Scots lawyer guilty of professional misconduct after acting for husband and wife in separation

The Scottish Solicitors’ Discipline Tribunal censured the lawyer for acting for the two clients where there was a “blatant conflict of interest”.

The tribunal heard that the respondent Gerard McCarron, a principal in private practice as a partner of McCarron & Co in Airdrie, had acted for Mr & Mrs A for around 30 years in relation to conveyancing matters, when in November 2011 he accepted instructions to act on their behalf to draft a Minute of Agreement to regulate their financial affairs on separation, with a view to divorce.

Mr McCarron drafted the document, which comprised a full and final settlement of all financial claims and was a renunciation and discharge of all rights the parties had in the future against each other.

The minute was executed by both parties and witnessed by the respondent, on the assurance that it was an “amicable separation” and that all matters had been agreed between the estranged couple, before he later submitted an invoice to each party for their share of the cost of the agreement.

However, at no time prior to execution did he record on file any advice to either party that he could not act for either or advise either to take separate legal advice, nor did he seek input from a solicitor or advocate with the requisite family law expertise.

After the minute had been executed Mr McCarron continued to correspond with the parties in relation to compliance with the agreement and in June 2013 Mrs A told him that she wished to vary the minute, effectively seeking to reduce the assets Mr A was to receive, after she discovered that her husband was having an affair.

The respondent subsequently corresponded separately with each party and met with them separately on a number of occasions to ascertain whether variations to the minute could be agreed, but at no time during this period did he identify a conflict or advise both parties to seek separate legal representation.

It was only in November 2013 when Mrs A instructed another firm and agency was transferred from the respondent that he acknowledged to Mrs A’s new solicitors that he was “not normally involved in this type of business”.

Mr McCarron claimed the parties had been told at the time to consult separate agents but had refused to do so but there was nothing on the respondent’s file to indicate such advice was given.

He then continued to act for Mr A, despite a complaint having been lodged with the Scottish Legal Complaints Commission (SLCC) against him by Mrs A in relation to the conflict of interest in acting for them both.

The tribunal found him guilty of professional misconduct for agreeing to act for them both despite the “obvious conflict of interest” and for having “no requisite expertise or competence in family law”.

It also found that he failed to seek any professional external advice as to the appropriateness of his acting for either or both parties.

In a written decision, vice chairman of the tribunal Colin Bell said: “The issues of conflict of interest are fundamental to a solicitor’s practice… It should have been clear from the outset that there was a conflict of interest between both clients in the drawing of the separation agreement.

“Whilst it has been said that the solicitor was persuaded to act for both parties on the basis that the clients had stated that they were in agreement with regard to the content of any separation agreement, any experienced solicitor should have recognised the potential for a conflict of interest.

“Thereafter, when things between the clients were no longer amicable, the respondent had continued to act for both of them.

“This conduct was clearly inexcusable and clearly fell below the standard to be expected of a competent and reputable solicitor to a degree that could only be considered serious and reprehensible.”

He continued: “Separately, the respondent had agreed to act in an area of law where he had no experience whatsoever. This had no doubt contributed to his failure to identify a blatant conflict of interest.

“This element of the complaint separately in the tribunal’s view represented conduct falling below the standard of conduct to be expected of a competent and reputable solicitor.”

In considering disposal, the tribunal accepted the respondent’s explanation that he had had acted with the “best of intentions” and noted his “considerable previous record of good conduct”.

Mr Bell said: “Whilst the respondent may well have taken on these instructions as a result of a desire to help both clients, a desire to help a long established client cannot justify a departure from his professional obligations, duties and standards.

“The finding of professional misconduct in itself will have a significant effect on the respondent, tarnishing a previously good record. In all of these circumstances, the tribunal concluded that the matter could be dealt with appropriately by way of a censure.”