Robson v The Council Of The Law Society Of Scotland & Anor [2007] ScotCS CSIH

"The Tribunal took account of the fact that the allegations against the Respondent could affect his right to be a solicitor but the Tribunal had to weigh the interests of the Respondent against the public interest in having matters dealt with. The matters had been outstanding for some time and the Respondent had been given the unusually long period of eight weeks for lodging Answers which he had failed to comply with. The Respondent had left it until the day of the hearing to move for an adjournment and the Tribunal considered that he had been given enough latitude and that the matter should proceed. The Tribunal took account of the doctor's letter produced by the Respondent but this letter did not say that the Respondent was unfit to attend the Tribunal. The Tribunal was of the view that even if the case was adjourned it was unlikely that the Respondent would co-operate with the process. Although the Respondent had an avoidance strategy difficulty he was still clearly able to write letters and articulate a view and appeared to be able to work as a tennis coach. The Notice of Hearing sent to the Respondent warned him that if he did not attend matters could proceed in his absence. The Tribunal accordingly refused the Respondent's motion to adjourn."

[30 ] Mr Dunlop dealt first with the medical certificate on which the petitioner relied in seeking an adjournment. He pointed out that although it attributed the petitioner's "avoidance strategy" (by which we understand the doctor to mean the steps taken by the petitioner with a view to avoiding the Complaint coming to a hearing) to "depressive mood disorder", it did not express an opinion that the petitioner was physically or mentally unable to attend the hearing. Mr Dunlop pointed to the petitioner's ability to make lengthy written submissions in support of his position (see the letters of 10 February and 22 March 2005). He emphasised that one reason given by the petitioner for not attending the hearing was his tennis coaching commitment (see Statement 1 of the petition, Appeal Print, page 7A-B, and the second of the two letters written by the petitioner on 22 March 2005). The motion to adjourn had to be considered in the context that the petitioner had not challenged the factual basis of the Complaint, either in response to the Council's correspondence and statutory notices, or by lodging Answers. The factual basis of the Complaint was simple, and could readily have been challenged, if that had been the petitioner's position. That, however, had not been done, and the motion to adjourn therefore came in the context of a Complaint the factual basis of which was undisputed. There was no reason to adjourn when there was no challenge to the factual basis of the Complaint. The refusal to adjourn was only material if adjournment would have made a difference. In the absence of any stated defence on the merits of the Complaint in this appeal process (Mr Dunlop making this submission before the petitioner made his attempt to introduce his argument going to the merits of the Complaint), it could not be said that adjournment would have made a difference. Mr Dunlop acknowledged that, even without a challenge to the merits of the Complaint, the petitioner would have been entitled to make, at an adjourned diet, submissions in mitigation of penalty, but submitted that the fact that the petitioner had been deprived of that opportunity did not prejudice him, because anything that he might have said at an adjourned diet could be said in the course of this appeal (McMahon v Council of the Law Society of Scotland 2002 SC 475). The Tribunal had been entitled to take the public interest into account in determining whether to grant the motion to adjourn. Mr Dunlop pointed out that history was repeating itself; in the proceedings which gave rise to the previous appeal (Robson (2005)) the petitioner had similarly failed to lodge Answers and had, on the day before the Tribunal hearing, requested an adjournment. In all the circumstances the Tribunal had been entitled to refuse the motion for adjournment.

[31 ] The petitioner in response on this issue referred to his letter to the Clerk to the Tribunal dated 10 February 2005 in which he referred to various alleged health problems which he had experienced, and to his letter of 22 March requesting the adjournment. He said that on the day of the Tribunal hearing he was in no fit state to appear and present his case to the Tribunal. The date of the hearing had been fixed unilaterally by the Tribunal. The Fiscal had made application to rely on affidavit evidence. He thought that the Tribunal should have fixed a date for a hearing on that application. The Fiscal should have intimated a list of witnesses. The Tribunal had stated no cogent reasons for refusing the motion for adjournment.

