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The Dishonesty Factor: Scottish solicitors accused of dishonesty ‘less likely to be struck off’ than dishonest lawyers who face tougher regulation in England & Wales

27 Feb

Contrary to profession’s view, evidence from clients suggests dishonesty in Scots solicitors is rewarded, not punished. SCOTTISH solicitors “make false representations in order to improve their client’s position, not necessarily their own”. This was a claim made by solicitor Alistair Cockburn, Chairman of the Scottish Solicitors Discipline Tribunal (SSDT) in response to key questions raised by BBC Journalist Sam Poling in the recent investigative programme Lawyers Behaving Badly.

The claims made by the tribunal Chief led to startling revelations over how the lawyer led discipline tribunal which is charged with making findings against members of Scotland’s legal profession deals with allegations & evidence of dishonesty against rogue solicitors.

Insisting the discipline tribunal was ‘robust’ and had a duty to the public, the Chair of the SSDT went on to justify his position, stating “One has to assess the extent to which anyone suffered in consequence of that dishonesty.  You have to take into consideration the likelihood of re-offending and then take a decision.” Mr Cockburn went onto claim dishonesty is not commonplace and would result in solicitors being struck off. The SSDT Chair told the BBC journalist: “Normally dishonesty will result in striking-off.”

However, many clients who make complaints about dishonest solicitors will be surprised at the SSDT Chair’s claim, given the fact most complaints involving dishonesty encounter resistance on the part of the legal profession’s self regulatory bodies such as the Law Society of Scotland and Scottish Legal Complaints Commission (SLCC).

Solicitors sometimes make false representations – SSDT Chair Alistair Cockburn speaking to the BBC. Sam Poling asks: The Scottish Solicitors’ Discipline Tribunal hears all serious conduct cases against solicitors. Last year they struck off nine of them. But is this robust enough?

Alistair Cockburn Chairman, Scottish solicitors discipline tribunal replies: It is robust in the sense that it doesn’t just give convictions on the basis that somebody’s brought before us charged by the Law Society.  We are mindful, particularly when reminded of the lay members, of a duty to the public.

One is always concerned when there is deception but you can have a situation where solicitors simply lose their place. They make false representations in order to improve their client’s position, not necessarily their own. And you would take that into account in deciding what the penalty was but there’s no suggestion that such conduct wasn’t deemed to be professional as conduct. 

Sam Poling: So there are levels of dishonesty which sit comfortably with you, satisfactorily with you?

Alistair Cockburn: No it’s not a question of saying sitting comfortably with me.  I’ve told you…

Sam Poling: OK that you would accept?

Alistair Cockburn: No I’d be concerned on any occasion that a solicitor was guilty of any form of dishonesty.  One has to assess the extent to which anyone suffered in consequence of that dishonesty.  You have to take into consideration the likelihood of re-offending and then take a decision.  But you make it sound as if it’s commonplace.  It isn’t.  Normally dishonesty will result in striking-off.

The position on dishonesty taken by the SSDT boss appears to conflict with that found by many clients who are forced into the unenviable position of having to complain about their solicitor.

After months of waiting on results from regulators run principally by lawyers, most clients who file complaints against their solicitors will be all too aware that regulators often refuse to even look at claims of dishonesty due to the fact a proven case of dishonesty against a solicitor may entitle clients to claim compensation from the Scottish Solicitors Guarantee Fund, and raise potential legal action in Scottish courts.

More often than not, solicitors who are dishonest to their clients, and solicitors who regularly make dishonest representations – even before judges in a court of law, will not be struck off simply because regulators will ensure such cases never appear before the tribunal or see the light of day in a complaints decision found against a fellow solicitor by his colleagues in the profession’s own self regulator.

Unsurprisingly, the Scottish tribunal’s view of claims of dishonesty by solicitors – a common theme in almost all complaints made by members of the public or clients against the legal profession in Scotland, contrasts sharply with the opinions of legal experts in the rest of the UK who insist dishonesty is a striking off offence.

The BBC asked a panel of three legal experts from England & Wales for their opinion on the case of John G O’Donnell and how he was dealt with by the discipline tribunal which related to a case where O’Donnell was accused of borrowing £60K of clients money without consent. The panel easily concluded solicitors accused of dishonesty should be struck off as there was a risk to the reputation of the legal profession and the risk of reoffending was too great.

Dishonesty in the legal profession: Risk factors mean it is a striking off offence – English legal experts. Andrew Hopper QC said: “I cant get my head round borrowing in this context. Somebody explain to me how you can borrow something without anyone knowing about it. That’s just taking.”

Andrew Boon Professor of Law, City university, London said : “They actually say in the judgement they would have struck him off but the client hadn’t complained.”

Andrew Hopper QC “We’re dealing with a case of dishonesty and that affects the reputation of the profession. I would have expected this to result in striking off.”

Andrew Boon, Professor of Law: “The critical thing is the risk factor. If somebody has been dishonest once the likelihood is that they are going to be dishonest again unless they’re stopped.”

As Sam Poling went on to report: “but he [O’Donnell] wasn’t stopped. The tribunal simply restricted his license so that he had to work under the supervision of another solicitor.”

In Scotland every year and for well over two decades, there are and have been thousands of enquiries and complaints to the Scottish Legal Complaints Commission (SLCC) and the Law Society of Scotland.

Almost all complaints against solicitors indicate at at one stage or another, the solicitor was dishonest to their client, either by making a false representation to them as to the progress of their case, or making false representations to cover their own positions.

More often than not, as in the case of Borders solicitor Andrew Penman, who a Law Society reporter found in 1994 had deliberately deceived a bank, had attempted to put files in order with an implication of dishonesty while doing so, hardly any complaint against a Scottish solicitor which documents dishonesty on a grand scale, has ever resulted in a striking off.

Mr Penman, who still works as a solicitor at Stormonth Darling solicitors in Kelso, was never struck off, and the Law Society along with its most senior staff set out to ensure any legal action against Mr Penman would never make it to court, the case and its history reported in detail HERE.

Contrary to the Law Society’s claims during the 1990’s, the Penman case was not a blip. Evidence from hundreds of complaints since the 90’s show is more common than not for the dishonesty of a solicitor to be rewarded in the Scottish legal profession with a continuing practicing certificate, just as in the O’Donnell case and hundreds, potentially thousands of others, rather than result in a striking off.

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