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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.

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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.

 

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PURGE LAW: ‘Reform minded’ Legal complaints chief ousted for Law Society insider as solicitors regulatory body retakes control of ‘independent’ Scottish Legal Complaints Commission

Law Society’s Neil Stevenson retakes complaints quango for lawyers.THE LEGAL profession’s definition of ‘independence’ took a full turn yesterday as the ‘independent’ Scottish Legal Complaints Commission (SLCC) and the Law Society of Scotland announced long time Law Society insider Neil Stevenson is to be the SLCC’s latest Chief Executive, replacing former Foreign Office careerist Matthew Vickers who took on the role in June 2012.

Stevenson’s appointment to the tarnished position as head of the pro-lawyer anti-client SLCC – created in 2008 and at a staggering cost since to Scots clients of over £20 million in complaints levies paid by solicitors and recovered via legal fees to clients – comes after widely reported evidence showing the SLCC has failed to live up to expectations of dealing with rising numbers of rogue solicitors who rip off their clients.

And, the Law Society’s decision to retake control of the ‘independent’ SLCC by placing one of their own in charge also comes after a challenging year for self regulation of the legal profession – left reeling from the effects of the damaging BBC Scotland investigation “Lawyers Behaving Badly” –  which blew the mask off lawyers investigating their own and legal aid fraud.

For the past fifteen months since the BBC programme aired in January 2014,  the Law Society have demanded significant changes at the SLCC after concluding the hapless complaints quango – staffed mostly by former Law Society insiders – failed to stand up for lawyers during the BBC Scotland investigation.

And, earlier this year, further friction between the two legal regulators emerged when the SLCC criticised a rigged poll organised and funded by the Law Society which claimed solicitors are ‘well liked’.

Articles on the client satisfaction poll – published in some media outlets were written by the Law Society’s own president Alistair Morris in which the Law Society President extolled the virtues of lawyers, backed up with dodgy statistics.

However the full extent of how the poll had been rigged –  featured in an investigation by DOI reported here: OWNED POLL: Law Society ‘scripted’ survey criticised by Scottish Legal Complaints Commission – new data reveals few clients of dodgy lawyers ask legal regulators for help

Another twist to the friction between the SLCC & Law Society emerged after it was revealed a series of communications between the SLCC and law reformers brought about a tipping point forcing Law Society bosses to act.

The communications – which fell into the hands of the Law Society – ‘in real time’ – appear to have helped the decision to force out the then SLCC CEO – Matt Vickers – who stood down out of the blue earlier this year to pursue a career at Ombudsman Services, reported here: GONE MEDIATIN’: Pro-lawyer legal regulator loses another CEO as Matthew Vickers leaves Scottish Legal Complaints Commission for Ombudsman Services role

The replacement of an outsider with a Law Society insider as head of the SLCC have led to further suggestions the anti-consumer quango can do nothing without a say so from the Law Society.

In an announcement the SLCC said yesterday: The Scottish Legal Complaints Commission, the independent body for complaints against solicitors, advocates and other legal practitioners in Scotland, has announced the appointment of Neil Stevenson as its new Chief Executive Officer.

Neil Stevenson has been with the Law Society of Scotland since 2004.  He is currently the Society’s Director of Representation and Professional Support.  He will be joining the Commission in mid-July.

As the new CEO Neil’s priorities will be to drive the full implementation of the SLCC’s strategy – to provide an excellent complaint resolution service for legal complaints in Scotland, to provide guidance on service standards to the profession and consumers and to raise the confidence in the legal profession in Scotland.

Bill Brackenridge, Chair of the SLCC welcomed the appointment. He said : “I am delighted to welcome such an accomplished professional to the Commission; he will inspire our staff to deliver their challenging role and move the Commission to a higher level.

Neil Stevenson, the new CEO said “I have thoroughly enjoyed my time with the Law Society and am grateful to have all the opportunities and challenges afforded to me.  I am looking forward to joining the SLCC and working with the staff to deliver some very challenging objectives.”

The Society’s chief executive, Lorna Jack commented: “I am delighted for Neil and congratulate him on his appointment. As someone who understands the legal profession and with his passion, good judgment and positive attitude, I know Neil is going to make an outstanding contribution as SLCC chief executive.”