[32 ] In our opinion the motion to adjourn has to be viewed in the context of the position adopted by the petitioner in relation to the Complaint. Having failed to answer the Council's correspondence and the statutory notices, he had not lodged Answers, in spite of being allowed an unusually long time within which to do so. The Tribunal was therefore dealing with a motion to adjourn a hearing into an uncontested Complaint. In so far as refusal of the motion to adjourn would deprive the petitioner of the opportunity of putting forward a plea in mitigation of penalty before the Tribunal, we accept the submission that the unrestricted scope of the appeal to this court (McMahon) means that any resulting prejudice can be elided by submissions in the course of the appeal.

[33 ] In the light of the terms of the letter of 10 February, the Tribunal had given the petitioner fair warning that any motion to adjourn for health reasons would have to be supported by a soul and conscience certificate from a medical practitioner. Although the petitioner did submit such a certificate, it came not from a medical practitioner who had been involved in investigating the conditions which the petitioner claimed to have, but from a locum practitioner who had not seen him until the day before the hearing. The certificate showed that the doctor recognised that the petitioner was indulging in an avoidance strategy, although he expressed the view (on what basis, if any other than the petitioner's assertion, is not clear) that it "was likely to be due to depressive mood disorder". The Tribunal was in our opinion entitled to note that the certificate did not say that the petitioner was unfit to attend the hearing. The petitioner's claim to have been "in no fit state" to appear at the hearing is not borne out by the medical certificate. If he felt unable to conduct his own case, he could have appeared to make that point to the Tribunal. In any event, one reason given by the petitioner for his not attending the hearing was his contractual commitment to tennis coaching.

[34 ] We see no force in the procedural points mentioned by the petitioner in his submissions to us. The Tribunal did fix the date of the hearing unilaterally, but it was entitled to do so. The petitioner was given over a month's notice of the date, and did not suggest until the eve of the hearing that the date was unsuitable or inconvenient. The Fiscal gave almost three weeks notice of his application to lead affidavit evidence. In the Fiscal's letter of 3 March the petitioner's attention was drawn to the possibility of his making representations against the application. The petitioner had no reason to suppose that a separate hearing on that application would be arranged. The terms of the last paragraph of his letter of 22 March do not suggest that he had expected there to be a separate hearing. Had he applied his mind to Rule 10 of the Scottish Solicitors' Discipline Tribunal Procedure Rules 2002, he would have seen that that Rule authorises the Tribunal to proceed on affidavit evidence if they determine to proceed in absence against a solicitor who does not appear. So far as the petitioner's complaint about the absence of a list of witnesses is concerned, it took no account of the terms of the Fiscal's letter to the Clerk to the Tribunal dated 3 March 2005, which was copied to the petitioner on the same date, and which identified the witnesses whom the Fiscal intended to lead.

[35 ] The Tribunal rightly took account of the seriousness of the hearing from the petitioner's point of view. They also rightly took into account the public interest in expeditious disposal of such disciplinary proceedings. The reasons given by the Tribunal for refusing the motion to adjourn were in our opinion coherent. We reject the petitioner's submission that they lacked cogency. The Tribunal's decision on the point was, in our opinion, within the proper scope of the Tribunal's discretion. In the light of the submissions made to us, we have reviewed the merits of the motion to adjourn, and have concluded that, for the reasons which we have set out, it was rightly refused.

(b) An independent and impartial tribunal

[36 ] In Statement 2 of the petition the petitioner advanced the submission that the Tribunal is not an independent and impartial tribunal, as required by Article 6 of the Convention. Mr Dunlop in his submissions therefore addressed that issue and referred inter alia to the fact that a similar submission by the petitioner had been rejected in Robson (2005). When the petitioner came to address us, he was asked whether he maintained the position expressed in the petition. He indicated that he would leave the matter to the court. We understood that to be an indication that, while he did not abandon the point, he did not wish to make any oral submissions in support of it. In these circumstances, we can deal with the point briefly.

[37 ] Mr Dunlop drew our attention to the passage in the opinion of the court delivered by Lord Kirkwood in Robson (2005) at paragraphs 26 to 30 in which a similar argument advanced by counsel on the petitioner's behalf had been rejected. He submitted that for the same reasons the submission should be rejected in the present case. For the reasons given by the court in paragraphs 26 to 28 in Robson (2005) the petitioner had not made out his contentions that the Tribunal was not independent because the members of it lacked security of tenure, and lacked the appearance of impartiality because the Council nominated the solicitor members of the Tribunal, and were at the same time the prosecutor before it. For the reasons given in paragraph 30, the fact that two members of the Tribunal had been members of the Tribunal which dealt with previous proceedings against the petitioner (Robson v The Council of the Law Society of Scotland 2002 SC 487 ("Robson (2002)")) did not yield the inference that they lacked the appearance of impartiality.

