EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

Act: Party

Alt: Dunlop; Balfour & Manson (First Respondents)

7 December 2007

Introduction

[1] By interlocutor dated 23 March 2005 the second respondents, the Scottish Solicitors' Discipline Tribunal ("the Tribunal"), in respect of a complaint dated 14 June 2004 ("the Complaint"), found the petitioner, Michael Gordon Robson, guilty of professional misconduct, and ordered that his name be struck off the Roll of Solicitors in Scotland. By a second interlocutor of the same date, the Tribunal in respect of a separate complaint, dated 20 February 2004, made no finding of professional misconduct against the petitioner. By this petition, presented under Rule 68.2 of the Rules of Court, the petitioner seeks to appeal under section 54 of the Solicitors (Scotland) Act 1980 ("the 1980 Act") against the decisions of the Tribunal expressed in those interlocutors.

[2] Answers have been lodged on behalf of the first respondents, the Council of the Law Society of Scotland ("the Council"). In those answers, the second plea-in-law is a plea to the competency of the appeal, so far as it relates to the complaint dated 20 February 2004. When the petition came before this court for hearing on the summar roll, the petitioner accepted that it was incompetent for him to appeal against a decision of the Tribunal which had been in his favour. He therefore did not insist in the appeal against the interlocutor disposing of the complaint dated 20 February 2004. We shall therefore sustain the Council's second plea-in-law, and dismiss the petition so far as it relates to that complaint. The prayer of the petition also seeks interdict against the Tribunal publicising its findings, a remedy which the Council aver in Answer 3 is incompetent and unnecessary (although they state no plea to the competency of that part of the prayer). In the event, the petitioner made no submissions in that connection, and we need say nothing more than that we shall therefore treat that part of the prayer as not insisted in, and shall refuse it on that ground.

The Complaint dated 14 June 2004

[3] The Complaint contained three allegations of professional misconduct within the meaning of section 53 of the 1980 Act.

[4] The primary allegation related to work undertaken by the petitioner in connection with the winding up of the estate of a former client, Charles H. R. Durham. The petitioner and two relatives of the deceased were executors, and the petitioner acted as solicitor in the executry. The Complaint narrated that the respondent agreed with John Durham, one of his co-executors, that he would charge a fixed fee of £4000 plus VAT in respect of all the work associated with the executry; that delay in the administration of the estate led to withdrawal of the petitioner's instructions; and that review of the papers passed by the petitioner to the new solicitors instructed by the executors disclosed that the petitioner, without the consent of his co-executors, and without rendering a fee note, had charged, and deducted from the executry account, fees totalling £6345 (including VAT). In respect of those events, the averments of professional misconduct alleged (a) breach of rule 6(1)(d) of the Solicitors (Scotland) Accounts Rules 1997, and (b) that the petitioner "acted in a dishonest fashion in that having reached an agreement with the co-executor in relation to the level of fee that he intended to charge regarding the administration of the estate, ... [he] ignored the agreement which was reached and chose to charge a fee which was well in excess of that which he undertook to charge, which fee he took to account from the executry funds without intimating a fee note to the executors".

[5] The Complaint also alleged professional misconduct in respect of the petitioner's failure to reply timeously, openly and accurately to the enquiries made of him by the Council concerning the affairs of the executry. We shall return to the details of that charge later.

The procedural history

(a) Before service of the Complaint

[6] By letter dated 3 December 2002 John Durham complained to the Council about the petitioner's conduct in relation to the executry. The Council formulated the complaint, and intimated it to the petitioner by recorded delivery and ordinary post on 19 March 2003. No reply was received. A number of reminders were sent, and elicited no response.

[7] In view of the petitioner's failure to respond, the Council, in June 2003, served on the petitioner statutory notices under sections 15(2)(i)(i) and 42C of the 1980 Act. The latter notice required the petitioner inter alia to provide an explanation regarding the matters to which the complaint related. The petitioner did not respond to the notices, and did not provide any such explanation.