Jack continued: “Whilst I am sorry to lose Neil from the Law Society, we will benefit from his hard work for many years to come. In his time as director of representation, he has helped to transform the range of services and support we offer the profession. He has championed our innovative new Smartcard project, ensured we remain a leader on equality and diversity, and has helped develop our new long term strategy. All of us at the Law Society are grateful for everything he has done.

“I am now looking forward to working with Neil in his new role. The relationship between the Law Society and the SLCC has improved greatly over the last few years. Given the specific roles we play in the regulation of solicitors, this has been important, particularly for the public who depend on both of our organisations to work together to protect their interests.”

The current biography of Neil Stevenson on the Law Society of Scotland’s website says: “Neil joined the education team of the Society in 2004, having previously worked on medical and dental training for NHS Education for Scotland. He holds an Edinburgh law degree and a masters in management, and has previous experience in the oil and gas sector and management research. Neil is responsible for the confidential helpline service provided by the solicitors in professional practice and for the provision of CPD to the profession through Update. The professional support team focuses on ensuring the Society listens to and learns from its members, campaigns on their behalf, and provides support services to individuals and firms. He is a director of both the independent charity LawCare and the Scottish Arbitration Centre.”

Stevenson’s directorship of “Law Care” – a charity set up by the legal profession to help and defend solicitors who have been found out for ripping off their clients – will be of interest to clients who end up in the unenviable position of having to approach the SLCC to make a complaint about their solicitor. The charity has filed numerous reports with the pro-lawyer SLCC & Law Society Complaints Committees – pleading for corrupt solicitors to be let off the hook on everything from embezzlement to faking up paperwork.

Stevenson’s directorship of the Scottish Arbitration Centre may also put him in conflict of interest with SLCC policy of forcing complainants into the murky world of arbitration – where clients who are ripped off for large sums of cash by their solicitor end up with only a pittance in return. The Scottish Arbitration Centre – started by the Scottish Government and backed by lawyers, is a sponge for taxpayers cash and international trips by lawyers & former judges who are trying to promote Scotland’s tarnished legal sector as a haven for international mediation.

REVOLVING DOOR OF LEGAL REGULATOR CHIEF EXECUTIVES:

The post of the SLCC’s Chief Executive has seen considerable controversy since the legal quango was created in 2008. Now, eight years on and five Chief Executives later, the SLCC is looking for another boss to steer it through troubled waters and continuing accusations of pro-lawyer bias.

mkmc slcc openingMacAskill as Justice Secretary backed secret payoff for ‘too ill to work’ former Chief Executive. The SLCC’s first ‘appointed’ Chief Executive – Eileen Masterman – held the role for less than a year, negotiated a secret, substantial payoff backed personally by the Justice Secretary Kenny MacAskill, and resigned from her role at the SLCC on grounds of “ill health”. Eileen Masterman then returned to work for her former employer – the Scottish Public Services Ombudsman (SPSO) as a “complaints reviewer”, and was accused of whitewashing the circumstances of the death of a baby at the NHS Forth Valley Hospital – reported by Diary of Injustice & the Sunday Mail newspaper here : Deputy First Minister to look into death of baby McKenzie Wallace after parents complain of ‘whitewash’ report by SPSO investigator Eileen Masterman

The SLCC’s first Chief Executive – civil servant Richard Smith – resigned from the role after disagreements about how the SLCC would act as a regulator. Mr Smith was then replaced by another civil servant before Mrs Masterman was eventually appointed as the first ‘official’ CEO.

Concluding a turbulent few months which saw exchanges of letters between current Deputy First Minister John Swinney and Masterman over claims and counter-claims about the Master Policy – reported here: SLCC’s Eileen Masterman resigns, questions remain on attempt to mislead Cabinet Finance Chief John Swinney over secret meetings with insurers Marsh’ Masterman stood down from the SLCC – which by that time had suffered significant reputational damage.

After a speedy recruitment round, Rosemary Agnew then became the SLCC’s fourth Chief Executive, reported here: The £80K job no-one wants : Lawyers lobby seek FIFTH time unlucky Chief Executive for Scottish Legal Complaints Commission role. However Ms Agnew later resigned to take up the post of Scottish Information Commissioner in early 2012.