[38 ] Mr Dunlop further submitted that, if, contrary to his primary submission, the Tribunal was not in itself an independent and impartial tribunal, this court was now recognised as having full jurisdiction in an appeal under section 54 of the 1980 Act and the availability of such an appeal therefore satisfied the requirements of Article 6. In that connection he referred to Tehrani v United Kingdom Central Council for Nursing, Midwifery and Health Visiting 2001 SLT 879 at 890-91, paragraphs 56 to 61; Ghosh v General Medical Council [2001] 1 WLR 1915 at 1923, paragraphs 32 and 34; McMahon at 479C-H, paragraphs 13 to 16; Robson (2002) at 492, paragraph 12; Sutherland-Fisher v Law Society of Scotland 2003 SC 562 at 569, paragraph 22; and Robson (2005) at 136, paragraph 29.

[39] We see no material difference between the contentions under Article 6 formulated in the present petition and those rejected by the court in Robson (2005). We hold that the Tribunal is an independent and impartial tribunal which complies with the requirements of Article 6. If that were not so, the requirements of Article 6 would be met by the right of appeal to this court, a court of full jurisdiction. The authorities cited by Mr Dunlop amply bear out that alternative submission. This aspect of the appeal therefore fails.

(c) Penalty

[40 ] The petition contains no averments directed against the penalty imposed by the Tribunal, although the prayer invites the court to "impose such other penalty" as it thinks fit. Mr Dunlop proceeded on the basis that the question of whether the penalty imposed was excessive or inappropriate was before the court in the appeal. The petitioner made brief submissions on the point.

[41 ] Having explained its grounds for finding the petitioner guilty of professional misconduct, the Tribunal, in the Note appended to the interlocutor of 23 March 2006 explained its approach to penalty as follows:

"It is imperative if the public is to have confidence in the legal profession that solicitors act honestly at all times and in such a way as to put their personal integrity beyond question. In this case the Respondent deliberately acted in breach of an agreement with his client. His conduct is regrettably disgraceful and dishonourable and brings the profession into disrepute. The Respondent further took fees to account without intimating a fee note to the executors in breach of Rule 6 of the Solicitors (Scotland) Accounts Rules 1997. The Tribunal has also made it clear on numerous occasions that failure to respond to the Law Society hampers the Law Society in the performance of their statutory duty and brings the profession into disrepute. The Tribunal was particularly concerned to note two previous Findings of professional misconduct against the Respondent where he had failed to respond to the Law Society. The Tribunal noted that the failures to respond to the Law Society in this case arose in December 2002 which was after the Tribunal findings issued on 8 October 2002 when the Tribunal had taken a very serious view of the Respondent's failure to respond to the Law Society and failure to comply with previous undertakings given on his behalf to the Tribunal that he would comply in future. Even after two previous Findings against the Respondent he still failed to respond to the Law Society. This taken together with the Respondent's acting in a dishonest fashion in charging fees in excess of that agreed with his client brings the Tribunal to conclude that the Respondent is not a fit and proper person to remain on the Roll of Solicitors in Scotland."

[42 ] Mr Dunlop submitted that the proper approach in relation to penalty was for this court to look at the tribunal's decision in the whole circumstances of the case, always having due respect for the expertise of the Tribunal and giving to their decision such weight as was thought appropriate; respect for the views of the specialist tribunal was particularly important where the case related to specialist matters of professional practice (McMahon, page 479, paragraphs 14 and 16). The present case did not, however, involve any such specialist matters of professional practice. There were, he submitted, four important factors pointing to the penalty selected being appropriate and necessary in the public interest.

(1) There was a clear element of lack of integrity and probity. Of that, the Tribunal was entitled to take a serious view. In McMahon at 480F, paragraph 21, the court said:

"where money is taken from the client account dishonestly, we find it difficulty to see how the penalty can be anything other than striking off.

