RSS

Category Archives: crooked lawyers

ROGUES GALLERY: Lawyer who spoke at Holyrood on behalf of Law Society – struck off for dishonesty, meanwhile concerns Police probe at bust law firm Ross Harper may hit Crown Office block on prosecuting colleagues in legal profession

Rogue lawyers & Police probes dog Scots legal industry. A LAWYER who gave evidence to MSPS on behalf of the Law Society of Scotland has been struck off – for serious dishonesty – after earlier findings of professional misconduct a year earlier.

Michael McSherry, who once gave evidence to the Scottish Parliament’s Justice & Home Affairs Committee on Vulnerable and Intimidated witnesses – was struck off by the Scottish Solicitors Discipline Tribunal (SSDT) after being found guilty of professional misconduct in relation to misrepresentation to two law firms on the purpose of funds being held, and failures to carry out proper money laundering checks.

The findings issued by the Discipline Tribunal also reveal a former solicitor, listed as ‘Ms B’ worked for McSherry.

The unnamed solicitor recently had her practising certificate removed by the Law Society of Scotland, yet she was easily able to find employment back in the legal services sector and began working with McSherry.

While the name of the solicitor is anonymised, the latest incident again reveals a trend where crooked lawyers who are turfed out of the profession land jobs as ‘consultants’ or ‘paralegals’ following them being stripped of their right to practice law.

McSherry was previously found guilty of professional misconduct in 2016 for failing to bank fees taken from clients, and his continuing to act on behalf of the client in his capacity as a solicitor when he was not the holder of a practising certificate, was not affiliated to any practising firm of solicitors and had no professional indemnity insurance cover. Law Society of Scotland v Michael Thomas McSherry (21 January 2016)

The latest Scottish Solicitors Discipline Tribunal findings on Michael McSherry, recently published – are here:
Law Society of Scotland v Michael Thomas McSherry (27 June 2017)

The full document listing the SSDT findings on Michael McSherry is here: SSDT Findings: Law Society of Scotland v Michael Thomas McSherry (27 June 2017)

Solicitor(s): Michael Thomas McSherry, Solicitor, 51 Morven Road, Bearsden, Glasgow

Tribunal Date: 27/06/2017 Appeal Status:No Appeal

Interlocutor: Edinburgh 27 June 2017.  The Tribunal having considered the Complaint at the instance of the Council of the Law Society of Scotland dated 11 April 2017 against Michael Thomas McSherry, Solicitor, 51 Morven Road, Bearsden, Glasgow; Find the Respondent guilty of professional misconduct singly in respect of his misrepresentation to Mr D about the purpose for which funds were held (issue 1), the improper, incomplete and inaccurate recording in the client ledgers (issue 2), and his misrepresentations to Slater, Hogg and Howieson and TLT Solicitors (issues 6 and 7); and in cumulo in respect of his failure to carry out proper money laundering checks on Company 1 and Mr C (issues 3 and 5), his failure to investigate the source of funds from Mr D (issue 4), his poor record-keeping and accounting practices (issue 8), his failure to reconcile bank statements (issue 9) and his failure to undertake training in connection with his role as cashroom manager (issue 10);  Order that the name of the Respondent be Struck Off the Roll of Solicitors in Scotland; Direct in terms of Section 53(6) of the Solicitors (Scotland) Act 1980 that this order shall take effect on the date on which the written findings are intimated to the Respondent; 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 but need not identify any other person.

And, it has also been reported in the media that a Police Scotland probe has been launched into the now bankrupt law firm – Ross Harper.

However, as observers to the ‘twilight zone’ world of Police investigations into lawyers will be well aware, most probes carried out by Police almost never result in a prosecution before the courts, as has previously been the case in relation to multiple cases involving fourteen law firms & millions of pounds of legal aid fraud – which resulted in not one case going to court, reported earlier here: FOURTEEN lawyers accused of multi-million pound legal aid fraud escape justice as Scotland’s Crown Office fail to prosecute all cases in 5 years

The Sunday Mail reports on the Police Scotland probe of bust law firm Ross Harper:

Cops launch cash probe into bust law firm Ross Harper and Co after partners struck off

The company had offices across Scotland before they were shut down in 2012 after operating for more than 50 years.

By Craig McDonald 06:00, 17 SEP 2017

A police investigation has been launched into the collapse of one of ­Scotland’s top law firms.

Ross Harper and Co, who had offices across Scotland, were shut down in 2012 after more than 50 years in practise.

It emerged that public cash claimed in Legal Aid fees was not paid to ­suppliers and experts hired by the Glasgow firm.

A lengthy probe by the Law Society of Scotland led to four partners being struck off and two more being censured.

We can reveal a dossier has now been passed to police, who have launched a criminal investigation.

The Mail understands the initial focus is on former ­senior partner Alan Miller, 38, who was struck from the roll of solicitors last month.

One expert witness hired by the firm welcomed the probe. Forensic psychologist Ian ­Stephen, who’s owed £5000 in fees, said: “I think it’s appropriate that police investigate.

“If anyone commits a crime, be it fraud or anything else, then you would expect police would make inquiries into it.

“If this happened in any other profession, the appropriate ­professional body would make inquiries and, if there was a criminal element to it, you would expect police to become involved.

“I don’t not see how the ­situation should be any different for solicitors.”

Stephen, a former senior medic at the State Hospital at Carstairs, said: “I felt badly let down by Ross Harper. You should be able to put your faith in a lawyer.

“I was always writing to them to ask why I was not being paid. I was shocked they were so ­blatant about it.”

Professor Hugh Pennington saw £4000 in fees go unpaid.

The bacteriolgoist said: “I was shocked to ­discover Ross Harper were ­withholding payments from me and others. There has been a betrayal of trust.”

Miller and Jim Price, also a senior partner, were struck off last month by the ­Scottish ­Solicitors ­Disciplinary Tribunal for professional misconduct.

Price was employed as general manager of Nottingham Forest in 2013 but left the football club within a year.

Two further partners, Paul McHolland and Joseph Mullen, were censured by the SSDT but are still able to practise.

The SSDT found Legal Aid cash lay in “a drawer”, the firm’s bank account, for up to two years.

The cash was used to help them ­balance their books after the 2008 financial crash.

Accounts also showed a cheque was cancelled and ­reissued three times before it reached its destination.

On at least two occasions, the same tactic was used to hold up payments of £300 to Pennington.

We told last month how legal watchdogs are facing more than £100,000 worth of claims from victims of the firm.

Any compensation would be paid from a Law Society client protection contingency fund.

Ross Harper had 12 offices in Scotland and were the country’s biggest earning Legal Aid firm, with 2006-07 earnings of £1.7million. They were founded in 1961 by ex-law professor Ross Harper.

A police spokeswoman said: “Inquiries are at an early stage.”

A Law Society of Scotland spokesman said: “Concerns were raised about the firm’s ­accounting record following one of our ­routine ­compliance inspections.

“This led to us going to the Court of Session to request the appointment of a judicial factor to the firm in April 2012 and, ­following investigation, we prosecuted all six former partners before the independent SSDT.

“We have a legal duty to report suspicious activity to the ­relevant authorities but cannot comment on whether reports have been made on specific cases.”

The SSDT decision on Ross Harper is here: Law Society of Scotland v-Alan Miller, Joseph Mullen, Paul McHolland & James Price

The full document detailing the SSDT’s findings in relation to the Ross Harper law firm partners can be found here: SSDT Findings: Law Society of Scotland v-Alan Miller, Joseph Mullen, Paul McHolland & James Price

Solicitor(s): Alan Matthew Miller, 22 Broomknowe Avenue, Lenzie, Joseph Mullen, 9 Glen Mark, St Leonard’s, East Kilbride, Paul John McHolland, 24 Portland Road, Kilmarnock and James Price, formerly residing at 2 Rigside, Douglas Water, Lanark and now residing at Calle Java 19, 29591, Malaga, Spain

Tribunal Date: 08/05/2017 Appeal Status:No Appeal

Interlocutor: Perth 8 May 2017.  The Tribunal having considered the amended Complaint at the instance of the Council of the Law Society of Scotland against Alan Matthew Miller, 22 Broomknowe Avenue, Lenzie, Joseph Mullen, 9 Glen Mark, St Leonard’s, East Kilbride, Paul John McHolland, 24 Portland Road, Kilmarnock and James Price, formerly residing at 2 Rigside, Douglas Water, Lanark and now residing at Calle Java 19, 29591, Malaga, Spain; Find the First Respondent guilty of Professional Misconduct in respect that (a) The First Respondent during his tenure as a Partner and principal in the said former firm of Ross Harper and in particular during the period when he was the designated Cashroom Manager being 1 April 2010 to 5 April 2012, operated a system or policy whereby the business of the former firm was improperly funded by payments due to third parties, whereby in particular, sums received from the Scottish Legal Aid Board and others were deposited in the firm’s bank accounts, and cheques were thereafter drawn on those accounts and purported payment of third parties outlays made which had been incurred on behalf of the former firm’s clients. Said system or policy resulted in sums validly due to Third Parties not being timeously paid.

Further, the firm, under the authority and direct instruction of the First Respondent, took unauthorised and excessive fees despite there being insufficient funds at the credit of the client ledgers to meet those fees and without having had any legitimate basis for taking fees at the point in which they were deducted from the client ledgers.  Said funds and fees were taken and rendered in a dishonest, wrongful and improper use of client’s funds without the knowledge or consent of the clients to allow the said firm to continue to trade and operate within the limit of its banking facilities. All of the foregoing in breach of the Solicitors (Scotland) Accounts etc. Rules 2001, the Code of Conduct for Scottish Solicitors, the Law Society of Scotland Practice Rules 2011: (b) The First Respondent submitted false and inaccurate Accounts Certificates to the Complainers thereby deliberately concealing from the Complainers the true financial position of the said firm; (c) The First Respondent acted dishonestly in reporting matters to the inspection team of the Financial Compliance Department of the Complainers, and that in breach of Rule B6.12 of the Law Society of Scotland Practice Rules 2011; (d) The First Respondent in his specific capacity as Designated Cashroom Manager between 1 April 2010 and 5 April 2012 failed to supervise the cashroom staff and cashroom systems to keep proper accounting records and that in breach of Rule B6.13 of the Law Society of Scotland Practice Rules 2011 and Rule 12 of the Solicitors (Scotland) Accounts etc. Rules 2001; (g)The First Respondent failed to settle invoices rendered by professional expert witnesses timeously, and that despite having received reimbursement of these sums from third parties;

Find the Second Respondent guilty of Professional Misconduct in respect that The Second Respondent during his tenure as a Partner and principal in the said former firm of Ross Harper acquiesced in the operation of a system or policy whereby the business of the former firm was improperly funded by payments due to third parties whereby in particular, sums received from the Scottish Legal Aid Board and others were deposited in the firm’s bank accounts, and cheques were thereafter drawn on those accounts and purported payment of third parties outlays made which had been incurred on behalf of the former firm’s clients. Said system or policy resulted in sums validly due to Third Parties not being timeously paid. 

