The Inner House of the Court of Session has upheld an appeal by the Faculty of Advocates and an anonymous advocate. After receiving allegations of serious professional misconduct against the second appellant, a practising advocate, the Scottish Legal Complaints Commission remitted the matter to the Faculty of Advocates for investigation.
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Background of the complaint
While acting for the pursuer in a sheriff court action, the second appellant was accused of misconduct by the defender. A complaint was lodged with the Scottish Legal Complaints Commission, alleging inter alia that the second appellant knowingly had access to documents stolen from the defender’s office and had lodged fraudulent invoices with the court for the purpose of legal argument. After sifting the complaint and categorising it as relating to matters of professional conduct, the SLCC accepted the complaint for investigation and remitted the matter to the Faculty of Advocates.
The appellants – comprising the Faculty of Advocates and the impugned advocate – challenged that decision, complaining that the SLCC’s use of the recently established Sprint protocol had resulted in an “abdication” of its responsibility under section 2(4)(a) of the Legal Profession and Legal Aid (Scotland) Act 2007 to determine whether the complaint was ‘totally without merit’. The SLCC admitted that its acceptance of the complaint before receiving supporting evidence or allowing the second appellant to respond had resulted in an unlawful decision at odds with the principles of natural justice.
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Court’s decision
Giving the opinion of the court, Lord Malcolm observed that the complaint against the second appellant was undermined by a major misunderstanding. He noted that the defender, not the second appellant’s client, had sought commission and diligence. The advocate acted for the pursuer, whose main concern was to make progress in the proceedings. The court also pointed out a mistaken assumption that counsel, rather than instructing solicitors, lodge documents in court processes.
The court found the complaint regarding fraudulent invoices equally problematic. Lord Malcolm described it as vague and hard to understand. The allegation did not assert the advocate knew of any fraud, though that might be implied. The advocate denied the complaint in its entirety.
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As matters stand, there can be only one reasonable and rational outcome, Lord Malcolm concluded. The court exercised its power under section 22(1) of the 2007 Act and quashed the SLCC decision, stating that the whole complaint was without proper foundation and should be dismissed.