The SLCC’s current and now outgoing CEO Matthew Vickers took on the role in June 2012, reported here: “Customer Service” main focus for Ex-Foreign Office Consul taking over as FIFTH Chief Exec at ‘anti-consumer’ Scottish Legal Complaints Commission.

 

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TO CATCH A BRIEF: It takes Eleven years for Law Society’s self regulation client ‘safety net’ to catch up with banned solicitor who left trail of destruction, dishonesty & negligence

Jail for banned lawyer John O’Donnell A BANNED SOLICITOR who posed as a colleague to get round a ban on practising law has been found guilty of breach of interdict and jailed for three months – after leaving an ELEVEN year trail of destroyed clients & legal problems across Scotland.

John Gerard O’Donnell (64) – who also appeared in a special BBC Scotland investigation – Lawyers Behaving Badly – was finally sentenced by Lord Stewart at the Court of Session on Friday. However, O’Donnell was freed for a period of two weeks to enable him to decide if he wants to appeal.

The custodial sentence comes after a catalogue of evidence heard during court proceedings revealed many examples where the Law Society of Scotland system of self regulation – lawyers investigating themselves – fails to protect the public.

Among many examples of unacceptable behaviour, the court heard solicitor John O’Donnell took the identity of another solicitor – Colin Davidson – in order to dodge a five year ban imposed by the Scottish Solicitors Disciplinary Tribunal in 2009 after they found O’Donnell guilty of professional misconduct for a third time.

Despite the ban – O’Donnell started working for a firm on Glasgow’s south side – operated by solicitor Colin Davidson. O’Donnell impersonated Mr Davidson, using his name to sign legal documents and posed as Davidson to clients. O’Donnell also gave instructions to an advocate – giving the impression that he was allowed to work as a solicitor.

However, things fell apart in the scam – when John O’Donnell’s real identity was discovered – after a client visited Diary of Injustice and read of media investigations into the solicitor’s murky past.

Representing O’Donnell at the hearing, defence advocate Richard Murphy told Lord Stewart that O’Donnell had suffered in the past from mental illness. He added: “He never intended to return to practice but he ended up doing more than what he intended to do.” Mr Murphy also told the court that O’Donnell would never return to practising law, and offered to pay a fine as an alternative to a prison sentence.

However, the judge Lord Stewart said he had no option but to send O’Donnell to prison. Lord Stewart said: “In order to punish Mr O’Donnell and to deter others, the court must impose a custodial sentence.”

One of O’Donnell’s victims – widow Elizabeth Campbell (71) – only discovered O’Donnell was not Colin Davidson after she visited Diary of Injustice law blog and saw his picture along with media investigations into O’Donnell’s decade long trail of client scams.

Mrs Campbell had been referred to John O’Donnell by Gilbert S Anderson – who worked at Hamilton Citizens Advice Bureau – in a position funded by the Scottish Legal Aid Board.

Letters obtained by the Sunday Mail newspaper & Diary of Injustice – revealed Anderson sent O’Donnell a handwritten note saying “possibly in my mind a cash for Colin £3000” indicating he hoped O’Donnell would be able to scam fees from the elderly widow.

Diary of Injustice reported on the case involving John O’Donnell & Gilbert Anderson, here : Crooked lawyer impersonates DEAD COLLEAGUE to lure clients in fraud scam. Gilbert Anderson was the subject of further investigations, reported here: BREACH OF TRUST : Citizens Advice investigates taxpayer funded Hamilton CAB lawyer

Clients of O’Donnell discovered his identity on DOI – Lord Stewart. The opinion issued by Lord Stewart during mid-November stated: “Mrs Campbell went to the Hamilton Citizens’ Advice Bureau.  At the time she was “very upset, depressed and undergoing therapy”.  She was referred from the Citizens’ Advice Bureau to Colin Davidson, solicitor, at Davidson Fraser & Co, solicitors, at the Clarkston Road office.  From 29 March 2011 to 6 October 2011 Elizabeth Campbell put her affairs in the hands of Colin Davidson at Davidson Fraser & Co—or so she thought.  On 13 April 2012 Mrs Campbell discovered from an internet website—perhaps the website called “A Diary of Injustice in Scotland” http://petercherbi.blogspot.co.uk/ —that the man she thought was Colin Davidson was in fact John O’Donnell.”

