As anti-client as it gets – Lawyers self-regulation leaves many vulnerable clients without legal protection. VULNERABLE & DISABLED CLIENTS of Scottish solicitors should take note of the continuing weakness of self regulation of lawyers in Scotland, revealed in a recent report by the Scottish Solicitors Discipline Tribunal (SSDT) where it was found that a solicitor who failed his client, a dementia sufferer, and gave away her home to relatives, has kept his job while the consequences of the solicitor’s actions and those of others have led to the client’s family being forced into a costly court battle to return the property to its rightful owners.
In a recent case featured in the Sunday Mail newspaper, solicitor Gerard Durkan (45) of the Glasgow based law firm of Harper Macleod LLP appeared before the Scottish Solicitors Discipline Tribunal (SSDT) was found to have committed “serious and reprehensible” misconduct and that he had “clearly demonstrated a failure to act in the best interests of the client”.
It was reported that Durkan knew another law firm acted for Catherine Kerr and that her son Robert had legal control of her affairs, yet after receiving instructions he overturned the son’s control and transferred Catherine’s two-thirds share of her £200,000 home to her other two children.
The tribunal found Mr Durkan guilty of Professional Misconduct and fined him £1,500, yet despite the effect Mr Durkan’s actions had on the family, and the necessity of yet more expensive legal action to return the home to its rightful owner, the lawyer run tribunal pointedly REFUSED a compensation claim made by the complainer.
The complaint made to the SSDT by the Law Society of Scotland, who investigated the case put to them by the SLCC against Mr Durkan, stated : that the Respondent (Gerald Durkan) failed to issue a terms of business letter to his mother Mrs E (Catherine Kerr) in connection with her instructions to transfer her interest in her home at Property 1, which she owned jointly with the Secondary Complainer (her son);
(2) continued to act on his mother’s behalf on 6 May 2009 in connection with the transfer of title and granting a Disposition for her 2/3rds share of interest in Property 1, despite acknowledging receipt and implementing the terms of a mandate received from Messrs. Cochran Dickie, Solicitor who had been instructed to act on his mother’s behalf, on 30 April 2009;
and (3) failed to act in his mother’s best interests by accepting her instructions to transfer her share in property 1, for no consideration, to his siblings Mr A and Ms B.
The tribunal heard that the Scottish Legal Complaints Commission (SLCC) had considered the complaint and, in terms of the Legal Profession and Legal Aid (Scotland) Act 2007 Section 6, remitted the complaint to the Law Society of Scotland to investigate, which culminated in the hearing before the tribunal.
Valerie Johnston, appearing for the Law Society of Scotland in her role as it’s ‘Fiscal’, told the tribunal the complainer’s family had been caused significant concern & distress at Durkan’s actions, and alleged that Durkan had gone along with a scheme concocted by other family members to transfer Catherine Kerr’s house to their interests.
The SSDT report said : Mrs Johnston stated that the Secondary Complainer and his family were present at the Tribunal hearing and they consider that the Respondent’s failures have caused a lot of distress, concern and difficulties. Mrs Johnston explained that the Secondary Complainer’s perception was that there was a scheme devised by his brother to secure his inheritance which his sister went along with. The Respondent allowed himself to become involved in this scheme which caused a great deal of concern to other members of the family.
Mrs Johnston then advised that the Secondary Complainer and his family are not able to distinguish between the Respondent’s role in facilitating and the role of Mr A in devising the scheme. Mrs Johnston stated that she had looked at the file from Harper Macleod and had lodged this to give the Tribunal an idea of the tone of the correspondence from Mr A which was terse to say the least. Mrs Johnston submitted that he was very much a driving force in this transaction. Mrs Johnston stated that Mr A was pushing for the transfer of title to go ahead without delay but the problems ought to have been clear to the Respondent.
It was also established the solicitor,Gerard Durkan, had been communicating with his vulnerable client via her son, identified in the SSDT report as Mr A, sending correspondence to her via his address, rather than at her home and the solicitor did not seek a meeting with his client to establish whether her instructions were her
The SSDT report said : Mrs Johnston accepted that the tenor of the correspondence was aggressive. She submitted that the Respondent’s main failure was to identify that he should have ensured that Mrs E was acting independently. Mrs Johnston submitted that the Respondent should have issued a letter to Mrs E at the address where she lived. She stated that he did not do that. He sent all the correspondence to Mrs E at Mr A’s address. Mrs Johnston submitted that the Respondent should have seen Mrs E on her own and ought to have given her clear advice and followed that advice up with clear written advice and sent that to her home address.
Mrs Johnston stated that on receipt of the mandate from Cochran Dickie the Respondent should have had further concerns about Mrs E’s instructions. However what he did was to write to Mrs E at her son, Mr A’s address and email a copy to Mr A. Thereafter the Respondent ignored the mandate and proceeded with the transaction to dispose of Mrs E’s two thirds share of her home and left her in a position where the only remedy is proceedings in the Court of Session to reduce that Disposition.
Mrs Johnston stated that she had obtained information from the Secondary Complainer about the position regarding the action in the Court of Session. She advised that defences have been lodged by Mr A although not by his sister, that the adjustment period expires on 19 September 2012 and therefore the action is very much still ongoing. She explained that the action is to reduce the Disposition and both sides have Legal Aid. Mrs Johnston advised that the problem is that if Mrs E requires to go in to residential care, the local social work department have stated that they regard her two thirds of the property as her asset and so she would have to be self funded.
In response to a question from the Chairman, the Secondary Complainer advised that if his mother has to go in to social work care, and the disposition is not reduced the social work department have advised that they would pursue his brother and sister for the costs of that care.
