Scots lawyer who represented Apprentice candidate found guilty of professional misconduct

Jane Steer, 45, was censured by the Scottish Solicitors’ Discipline Tribunal (SSDT) after she notarised an affidavit without her client Sharon McAllister being present and placed under oath.

Ms Steer had emailed a statement to her client, which confirmed that she and her child had relocated to England, but the affidavit which was signed and returned before being lodged in process bore to be sworn at Falkirk on a date when Miss McAllister had denied being in Scotland, and a sheriff took that into account in concluding that she was “not a credible and reliable witness”.

The tribunal found Ms Steer, a former partner with RMS Law LLP, guilty of misconduct for lodging an affidavit which contained “false or misleading information”.

The tribunal heard that in January 2010 Miss McAllister’s former partner Craig Middleton raised an action at Alloa Sheriff Court for contact in relation to their child and subsequently made a motion asking the court to find his ex in contempt of court over her failure to obtemper court orders for interim contact.

Miss McAllister instructed Ms Steer to oppose the motion and the solicitor advised her that she had been ordered to appear at Alloa Sheriff Court on 12 October 2012.

At the hearing the court ordained Miss McAllister to provide details of her address within seven days, but it was 12 days later when Ms Steer made a digital recording to be typed by the firm’s office manager, dictating an affidavit in her client’s name, which confirmed that Miss McAllister and her child were living at an address in Hertfordshire.

Ms Steer asked the office manager to email the document to the client for signing, and Miss McAllister’s returned the signed affidavit five days later.

The lawyer then signed the affidavit as a notary public and lodged it with the court, but as a result the statement purported to have been deponed by Miss McAllister and notarised by Ms Steer at Falkirk on 29 October 2012.

Following further court procedure the contact and contempt actions went to proof.

In her judgment in the contact action the sheriff noted that Miss McAllister was adamant that she only returned to Scotland on one occasion between September and December 2012 when ordained to appear at Alloa Sheriff Court on 12 October, but she observed that the affidavit bore to be sworn at Falkirk later that month.

The sheriff said she was unconvinced by Miss McAllister’s evidence about the timing of her relocation to Hertfordshire, her return trips to Clackmannanshire and her future intentions about where she intended to live, work and send her child to school.

Thereafter Ms Steer wrote to Miss McAllister to advise that she had “made a mistake” in relation to the affidavit and that she required to withdraw from acting given the sheriff’s findings.

Her firm RMS Law also wrote the Scottish Legal Complaints Commission explaining that they were aware that Ms Steer had notarised an affidavit without the client being present or placed under oath, and that the time and place of execution was a significant factor in the sheriff’s assessment of Miss McAllister’s credibility, as she had denied being in Scotland on a day when her sworn testimony suggested otherwise.

The firm considered that Ms Steer was acting “so far out with what could reasonably be expected of a solicitor that she was off on a frolic of her own”.

Miss McAllister, who was later jailed in May 2015 for contempt of court over her failure to allow contact between her child and his father, complained to the Law Society, and in her response Ms Steer confessed to having made a mistake, stating that “for some reason the statement was drawn in the form of affidavit and sent to Miss McAllister for signing but without instructions as to how an affidavit should be signed and sworn”.

However, she had expressly instructed its preparation and that it be sent via email for signature.

The tribunal considered that Ms Steer’s conduct “clearly amounted to professional misconduct” as she failed to act with trust and integrity in the preparation of the affidavit and failed to provide a full and frank explanation to the Law Society.

In a written decision, tribunal vice chairman Alan McDonald said: “The established proper practice for the swearing of an affidavit is clear. A completed document should be before the deponent and the notary, the deponent should then swear that the content of the statement are true, and the deponent and the notary should immediately sign the document.

“This procedure was not followed on this occasion. The procedure exists to allow greater reliance to be placed upon notarised documents. In this case the sheriff appears to have relied upon the document in question and this may have been to the detriment of the secondary complainer.

“The tribunal considered that the respondent’s response to the Law Society at the outset of their investigation did not make clear that the affidavit had been prepared and sent to the secondary complainer for signature on the respondent’s express instructions. The tribunal considered that her response was therefore lacking in candour and was in breach of a solicitor’s duty to act with trust and personal integrity at all times.

“It is the duty of a solicitor to uphold the higher standards of the profession and where a solicitor acts as a notary that solicitor has a further duty to the court to ensure that his conduct is beyond reproach. The actings of the respondent on this particular occasion fell far below that required standard and in these circumstances a finding of professional misconduct is appropriate.”

However, he added that the tribunal was of the view that in the circumstances, the “appropriate penalty” was censure.