All of the foregoing in breach of the Solicitors (Scotland) Accounts etc. Rules 2001, the Code of Conduct for Scottish Solicitors, the Solicitors (Scotland) (Standards of Conduct) Practice Rules 2008 and the Law Society of Scotland Practice Rules 2011;  Find the Third Respondent guilty of Professional Misconduct in that The Third Respondent during his tenure as a Partner and principal in the said former firm of Ross Harper acquiesced in the operation of  a system or policy whereby the business of the former firm was improperly funded by payments due to third parties whereby in particular, sums received from the Scottish Legal Aid Board and others were deposited in the firm’s bank accounts, and cheques were thereafter drawn on those accounts and purported payment of third parties outlays made which had been incurred on behalf of the former firm’s clients.

Said system or policy resulted in sums validly due to Third Parties not being timeously paid.  All of the foregoing in breach of the Solicitors (Scotland) Accounts etc. Rules 2001, the Code of Conduct for Scottish Solicitors, and the Solicitors (Scotland) (Standards of Conduct) Practice Rules 2008 and the Law Society of Scotland Practice Rules 2011; Find the Fourth Respondent guilty of Professional Misconduct in that (a) The Fourth Respondent during his tenure as a Partner and principal in the said former firm of Ross Harper operated a system or policy whereby the business of the former firm was improperly funded by payments due to third parties, whereby in particular, sums received from the Scottish Legal Aid Board and others were deposited in the firm’s bank accounts, and cheques were thereafter drawn on those accounts and purported payment of third parties outlays made which had been incurred on behalf of the former firm’s clients.

Said system or policy resulted in sums validly due to Third Parties not being timeously paid.  Further, the firm, under the authority and direct instruction of the Fourth Respondent as Joint Managing Partner, took unauthorised and excessive fees despite there being insufficient funds at the credit of the client ledgers to meet those fees and without having had any legitimate basis for taking fees at the point in which they were deducted from the client ledgers. 

The fees in these instances were deducted for the purposes of assisting the firm’s cashflow and financial position and to conceal the true level of the firm’s liabilities and overdraft. Said funds and fees were taken and rendered in a dishonest, wrongful and improper use of client’s funds without the knowledge or consent of the clients to allow the said firm to continue to trade and operate within the limit of its banking facilities. 

All of the foregoing in breach of the Solicitors (Scotland) Accounts etc. Rules 2001, the Code of Conduct for Scottish Solicitors, and the Solicitors (Scotland) (Standards of Conduct) Practice Rules 2008 and the Law Society of Scotland Practice Rules 2011; (b) The Fourth Respondent countersigned and submitted false and inaccurate Accounts Certificates to the Complainers thereby deliberately concealing from the Complainers the true financial position of the said firm; (c) The Fourth Respondent acted dishonestly in reporting matters to the inspection team of the Financial Compliance Department of the Complainers, and that in breach of Rule B6.12 of the Law Society of Scotland Practice Rules 2011; 

Order that the name of the First Respondent be Struck Off the Roll of Solicitors in Scotland; Direct in terms of Section 53(6) of the Solicitors (Scotland) Act 1980 that the order shall take effect on the date on which the written findings are intimated to the First Respondent; Censure the Second Respondent; Censure the Third Respondent; Order that the name of the Fourth Respondent be Struck Off the Roll of Solicitors in Scotland; Direct in terms of Section 53(6) of the Solicitors (Scotland) Act 1980 that the order shall take effect on the date on which the written findings are intimated to the Fourth Respondent; Find the Respondents jointly and severally 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 restricted in the case of the Second Respondent to 20% and in the case of the Third Respondent to 10%; and Direct that named publicity be given to this decision, declaring that such publicity shall not contain the name of the clients or otherwise identify them as the publication of their personal data is likely to damage individuals’ interests.

Alistair Cockburn Vice Chairman

Second Interlocutor:

The Tribunal having made findings of professional misconduct in respect of matters complained of by Thomas Aulds, ARM Architects LLP, 2a Berkeley Street, Glasgow; Dr Peter Thornton, 49 Carlogie Road, Carnoustie; Ian Stephen, 19 Glen View Crescent Gorebridge; The PRG Partnership, 111 Cowgate, Kirkintilloch, Glasgow; Ewa Daly, Pierwsza Pomoc Polscotia, St George’s Building, 5 St Vincent Place, Glasgow and David Bartolo, 2/52 Rallinson Road, North Coogee, Western Australia, appoints them if so advised to lodge statements of claim with the Clerk to the Tribunal at Unit 3.5, The Granary Business Centre, Coal Road, Cupar, Fife, within 21 days of the date of intimation hereof.

Alistair Cockburn,  Vice Chairman.

Compensation Interlocutor:

Glasgow,   21 August 2016.  The Tribunal having made a finding of professional misconduct against Alan Matthew Miller, 22 Broomknowe Avenue, Lenzie, Joseph Mullen, 9 Glen Mark, St Leonards, East Kilbride, Paul John McHolland, 24 Portland Road, Kilmarnock, and James Price formerly residing at 2 Rigside, Douglas Water, Lanark, and now residing at Calle Java 19, 29591, Malaga, Spain; Having allowed 21 days for the Secondary Complainers, Thomas Aulds, ARM Architects LLP, 2a Berkeley Street, Glasgow; Dr Peter Thornton, 49 Carlogie Road, Carnoustie; Ian Stephen, 19 Glen View Crescent Gorebridge; The PRG Partnership, 111 Cowgate, Kirkintilloch, Glasgow; Ewa Daly, Pierwsza Pomoc Polscotia, St George’s Building, 5 St Vincent Place, Glasgow; and David Bartolo, 2/52 Rallinson Road, North Coogee, Western Australia to lodge their claims for compensation;  Having received confirmation from Dr Peter Thornton that he does not wish to submit a claim for compensation and having received no correspondence from said Thomas Aulds, Ian Stephen, The PRG Partnership, Ewa Daly and David Bartolo within said 21 days; makes no further order and no further finding of expenses.

Alistair Cockburn, Vice Chairman

Previous reports on the Scottish Solicitors Discipline Tribunal can be found here: Cases of repeat offender rogue lawyers rise at Scottish Solicitors Discipline Tribunal

 

Advertisements
 

Tags: , , , , , ,

DISHONESTY RULES: Rogue solicitors guilty of fraud, embezzlement and theft from wills receive soft censures from pro-lawyer Scottish Solicitors Discipline Tribunal and courts

Consumers are not protected by lawyers regulating lawyers. SCOTLAND’S legal profession and anyone connected to it – including the judiciary –  often praise the system of self regulation where lawyers look after their own – to the point of taking over and closing any public debate on creating independent regulation of solicitors.

And, of course lawyers will continue to regulate themselves in Scotland – because self regulation is too protected by vested legal interests, because it allows a solicitor to rip off their client, to be judged by his colleagues and to walk away from it, no matter what was done to the client.

Time and again, lawyers look after their own, investigate themselves, appear in front of their friends at the Scottish Legal Complaints Commission (SLCC), and, at most, receive a censure, or slap on the wrist from the Scottish Solicitors Discipline Tribunal (SSDT).

Diary of Injustice recently reported on how the SLCC refuses to identify corrupt lawyers within determination decisions which are only published after being approved by the Law Society of Scotland, featured here: FROM ROGUES TO RICHES: SLCC refuse to identify corrupt solicitors in case findings.

The SLCC print lists of doctored histories of complaints against lawyers, and then refuse to identify the solicitors who ripped off their clients – how corrupt is that!

Compare this to England & Wales, where decisions made by the Solicitors Regulation Authority in relation to identified law firms and names of solicitors can easily be found here Recent Decisions – Solicitors Regulation Authority.

Striking’s off rarely occur, only as a last resort for the members of Scotland’s legal profession must protect their own.

The slick SSDT website invites you, the public – to have confidence in the ways lawyers look after their own.

Yet in decision after decision, the extent of dishonesty during proceedings renders much of what is published in Tribunal ‘interlocutors’ as clever forgeries of the acts of wilful, determined and well practiced thieves – far more determined than will ever be told in public.

The noticeable lack of action by the SSDT to report solicitors to the Police & Crown Office for prosecution, does, as the years go by, verify the position that the SSDT seeks to protect solicitors from the full weight of criminal law – which applies to everyone else.

However, on that rare occasion where solicitors do appear in court, you just know they are not going to jail.

In a prime example of the above, earlier this week Scotland was meant to weep like a child after the Law Society sought to publicise the fact Paul O’Donnell – a solicitor from the law firm of Thorley Stephenson, in South Bridge – had sold his house to repay more than £21,000 he pled guilty to embezzling from the Edinburgh law firm Thorley Stephenson, in South Bridge .

O’Donnell, 35, had previously been warned he was facing jail for the embezzlement but the judge – Sheriff Frank Crowe – allowed him to remain free as he had repaid the £21,485 he had obtained dishonestly.

In court –  O’Donnell’s defence lawyer –  Murray Robertson told Sheriff Crowe that his client had sold his house, moved in with relatives, and the money had been repaid to Thorley Stephenson.

Sheriff Crowe was also told O’Donnell had been sequestrated, was declared bankrupt and is no longer practising as a solicitor.

In response, Sheriff Crowe told O’Donnell that cases of this nature usually involved a sentence of imprisonment but, as  O’Donnell had co-operated and admitted his guilt, arranged the sale of his house and returned the money to Thorley Stephenson, Sheriff Crowe avoided sending O’Donnell to jail and instead confined him to his current address from 9pm to 6am for six months.

You may be forgiven for thinking how amazing a lawyer who stole, avoided jail.

However, in the rare occurrences when solicitors do come before our courts, jail is always a last resort for the judge – who are themselves, lawyers.

So, with facts in hand that our courts take a shine to lawyers with tears in their eyes, it should be of little surprise the latest rulings by the Scottish Solicitors Discipline Tribunal offer mere censures and fines for executry and will fraud, theft and embezzlement – which are crimes to ordinary people in the real world.