“…when she first went to 311 Clarkston Road Mrs Campbell met a male who introduced himself as “Colin Davidson”, a male whom she thereafter—and without being corrected—called “Mr Davidson”.  She identified John Gerard O’Donnell in court as the man whom she had known as “Colin Davidson”.  She had “lots” of meetings with the pseudo Davidson; and she has documented specifically meeting him at the office on 29 March, 4 April, 13 April, 21 April, 28 April, 8 June, 5 July, 7 July, 20 July, 21 July and 19 September 2011.  There were moments of Feydeau-like farce, for example when the real Colin Davidson appeared or when Mrs Campbell heard other people, including the secretary, referring to the pseudo Davidson as “John”.  The explanation given to Mrs Campbell by Mr O’Donnell was that it was “a family thing”: he said that some people knew him as John but he was Colin Davidson.”

MOTION TO COVER: QC who represented Law Society was approached at party over O’Donnell deal:

Elaine Motion QC – head of Edinburgh law firm Balfour & Manson who represented the Law Society of Scotland in the Court of Session against John G O’Donnell, also represented the Law Society during hearings against O’Donnell at the Scottish Solicitors Discipline Tribunal. Prior to one earlier attempt to prosecute O’Donnell at the tribunal, O’Donnell’s lawyer tried to broker a secret deal with the QC at a Law Society Christmas party in 2009.

A ‘limited account’ of the 2009 meeting between QC Elaine Motion & solicitor Steven Gold – who acted for O’Donnell – was documented in the SSDT’s findings relating to a complaint against O’Donnell -published here Council of the Law Society of Scotland v John G O’Donnell

Page three of the Council of the Law Society of Scotland v John G O’Donnell states : “In December 2009, Elaine Motion and Steven Gold, Solicitor were both at a Law Society’s Christmas Drinks Party. They were involved in a conversation with regard to the health and welfare of the Respondent. Mr Gold made representations on behalf of the Respondent to Elaine Motion to the effect that it would be humane and advantageous to everyone involved if a way could be found to allow the Respondent to hand in his practising certificate without having to undergo the ordeal and expense of an appearance before the Tribunal. Elaine Motion was sympathetic to the representations but indicated that she would require to discuss matters with the Law Society of Scotland who would make the decision.

John O’Donnell has featured in numerous media reports relating to 21 negligence claims made against him by clients, and continuing investigations into his conduct for over a decade which the Law Society of Scotland was unable, or unwilling to prevent.

LAWYERS BEHAVING BADLY:

An investigation by BBC’s 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.”

If you have poor experiences with the legal profession in Scotland or feel you are the victim of a rogue solicitor, tell the media. Diary of Injustice would like to hear from you. Email us more details via scottishlawreporters@gmail.com

 

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OWNED POLL: Law Society ‘scripted’ survey criticised by Scottish Legal Complaints Commission – new data reveals few clients of dodgy lawyers ask legal regulators for help

 

Law Society poll did not reveal all – SLCC. THE FINDINGS of a Law Society of Scotland survey claiming hard-to-verify client-solicitor satisfaction rates have come in for criticism by the Scottish Legal Complaints Commission (SLCC) – the ‘independent’ regulator of solicitors & legal services in Scotland.

The Law Society poll – published in early January 2015 – claimed Scottish solicitors were highly regarded by the public.

However, the SLCC have now challenged the poll’s findings, claiming high levels of legal service in Scotland are “not a universal experience”. The ‘independent’ SLCC also cited higher compensation awards against rogue solicitors and ‘increasing redress’ provided by the SLCC to wronged clients.

And, in another swipe at the Law Society’s poll dodging, the SLCC has now revealed that only a third of clients polled who were dissatisfied with their solicitor did anything about it, and not one client involved in the poll knew they could refer their complaint to the SLCC.

