Scots lawyer loses appeal after being struck off for professional misconduct

Lady Dorrian
Lady Dorrian

A Scots lawyer who has was found guilty of professional misconduct has failed in an appeal against a decision to strike him off the roll of solicitors.

Cameron Fyfe, a former partner at Ross Harper Solicitors, was barred from practising as a solicitor in September 2016 for breaching accounts rules.

He claimed that the decision by the Scottish Solicitors Discipline Tribunal (SSDT) to remove his name from the solicitors’ roll was “grossly disproportionate”, but the Inner House of the Court of Session dismissed his appeal.

The Lord Justice Clerk, Lady Dorrian, sitting with Lord Bracadale and Lord Drummond Young, heard that the SSDT found Mr Fyfe guilty of professional misconduct over the way finances at the Glasgow-based firm were handled before it was dissolved 2012.

The tribunal found that between April 2008 and May 2011 when he resigned from the firm, Mr Fyfe “permitted to be operated or acquiesced in a policy whereby the business … was improperly funded” by payments received from the Scottish Legal Aid Board (SLAB) in respect of fees and outlays due to third parties, in clear breach of the accounts rules.

He also countersigned an accounts certificate in May 2010 which “he knew or ought to have known was inaccurate and from which the true financial position of the firm was not evident to the Law Society of Scotland”.

The tribunal also heard that payments “in the region” of £70,000 were supposed to be made to an Edinburgh-based law firm, but the cash was only paid when a legal action was raised.

At the tribunal hearing, it was accepted by the fiscal that the petitioner did not instigate the system and that it had been in use for many years, but Mr Fyfe admitted that his actions were in breach of the Solicitors (Scotland) Account etc. Rules 2001 as well as the Code of Conduct and Practice Rules for Scottish solicitors, and that they constituted professional misconduct.

However, senior counsel for the petitioner submitted that the decision to remove his name from the roll of solicitors was “grossly disproportionate” in the circumstances.

It was argued that the respondent erred in that it incorrectly found that there was dishonesty, or at least failed to recognise that this was not a case in which dishonesty was averred.

The tribunal also failed to distinguish the case of the petitioner and his level of culpability from that of the cash room partner against whom similar complaints had been established, as Mr Fyfe had “no managerial role” during the relevant period and “no involvement in the management or running of the cash room”.

Further, it was submitted that the SSDT adopted an “erroneous approach” to the question of sanction and that it erred in concluding that its only choice was between suspension and removal from the roll, as it has never been suggested that the petitioner presented any risk to any member of the public.

However, the appeal judges upheld the decision of the SSDT after observing that the essential qualities of a solicitor are “honesty, truthfulness and integrity” and that the petitioner “seriously compromised his integrity” by “acquiescing in a deceitful course of conduct designed to conceal the true financial situation of the firm”.

Delivering the opinion of the court, the Lord Justice Clerk said: “Acquiescence requires knowledge. In our view the argument that the tribunal was not entitled to proceed on the basis that the petitioner’s knowledge extended to the general operation of the scheme and its consequences is not tenable.

“In our view the tribunal’s approach reflects that it understood, and was entitled to understand, that there was no suggestion of dishonesty in any criminal sense. That accords with the reference to the absence of personal gain, namely that there was no question of individual misappropriation of property for personal financial benefit.

“However, the tribunal found that the petitioner had taken part in a deceitful course of conduct over a period of years. We are satisfied that the facts as known and admitted by the petitioner justified such findings.

“Acquiescing in the practice in question could not in our view be described as anything but deceitful. The fact that the tribunal did not make, and were not asked to make, a finding of dishonesty does not prevent a conclusion that the conduct was deceitful.”

As to the role of the petitioner, it was true that he did not have a managerial role in the firm at the relevant time and that he did not initiate the system, but the fact that he did not personally sign any cheques or examine the ledgers was of “no real moment given his admission of knowledge and acquiescence in the scheme”.

In relation to the penalty, the judges were unable to conclude that the disposal was one which was not reasonably open to the tribunal on the facts before it.

Lady Dorrian added: “The tribunal indicated that it had considered carefully the mitigation and the testimonials but had nevertheless reached the conclusion that striking off was the only suitable method of protecting the reputation of the profession and enabling public confidence therein to be maintained.

“In our opinion, the tribunal was entitled to consider that the range of options was restricted to suspension or removal and, on the facts of the case, its conclusion that removal was the appropriate sanction is not one which we could describe as inappropriate or disproportionate. In these circumstances the appeal will be refused.”

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