Law Society-v-Euan Maxwell Terras

This case involved a solicitor in his writing and executing a Will in which his family were the Primary Beneficiaries. An amazing story, yet only punishment is a fine.

Read the ‘published’ details of the hearing here Council of the Law Society of Scotland v Euan Maxwell Terras

Edinburgh 29 August 2016.  The Tribunal having considered the Complaint at the instance of the Council of the Law Society of Scotland against Euan Maxwell Terras, Sprang Terras, 64 Kyle Street, Ayr; Find the Respondent guilty of professional misconduct in respect of his acting in the purchase of a property with the ancillary execution of a Minute of Agreement and the drafting of a Will where his son was the residuary beneficiary and found that in doing so (1) he acted in an actual conflict of interest situation in the purchase of the property and the execution of the Minute of Agreement where he had a personal and/or financial interest in both; (2) he did not insist that Miss MM consult other solicitors either in the purchase of the property or the execution of the Minute of Agreement when both were actual conflicts of interests; (3) he could not discharge his professional obligations to solely look after the interests of Miss MM both in the purchase of the property and the execution of the Minute of Agreement given the actual conflict of interest in both between him and Miss MM; (4) he called into question his personal integrity/independence in taking instructions and/or drafting the second Will which benefitted members of his family and in terms of which they would derive significant benefit; and (5) his advice, given the terms of the draft second Will, was not free from external influence and placed him in a conflict of interest; Censure the Respondent; Fine the Respondent the sum of £8,000 to be forfeit to Her Majesty; Find the Respondent liable in the expenses of the Complainers and of the Tribunal.

Law Society-v-Philip Simon Hogg

Philip Hogg was one of a two-partner Kirkintilloch firm – Alder Hogg. His co-partner was his twin sister Alison Hazel Margaret Greer. The case relates to massive overcharging of clients. – usually defined as fraud if not involving a solicitor.

The following is for one client: The Interlocutor final amount is that for £129K of legal work they charged £219K for £90K more than they should have. So, for this one client, in relation to Mr A’s executry, it is accepted that £90K was overcharged, however the Tribunal does not explain why a staggering £129K of executry fees was deemed acceptable.

Read the full ‘published’ version of events in this shocking case here: Council of the Law Society of Scotland v Philip Simon Hogg

Edinburgh 25 August 2016.  The Tribunal having considered the Complaint dated 22 April 2016 as substituted by the Complaint dated 25 August 2016 at the instance of the Council of the Law Society of Scotland against Philip Simon Hogg, residing at 9 Crossdykes, Kirkintilloch, as amended; Find the Respondent guilty of professional misconduct in respect of his failure in his obligation to see that the firm in which he was a partner complied with the accounts rules, his failure in his duty to supervise the firm’s office manager and cashier, his failure in his duty to take steps to satisfy himself that fees being charged to executries were properly so charged, his failure to see that at all times the sums at credit of the client account exceeded the sums due to the clients and his continuing to draw from the firm while it was being financed by the overcharges to clients; Suspend the Respondent from practice for a period of five years and Direct in terms of Section 53(6) of the Solicitors (Scotland) Act 1980 that the suspension shall take effect on the date on which these findings are intimated to the Respondent;

Law Society-v-Jane Elizabeth Steer

Elizabeth Steer worked for a Falkirk firm RMS Law. She previously worked for Russell & Aitken and now works for Allan McDougall & Co.

Ms Steer was accused of falsifying an Affidavit.

Affidavits MUST adhere to the following: 1. both parties must be physically present at the signing i.e. the solicitor (notary public) and their client 2.it must be signed at the locus specified in the Affidavit

The affidavit complied with neither of these tests, instead Ms Steer sent it to her client in England to sign and return.

Problems with the affidavit only came to light when the client gave evidence stating that she had not been in Scotland for a while – but when at Avizandum the Sheriff realised that the Affidavit was signed in Scotland at a time when the client swore she was in England.

To make matter worse, Miss Steer also tried to mislead the Law Society during the Investigation. Read the full published Interlocutor here: Council of the Law Society of Scotland v Jane Elizabeth Steer

Edinburgh 16 August 2016.  The Tribunal having considered the Complaint dated 31 May 2016 at the instance of the Council of the Law Society of Scotland against Jane Elizabeth Steer, Messrs Allan McDougall, 3 Coates Crescent, Edinburgh as amended; Find the Respondent guilty of professional misconduct in respect of her failure to act with trust and personal integrity in connection with the preparation of an affidavit which she purported to notarise on 29 October 2012, submission to the court for lodging an affidavit which contained false or misleading information on 5 November 2012 and subsequent failure on 29 June 2014 to provide a full and candid explanation to the Law Society in connection with the preparation of the affidavit and its sending to the Secondary Complainer; Censure the Respondent;

And remember, readers – wherever there is dishonesty, there is a Scottish solicitor, and the Scottish Solicitors Discipline Tribunal.

THE DISHONESTY FACTOR:

An investigation by BBC Panorama –  Lawyers Behaving Badly – featured the case of John O’Donnell, and went on to reveal the startling differences in how dishonesty in the Scottish legal profession is treated lightly compared to England & Wales – where dishonesty is automatically a striking off offence.

Alistair Cockburn, Chair, Scottish Solicitors Discipline Tribunal. Featured in the investigation was the Scottish Solicitors Discipline Tribunal (SSDT) Chairman’s attitude towards solicitors accused of dishonesty in their representation of clients legal affairs. During the programme, it became clear that dishonesty among lawyers in Scotland is treated less severely, compared to how English regulators treat dishonesty.

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.

English QC’s agree ‘dishonesty’ is a striking off offence. The SSDT Chairman’s comments on dishonesty compared starkly with the comments of the English QC’s – who said dishonesty was undoubtedly a striking off offence.

Andrew Hopper QC: “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: “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.”

Previous reports on the Scottish Solicitors Discipline Tribunal can be found here: Scottish Solicitors Discipline Tribunal – Pro-lawyer protection against client complaints

 

Tags: , , , , , ,

INSPECT YOUR ROGUE: Check your solicitors’ record in England, but not in Scotland – UK Solicitors Regulation Authority ‘years ahead’ of pro-lawyer Scots legal watchdogs

Check the regulatory history of your lawyer, not for Scotland. FAR REMOVED from the haven of corrupt and dodgy law firms which shape the landscape of Scotland’s greedy, overbearing legal services market, clients of lawyers in England & Wales have the opportunity to check any solicitor’s record – before shelling out tens of thousands of pounds to a hard working lawyer – or a lazy crook.

The Check your solicitor’s record service – operated by the Solicitors Regulation Authority (SRA) allows anyone to find out if a solicitor or law firm operating in England & Wales has regulatory decisions made against them in relation to complaints of ripping off clients or providing poor legal services to UK consumers.

However, no such service is on offer in Scotland, due to lobbying from the powerful, shady clique of the Law Society of Scotland and other Scots legal vested interests – who are determined to maintain anonymity of corrupt and incompetent legal practitioners north of the border.

And, instead of providing consumers with a verifiable means of checking up on Scottish solicitors and law firms, the Scottish Legal Complaints Commission (SLCC) publish only a selection of heavily edited and censored descriptions of cases which pass through the anti-consumer revolving doors of the Law Society-controlled pro-lawyer regulator.

Diary of Injustice recently reported on how the Scottish legal complaints regulator avoids identifying corrupt and dodgy lawyers within determination decisions – which are only published after being approved by members of the Law Society of Scotland : FROM ROGUES TO RICHES: SLCC refuse to identify corrupt solicitors in case findings.

Admittedly, the service on offer from the SRA in England & Wales does have some drawbacks – for example, not all regulatory decisions are published, and there are time limits to their publication scheme.

However, the facility is a huge advantage over what prospective and existing clients of Scottish solicitors face in efforts to find an honest lawyer north of the border – which some have likened to entering into a game of Russian Roulette with a six barrelled shotgun.

Recent regulation decisions made by the Solicitors Regulation Authority in relation to law firms and solicitors operating in England and Wales can be found here Recent Decisions – Solicitors Regulation Authority

A helpful guide on how to use the SRA’s solicitor regulation search service lists the following tips:

You can use our solicitor record check search function to have a look at regulatory decisions that we have made against regulated individuals and firms.

You can search decisions by the name of the solicitor, firm, or other regulated individual, SRA ID number (also known as their roll number) date the decision was made, or type of decision.

You can also view a list of recently-published decisions.

To search for decisions about an individual or firm, enter their name and/or ID number in the search fields. To narrow your search, choose an outcome type and/or specify a date range.

To see all closures (also known as “interventions“) during May 2009, for example, leave name and ID fields blank, choose outcome type “closure” and specify the date range 1 May 2009 to 30 May 2009.

Only the most recent published decision against any firm will be displayed. To view a list of all published decisions against an individual made within the past three years (decisions are removed after three years), you will have to go into the record.

To check whether a law firm is regulated by us, use our Law firm search. To check whether an individual is regulated by us, use the Law Society’s Find a solicitor search.

We aim to ensure decisions we publish are accurate and up to date. However, this website does not offer a complete picture of an individual’s or firm’s regulatory record. For example, it is possible that, since publication, a firm has ceased to practice or a solicitor is no longer on the roll of solicitors. Most published decisions are removed from our website three years from the date they were published.

We have published a large number of Solicitors Disciplinary Tribunal (SDT) findings, dating from early 2005 to 1 July 2011.

We do not publish findings made by the Solicitors Disciplinary Tribunal; these are published by the Tribunal itself.

Please note that the Tribunal publishes findings resulting in a strike off, indefinite suspension or revocation of authorisation of a firm indefinitely. Decisions to suspend for a fixed period remain on its website for the duration of the suspension or three years (whichever is the greater). All other decisions remain on its website for three years. If you are unable to find a decision on the Solicitors Disciplinary Tribunal website please contact Solicitors Regulation Authority.

The Solicitors Regulation Authority began publishing some decisions in January 2008 – the same year the Scottish Legal Complaints Commission was created by the Scottish Government.

In comparison, since the SLCC came into being in 2008, the Scots legal services regulator has not identified one solicitor in any complaint investigated by the Law Society controlled quango – leading to a significant imbalance in the rights of Scots consumers to find out just how crooked their lawyer really is.

And, more often than not, the same Scottish law firms and same solicitors are subject of similar complaints in relation to professional misconduct, negligence, dishonesty, unashamed theft of client funds and some of the worst excesses which in any other arena would rate as criminal behaviour.