However, carefully prepared statements avoided any explanation on why the SLCC’s involvement in the poll was kept secret until a media investigation published documents revealing the SLCC’s role.

A spokesperson for the SLCC said: “Towards the end of last year, the Law Society of Scotland released the results of a poll of the public’s perceptions of the legal profession. This indicated that, overall, people expressed a high level of satisfaction with solicitors. While we agree that the vast majority of solicitors provide a high level of service, this is unfortunately not a universal experience. As our figures show, we are increasingly providing redress for those clients who receive a poor service from their solicitors – a picture also supported by the record level of compensation awards and refunds of legal fees we highlighted in our last Annual Report.”

The SLCC went on to explain it’s previously secret involvement in the poll, revealing it asked searching questions on how clients react to the provision of poor legal services.

“We were given the opportunity to include questions in the Law Society’s poll. We asked two related questions aimed to assess public awareness of the role of the SLCC. In particular, we wanted to know whether clients who were dissatisfied with the service they had received from their solicitor knew they could bring their concerns to us.

The answers to these questions were revealing. Of those who were dissatisfied with their solicitor: only a third did anything about it; and none knew they could refer their complaint to the SLCC.

Solicitors throughout Scotland have a duty to make their clients aware of the SLCC and how to make a complaint to us. We continue to see evidence that this is not happening – less than 5% of those who complain to us say that they found out about us from their solicitor. We are concerned that, as a result, the voices of many dissatisfied clients are just not being heard. As a priority, we are currently working with the Law Society to ensure that all solicitors provide clear and consistent sign-posting to our service.

Clearly there is also more work that we, as an organisation, need to do to increase public awareness of the SLCC. Our Consumer Panel, newly-established this year, will be looking at how we can make sure that, on the occasions where things do go wrong and fail to be resolved, the public knows to bring those concerns to us.  Our half year results show that when this does happen – we can help put things right.”

Complaints slightly down – SLCC statistics for first half of 2014/15. Alongside the SLCC’s attempt to clear the air on their involvement in what some legal insiders have referred to as a “vanity survey”, the SLCC released complaints statistics for the first half of the operational year, showing a slight drop in complaints.

The SLCC said: “The headline figures for the first half of the SLCC’s operational year show that, overall, the number of complaints we receive is declining, reflecting a continuing trend which we have highlighted in previous years.

More importantly, however, we note the proportion of those complaints which are either accepted as eligible complaints or resolved by us during our eligibility process. They represent almost 60% of all received complaints (up from just over 40% in the corresponding period in 2013).

It’s also clear from the figures that the number of accepted complaints which are then either resolved or upheld in favour of the complainer has also increased – 115 complaints compared to 97 in 2013.”

Responding to the SLCC’s criticisms, the Law Society’s Chief Executive – Lorna Jack – said: “In the vast majority of cases, solicitors’ clients are happy with the advice and the level of service they receive. However we know that things do go wrong from time to time and it is important that people have proper recourse to address any failings through a strong legal complaints system.”

“Dealing with complaints is and will always be difficult for everyone involved. What we want to ensure is that the process in place is robust and fair to both complainer and solicitor, and that we reach the right outcome.We will work with the SLCC to ensure that the legal complaints system in Scotland continues to improve.”

The Law Society did not comment on why the involvement of the SLCC was withheld from statements released by the Law Society along with articles written for newspapers during January by the Law Society’s own President – Alistair Morris.

The research carried out by IPSOS MORI for the Law Society of Scotland claimed that of clients who had used a solicitor in the past five years – more than 90% “of respondents” said their own lawyer was either very trustworthy (70%) or fairly trustworthy (27%), with 87% describing solicitors overall as very or fairly trustworthy.

However, no detailed material has been made available which could verify the claims, or identify which solicitors or law firms were involved. It has also emerged some solicitors and law firms were provided with scripted responses by the Law Society to answer questions from the pollsters.

Legal insiders also point out the SLCC’s admission of involvement in the ‘rigged’ poll only came about after the publication of heavily redacted communications between the SLCC & Law Society which revealed both regulators discussed how to frame questions for the survey. The now published documents also revealed the Law Society demanded all material handed to the SLCC regarding the poll was not to be released to the public or media.

