Scots legal firm successfully challenges SLCC decision to dismiss complaint against lawyer over scope of solicitor’s duty

The firm complained to the Scottish Legal Complaints Commission that the lawyer may have been guilty of professional misconduct, or at least unsatisfactory professional conduct, by making allegations of serious impropriety on the part of the appellants with no proper basis to do so.

The respondents dismissed the complaint as totally without merit because the solicitor had been acting on his client’s instructions, but judges in the Inner House of the Court of Session ruled that the commission had “erred in law”.

Lady Dorrian, Lord Drummond Young and Lord Malcolm heard that the issue arose in connection with the affairs of a deceased client of the appellants, McSparran McCormick.

The firm complained to the commission about the conduct of John McGeechan of JBM Solicitors in Airdrie, alleging that on 5 March 2014 Mr McGeechan wrote letters to the appellants, to another firm of solicitors and to a firm of chartered accountants in which it was falsely asserted that the appellants had conspired with a chartered accountant and others to commit fraud, and did indeed commit fraud.

Further letters were sent, on 24 March, 24 April, and 7 May, in which further allegations were made of deception and “collusion” between professional parties and certain members of the family of the deceased, in relation to a deed of variation.

However, the commission’s determination, which referred only to the letters of 5 March, noted that there was no suggestion that the letters were sent other than in accordance with their client’s instructions or that the factual assertions were based on anything other than the version of events provided by their clients, and that the letters were seeking information and comment from the recipients.

It concluded that in writing such a letter a solicitor did not warrant the truth of the allegations and that: “…provided that he has information to support the allegations, in this case his client’s instructions, witnesses to the handing over of the will to Mr O’Hara of the accountancy firm and counsel’s opinion, there is no duty to conduct further investigation before writing such a letter…the solicitor was plainly entitled without further enquiry to accept the account of his clients and to write the letter on that basis”.

The commission therefore dismissed the complaint as totally without merit in terms of section 2(4) of the Legal Profession and Legal Aid (Scotland) Act 2007and accordingly it was not referred to the Law Society of Scotland.

The appellants contended first, that the commission, in seeking to follow the guidance in Law Society of Scotland v The Scottish Legal Complaints Commission 2011 SC 94, did so erroneously; and secondly, that it erred in considering only the terms of the letters of 5 March; and that in any event its determination was not supported by the facts.

In terms of section 2(4) of the 2007 Act, after classifying a complaint as either a conduct complaint or a services complaint, the commission required “to determine whether or not the complaint is frivolous, vexatious or totally without merit”. On such a determination the complaint would be dismissed; otherwise it would be remitted to the Law Society for investigation.

This sifting role of the commission was considered in Law Society of Scotland v Scottish Legal Complaints Commission, in which a solicitor had written, on the instructions of his clients, asserting that the complainers had taken unauthorised access over his clients’ land, threatening interdict if they did not cease to do so.

A complaint regarding the tone of the letter, and that it was factually inaccurate, was admitted and referred to the Law Society of Scotland, which appealed against the determination, and it was held that a solicitor in the circumstances could not be said to be personally responsible for the accuracy of what he was told, not could it be said that he had any duty to carry out any independent check or checks as to whether the information he received was true.

The appellants accepted the reasoning in that case as a generality, but argued that it was “not apt to cover a situation which involved imputations of fraud or dishonesty”, particularly against a professional person for whom “the preservation of a reputation for probity and honesty was of the utmost importance”.

It was submitted that the commission’s view that the fact that a solicitor acted upon client’s instructions rendered the solicitor immune to disciplinary sanction in respect of his correspondence was an “unwarranted gloss” upon the decision in Law Society of Scotland v Scottish Legal Complaints Commission.

The respondent argued that the commission was entitled to treat the terms of the complaint as restricted to the letters of 5 March; and to dismiss the complaint as being totally without merit.

Senior counsel for the respondents submitted that: in writing the letters on clients’ instructions the solicitor did not warrant, or have responsibility for, the accuracy of what he had been told; he had no duty to carry out an independent investigation as to its truth; the commission’s duty was restricted to considering the complaint actually made; and the commission had no duty to attempt to resolve any material dispute of fact bearing upon the complaint.

However, the judges allowed the appeal and remitted the case to the SLCC.

In a written opinion, Lady Dorrian said: “The commission proceeded on the basis that whether the allegations contained in the letter were true or false was irrelevant, so long as the allegations were made on the instructions of the client, and were not based on anything other than ‘the version of events provided by the client’. The Commission considered that even if the allegations turn out to be unfounded, a solicitor was entitled to make the allegations ‘provided he has information to support the allegations’.

“In this case, the solicitor did have such information, namely ‘his client’s instructions, witnesses to the handing over of the will to Mr O’Hara of the accountancy firm’. In my view in reaching these conclusions the Commission erred in law; its decision was not supported by the facts and was irrational. If the Commission’s determination is to be read as proceeding on the basis that the letters did not assert fraud on the part of the complainers, that is a further error.”

She added: “I agree with counsel for the appellant that rejection of a complaint at the sift stage implies that it would not be open to the Law Society of Scotland to conclude that the conduct amounted even to unsatisfactory professional conduct. That decision is vitiated as having been reached on the basis of errors in law and being in certain respects unsupported by the facts found to be established by the commission. The commission’s decision is in my view irrational, in the sense that it is not one which a body such as the commission might reasonably make.”

Lord Drummond Young and Lord Malcolm agreed that the appeal should be upheld, and wrote separate concurring opinions.