Yet, no one in Scotland is able to find out the regulatory history of their solicitor. No one. Unless by chance, clients who find themselves in the position of having to make a complaint against their solicitor decide to publicise their case and name the lawyers concerned.

A recent media investigation into the Scottish Legal Complaints Commission recently revealed most of the SLCC’s key staff and investigators are in-fact families, friends & business associates of solicitors, reported here: ‘Independent’ Scots legal watchdog consists of solicitors’ husbands, wives, sons, daughters, cousins, friends, & employers.

Previous media investigations, reports and coverage of issues relating to the SLCC can be found here: Scottish Legal Complaints Commission – A history of pro-lawyer regulation.

 

Tags: , , , , , ,

ROGUES REIMAGINED: Scottish Legal Complaints Commission calls on Scottish Government to reform “complex and legalistic” solicitors’ self regulation & complaints system

Pro-lawyer regulator calls for solicitor complaints reform. THE ‘independent’ regulator of Scottish solicitors – the Scottish Legal Complaints Commission (SLCC) is calling on the Scottish Government to consult on reforms to the “complex and legalistic” system for handling complaints against solicitors and other legal practitioners in Scotland.

The ‘independent’ SLCC – controlled by the Law Society of Scotland and funded by legal fees from clients – has presented a paper titled Reimagine Regulation to Scottish Ministers – setting out six key priority areas the SLCC believes the Government, which has committed to consultation on a review of legal regulation, should focus on.

Explaining that the present system requires different processes depending on the level of seriousness attached to the complaint – inadequate professional service, unsatisfactory conduct or professional misconduct, with complaints sometimes having to restart under a different process – the SLCC wants to “reduce the whole process to three core stages”, namely:

1. A single investigation – ensuring there are a range of flexible options to filter out vexatious and similar complaints and allowing processes proportionate to different levels; £200 or £20,000

2. Determination – by the same organisation in relation to lower level issues, or by prosecution at the professional tribunal for conduct which may lead to removal from the profession;

3. Appeal – to ensure accountability and meet the requirements of natural justice there should be a single opportunity to appeal at the conclusion of the process.

However, any limit of compensation is widely seen as a cave-in to the legal profession, given the fact accumulative financial losses suffered by clients of rogue solicitors can well exceed the £20,000 limit.

Reimagine Regulation – How pro-lawyer regulator views regulation.

The Law Society backed SLCC – is also calling for consultation on whether it is time for a single independent body to handle all aspects of complaints against the legal profession. The single investigatory body was the previous model when the Law Society of Scotland handled all complaints against it’s own member solicitors.

To achieve faster, more efficient, and more targeted complaints handling, paper claims the government must focus on a simplified customer journey, not institutions and legislative detail. A consultation should focus on the key questions:

a)  Is it time for a single independent body to handle all aspects of complaints?

b)  If not, how could stages and hand-overs be dramatically reduced – for example, a single investigation covering service and conduct, even if conduct is still prosecuted at an Independent tribunal?

c)  How many chances of appeal should there be, and is it time to consider the Sheriff Appeal Court as a more proportionate forum than the Court of Session for consumer disputes

The SLCC contends other areas should also be explored such as:

* Whether complaints bodies should have more discretion, with appropriate safeguards, and less prescriptive legislation;

* How to ensure that compensation awarded is paid to the consumer;

* How issues of unfair fees should best be addressed;

* Whether it is time to move from “one size fits all” regulation to a focus on the areas of greatest consumer risk, engaging experts on how to tackle high risk areas;

* The appropriate balance between professional regulation and market regulation;

* And whether the SLCC should have the power to issue rules on how lawyers should handle complaints at first tier, and the power to impose “strict liability” offences where they do not have, or follow, their own internal process.

Reimagine Regulation – Appendices & further research:Following on from claims put forward in the SLCC’s call for a consultation, the regulator contends a framework Act allowing “proportionate and targeted” regulation would resolve complaints faster, benefiting consumers and lawyers; resolve complaints more cost efficiently, reducing the SLCC’s operating costs paid for by the profession; increase the effectiveness of redress, a key public protection; reduce risk to consumers; and increase market confidence.

Commenting on the SLCC’s call for what some dubbed a window dressing exercise, former Law Society Director and now SLCC Chief executive Neil Stevenson said: “This is not about criticising current institutions or approaches – all organisations involved work hard to make the system work as best it can, and Scotland has an internationally well respected legal sector. However, after years of minor reforms we believe it’s time to engage the Scottish public and legal community on what results we are trying to achieve with regulation and complaints handling, and the simplest and most efficient way to do that. We hope this paper provokes broad discussion, and that the fantastic opportunity of a review of current arrangements looks at big issues and not just adjusting technical detail with the current model.”

SLCC chair Bill Brackenridge said: “There is much to be proud of, but we are frustrated at a system which is more complex and legalistic than it needs to be. Based on feedback from lawyers and consumers, and drawing on expert evidence, we believe any consultation should aspire to improve the current system.”

Brackenridge continued: “Last year we helped hundreds of consumers reach an early settlement, and some areas of our work, like mediation, get hugely positive feedback from lawyers and consumers alike. We awarded over £400,000 of redress, but we also dismissed cases which were clearly unmerited, providing independent assurance and confirmation that a lawyer has actually provided an acceptable service.”

Despite claims of high compensation payments, neither Mr Brackenridge or the SLCC has published figures revealing actual financial losses suffered by clients, compared to settlements and compensation awarded by the SLCC to victims of rogue solicitors.

Reimagine Regulation

The current arrangements for legal complaints, and how complaint outcomes are used to improve standards in the legal sector, are too complex, involve too many stages, and pass through too many organisations.  Faster, more efficient, and better targeted regulation can be delivered, to the benefit of consumers and the sector, by significant legislative reform.

The SLCC’s paper Reimagine Regulation – SLCC priorities for a consultation on legal services regulation sets out six key priority areas we believe the government should consult on when they deliver on their commitment to launch a ‘consultation to review legal regulation’.  The changes would benefit both consumers and lawyers, by:

1. Unravelling the current complex complaints maze

2. Reducing statutory detail that focuses on processes, not outcomes for people

3. Ensuring that when redress is awarded the client receives it

4. Targeting risk, and not seeing all legal services as the same

5. Embedding the consumer principles

6. Learning from complaints and data to improve future outcomes

The Scottish Legal Complaints Commission claims their aim in this mainly public relations driven exercise – is to ensure that if there is a government consultation or review around the regulation of legal services then the key issues we set out are opened up for debate by consumers, the public and lawyers.  Final decisions on these issues are for the government and for parliament.

Scottish Ministers have so far not commented on whether they will launch any loaded consultation on the SLCC’s published paper.

Get involved

The SLCC has issued a call for consumers and the legal profession to become involved in the debate:

If you are interested in this area and wish to assist the debate then you can:

* publish an article discussing our ideas

* invite us to come to speak to you, or ask to visit us, or for us to send further information

* Contact your MSP or your professional body

* blog or tweet – copy us in @slcccomplaints and use the hashtag #ReimagineRegulation

* share views with the SLCC by email to consult@scottishlegalcomplaints.org.uk

Previous media investigations, reports and coverage of issues relating to the SLCC can be found here: Scottish Legal Complaints Commission – A history of pro-lawyer regulation.

 

Tags: , , , , ,

FROM ROGUES TO RICHES: Scottish Legal Complaints Commission refuse to identify corrupt solicitors in case findings – as derisory payments to executry fraud & legal malpractice victims revealed

‘Independent’ lawyer’s self regulator continues to look after profession. SCOTLAND’S ‘independent’ self regulator of solicitors – the Scottish Legal Complaints Commission (SLCC) has refused to publish the identities of tens of high profile law firms and solicitors across the country involved in serious malpractice resulting in upheld complaints & compensation payments to clients.

The ‘independent’ SLCC – controlled by the Law Society of Scotland and funded by clients legal fees to solicitors – also revealed brief details of case summaries where small payments with a range from a miserly £1 to £299 and up – have been paid out to the bereaved families of deceased loved ones.

The paltry compensation sums were paid out after lawyers look advantage of a regular scam by ripping off the wills & executry estates of dead clients.

Even in cases where tens of thousands of pounds were plundered from bank accounts and assets relating to wills handled by solicitors – a mere few hundred pounds were paid out to families & loved ones who were intended to inherit the possessions of their relatives.

The SLCC has refused to publish figures quoting actual payments or any figures identifying the extent of the actual losses suffered by victims after lawyers fleeced client assets and executry estates.

Instead, the lawyer backed self regulator has set out a vague structure of figures, which allow the lawyer backed regulator to make spurious claims of protecting consumers while in actual fact failing to deliver back to victims what is estimated to be tens of millions of pounds a year defrauded out of the executry estates of deceased Scots and their families – by the legal services industry.

Mired in accusations of pro-lawyer bias and corruption – the SLCC has also announced its latest 4 year strategy to:

* Increasing public awareness of the right to make a complaint about a lawyer and increasing the SLCC’s visibility

* Working to understand the public’s and the legal profession’s expectations of professional standards, including highlighting complaints processes

* Developing a culture of learning, so that  complaints made to the SLCC can be used to improve levels of service, as well as national professional standards and regulation

* Further developing the SLCC as a high performing organisation

* Making sure that compensation or fee refunds awarded by the SLCC are always received by consumers (in a tiny minority of cases this doesn’t happen at present)

Commenting on the strategy announcement, SLCC Chair Bill Brackenridge said: “We’ve finalised our strategy at a time when consumer rights have been climbing the public agenda”

He continued: “And we’re now planning for the years ahead.  We’ll have been running for ten years in 2018 and we now have a path, for then and after, to a more effective and efficient system for legal complaints.  Working in partnership will be crucial to its success and I’d like to thank our stakeholders for an open and challenging debate around the consultation.”

However, a recent media investigation into the Scottish Legal Complaints Commission recently revealed most of the SLCC’s key staff and investigators are in-fact families, friends & business associates of solicitors, reported here: ‘Independent’ Scots legal watchdog consists of solicitors’ husbands, wives, sons, daughters, cousins, friends, & employers.

Previous media investigations, reports and coverage of issues relating to the SLCC can be found here: Scottish Legal Complaints Commission – A history of pro-lawyer regulation.