 

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A FINE MESS: Complaints cost Scottish lawyers £1K a day in £365K ‘anonymous’ fines & compensation as regulator refuses to identify rogue solicitors & law firms

Fined by them & do it again – regulator fails to name rogue lawyers. THE CHANCES are – if you have ever been fined in a Scottish court – your identity, address, picture, date of birth, much of your life – private, criminal, or otherwise, and even perhaps a strand of your DNA will make it to a Crown Office Press Release to boost their ‘seasonally adjusted’ conviction rates.

However, if you are a member of the Law Society of Scotland, fear not. For solicitors who end up facing fines, compensation orders and fee reductions ordered by Scotland’s ‘independent’ regulator of complaints about lawyers – the Scottish Legal Complaints Commission (SLCC) – not one rogue solicitor or law firm fined by the SLCC has been named in the past six years since it began investigating complaints in 2008. Not one.

In fact, you stand a better chance of finding out if there is a re-housed spy, mafia supergrass or a serial abuser – living in a safe house in your neighbourhood – than you do finding out the name of a lawyer fined by the Scottish Legal Complaints Commission for ripping off other clients.

This year, the SLCC 2014 Annual Report chose to highlight awards of a ‘whopping’ £365,000 in compensation & fee reductions for clients of dodgy Scottish solicitors – yet, again, not one solicitor fined in connection with a complaint – is named.

The rising fee reductions & compensation orders are good, but the lack of names are not. The suspicions are –  the numbers of ‘repeat offenders’ – lawyers who end up being fined for the same thing, the same complaints, over & over – are starting to mount.

But, let’s put this £365,000 gained for ‘complainers’ by the SLCC into a little more perspective.

The Scottish Legal Complaints Commission was created in 2008 with over £2million of public cash from the Scottish Government. £2 million of yours – in their tummy. Nice – for them.

And, SLCC board members make tidy expenses claims of £150K or more each year since 2008. Nice again – for them. Get the picture? Right. It’s a quango. With lots of money – Your money.

Since 2008, the SLCC has cost around £2.7m – £3million a year to run. Making a total cost of operating the SLCC since 2008 now at around £20million – including that £2million public cash splurge from the Scottish Government.

And – where does this £3million annual complaints levy come from ? It comes from a complaints levy paid by solicitors- who – naturally – recover the money via hikes in client fees.

That’s right. You pay for the SLCC. And, you pay a lot for the SLCC.

You pay so much, some clients have found their legal fees doubled, trebled, even quadrupled to pay for the SLCC.

The complaints levy is only £324 or so a year – however, it is well known in the profession many solicitors recover the levy at least twice, three times or more – per client – from you.

£324 … the price of a half decent widescreen telly …easy to slip that one into your legal bill, and again, and again, and again.

And, there is another problem. A bigger problem. Did you guess correctly ?

Shocker – Rogue solicitors who are found out and told by the SLCC to reduce fees or pay compensation – are recovering their losses by overcharging legal fees to other clients. Now that’s what anyone might call a racket.

There is no escaping a fact – the legislation which created the SLCC – the Legal Profession & Legal Aid (Scotland) Act 2007 – created a multi million pound money monster – much worse than any honey monster.

And what success stories do the SLCC have to tell us about in their annual report. Very few. Actually, hardly any. For fear of identifying someone no doubt.

And what failures do the SLCC have to tell us about in their annual report. None. A little here and there, a reach out to advocates, a tinkering with the edges – otherwise known as “window dressing”.

But, most importantly – not one rogue lawyer or law firm named or shamed since 2008. Imagine that. Around one thousand complaints a year, every year, for six years, and not one lawyer named. Amazing. How did that happen ?

If the Police on £1.2billion a year, or the Lord Advocate & Crown Office on £107million a year stuck to those rules, there would never be any convictions, no one would ever know who was a criminal, and Bambi would wake you up in the morning, accompanied by Thumper the bunny.

So here we have a quandary – from the regulator that once dished out the price of a fish supper as compensation to one victim, to this year’s claim of £365K in compensation & fee reductions, not one corrupt solicitor or law firm who ripped off a client in the past six years has ever been identified.