(b) Proceedings before the Tribunal

[8] On 14 June 2004 the Council's Fiscal presented the Complaint to the Tribunal. On 11 August 2004, on the instructions of the Clerk to the Tribunal, the Complaint was served on the petitioner by Sheriff Officer. The Notice served with the Complaint appointed answers to be lodged within fourteen days.

[9] The Complaint was sisted on joint motion to await the outcome of an appeal to this court in respect of an earlier complaint. That appeal was disposed of by interlocutor dated 24 November 2004 (Robson v Council of the Law Society of Scotland 2005 SC 125 ("Robson (2005)")). The Tribunal recalled the sist on 16 December 2004, and allowed the petitioner the unusually long period of eight weeks within which to lodge answers. The petitioner did not lodge answers within that period. On 10 February 2005 he requested prorogation of the time for lodging answers by six weeks. On 18 February the Clerk to the Tribunal intimated that the Tribunal refused that application, but pointed out that any Answers lodged prior to the date of the hearing might be considered by the Tribunal.

[10] The Tribunal appointed the Complaint to be heard on 23 March 2005. Notice of that diet was served on the petitioner on 18 February 2005.

[11] On 3 March 2005 the Council's Fiscal applied to the Tribunal for leave to take the evidence of witnesses by affidavit. Rule 10 of the Scottish Solicitors' Discipline Tribunal Procedure Rules 2002 authorises the Tribunal to proceed on affidavit evidence if they determine to proceed in absence against a solicitor who does not appear. The letter by which the application was intimated to the Clerk to the Tribunal noted that the petitioner had not lodged Answers. It also identified the intended witnesses as J. Durham and a representative of the Law Society of Scotland to speak to the alleged failure to respond. That application was on the same date intimated to the petitioner so that he might make representations regarding it. He did not do so.

[12] On 16 March 2005 the Clerk to the Tribunal wrote to the petitioner expressing the Tribunal's concern that no Answers had been lodged. In view of the terms of the petitioner's letter of 10 February, which had referred to certain health difficulties which he had experienced, the Clerk advised him that, should he request any adjournment of the hearing on the basis of ill health, the Tribunal would require a soul and conscience certificate from his doctor.

[13] On 22 March 2005 the petitioner wrote to the Clerk to the Tribunal intimating that he had been unable to prepare his defence, and seeking an adjournment of the hearing set for the following day. He set out a number of grounds for his motion, including the assertions that he was suffering from a depressive mood disorder, and that he had been handicapped in his preparation for the hearing by his being bankrupt, and reference to aspects of his family circumstances. He produced a medical certificate dated 22 March 2005 by a Dr Ralph Kruger, a locum general practitioner, who had not seen him before that day. Dr Kruger expressed the view, "that [the petitioner's] avoidance strategy is very likely to be due to depressive mood disorder."

[14] When the case called on 23 March 2005 the petitioner was not present. The Tribunal adjourned briefly to allow the Fiscal to contact the petitioner by telephone. The petitioner indicated that he did not intend to attend the hearing, and would appeal if his motion to adjourn were refused. He indicated that he had a tennis coaching commitment which he was obliged to honour. The Tribunal considered and refused the petitioner's motion to adjourn. Thereafter, it proceeded with the substantive hearing in absence. It entertained Mr Durham's evidence in affidavit form. Having considered the evidence and the Fiscal's submissions, it found the petitioner guilty of professional misconduct in the respects alleged in the Complaint. It ordered that the petitioner be struck off the Roll of Solicitors in Scotland.

(c) Proceedings in this court

[15] The petition to this court was presented on 8 June 2005. Answers were lodged by the Council. On 16 August, 21 October and 20 December the court allowed periods for adjustment of the petition and answers. On the last mentioned date the petition was appointed to the summar roll for hearing. A diet was fixed for 16 and 17 May 2006. When the case called by order on 13 April 2006 the petitioner was not present. At a continued by order hearing on 26 April 2006 the summar roll diet was discharged on the petitioner's motion. A new summar roll diet was fixed for 3 and 4 October 2006. When the case called by order on 6 September 2006 the petitioner was not present. At the continuation of that hearing on 8 September 2006 the petitioner was allowed to lodge a minute of amendment. On 22 September 2006 the petition was amended in terms of the minute of amendment.