After hearing lengthy submissions from the solicitor’s representative, William Macreath, who also brought along Professor Robert Rennie, the Client Relations Partner in Harper to support their solicitor Mr Durkan, the tribunal found that Durkan had failed to meet Catherine on her own to try to establish her true wishes. The tribunal went onto state that the solicitor should have been “aware of the possibility of manipulation of Mrs Kerr” by relatives.
Diary of Injustice readers will be familiar with solicitor William Macreath, a senior partner in the Glasgow law firm of Levy McRae who are a controlling force of the shady Legal Defence Union (LDU), an organisation set up to defend solicitors accused of failing their clients. Diary of Injustice has featured numerous reports on the Legal Defence Union HERE
William Macreath also stands accused of SEVEN COUNTS of MISCONDUCT by a Law Society reporter, and featured in a related DOI article here : Court of Session hears Legal Defence Union boss who met SLCC complaints Chief stands accused of SEVEN counts of misconduct by Law Society reporter
An independent report authored by the University of Manchester’s Law School for the Scottish Legal Complaints Commission linked the Legal Defence Union to the suicides of clients who had attempted to make claims against the Law Society of Scotland’s sinister Master Insurance Policy which protects solicitors accused of negligence. More on the University of Manchester’s report can be found here : Suicides, illness, broken families and ruined clients reveal true cost of Law Society’s Master Policy which ‘allows solicitors to sleep at night’
Diary of Injustice also investigated & reported on secret meetings held between Mr Macreath and the Scottish Legal Complaints Commission. Evidence gained via FOI requests & insider tips was published by DOI in an earlier report here : Investigation reveals Scottish Legal Complaints Commission’s links, secret ‘off the record’ dealings with lawyers lobby group Legal Defence Union
The full findings of the Disciplinary Tribunal in the complaint against Mr Durkan and the lengthy defences submitted by the solicitor’s Legal Defence Union representative can be read online here SSDT report : Law Society of Scotland v Gerard Durkan : or at the SSDT website here : Law Society v Gerard Durkan
The Interlocutor issued by the SSDT on 30 August 2012, although curiously only published recently, states: The Tribunal having considered the Complaint dated 4 June 2012 at the instance of the Council of the Law Society of Scotland against Gerard Durkan, Solicitor, Harper Macleod LLP, Solicitors, The Ca’D’Oro, 45 Gordon Street, Glasgow;
Find the Respondent guilty of Professional Misconduct cumulatively but not severally in respect of :
(1) his failure to issue a terms of business letter to a client for work undertaken on her behalf in respect of the transfer of title to her home with the result that the client, whom he knew or ought to have known was a vulnerable person, his partner having identified a diagnosis of dementia, and therefore susceptible to manipulation by her family, and could not safely or reasonably have been assumed by the Respondent to be fully aware of what actions in respects of her rights in the property or otherwise the Respondent was undertaking on her behalf or the consequences thereof;
(2) his failure to act in the best interests of his client , a vulnerable person who was susceptible to manipulation by her family;
(3) his taking instructions from her through her son who was to benefit from the transfer of the title to her home without providing her directly with advice at any time on the implications of her actions or the alternatives available to her;
(4) his continuing with the transfer of title in the face of a mandate terminating his agency;
(5) his writing to the client after receiving the mandate without the consent of the new solicitors she had instructed;
(6) his failure to meet with his client on her own to satisfy himself of her instructions;
(7) his arranging for his client to sign the documentation for the transfer of title without providing her with advice particularly about the consequences of this in relation to her right of residence;
(8) his remitting the signed documentation to solicitors acting for the disponees notwithstanding that he had received and had purported to obtemper a mandate which terminated his agency;
Censure the Respondent; Fine him in the sum of £1,500 to be forfeit to Her Majesty; Find the Respondent liable in the expenses of the Complainers and of the Tribunal including expenses of the Clerk, chargeable on a time and line basis as the same may be taxed by the Auditor of the Court of Session on an agent and client, client paying basis in terms of Chapter Three of the last published Law Society’s Table of Fees for general business with a unit rate of £14.00; and Direct that publicity will be given to this decision and that this publicity should include the name of the Respondent.
Edinburgh 30 August 2012. The Tribunal having considered the Complaint dated 4 June 2012 at the instance of the Council of the Law Society of Scotland against Gerard Durkan, Solicitor, Harper Macleod LLP, Solicitors, The Ca’D’Oro, 45 Gordon Street, Glasgow; and having considered the Secondary Complainer’s claim for compensation make no order for compensation.
The Sunday Mail report on the case :
Sunday Mail, January 13 2013
A lawyer who handed over an 86-year-old dementia sufferer’s home for free has been fined for misconduct.
Gerry Durkan, 45, knew another law firm acted for Catherine Kerr and that her son Robert had legal control of her affairs.
But he overturned Robert’s control after being given instructions, then transferred Catherine’s two-thirds share of her £200,000 home to her other two children.
Durkan, a partner in law firm Harper Macleod, denied wrongdoing over the 2009 event but has now admitted his guilt.
Instead of striking him off for what they called his “serious and reprehensible” misconduct, the Scottish Solicitors Discipline Tribunal fined Durkan £1,500.
They said his conduct was a “single failing” and was unlikely to be repeated.
The panel found that Durkan had failed to meet Catherine on her own to try to establish her true wishes.
He had “clearly demonstrated a failure to act in the best interests of the client”. They added that Durkan should have been “aware of the possibility of manipulation of Mrs Kerr” by relatives.
Robert has launched a court action to try to have the house in Bishopton, Renfrewshire, returned to his mum. Durkan was unavailable for comment.