SOUNDS FAMILIAR? Read on – Your solicitor could be among the guilty:

Determination Decisions

The Scottish Legal Complaints Commission now publishes anonymised Determination decisions – which give a brief description of complaints decided upon by the SLCC.

However, the heavily redacted case summaries crucially exclude the identify of law firms and solicitors involved in the complaints – meaning any consumer could unknowingly be using the same law firm or talking to the same solicitor – who has just been found guilty of dodging complaints investigations and ripping off other clients.

The SLCC claims it believes the information is useful information for both potential complainers and practitioners and “that this demonstrates better transparency of our process”

However, the SLCC goes on to state “We need to balance that transparency with our duty to protect confidentiality. Because of that, we publish anonymous complaint information and have, as far as possible, removed any identifying features.”

The SLCC further stated “It is also important to bear in mind that information given about a complaint is only a brief summary of the Determination Committee’s findings. In making decisions, consideration will have been given to specific facts and circumstances which, again for reasons of confidentiality, cannot be provided here. We hope, however, that the published information is sufficient to benefit both potential complainers and also those who provide legal services.”

Where a complaint has been upheld, the total amount the SLCC can award is capped at £20,000 – a cap set by the Scottish Government & Scottish Parliament after the legal profession lobbied against higher amounts of compensation during the passage of the Legal Profession & Legal Aid (Scotland) Act 2008.

Compensation for actual loss (quantifiable): Level 1 : £1-£299, Level 2:  £300-£649, Level 3: £650-£999, Level 4:  £1,000-£4,999, Level 5: £5,000-£9,999, Level 6: £10,000-£14,999, Level 7: £15,000-£20,000

Compensation for inconvenience, distress and loss of opportunity:Band A £1-£150, Band B: £151-£750, Band C: £751-£1,500, Band D £1,501-£5,000

Determination Decisions: January – March 2016

Upheld and part-upheld decisions

16/1 Residential conveyancing: The complainer complained that the named solicitor had (a) failed to obtain instructions from the complainer’s partner until a week before completion of the sale, and (b) failed to ensure that there was a provision in a Minute of Agreement for the sale proceeds to be held on deposit, rather than distributed on completion of the sale.

The Determination Committee was satisfied that the solicitor had acted correctly in distributing the funds, but that there was lack of effective communication with the complainer prior to the sale about distribution.  The Committee agreed that the solicitor had failed to act in the best interests of the complainer by failing to clearly explain what would happen in the event of implementation of a Minute of Agreement agreeing to equal division of the sale proceeds.

The Committee decided that both issues amounted to inadequate professional service.  The Committee decided that the firm should pay to the complainer compensation of Band C for distress and  inconvenience on several occasions.  The Committee directed the firm to pay a Complaints Levy of £500.

16/2 Executry: The complainer complained that the opposing named solicitor had failed to respond to a significant amount of correspondence sent by their own legal advisor over a significant period of time.

The Determination Committee decided that there was sufficient evidence to support the complaint that the firm had failed to reply to 12 items of correspondence over a period of approx. 20 months.  The Committee agreed that the failure had resulted in an inadequate professional service having been provided to the firm’s own client and having reached that conclusion, the Committee was satisfied that there was a direct adverse effect on the complainer.

The Committee decided to uphold the complaint and  ordered the firm to pay to the complainer compensation of Band B for inconvenience and distress and level 1 for actual loss. The Committee directed the firm to pay a Complaints Levy of £150.

16/3 Executry: The complainer complained that the opposing named solicitor had failed to respond to a significant amount of correspondence sent by their own legal advisor over a significant period of time.

The Determination Committee decided that there was sufficient evidence to support the complaint that the firm had failed to reply to 12 items of correspondence over a period of approx. 20 months.  The Committee agreed that the failure had resulted in an inadequate professional service having been provided to the firm’s own client and having reached that conclusion, the Committee was satisfied that there was a direct adverse effect on the complainer.

The Committee decided to uphold the complaint and  ordered the firm to pay to the complainer compensation of Band B for inconvenience and distress and level 1 for actual loss. The Committee directed the firm to pay a Complaints Levy of £150.

16/4 Executry: The complainer complained that the opposing named solicitor had failed to respond to a significant amount of correspondence sent by their own legal advisor over a significant period of time.

The Determination Committee decided that there was sufficient evidence to support the complaint that the firm had failed to reply to 12 items of correspondence over a period of approx. 20 months.  The Committee agreed that the failure had resulted in an inadequate professional service having been provided to the firm’s own client and having reached that conclusion, the Committee was satisfied that there was a direct adverse effect on the complainer.

The Committee decided to uphold the complaint and  ordered the firm to pay to the complainer compensation of Band B for inconvenience and distress and level 1 for actual loss. The Committee directed the firm to pay a Complaints Levy of £150.

16/5 Executry: The complainer complained that the opposing named solicitor had failed to respond to a significant amount of correspondence sent by their own legal advisor over a significant period of time.

The Determination Committee decided that there was sufficient evidence to support the complaint that the firm had failed to reply to 12 items of correspondence over a period of approx. 20 months.  The Committee agreed that the failure had resulted in an inadequate professional service having been provided to the firm’s own client and having reached that conclusion, the Committee was satisfied that there was a direct adverse effect on the complainer.

The Committee decided to uphold the complaint and  ordered the firm to pay to the complainer compensation of Band B for inconvenience and distress and level 1 for actual loss. The Committee directed the firm to pay a Complaints Levy of £150.

16/6 Family: The complainer complained that the named solicitor had (a) advised the complainer at the initial meeting that the information relating to the source of the deposit was not required, but later advised that this information was vital and incorrectly alleged that the complainer had failed to provide this information at the initial meeting, (b) failed to communicate effectively by failing to respond to basic questions, (c) failed to proceed with division of assets and sale proceeds when instructed, and (d) failed to deal adequately with the complaint.

The Determination Committee decided that there was sufficient evidence to uphold issues (a) and (c) as inadequate professional service.

Regarding (a), the Committee agreed that the solicitor had failed to identify the client’s objectives at the outset, and thus advised the complainer to pursue an un-necessary course of action.

The Committee decided in respect of (b) that the client had been kept informed during the case.  The fact that the solicitor had not been able to answer very specific questions about matters extraneous to the case had also been explained, and as such, there was no breach of the Service Standards.

In respect of (c), the Committee was satisfied that the solicitor had delayed raising the action for several weeks.

Regarding (d), the Committee agreed that the evidence showed that the solicitor had attempted to address the complainer’s concerns, and that the suggestion to the client to seek alternative representation was unreasonable or unusual where dissatisfaction had been raised.

The Committee decided to uphold the complaint and  ordered the firm to reduce its fees by one third and to pay to the complainer compensation of Band A for inconvenience and distress.  The Committee directed the firm to pay a Complaints Levy of £700.

16/7 Residential conveyancing: The complainer complained that the named solicitors and the firm had (a) unduly delayed registering the disposition, and (b) delayed informing the complainer of the mistake.

The Determination Committee decided that there was sufficient evidence to uphold a finding of inadequate professional service against the firm.

The Committee decided, (a) the solicitor had failed to prepare and register the disposition following settlement and had delayed registration by approx. a year and a half.

In respect of (b), the Committee agreed that the solicitor had failed to inform the client that the disposition had not been registered timeously, and only after a number of months, once the defect had been rectified.

The Committee ordered the firm to refund part of the fees (£100) and outlays (£30), and to pay to the complainer compensation of Band B for inconvenience and distress.  The Committee directed the firm to pay a Complaints Levy of £500.

16/8 Family: The complainer complained that the named solicitor and the firm had (a) delayed/failed to obtain all of the husband’s financial information, failed to set up meetings and failed to follow instructions to communicate with the opposing solicitor, (b) failed to provide consistent advice, (c) included incorrect information in the offer of settlement, (d) failed to thoroughly examine the proposals for settlement, (e) failed to submit cravings on the complainer’s behalf, (f) failed to respond to requests for an interim account and failed to keep updated regarding escalating costs, and (g) delayed settlement negotiations.

The Determination Committee was of the view that there was no evidence to support the complaint, save as for issues (e) and (f) regarding the failure to submit cravings in the Defence, as required by the Ordinary Cause Rules, and the failure to issue an interim account as per the complainer’s request, or communicate adequately with the complainer about the increasing fees.  The Committee was satisfied that these issues could amount to inadequate professional service, as there had clearly been a breach of the Service Standards for diligence and communication.

The Committee ordered the firm to pay compensation to the complainer of Band B for the inconvenience and distress caused by the inadequate professional service.  The Committee directed the firm to pay a Complaints Levy of £500.

16/9 Litigation: The complainer complained that the named solicitor and the firm had (a) raised an action incorrectly naming the complainer individually, rather than in the name of the business, (b) failed to lodge the application timeously, (c) failed to lodge a properly framed application and delayed amending the application.

The Determination Committee decided that (a) there was insufficient evidence to reach any conclusion that the court action had been raised in the name of an incorrect party.  However, the Committee was satisfied that (b) the firm had failed to exercise the normal care and diligence expected of a competent solicitor by delaying the lodging of the application, and (c) failing to properly frame and amend the application.

The Committee decided to uphold the complaint and  ordered the firm to pay compensation of Band D for inconvenience and distress.  The Committee directed that no fees or outlays should be charged to the complainer.  The Committee directed the firm to pay a Complaints Levy of £800.

16/10 Litigation: The complainer complained that the opposing named solicitor and the firm had failed to act in the best interests of his client by unduly delaying the conclusion of the dispute for over 2 years.

The Determination Committee was satisfied that the cumulative effect of the identified delays adversely impacted on the service provided by the firm to its own client. Consequently, the complainer suffered as a direct effect of the deficiencies in the service to the client.

The Committee ordered the firm to pay compensation to the complainer of Level 4 for actual loss and Band B for inconvenience and distress.  The Committee directed the firm to pay a Complaints Levy of £300.

16/11 Residential conveyancing: The complainers complained that the named solicitor had (a) failed to ensure that a Completion/Habitation Certificate was available at conclusion of the purchase, (b) failed to advise of the consequences of completing without the Certificate, (c) failed to take instructions/obtain informed consent before agreeing a retention sum with the builder’s solicitors, and (d) failed to advise prior to completion that the property had not been passed as fit for habitation.

The Determination Committee was satisfied that the firm (a) did not take all reasonable steps to ensure that their clients’ interests were protected at settlement, and (b) & (d) failed to clearly and fully explain the significance of settling without the relevant Completion and Habitation certificates. The Committee accepted that the firm had not investigated why the Certificate had not been issued or asked about any underlying issues.