So, you know what that means, right?

Your own solicitor – yes, that trusty, honest lawyer you handed over all your legal affairs to – may have already been fined by the SLCC for ripping off another client for the very same task you are asking them to perform, at an impending huge cost to yourself.

Your lawyer might actually be under investigation by the SLCC at the very same time you are in their office chatting away about your case – and, you don’t even know it. And you will never know it. Never. Not as long as a lawyer can move a monkey puzzle tree around a garden and get someone else to pay for it.

Your solicitor is not required to admit anything to you about their complaints history, and the ‘independent’ SLCC certainly wont tell you – they have rules they must keep all complaints confidential, and cannot dare tell the public the name of serial rogue lawyers for fear of having the entire weight of Scotland’s £1 billion pound publicly subsidised legal profession sit on it’s head. Lawyers, saw to that.

The SLCC does have its fans, of course. Lawyers. Lawyers love the SLCC. Why wouldn’t they? It’s the Law Society in disguise.

Even lawyers who pose as [now sacked] Scottish Ministers – loved the SLCC so much, they appeared at the Scottish Parliament – claiming they were reforming the ‘independent’ Scottish Legal Complaints Commission – by giving corrupt lawyers the right to complain about complaints. Only in Scotland.

Here’s former Justice Secretary Kenny MacAskill giving his take on the SLCC’s form of regulation and his take on the definition of a ‘reform’. It’s great. Well, not really.

Kenny MacAskill evidence to Justice Committee Scottish Parliament 5th August 2014 SLCC Rules change

Although the now sacked Mr MacAskill – argued a range of consumer groups took part in the modification of the SLCC’s rules, suspiciously, none showed up at Holyrood to back him up. Neither were they called to appear before MSPs and face some questions.

Scotland’s top judge, who must also approve any changes to the legislation which governs the SLCC, also did not appear at the Justice Committee. By watching the video clip – you can see why no one else showed up. Anyway, who exactly speaks up for lawyers and sings their praises in public? That’s right – more lawyers.

As for those ‘reforms’, legal observers expect little change to the current way in which a mainly lawyer orientated regulator investigates complaints against other lawyers.

And, how independent or impartial is the SLCC? Well, in a previous investigation by Diary of Injustice – it was revealed much of the SLCC’s staff are qualified solicitors or have served at the Law Society of Scotland.

The SLCC disclosed material via Freedom of Information legislation indicating:  15 members of staff qualified as solicitors, 5 members of staff held a previous position at the Law Society of Scotland, 8 members of staff held a previous position at a law firm and 5 members of staff have held previous positions at a law firm and Law Society of Scotland.

Admit it, people – You just cant get more pro-lawyer than that.

Oh yes … Season’s Greetings from Diary of Injustice. And – Do yourself a favour in 2015 – Look after your own instead of looking after a lawyer. Your family, your pets, along with Bambi  and Thumper will thank you all the more for it.

 

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THE CROOK REPORT: Property, wills, trusts & executries still the main target of rogue lawyers as Scottish Legal Complaints Commission 2014 report reveals regulator awarded £365K to victims of dodgy solicitors

2014 Annual report of legal regulator reveals compensation figures up. COMPENSATION totalling over £365,000 has been awarded to clients of rogue solicitors in the past year, says the Scottish Legal Complaints Commission (SLCC) in its 2014 annual report. The legal regulator for Scotland’s notoriously poor legal services sector also revealed it had received 1024 new complaints against dodgy lawyers since last year’s annual report.

The latest report from the ‘independent’ SLCC – which is funded by a levy on solicitors and has a high composition of former Law Society staff & ex employees of law firms among its own staff – also revealed there has been a 35% rise in mediation uptake in the past year.

However, over the past year reports have emerged of individuals who made complicated complaints against their solicitors involving substantial financial sums being cajoled, and in some circumstances, forced into the mediation scenario – which ran for months and ended up with not quite the success portrayed at the outset.

Among other figures from the report, 125 complaints were upheld, 247 were “resolved”, these figures together representing 65% of eligible complaints.