(2) The second aspect of the behaviour of the petitioner in respect of which he had been found guilty of professional misconduct was in respect of failure to respond to correspondence from the Council. That had repeatedly been recognised by the court as a serious matter (Robson (2002) at 491-50, paragraphs 7 to 9; and Robson (2005) at 138, paragraph 36).

(3) There was a lamentable history of analogous misconduct. In both the previous cases, an element of the misconduct of which the petitioner was found guilty was failure to respond to correspondence from the Council.

(4) The purpose of the sanction imposed by the Tribunal was not primarily punitive, but rather was designed for the protection of the public and the preservation of public confidence in the profession (Bolton at 518H). That the effect of a striking off order on the solicitor or his family will be "little short of tragic" does not make a striking off order wrong if it is otherwise right; "The reputation of the profession is more important than the fortunes of any individual member" (Bolton at 519E).

In all these circumstances the striking off order made by the Tribunal was the right order for it to have made.

[43] In brief submissions on this aspect of the case, the petitioner referred to the fact that he had been a member of the solicitors' profession for twenty five years before any complaint was made against him. He had brought the appeal with a view to salvaging some vestige of his reputation. He felt "hard done by" by the profession. The previous order restricting his practicing certificate had in practice meant that he was precluded from practicing as a solicitor. That would be put beyond doubt by the striking off order. The effect was seriously to restrict his ability to earn an income and support his family. The proceedings had cost him £17,000.

[44 ] In our opinion the sanction imposed by the Tribunal was one which they were justified in imposing. The charges of professional misconduct of which the petitioner was found guilty must be seen against the background that on 7 November 2001 the petitioner had been found guilty by an earlier Tribunal of professional misconduct in respect of repeated failure to respond to requirements for information from the Council. He was fined £5,000 and it was directed that for a period of three years any practising certificate would be subject to a restriction limiting him to acting as a qualified assistant. On 15 March 2002 that disposal was upheld on appeal in this court (Robson (2002)). On 8 October 2002 the petitioner was again found guilty of professional misconduct in respect of further failures to respond to requests for information from the Council. Although the Tribunal on that occasion ordered that his name be struck off the Roll of Solicitors in Scotland, that sanction was, with some hesitation, quashed on 24 November 2004 on appeal to this court, and replaced with a further direction that for five years any practising certificate would be subject to a restriction limiting him to acting as a qualified assistant (Robson (2005)).

[45 ] The charge relating to the fees taken from the executry, although it did not involve the charging of an excessive fee, did involve a clear element of dishonesty in that it involved the taking of a larger fee than had been agreed with the client, in breach of that agreement and without notice to the client by the issuing of a fee note as required by the Accounts Rules. We note the observation of the court in Robson (2005) that in cases of dishonest appropriation of funds from the client account, striking off can rarely be inappropriate. In this case there was the important additional element of failure to respond to correspondence about the complaint from the Council. That is, in itself, a serious matter for the reason expressed by the Tribunal in its Note. It is particularly serious in the context of the history outlined in paragraph [44] above. It has been recognised as serious by the court, particularly in Robson (2005). The petitioner's submissions related to the impact of the striking off order on his personal circumstances. We appreciate that striking off may have unfortunate consequences for the circumstances of the petitioner and his family. It seemed to us that the adverse consequences had largely flowed from the sanction imposed in Robson (2005). In any event, while we do not go so far as to hold that personal circumstances are irrelevant, we agree with the view expressed in Bolton that adverse personal circumstances may have to yield to the public interest. This is such a case. In all the circumstances, we are of opinion that the sanction imposed by the Tribunal was the appropriate one to mark the gravity of the petitioner's professional misconduct.

Result

[46 ] We therefore refuse the prayer of the petition.

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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Robson v The Council Of The Law Society Of Scotland & Anor [2007] ScotCS CSIH_89 (07 December 2007) URL: http://www.bailii.org/scot/cases/ScotCS/2007/CSIH_89.html Cite as: [2007] CSIH 89, [2007] ScotCS CSIH_89

Scottish Court of Session Decisions