Solicitors who breached Accounts Rules suspended for five years

The Scottish Solicitors’ Discipline Tribunal (SSDT) considered the complaints dated 31 December 2015 at the instance of the Council of the Law Society of Scotland against Michael Dryden Kerr and Martin Young Kerr, both formerly of McClure and Partners, 199 St Vincent Street, Glasgow.

The tribunal found both Respondents guilty of professional misconduct in cumulo in respect of their failure to comply with Rules B6.3.1(a), B6.4.1, B6.7.1, B6.7.4 and B6.13 of the Law Society of Scotland Practice Rules 2011 and suspended them from practice for a period of five years.

The decision states: “The Accounts Rules are in place in order to provide protection to the public. Solicitors are in a privileged position of holding monies belonging to others. It is well accepted that the Tribunal will treat breaches of the Accounts Rules as a serious matter. The question here was whether the breaches proved here individually amounted to professional misconduct. The test to be satisfied is that the conduct proved represents a departure from the standards to be expected of a competent and reputable solicitor that would be regarded as serious and reprehensible.

“In relation to the breaches of rules B6.3.1(a) and B6.4.2, which run together, the evidence before the Tribunal reflected a deliberate course of conduct by the two Respondents. Over a period of 4 months money was removed from the client account putting it into deficit in the course of the month and then shortly before the month end, money was transferred back into the client account to put it back into surplus. This represented deliberate breaches of the Accounts Rules, executed in such a way that suggested full knowledge on the part of the Respondents. This part of the Complaint in itself, in the view of the Tribunal, amounted to professional misconduct.”

It adds: “The Tribunal found this a difficult case in relation to its approach to the appropriate disposal. The case was presented to the Tribunal on the basis that there was no dishonesty or deception on the part of the Respondents yet the conduct described was clearly deliberate, calculated and carried out in full knowledge of the Accounts Rules. If there had been evidence before the Tribunal of dishonesty on the part of the Respondents then the Tribunal would, without hesitation, have struck both names from the Roll of Solicitors in Scotland. However, the case was presented to the Tribunal on the specific basis that there was not dishonesty of the part of the Respondents.

“The matter was further complicated by the absence of the Respondents. The course of conduct was relatively short although that may have been due to the timing of the Financial Compliance Department inspection. The deliberate breach of Rule B6.3.1(a) (running the client account in deficit) is clearly a very serious matter. The Tribunal were advised that no client had in fact incurred any loss. It was difficult for the Tribunal to gauge any degree of remorse or insight given the absence of the Respondents. However, the Tribunal did have before it letters of explanation from the solicitor for both Respondents which indicated that the firm had been wound up in such a way that no party incurred any loss. This could be said to be an indication of some remorse or insight.

“There was however no getting away from the serious nature of what was very clearly deliberate and calculated behaviour. In these circumstances the Tribunal unanimously concluded that the appropriate disposal was one of suspension of both Respondents from practice. Such a step was necessary to underline the importance of the protection of the public and to maintain public trust in the profession. The Tribunal concluded that the appropriate period for suspension was one of 5 years. The Fiscal moved for expenses. There being no information before the Tribunal otherwise, that motion was granted. The Fiscal indicated to the Tribunal that there was no reason to depart from the usual order with regard to publicity.”