Dual investigations carried out by the SLCC & Law Society of Scotland – where conduct & service issues combine in complaints came in for a critical finding in the report. The SLCC said “While the percentage of service only complaints has remained stable over the past three years, there has been a fall in the number of complaints that have been categorised as conduct-only but a rise in the number of hybrid complaints, which contain both service and conduct elements.”

“This trend can have a significant impact on the parties to the complaint, as hybrid complaints have to undergo two separate investigations (i.e. by the SLCC and the relevant professional organisation), which can lead to timescales being doubled, and in those cases which result in prosecutions to the Scottish Solicitors Discipline Tribunal, tripled. Since the 2007 Act requires the SLCC and RPOs to seek to avoid duplication in investigations, the current average time taken to investigate hybrid complaints is of real concern to us, and this is something that we and the RPOs are looking to address in the next operational year.”

SLCC 2014 Annual Report Launching the Annual Report, the SLCC’s CEO, Matthew Vickers, commented “The vast majority of the legal profession in Scotland provide great service to the public, but where things do go wrong the SLCC takes firm and decisive action to put things right.” Conveyancing, family law and executries, wills and trusts are the three biggest areas of complaint.

Mr Vickers points out that that cases touching on home and family life can have a huge impact on people’s lives. “We’re ready to use the full extent of our powers to enforce our decisions and make sure awards are paid out where they are due. 65% of the complaints about service which we accept are resolved or upheld”. “But the Annual Report also highlights the growing importance of informal techniques such as the SLCC’s free and confidential mediation service in finding solutions to complaints. Consequently, the SLCC’s process has become quicker and more efficient and complaint handling times have halved since 2012.”

“The legal services sector is worth over £1 billion to the Scottish economy and the report notes recent research which indicates that law firms can increase their profitability by around 3% through better complaint handling. The report also sets out the work of the SLCC on training and guidance for the profession.”

Mr Vickers added “We’ve published guidance for the public on using legal services and on conveyancing in particular as part of our efforts to prevent complaints from happening in the first place.”

While the news of better handling of complaints against the legal profession & rogue solicitors is welcome, it has taken the SLCC six years and five Chief Executives – which include Rosemary Agnew – currently the Scottish Information Commissioner – to get to a state where it pays out to financially ruined victims of “crooked lawyers”, however the total compensation awarded to members of the public who find themselves at the mercy of their once trusted solicitor are “little more than a scratch on the surface” – according to one person who has already been through the complaints process.

Highlighting the £1 billion figure from the statement issued by the SLCC’s current Chief Executive, Matthew Vickers, legal insiders remain of the view the financial sums involved in fraud carried out by Scottish solicitors each year are in the millions – with clients still struggling to recover 100% of their losses from the SLCC or the unsympathetic Court of Session – where judges often have undeclared links & financial relationships with some of the very same law firms accused of ripping off their clients.

Readers have since pointed out striking similarities between statements given by Lorna Jack, the Law Society of Scotland Chief Executive and Matthew Vickers, CEO of the Scottish Legal Complaints Commission in relating to their claims of the legal services sector being worth “over £1 billion to the Scottish economy” – a line spun by vested legal interests and some elderly judges – each time there is any public criticism of the legal profession for its poor provision of legal services in Scotland, one sided, biased regulation, sky high legal fees and closed shop lawyer-only access to Scottish courts.

However, less keen are the legal profession or the SLCC and even the Scottish Legal Aid Board to talk about or admit to the £1 billion pound plus taxpayer funded subsidy handed by the Scottish Government in the form of legal aid to Scottish lawyers & law firms since the Financial crash of 2008 – revealed by Diary of Injustice here: BANK OF LEGAL AID: £1billion of public money thrown at ‘struggling’ lawyers since 2008 financial crash.

Diary of Injustice would like to remind people who contact the Scottish Legal Complaints Commission to ensure when they file their complaint against their solicitor, they also state as clearly as possible they are seeking full compensation for their losses and nullification of any fees their solicitor is claiming for or has already billed for – after providing clients with poor or inadequate legal services.

If clients have been ripped off – as in embezzlement by a solicitor, or money going missing, property titles or other losses including items from executries or the estates of deceased family members & so on, this should be made clear to the SLCC including the financial damage caused by the loss of such material.

 

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