Regarding (c), although the Committee was satisfied that the firm had sought instructions about the retention of £10,000, there appeared to be no evidence to show that the consequences of proceeding in the way suggested by the developers was explained to the complainers, and that they were not advised about what a Completion Certificate was or the implications of proceeding without one.

The Committee ordered the firm to pay to each the complainers compensation of Band D for inconvenience and distress.  The Committee directed that fees in the sum of £660 (plus VAT) should be refunded to the complainers.  The Committee directed the firm to pay a Complaints Levy of £3,000.

16/12 Family: The complainer complained that the named solicitor and the firm had prepared an initial writ which contained a number of serious errors, including incorrect details of the children’s address and what was in the children’s best interests.     The Determination Committee was satisfied that the evidence showed that the firm had failed to ensure that the writ contained the necessary averments and fundamental flaws, which resulted in the action having to be dismissed and resurrected by newly instructed agents.

The Committee ordered the firm to pay to the complainer compensation of Band B for inconvenience and distress.  The Committee directed that there should be a full refund of fees (£700) and no further fees charged to the complainer.  The Committee directed the firm to pay a Complaints Levy of £400.

16/13 Family: The complainer complained that the named solicitor had (a) failed to deal with a Motion to recall the Sist and request a Proof, contrary to numerous requests, (b) failed to submit the Motion to Court and charged inappropriately for doing so, (c) unduly delayed sending the Motion to the opposing solicitors, despite confirming that this would be carried out the following week, (d) unduly delayed updating on the position regarding the failed submission of the Motion, despite having given an undertaking to do so, (e) unduly delayed reminding the opposing solicitors that a response was still outstanding, despite two reminders to do so, (f) unduly delayed forwarding correspondence from the opposing solicitors, despite being reminded and advised of the urgency of the matter, (g) failed to raise various financial issues with the opposing solicitors, despite numerous requests to do so, (h) failed to confirm advice provided in writing, despite having agreed to do so, (i) failed to challenge a report, despite having accepted instructions to do so, (j) declined to provide further advice until the outstanding account had been settled, despite this being contrary to the terms of business, and (k) failed to deal adequately with the complaint, by ignoring concerns.

The Determination Committee was satisfied that (a) & (b) the solicitor had failed to enrol a Motion, despite having undertaken to do so and charged the complainer for having done so.

Regarding (c), although the Committee was content that the complainer had been advised of a timescale, there was only a 4 day delay.  The Committee was not satisfied that this short delay amounted to an inadequate professional service.

In respect of (d), the Committee noted that there had been a 4 week period between the date when the solicitor intended to enrol the Motion and the failure to do so being advised to the complainer.  The Committee’s view was that the solicitor should know the client’s business at all times, regardless of when he actually remembered the oversight.  The Committee’s view was that the delay was a breach of the standards of both diligence and communication and amounted to inadequate professional service.

Regarding (e), the Committee was satisfied that there had been a 5 week delay, despite 5 prompts by the complainer.

As regards (f), the Committee was satisfied that there had been a 4 week delay in the information being provided to the complainer, despite the solicitor being aware of the urgency.

In respect of (g), the Committee agreed that the solicitor had failed to follow instructions in this regard on at least 4 occasions.

Regarding (h), the Committee was satisfied that the evidence showed that the complainer had requested the information on a number of occasions, and that this had not been provided.  The solicitor had the opportunity of clarifying the information sought after the meeting, as subsequent requests were made.

In respect of (i), the Committee agreed that the evidence did not support the complaint that the solicitor had been asked to challenge the content of the report, other than in relation to fees.  Accordingly, this issue was not upheld.

Regarding (j), the Committee agreed that the solicitor had acted unreasonably by refusing to continue to provide advice to the complainer prior to the expiry of 30 days for settlement of the account, as allowed for in the terms of business letter.

Finally, in respect of (k), the Committee noted that there was no evidence to support the solicitor’s indication that the complainer had been invited to discuss the complaint, as per the terms of business letter.  The Committee was satisfied that without written confirmation and the complainer having denied having received any such invitation, that there had been a failure to comply with the terms of business and that this failure amounted to an inadequate professional service.

The Committee decided to uphold the complaint in part and ordered the firm to pay compensation to the complainer of Band C for inconvenience and distress.  The Committee directed the firm to pay a Complaints Levy of £700.

16/14 Residential conveyancing: The complainer complained that the named solicitors and the firm had (a) failed to advise that a more in depth survey report should be obtained, (b) failed to obtain/discuss the terms of a timber report, (c) failed to follow up the issue of guarantees for damp treatment and woodworm, and (d) failed to advise of notification of timber infestation requiring full chemical works being undertaken.

The Determination Committee agreed that the firm had failed to provide the complainer with documents relating to previous investigations of damp and timber defects and failed to advise the complainer that further investigations should be carried out given the terms of those documents.  The Committee also agreed that one of the named solicitors had failed to obtain a copy of the report instructed by the complainer and did not advise about its terms prior to the conclusion of the missives.  The Committee was satisfied that one of the named solicitors had failed to follow up the issues of guarantees and that the firm had failed to advise of the terms of a letter from the sellers advising that there was an infestation of woodworm and that full chemical works should be carried out.

The Committee ordered the firm to pay compensation to the complainer of Band C for the distress and inconvenience caused by the inadequate professional service.  The Committee also decided that the firm’s fees should be reduced by 35% (approx. £250 plus VAT) and refunded to the complainer.  The Committee directed the firm to pay a Complaints Levy of £1,000.

16/15 Residential conveyancing: The complainer complained that the opposing named solicitor and/or the firm had failed to register the sale of the ground or have the title deeds updated in relation to the part of the complainer’s garden that the firm’s client had purchased.

The Determination Committee agreed that the solicitor had failed to record the title deed in favour of the firm’s own client (the complainer’s neighbour), resulting in an inadequate professional service to their own client and which had a direct adverse impact on the complainer.

The Committee ordered the firm to pay to the complainer compensation of Band A for the inconvenience and distress and level 2 for actual loss, due to the need for a new deed plan to be prepared.  The Committee directed the firm to pay a Complaints Levy of £200.

16/16 Family law; failing to respond: The complainer complained about the named solicitor and/or the firm had (a) failed to include information required in a Pensions Sharing Order and failed to ensure that the Schedule was attached to the Minute of Agreement, (b) failed to ensure that the Minute of Agreement was sufficiently robust regarding the pension entitlement and net proceeds of sale, (c) failed to intimate the Agreement and Decree to the pension trustees within the appropriate statutory timescale, (d) failed to distribute the proceeds of sale in accordance with the Minute of Agreement and unduly delayed discharging the bank loan, (e) inappropriately and without authority, deducted the fee note from the proceeds of sale without having issued a fee note, (f) erroneously withheld the balance of the proceeds of sale, (g) failed to raise a court action, despite having been instructed to do so, (h) failed to respond to the letter of complaint and failed to provide a breakdown of fees, and (i) failed to implement a mandate.

The Determination Committee was satisfied that the evidence showed that the firm had (a) failed to ensure that the pension plan details were contained in the document sent to the pension trustees, (d) failed to distribute funds timeously, and (e) deducted fees from retained funds without the knowledge of the complainer. The Committee was not satisfied that the evidence supported the remaining issues of complaint or that there was lack of evidence to prove these issues on the balance of probabilities.

The Committee ordered the firm to pay compensation to the complainer of Band B for inconvenience and distress, and that fees charged should be reduced by £100.  The Committee directed the firm to pay a Complaints Levy of £400.

16/17 Residential conveyancing: The complainer complained that the named solicitor and the firm had (a) failed to obtain a Letter of Comfort from the Council and/or failed to determine the exact amount of the liabilities owed by the sellers in respect of outstanding Statutory  Notices, and (b) failed to negotiate an appropriate retention amount in the missives.

The Determination Committee decided that (a) there was evidence that the firm failed to take adequate steps to determine the liabilities of the sellers, and (b) that the firm failed to negotiate an appropriate retention.  The Committee decided that the complaint should be upheld to this extent.

The Committee ordered the firm to pay to the complainer compensation of Band C for distress and inconvenience and Level 4 for actual loss.  The Committee directed the firm to pay a Complaints Levy of £800.

16/18 Litigation: The complainers complained that the named solicitor and/or the firm had (a) systematically lied regarding the action being taken in connection with the claim, and (b) falsely charged the complainers for costs in relation to water and planning applications.

The Determination Committee decided that (a) there was sufficient evidence to support the complainers’ contention that the solicitor had incorrectly advised them that various steps had taken place to progress the action, and (b) the solicitor falsely advised the complainers that the sellers would pay for the costs of the work, despite having obtained no undertaking that they would do so.

The Committee ordered the firm to pay to each of the complainers compensation of Band D for distress and inconvenience, and that no fee note should be rendered.  The Committee directed the firm to pay a Complaints Levy of £1,000.

16/19 Residential conveyancing: The complainer complained that the named solicitor and/or the firm had failed to advise about the Capital Gains Tax liability on the transfer of title.

The Determination Committee upheld the complaint on the basis that the options available to the complainer should have been explored, and the complainer had not been advised of the tax liability and/or was not advised to seek tax advice from another source.  The Committee’s view was that the complainer had suffered a loss of opportunity to consider all available options and was not fully informed as a result of the inadequate professional service.

The Committee ordered the firm to pay compensation to the complainer of Band D for worry and distress. The Committee directed the firm to pay a Complaints Levy of £850.

16/20 Litigation: The complainer complained that the named solicitor and/or the firm had (a) failed to advise him at any time about the strength of his claim, (b) failed to advise him of the potential for a costs order being made if the case was lost, and (c) failed to keep the complainer updated or advised about what SLAB required for the funding application.

The Determination Committee decided in respect of (a) that the firm had failed to give appropriate advice, either in writing or otherwise, about the strength of the claim. Such advice should have been provided in writing before court proceedings were raised.  In respect of (b), the Committee was satisfied that the evidence indicated that the firm had failed to provide appropriate advice regarding potential liability for expenses if the action was unsuccessful, or the potential magnitude of that liability.  The Committee agreed that the evidence did not support (c), that the firm had advised the complainer of the date of the hearing, that the firm had passed on any requests received from SLAB, or that SLAB had been in touch with the complainer directly.

