Brian McConnachie: Sex text Scots lawyer guilty of misconduct

The complainer, a woman, has told the FoA that Mr McConnachie should be expelled from membership of the Faculty.

The lawyer will now face a hearing at a later date where a decision will be made over what action should be taken against him over three complaints that were upheld.

Complaints were lodged that Mr McConnachie sent text messages which included a sexually explicit photograph of himself when at the High Court in Livingston on October 27, 2020 to defending a client in a rape case.  

Mr McConnachie had told the woman that another QC had remarked that he once said to him that he'd "shag" Sandy Brindley, the chief executive of Rape Crisis Scotland.

Sandy Brindley

Mr McConnachie, a former high court prosecutor and one of Scotland’s highest legal aid earners having acted in some of the country’s most high-profile cases, added that he "might shag her just to have something over her. But I wouldn't enjoy it."

The complainer also said Mr McConnachie had shared confidential client information with her on Whats App.

A disciplinary committee said his comments were “akin to blackmail”. It added he was guilty of “serious and reprehensible” behaviour in a series of "demeaning" texts.

According to Faculty rules, penalties for upheld complaints of professional misconduct going to a disiplinary tribunal range from a written direction, a verbal admonition, a formal written reprimand and a severe written censure to an order to provide compensation to the complainer not exceeding £15,000, a fine of not over £15,000, a suspension from practice and/or membership with or without conditions for a period not exceeding five years  and total expulsion.  The FoA can impose one or more of the penalties.

Previously, a Faculty of Advocates complaints committee said a written reprimand was enough punishment and that Mr McConnachie had experienced “considerable embarrassment”.

They found him guilty of the less serious charge of unsatisfactory professional conduct, saying it could not find beyond reasonable doubt that such advocates would regard it as "serious and reprehensible".

The Faculty would not release the findings of the appeal.

But the Herald has seen a copy of the disciplinary appeal ruling which disagreed with the complaint committee and upheld the solicitor whistleblower appeal.

It said the statements made about another QC and Ms Brindley "appear to us to meet the test of conduct that is a serious departure from the standards of competent and reputable advocates and would be regarded by such advocates as serious and reprehensible".

It dismissed Mr McConnachie's defence that the messages were of a “private” nature and that it would be against his human rights for it to be held against him.

The tribunal said the voluntary messages had not been sent to a member of the Faculty, the reasons for sending them were not clear and that no serious justification has been offered for sending them.

A Rape Crisis Scotland spokesperson said it agreed "wholly" with the findings on Mr McConnachie's "sexist behaviour".

The spokesman said: "Making the decision to report sexual violence can be very difficult. This decision is not made easier by cases like this of misogynistic behaviour.

"It is entirely unacceptable for any rape complainer to face the prospect of being cross-examined in court by somebody who behaves in this way and has displayed deeply misogynistic attitudes towards women. Any sanction must reflect the seriousness of this behaviour."

The ruling attached "particular significance" to the "demeaning tone" of the message relating to Ms Brindley, who occupied a public position that placed her in regular contact with the legal profession, including the Faculty.

Brian McConnachie

It said that message was "distasteful" and revealed a "lack of respect" for Ms Brindley and her office.

"For [Mr McConnachie] to make such comments through WhatsApp messaging creates a lack of trust between [him], other members of the Faculty and persons connected with the criminal law with whom such members regularly come into contact."

The ruling went on "The message further suggest that the respondent would be prepared to have a sexual relationship with a woman and then to use that fact to exert pressure on her in future. That of itself is in our opinion clearly not the manner in which a reputable member of Faculty should behave.

"Furthermore, we regard such conduct, involving the suggestion of a willingness to engage in something akin to blackmail as plainly serious and reprehensible.

"The fact that one member of Faculty as a whole is prepared to make statements of this nature is clearly capable of bringing the Faculty as a whole into disrepute."

The hearing said that the WhatsApp messages were not to be excused as resulting from pressure of work.

"They are messages that relate to [Mr McConnachie's] professional practice.

"When such a message appears to be composed and sent deliberately, it is essential to the integrity of the profession that the person responsible for the message should answer for it."

A previous complaints committee held that it had not been established beyond reasonable doubt that the photograph was sent by WhatsApp at a time when the Mr McConnachie was professionally engaged.

And they were not persuaded beyond reasonable doubt that the sending of an explicit image by a member of the Faculty to another adult would be likely to bring the FoA into disrepute.

But the appeal ruling said it is wrong to regard professional duties as ending at the moment a court rises.

The ruling said: "When all the actions complained about are taken together, we are of the opinion that [Mr McConnachie's] conduct must be considered professional misconduct. It clearly discloses important breaches of the general duty of trust and confidence that must be shown by any advocate in his professional life, and in matters related to that professional life.

"[Mr McConnachie] attributed seriously disrespectful comments to another advocate. If the attribution was false these were defamatory. If the attribution was true, [Mr McConnachie] indicated that he was similarly inclined, which meant that he endorsed the disrespectful comments about [Ms Brinkley].