummond Young and Lord Glennie, heard that the petitioner Alistair Hood made a complaint of unsatisfactory professional conduct to the Scottish Legal Complaints Commission (SLCC) against “WR”, a partner in WR & Co Ltd, solicitors, Glasgow.

The commission referred the conduct part of the complaint to the respondents, the Council of the Law Society of Scotland, which in May 2014 decided not to uphold the complaint – a determination which was confirmed by the Scottish Solicitors’ Discipline Tribunal by interlocutor dated 12 February 2015 following an appeal.

The petitioner appealed to the Court of Session against that interlocutor of the tribunal, arguing that the SSDT should have upheld issues 1 and 3 in the complaint and should accordingly have found WR guilty of unsatisfactory professional conduct.

The court was told that in 2013 WR was acting for the petitioner’s wife in a divorce action and an action for division and sale of the former matrimonial home in Glasgow, which was jointly owned by the petitioner and his wife.

The allegations in issues 1 and 3 of the complaint were that: 1. WR and the firm of WR & Co Ltd commenced marketing the property for sale “without obtaining the petitioner’s consent” or instructions and in the absence of any minute of agreement between the petitioner and his wife concerning the arrangements for sale and division of the net proceeds of sale; 3. WR purported to act for the petitioner in the marketing of the property without issuing a terms of engagement letter where that was an “actual or potential conflict of interest” in acting for both him and his wife.

The tribunal was of the view that it was clear from correspondence between the parties in 2013 that there was an “initial expectation” that a minute of agreement be drawn up and signed by the parties prior to the marketing of the property.

But it considered that it could be inferred from subsequent correspondence in that “matters had moved on” and it was “no longer necessary” for the document to be signed prior to the commencement of marketing.

A further letter from the petitioner’s solicitor to WR on 22 October 2013 clearly expressed support for the marketing of the property and the tribunal was satisfied that the Law Society sub-committee had “applied the correct test and that it was reasonable to come to the view that authority to market the property was provided by the correspondence”.

However, the petitioner submitted that in relation to issue 1 the tribunal erred in upholding the respondents’ finding that the petitioner had given instructions to WR to market the property, given that both parties had agreed that a minute of agreement regulating the marketing and sale would have to be signed beforehand.

It was also said that the tribunal erred in law in upholding the respondent’s finding that, so far as the marketing was concerned, there did not require to be an agreement in place relating to the disposal of the free proceeds of sale.

In relation to issue 3 of the complaint, the petitioner contended that, esto the letter of 22 October 2013 constituted authority for WR to act on behalf of the petitioner, the tribunal erred in law in upholding the respondents’ finding that WR had not failed to issue a “terms of engagement” letter to the petitioner at earliest practical opportunity.

However, the judges refused the appeal after ruling that the grounds of appeal advanced by the petitioner were “not well founded”.

Delivering the opinion of the court, Lord Drummond Young said: “In the present case, two issues in the complaint remain live. The first of these is that WR and his firm began marketing the property for sale without obtaining the petitioner’s consent or instructions as a joint owner, and in the absence of any minute of agreement between the petitioner and WR’s client, the petitioner’s wife, concerning the arrangements for sale of the property and division of the proceeds. The tribunal decided that, on the basis of the correspondence that was available, it was reasonable for the sub-committee to take the view that authority to market the property was provided by the correspondence considered as a whole. In our opinion that conclusion is clearly justified.

“It is not obvious why such an agreement would be required before marketing could take place. It is not unusual to find that the early stages of marketing are designed merely to discover what sort of price might reasonably be expected, and that is information that might obviously be of significance in concluding an agreement as to the disposal of the proceeds of sale. In these circumstances we consider that the tribunal and the sub-committee were justified in holding that the attitude taken by WR at this stage did not amount to unsatisfactory professional conduct.”

The judge added: “Issue 3 related to WR’s purporting to act for the petitioner in marketing the property without issuing a terms of engagement letter or marketing agreement, in a situation where there was an actual or potential conflict of interest. The discipline tribunal held that the sub-committee had taken a correct approach in making its decision on this matter. The property had been on the market for a short period before it was withdrawn from the market, and the Tribunal thought that it was reasonable to hold that a single failure to issue a terms of business letter did not amount to unsatisfactory professional conduct.

“In our opinion the tribunal’s reasoning on this matter cannot be faulted. It involved an evaluative judgment as to whether the failure to issue a terms of business letter, in the particular circumstances of the case, amounted to unsatisfactory professional conduct. That was a matter that fell particularly within the expertise of a professional disciplinary body, and we can see no reason to interfere with its decision.”