[16] On 3 October 2006 the petitioner, who had until then been unrepresented, was represented by counsel and solicitors who had only just been instructed. The petitioner's motion to discharge the diet because his representatives were not ready to proceed was granted unopposed. The petitioner was found liable in the expenses occasioned by the discharge, and payment of the expenses was made a condition precedent to further procedure.

[17] On 13 February 2007 there was laid before the court a letter dated 30 January 2007 from the solicitors who had been instructed just before the summar roll hearing on 3 October 2006 intimating that they had withdrawn from acting for the petitioner. The petitioner was ordained, under certification that if he failed to do so the petition might be dismissed, to intimate whether he intended to insist in the petition. On 28 February he intimated that he did.

[18] On 26 April 2007, on the Council's motion to dismiss the petition, the petitioner was ordained to make payment of the expenses awarded on 3 October 2006 within six weeks, failing which the petition would be dismissed. The expenses were paid on 6 June 2007.

[19] On 15 June 2007 on the Council's motion the petitioner was ordained to find caution for expenses in the sum of £8000 within six weeks. On 20 July the time for finding caution was prorogated until 13 August. The requisite sum was consigned (in lieu of caution). On 17 October 2007 the amount of consignation was reduced to £5000. A new summar roll diet was fixed for 23 November 2007.

[20] On 21 November 2007 the petitioner's motion to discharge the summar roll diet fixed for 23 November came before the court, and was continued until 23 November.

The motion to discharge the summar roll diet

[21] The continued motion to discharge the summar roll hearing fixed for 23 November 2007 was heard on that date. The basis of the motion was that the petitioner had been unable to find solicitors willing to act for him in the appeal. He laid before the court a written list of the various solicitors whom he had approached in the period from 11 October to 22 November 2007 with an account of their reasons for not accepting instructions. He indicated that counsel had been identified who was willing to act if duly instructed. No solicitor had accepted instructions, although with more time it might be that one of those contacted would do so. The petitioner invited the court to discharge the diet in order to allow him further time to instruct solicitors and counsel to conduct the appeal on his behalf. He did not offer any particular explanation of the steps he had taken prior to 11 October to obtain representation. He referred to the fact that during the period following his previous solicitors' withdrawal from acting in January 2007, he had been concerned to deal with the matter of the expenses payment of which was a condition precedent of further procedure, and thereafter with the finding of caution. He did not explain why these matters affected his ability to obtain representation.

[22] Mr Dunlop, who appeared for the Council, opposed the motion to discharge the diet. He drew our attention to the fact that this was the third such appeal in which the petitioner had been involved. He pointed to the procedural history, which we have set out in detail above, and in particular a written chronology of proceedings in this appeal, which disclosed various occasions on which the petitioner had failed to appear, and two previous discharges of summar roll diets. He pointed out that the petitioner had never disputed the factual basis of the Complaint.

[23] We refused the motion to discharge the diet. Having regard to the procedural history, we formed the opinion that the petitioner had had ample opportunity to obtain representation. Further, the scope of the appeal which would require to be argued appeared to be limited. The petitioner's interests had to be balanced against the public interest that the proceedings be brought to a conclusion. We concluded that it would not be in the interests of justice to discharge the summar roll diet for a third time, and incur the inevitable further delay of several months.