The Committee ordered the firm to pay to the complainer compensation of Level 5 for actual loss and Band C for inconvenience and distress resulting from the inadequate professional service.  Additionally, the Committee decided that the firm should not be entitled to charge any fees or outlays for the service provided.  The Committee directed the firm to pay a Complaints Levy of £1,500.

16/21 Executry: The complainer complained that the named solicitor and/or the firm had failed to ensure prompt and transparent fee arrangements, having issued a final fee note in June 2014, for work carried out between 2008 and 2013, without any prior warning or discussion.

The Determination Committee decided that there was evidence of a failure to set out the basis upon which fees would be charged from the outset and the delay issuing the fee note at the conclusion of the instruction amounted to inadequate professional service.

The Committee ordered the firm to pay compensation to the complainer of Band A for inconvenience and distress caused by the inadequate professional service.  The Committee directed the firm to pay a Complaints Levy of £50.

16/22 Executry: The complainer complained that the named solicitor and/or the firm had (a) failed/delayed to respond to telephone calls and keep the complainer updated, (b) failed to explain the increase in fees, despite numerous requests, and (c) failed to provide adequate advice regarding an insurance policy claim.

The Determination Committee decided regarding (b) that the failure by the firm to keep the complainer updated regarding increasing costs and that the fees had exceeded the original amount quoted amounted to an inadequate professional service.  The Committee noted that the firm had failed to provided the complainer with a copy of the Law Accountants fee note, despite there having been a fee rendered for the service and that the letter of engagement was unclear and difficult to understand.

The Committee decided that the evidence showed that the firm had (a) been in regular communication with the complainer who had been kept up to date.  The Committee could find no evidence to support complaint (c).

The Committee ordered the firm to pay to the complainer compensation of Band B for distress and inconvenience and to refund excess fees (approx. £5000).  The Committee directed the firm to pay a Complaints Levy of £250.

16/23 Residential conveyancing: The complainer complained that the named solicitors and/or the firm had (a) failed to adequately advise of the position regarding the alterations to the attic space, (b) failed to check/advise the complainer to ensure that the attic alterations were in line with building regulations, and (c) failed to fully advise of the risks proceeding with the purchase without verifying the position regarding the alterations.

The Determination Committee decided to uphold all 3 issues as inadequate professional service, as the evidence supported the complaint that the firm had failed to address all 3 matters adequately.  The Committee was satisfied that the firm had failed to fully advise the complainer about the potential issues regarding the building control documentation for the alterations, there was a failure to communicate throughout the transaction, despite requests for clarification, and that the firm had not alerted the complainer to the potential risks or consequences of proceeding without the adequate documentation.

The Committee ordered the firm to pay compensation to the complainer of Level 2 for actual loss and Band D for distress and inconvenience.  The Committee also ordered a full fee refund (approx. £600 plus VAT).  The Committee directed the firm to pay a Complaints Levy of £2,000.

16/24 Family: The complainer complained that the opposing solicitor and/or the firm had failed to obtemper an Interlocutor (which ordered the firm to notify the complainer of a court hearing date), by sending the notice to an address where the complainer had not lived for a number of years.

The Determination Committee decided that the firm had failed to fulfil the commitment to the Court, to the client and to the complainer, to prepare the case diligently and to communicate effectively.  The Committee accepted that the firm had served papers at an incorrect address, which did not match the address on the Court Record for the action.  As a result, the Committee was satisfied that the firm had provided their own client with an inadequate professional service, as a client would expect the firm to properly designate the parties and the failure to do so, could have led to additional time and cost to the client for the rectification of any errors. The Committee agreed that there had been a direct adverse impact on the complainer and on that basis, the complaint was upheld.

The Committee ordered the firm to pay compensation to the complainer of Band B for the inconvenience and distress caused by the inadequate professional service.  The Committee directed the firm to pay a Complaints Levy of £200.

Not upheld decisions:

16/25 Litigation: The complainer complained that the named solicitor and the firm had (a) failed to conduct the court case adequately by ignoring expert opinions, reports, evidence and failing to call specific witnesses and had quoted an incorrect name in the court documents, (b) failed to provide adequate advice about the settlement, by failing to advise that the opponent was obliged to issue a VAT receipt, despite instructions that the offer was to be inclusive of VAT, and (c) acted in an aggressive manner and threatened to cease acting on multiple occasions.

The Determination Committee was satisfied that the solicitor had exercised professional judgement and there was no evidence to show that this was unreasonable.  The Committee agreed that the solicitor followed clear instructions and there was no evidence that the solicitor failed to advise adequately about the terms of the settlement.  The Committee agreed that the evidence showed effective and clear communication by the solicitor and there was no evidence to support the complaint that the solicitor had acted in an aggressive manner.

The Committee decided not to uphold the complaint.

16/26 Family: The complainer complained that the named solicitors had (a) failed to provide adequate information about fees, (b) failed to keep the bank informed of a significant overspend, despite being aware of the limitations in funding, (c) failed to follow instructions by allowing 3 staff members to attend at court, thus incurring unnecessary costs, (d) failed to pay Counsel’s fees before taking the firm’s fees, and (e) failed to advise Counsel to withdraw from acting.

The Determination Committee decided that (a) sufficient information about fees had been provided before the offer was rejected, (b) the bank had been kept up to date and advised of the reasons for the increases in funding, (c) the firm did not accept the instruction to only have 1 person at the court hearing.  The firm did not, therefore, fail to fulfil a commitment to the complainer and fees were not unnecessarily incurred, as the need for additional staff was explained and professional judgement in this regard was exercised reasonably.

Regarding (d), the Committee could find no evidence to support the complaint that an instruction had been given or accepted that Counsel should be paid in the first instance.

In respect of (e), again the Committee could find no evidence to support the complaint about the withdrawal of Senior Counsel from the case.

The Committee decided not to uphold the complaint.

16/27 Family: The complainer complained that the named solicitor and/or the firm had provided inadequate and inconsistent advice about the availability of Legal Aid within the firm.

The Determination Committee was satisfied that the evidence showed that the advice provided was clear, consistent and in accordance with the firm’s policy on Legal Aid.  The Committee did not consider that there was any contradictory information provided, or that the quality of communication from the solicitor and/or the firm was inadequate.

The Committee decided not to uphold the complaint.

16/28 Residential conveyancing: The complainer complained that the named solicitor of the firm had failed to advise the complainer to take steps to confirm the validity of a Letter of Comfort or advise the complainer to insist on a Certificate of Completion from the sellers.

The Determination Committee was satisfied that the evidence showed that the firm had adequately advised the complainer of the available options and how to protect the position.  The Committee agreed that there was no requirement for the firm to insist on a Completion Certificate.

The Committee decided not to uphold the complaint.

 

Tags: , , , , , , ,

NEW CHEATS FOR THE DOCK: Six lawyers probed by Police for legal aid fraud – as investigation uncovers banned legal aid solicitors raking in profits via law firms referral fees scam

Police & Prosecutors investigate lawyers for legal aid fraud. THE Scottish Legal Aid Board (SLAB) has confirmed a number of solicitors are currently under investigation by Police Scotland for alleged legal aid fraud.

The admission by Legal Aid chiefs – via Freedom of Information legislation – comes after journalists received tip offs relating to “high value” long term investigations involving a number of law firms and solicitors chiefly in the west of Scotland.

And, all the solicitors who are under investigation by Police Scotland and the Crown Office & Procurator Fiscal Service (COPFS) – are still working for law firms who are able to claim more public cash – despite substantive allegations they cheated taxpayers.

Information provided by SLAB in response to a Freedom of Information request reveals:

The first was on an employee of a firm of solicitors and the estimated value of the alleged irregularities was £1,065.55 and as outlined above the matter is with Police Scotland.

The second was in respect of six solicitors. The estimated value of the alleged irregularities is yet to be determined as again, a Police investigation remains on-going.

The Scottish Legal Aid Board also confirmed fourteen applicants for legal aid had been referred to the Crown Office.

In respect of claimants (legal aid applicants) the information requested is as follows:

There were 14 legal aid applicants referred to COPFS to consider prosecution with the estimated value of the alleged irregularities being £78,854.52 with £5,994.92 having been recovered.

One case was referred as an attempted fraud with an estimated value of the irregularity being £2,800 which is not recoverable.

COPFS have closed two cases; one by way of a Fiscal warning with the other having no proceedings being taken against them. The remaining 12 cases continue to be considered or progressed.

However, since SLAB confirmed the Police probes – information has come to light a number of solicitors who are now banned from the Legal Aid register and some  who have ‘voluntarily’ withdrawn after headline SLAB investigations – are still profiteering from legal aid cash.

The claims come as Scotland’s legal profession – led by the Law Society of Scotland – plot a strategy to resist ex Finance Secretary John Swinney’s announced cuts to the Legal Aid budget – which has soared to over £150 million a year – resulting in Scottish lawyers handed over £1.2 billion of public cash since the financial crash of 2008.

Enquiries by the media have also uncovered a new type of legal aid scam – whereby lawyers who currently cannot claim legal aid due to previous instances of defrauding the public purse – are now receiving hefty payments in the form of large referral fees from other local law firms they pass on civil & criminal clients.

The law firms who gain extra legal aid business from former legal aid solicitors – are suspected of inflating their own legal aid claims to cover referral fees paid to the referring solicitor.

One client – who did not wish to be identified – told journalists how his solicitor – already named in the media in relation to legal aid irregularities – passed on a civil damages claim against a West of Scotland local authority to another firm of solicitors in the same area.

The client later became aware an arrangement had been made by the second law firm for referral fees to be provided to the original solicitor.

The claimant was told if any problem arose or he was asked questions, he was to reply by stating his original solicitor was kept on in the case as his office was closer in terms of accessibility.

The client – who’s claim is being funded by civil legal aid – told journalists he was asked to go to three consultations with his original solicitor – all of which were suddenly cancelled at the last minute.

However, the client was asked to go to his new legal representatives for a consultation where his second lawyer claimed ‘valuable information had been learned from the consultations’ – which never took place.

Material which has emerged in relation to this case suggests the non-existent consultations – have since been charged up to legal aid.

A number of similar cases have since been identified involving the same solicitor who is now ‘de-registered’ from the Legal Aid register – potentially costing taxpayers tens of thousands of pounds in inflated legal aid claims designed to channel payments back from law firms still on the legal aid register – to the referring solicitor.

Most of the cases so far uncovered appear to involve small to medium sized civil claims against housing agencies, public bodies including health, local authorities and some private businesses.

Speaking to journalists, an individual who formerly specialised in complex financial investigations of law firms said the scale of fraud involving inflated legal aid claims being used to provide referral fees to de-registered and ‘non legal aid solicitors’ “is substantial” and “difficult to get to grips with”.

The individual also gave an account of a case where he alleged financial documents had been removed – under audit powers – from a law firm currently implicated in a multi million pound mortgage fraud racket – to shield a well known solicitor who formerly held high office at the Law Society of Scotland.

It is unknown if the Crown Office or Police Scotland have requested sight of the material from the legal profession’s regulator.

LAWYERS AVOID LEGAL AID RAPS:

A previous investigation by DOI into the lack of prosecutions by the Crown Office revealed fourteen cases were sent to prosecutors, with not one case going to court.

One solicitor even registered a plea of “insanity” to avoid being prosecuted for legal aid fraud.

Since the start of 2005, SLAB has submitted nine reports to Crown Office alleging criminal offences by a total of thirteen solicitors. One report related to a firm of five solicitors;

The allegations relating to eleven of these solicitors were marked for no action on the basis of an insufficiency of evidence. This related to seven separate reports (for which Crown Counsel’s Instructions were obtained in three)

A report relating to one of the eleven solicitors referred to above was referred to the Civil Recovery Unit for their consideration;

One solicitor died before criminal proceedings were commenced;

One solicitor was placed on indictment for Sheriff and Jury proceedings for fraud. That solicitor entered a preliminary plea in bar of trial on the grounds of insanity which was sustained by the Court.  In light of that decision, the case was deserted pro loco et tempore; and

In relation to the final solicitor, the matter remains under consideration.

Further reporting on the lack of prosecutions was reported in the Sunday Mail newspaper and by DOI can be found here: FOURTEEN lawyers accused of multi-million pound legal aid fraud escape justice as Scotland’s Crown Office fail to prosecute all cases in 5 years

 

Tags: , , , , , , , ,

REGULATION ROBBER: Lawyer who ripped off clients & embezzled £1.04m from Bank escapes Proceeds of Crime prosecution – thanks to solicitors’ self regulation stitch-up

No charges for lawyer who stole from clients & bank – Crown Office. A SOLICITOR who embezzled over £1 million from a bank has escaped criminal charges – because the Law Society of Scotland – who control self regulation of solicitors and the tribunals who ‘prosecute’ rogue lawyers – did not call for the case to be taken up by Police or prosecutors.

David Lyons (64) – who has appeared numerous times before the Scottish Solicitors Discipline Tribunal (SSDT) was struck off from the roll of solicitors after the tribunal heard in a recent case Lyons had consistently ripped-off clients and executry estates by charging excessive amounts for work and fees.

It also emerged during an investigation Lyons had secured a £1,010,000 property loan from the Bank of Ireland – but kept the cash for himself.

His business partner – Duncan Drummond, of Pollokshields, Glasgow, who was also found guilty of ripping off clients – was struck off at the same hearing.

In one case Drummond charged £15,700 for work he’d carried out which auditors calculated should actually have totalled £2,350 – a mark up of 568%. In another case he sent out a £4,000 bill for £1,125 worth of work.

Despite the severity of fraud and consistent breach of client trust,  there is no mention in the tribunal’s findings of any move to refer the case to Police Scotland or the Crown Office – who have both since confirmed no action is being taken against Mr Lyons or anyone from the now defunct law firm of Lyons Laing, which had offices in Greenock and Glasgow.

The ‘independent’ Scottish Legal Complaints Commission (SLCC) has also not issued any comment on the case or the lack of action against Lyons and his business partner.

The Scottish Sun newspaper reports:

‘Untouchable’ lawyer fury: Bent brief in £1m bank theft let-off

CROOK DODGES CASH GRAB

EXCLUSIVE by RUSSELL FINDLAY 14 Feb 2016

A CROOKED lawyer dodged prosecution despite nicking more than £1million.

David Lyons, 64, was struck off after embezzling the money from the Bank of Ireland.

But the Crown Office will not put him in the dock or use proceeds of crime laws to claw back the cash.

Former Labour minister Brian Wilson blasted the decision.

He said: “There are people in jail for embezzling £1,000 but as a lawyer he’s untouchable.

“It’s an example of the madness where lawyers are treated as a separate class of citizen.”

Lyons, of Kilmacolm, Renfrewshire, was struck off over eight counts of professional misconduct, including pocketing the £1.04million in a commercial property deal.

The Dublin-based bank — bailed out with 3.5billion euros of taxpayers’ cash after the 2008 economic crash — would not discuss the case.

But Fergus O’Dowd, who is on the Irish parliament’s justice committee, said: “If they won’t pursue him in Scotland’s criminal courts they should go after the money.”

He added: “It’s a disgrace the bank won’t comment.”

Lyons ran Lyons Laing in Greenock, where clients were ripped off with hugely inflated fees over a decade.

His colleague Duncan Drummond, of Pollokshields, Glasgow, was also struck off over four counts of misconduct.

Mr Wilson is also calling for an end to self-regulation by legal watchdog the Law Society of Scotland.

An LSS spokesman said a judicial factor was appointed in 2009 to run Lyons’ company.

He added: “The factor has an obligation to report findings to the Law Society and Crown Office.”

The Crown said: “There are no criminal or civil recovery proceedings against someone of that name.”

Scottish Solicitors Discipline Tribunal Hearing & Decision: Having heard submissions on behalf of the Complainers and the Second Respondent in mitigation and having noted three previous Findings of professional misconduct against the First Respondent and one previous Finding of professional misconduct against the Second Respondent, the Tribunal pronounced an Interlocutor in the following terms:-

The Tribunal having considered the Complaint dated 9 April 2015 at the instance of the Council of the Law Society of Scotland against David Richard Blair Lyons, residing at Greenways, Pacemuir Road, Kilmalcolm (“the First Respondent”) and Duncan Hugh Drummond, residing at Flat 1/2, 80 Kirkcaldy Road, Pollockshields, Glasgow (“the Second Respondent”);

Find the First Respondent guilty of professional misconduct in respect of his failure to respond to correspondence from the Complainers, his failure to obtemper statutory notices, his taking of grossly excessive fees from executry estates, his failure to comply with the requirements of the Accounts Rules, his taking of fees from the sale proceeds of a property to which he was not entitled, his failure to obtemper letters of obligation, his taking of fees without rendering fee notes, and his embezzlement of the sum of £1,040,000 from the Bank of Ireland;

Find the Second Respondent guilty of professional misconduct in respect of his taking of grossly excessive fees from executry estates, his taking of fees without rendering fee notes, his failure to comply with the requirements of the Accounts Rules and his failure to supervise his firm’s assistant, in breach of the undertaking given by him to the Complainers; Order that the name of the First Respondent be Struck Off the Roll of Solicitors in Scotland; Order that the name of the Second Respondent be Struck Off the Roll of Solicitors in Scotland.

THE LYONS SHARE – How law firm employed legal industry’s commonly used overcharging scams to rip off wills & executry estates:

In the executry of Mr E, the Respondents took fees totaling £15,950.00 excluding VAT during the period 21 June 2007 to 7 April 2009. A file audit by the Auditor of Court at Greenock assessed the fees due to the firm for that period to be £8,597.00 excluding VAT. The overcharge was 86%. The Second Respondent was principally in charge of this case.

In the executry of Mr AE, the Respondents took fees totaling £12,500.00 excluding VAT during the period 6 December 2004 and 26 June 2008. A file audit by the Auditor of Court at Greenock assessed the fees due to the firm for that period to be £4,338.05 excluding VAT. The overcharge was 188%. The First Respondent was principally in charge of this case.

In the executry of Mr F, the Respondents took fees totalling £15,700 excluding VAT during the period 3 April 2007 to 23 December 2008. A file audit by the Auditor of Court at Greenock assessed the fees due to the firm for that period to be £2,350.00 excluding VAT. The overcharge was 568%. The Second Respondent was principally in charge of this case.

In the executry of Mrs G, the Respondents took fees totalling £13,100.00 excluding VAT during the period 12 April 2006 and 4 August 2008. A file audit by the Auditor of Court at Greenock assessed the fees due to the firm for that period to be £5,917.03 excluding VAT. The overcharge was 121%. The Second Respondent was principally in charge of this case.

In the executry of Mrs H, the Respondents took fees totalling £8,000.00 excluding VAT during the period 5 July 2007 and 6 April 2009. A file audit by the Auditor of Court at Greenock assessed the fees due to the firm for that period to be £4,642 excluding VAT. The overcharge was 72%. The Second Respondent was principally in charge of this case.

In the executry of Mr I, the Respondents took fees totalling £4,000.00 excluding VAT during the period 26 February 2008 to April 2009. A file audit by the Auditor of Court at Glasgow assessed the fees due to the firm for that period to be £1,125 excluding VAT. The overcharge was 256%. The Second Respondent was principally in charge of this case.

In the executry of Mr J the Respondents took fees between November 2004 and May 2008 which exceeded by £90,000 or thereby the value of the work as assessed by the Auditor of Greenock sheriff court. The Second Respondent was principally in charge of this case.

In the executry of Mr M, the Respondents took fees of £2,000.00 plus VAT in December 2006 and £2,500.00 plus VAT in November 2007. On neither occasion did the Respondents issue a fee note. The Auditor of Court assessed the fees due to the Respondents as £3,397.00 plus VAT. The overcharge is therefore £603.00 plus VAT. The First Respondent was principally in charge of this case.

Also in relation to this case, the assistance of the Complainers having been invoked by Ms N, the executor, and the files having been provided to the Complainers, on 15 August 2008 the First Respondent wrote to the Complainers asking for the files to be returned for Taxation. The files were sent to the First Respondent on 1 September 2008. Thereafter the Complainers wrote to the First Respondent requesting return of the files on 10 and 21 October 2008, 10 November 2008 and 7 January 2009. No response was ever sent by the First Respondent. On 16 January 2009 the Complainers issued a notice under Section 42C of the Solicitors (Scotland) Act 1980 requiring return of the file. The First Respondent did not return the file. The Complainers wrote with a list of conduct issues to the First Respondent on 25 February 2009 arising out of this executry. No response was ever received from the First Respondent. The files were eventually recovered from the Judicial Factor.

In the executry of Ms O between 20 May 2008 and 28 May the Respondents deducted fees without rendering fee notes to the executor, Mr P, in breach of Rule 6(d) of the Solicitors (Scotland) Accounts etc Rules 2001. The Second Respondent was principally in charge of this case.

 

Tags: , , , , , , , , ,