The motion to amend the petition

[24] Having refused the motion to discharge the diet, we proceeded to the hearing on the summar roll. At the joint suggestion of parties, we agreed to hear Mr Dunlop first. Having heard him, we proceeded to hear the petitioner. In the course of his submissions, the petitioner began to assert that the complaint was ill-founded in fact, and that the fees charged had been taken after his accounts had been audited by the Sheriff Court auditor, on a joint submission signed by him and his co-executor, John Durham. He made reference to the fact that the accounts disclosed a fee paid to the auditor. When it became evident that the petitioner was seeking to argue that the factual basis on which the Tribunal had upheld the complaint was incorrect, we interrupted the petitioner and pointed out to him that no such point had been focused in the petition. We suggested that if such an argument was to be advanced the petitioner would require to obtain leave to amend the petition to provide the proper foundation for the argument. The petitioner therefore moved at the bar for leave to amend.

[25] Mr Dunlop opposed that motion. He pointed out that the petitioner had never previously disputed the factual basis of the Complaint. He had failed to respond to the initial correspondence from the Council. He had made no response to the section 42C notice. He had not lodged Answers to the Complaint. He had not appeared before the Tribunal. He had not made the point he now sought to argue in the petition. That had remained the position, despite his having adjusted the petition on four occasions and amended it on 22 September 2006. In doing so he had not answered the call in Answer 1 of the Council's Answers which sought that, esto he disputed any material fact upon which the Complaint proceeded, he specify the facts he disputed and his basis for doing so. That was all despite his having had sight, shortly after the Tribunal hearing, of John Durham's affidavit, which concluded with the unequivocal statement, "At no stage after having reached an agreement regarding the level of fee did I receive any representation from [the petitioner] indicating that he wished to recover a greater sum in respect of fees". The petitioner had said nothing to counsel or the solicitors for the Council to warn them that he intended to dispute the factual basis of the Complaint. In these circumstances, it was too late for him to seek to amend to take that point in the course of the summar roll hearing.

[26] We refused the motion to amend. The petitioner was quite unable to explain to us why, if his contention was that that the Complaint was ill-founded in fact, he had never previously expressed that position. He had had ample opportunity to do so. He had not responded to the Council's correspondence or the statutory notice. In the proceedings before the Tribunal he had not lodged Answers. In this process, although he set out various grounds of challenge to the Tribunal's decision, and elaborated these in the course of adjustment of the pleadings and by amendment, no hint was given that he disputed the facts which underlay the Complaint. That was in face of the call made in the Council's pleadings, and despite the clear and straightforward terms of the Complaint, and the facts that he was aware of the terms of the accounts and had seen Mr Durham's affidavit shortly after the Tribunal hearing. He did not even mention his intention to dispute the factual basis of the Complaint when Mr Dunlop, in responding to the motion to discharge the diet, mentioned that the petitioner did not do so. It was now four years and eight months since the matter had first been raised with him, and two years and five months since this petition was presented. The point which the petitioner sought to raise was clearly contradicted by the sworn evidence of Mr Durham, which was before the court. In all these circumstances, we came to the conclusion that the petitioner's motion to amend came much too late.

The substantive appeal

[27] Mr Dunlop in his submissions identified three points taken by the petitioner on which he addressed us. When the petitioner responded to Mr Dunlop's submissions, although he made some submissions about what he described as the background, we did not understand him to raise (apart from the matter discussed above at paragraphs [24] to [26]) any issue other than those identified by Mr Dunlop. The three points which we require to consider are therefore (1) whether the Tribunal erred in refusing the petitioner's motion to adjourn the hearing on 23 March 2005, (2) whether the Tribunal was an independent and impartial tribunal as guaranteed by Article 6 of the European Convention on Human Rights ("the Convention"), and (3) whether the penalty imposed by the Tribunal was excessive or inappropriate.

(a) Adjournment

[28] Mr Dunlop submitted that the Tribunal's decision to refuse the petitioner's motion to adjourn the hearing was a reasonable decision within the scope of the Tribunal's discretion.

[29] The Tribunal's reasons for refusing the motion were set out in the Note attached to the interlocutor of 23 March 2005 in the following terms:

"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.

(See also Bolton v Law Society [1994] 1 WLR 512 at 518B-E.)

(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.