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REGULATED REVIEW: Scottish Government panel to look at self regulation of lawyers – Former Cabinet Minister calls for review to include judiciary, and panel membership to strike ‘better balance between lawyers & non-lawyers’

Review panel to consider self-regulation of lawyers. THE Scottish Government has announced an ‘independent’ review into how lawyers regulate their own colleagues – with a remit to report back by the end of 2018.

The move by Scottish Minsters, coming after discussions with the Law Society of Scotland – is intended to answer concerns  amid rising numbers of complaints about poor legal services and the diminishing status of Scotland’s legal services sector,

However, former Cabinet Minister Alex Neil MSP (SNP Airdrie and Shotts) said the review should include judges and the membership of the review team should be expanded to balance up the panel’s current top heavy legal interests membership.

Mr Neil recently branded the Scottish Legal Complaints Commission (SLCC)  “a toothless waste of time” – after the legal services regulator failed to act in a high profile case involving a senior QC caught up in a cash payments scandal.

The review, led by NHS 24 chair Esther Roberton, is intended to make recommendations to modernise laws underpinning the legal profession’s current regulatory system including how complaints are handled.

This follows concerns that the current legislative framework is not fit for purpose and has not kept up with developments in the legal services market. There are also worries that the current processes for people wishing to make complaints about their solicitor are too slow and too complex.

However, doubts about the impartiality of the panel have been raised after the announcement by Legal Affairs Minister Annabelle Ewing revealed a top-heavy compliment of figures from the legal establishment who are keen on protecting solicitors’ self regulation against any move to increase consumer protection by way of independent regulation.

The list of panel members includes:

*Two former Presidents of the Law Society of Scotland;

* The current Chief Executive of the pro-lawyer Scottish Legal Complaints Commission;

* An outgoing Scottish Public Services Ombudsman widely criticised for ineptitude;

* The current chair of the Scottish Solicitors Discipline Tribunal (SSDT) – who struck off only six solicitors last year;

* The chair of a law firm whose partners have regularly appeared before the SSDT;

* A QC from an advocates stable where colleagues have been linked to a cash payments scandal;

* A former Crown Office Prosecutor & QC linked to events in the David Goodwillie rape case – where the victim was forced to sue her assailant through the civil courts after the Lord Advocate refused to prosecute the footballer.

Announcing the review, Legal Affairs Minister Annabel Ewing said: “Members of the public must be able to have confidence in the service they get from their solicitor. While this happens most of the time, I have been listening carefully to concerns that the current regulatory system in Scotland may leave consumers exposed and does not adequately address complaints.”

Speaking yesterday to journalists, former Cabinet Minister & SNP MSP Alex Neil generally welcomed the review, adding the review remit should also include judges.

Alex Neil said: I hope it produces radical and robust proposals. I also hope it covers the judiciary as well as lawyers.”

Mr Neil also called for greater fairness in the panel’s membership, to include members from outside the legal establishment.

Mr Neil added: I hope the membership of this review panel will be expanded to get a better balance between lawyers and non-lawyers”

The latest move by Scottish Ministers to reform self regulation of solicitors and advocates comes years after a move in England & Wales to more robust independent regulation of legal services – which has left Scots consumers & clients at a clear disadvantage.

And while clients in the rest of the UK have much more of a chance to obtain redress against legal professionals who consistently provide poor legal services – and see their lawyers named and shamed in public by the Solicitors Regulation Authority (SRA) and Legal Ombudsman (LeO),

At pains to point out the ‘independent’ nature of the review, the Legal Affairs Minister said: “This independent review will consider what changes may be needed to the statutory framework for the regulation of legal services to protect consumer interests and promote a flourishing legal sector. This includes ensuring that consumers properly understand the options open to them when something goes wrong and that the regulatory framework is proportionate for legal firms. I look forward to receiving its recommendations in due course.”

Chair of the review – Esther Roberton said: “I am delighted to have been asked to undertake this review. Our legal profession and legal services in Scotland are the envy of many around the world. We should be just as ambitious for our system of regulation of legal services. I would hope we can simplify the current complaints process to maximise consumers’ confidence in the system. I look forward to working with the panel members who bring a broad range of experience across a range of sectors.”

However, questions have surfaced over the actual intentions of the review after legal insiders revealed today the proposals only came about after long discussions between the Scottish Government and the Law Society of Scotland – the legal profession’s main lobby group in Scotland who enjoy the greatest benefit of self regulation.

Legal insiders have suggested the review is not widely seen as a serious move by Scottish Ministers to reform self regulation.

Rather, this third attempt at addressing failures of regulation and poor legal services provided by increasingly less qualified legal representatives is a reaction to the failure of Scotland’s legal services sector to put it’s own house in order amid diminishing business, a reduced client base, rising numbers of complaints.

The latest Government sponsored shot in the arm of lawyers – which one solicitor said this morning “may end up calling for more public cash and an increase in the legal aid budget” – comes on the back of a complete failure to attract international litigants who are wary of entering Scotland’s famously unreliable, expensive and poor legal services market.

Access to justice and legal services in Scotland are internationally well known as being hampered by slow proceedings in courts dubbed “Victorian” and “out of date” by both of Scotland’s recent top judges.

VESTED INTERESTS – Legal Profession welcome their own review:

The SLCC welcomed the announcement by the Minister for Community Safety and Legal Affairs of a review of how best to reform and modernise the statutory framework for the regulation of legal services and complaints handling in Scotland.

SLCC Chief Executive Neil Stevenson, one of the review panel members, commented “We are pleased that the Scottish Government has announced this review, in line with the manifesto commitment.  We hope our Reimagine Regulation legislative change priorities paper, which we published last year, will be one helpful contribution to the review.  In that paper we looked at some of the innovative thinking in regulation and standards coming from the health professions, so we are especially delighted to see that expertise represented in the review panel alongside huge knowledge of the legal sector.   We look forward to this range of experience and expertise being shared as part of this process, and a collaborative approach to identifying priorities and opportunities for reform.”

SLCC Chair Bill Brackenridge added, “This will be an excellent opportunity for all the key stakeholders involved to come together in supporting the review as it considers the regulatory landscape in order to support growth in the legal services sector and strengthen consumer protection.  Despite many strengths to the current system, the Board of the SLCC believe there are significant opportunities to make regulation more targeted, more effective and more efficient.”

The Law Society of Scotland has welcomed the Scottish Government’s announcement today, Tuesday, 25 April, of an independent review of legal services, saying that current legislation governing the legal sector is no longer fit for purpose.

Law Society of Scotland president, Eilidh Wiseman said: “There have been huge changes in the legal market over recent years.  Changing consumer demands and new business structures are transforming the way legal services are being provided.

“This is why we have argued so strongly for reforms to the patchwork of legislation which covers the regulation of legal services in Scotland.  The main Act of Parliament governing solicitors is more than 35 years old and simply no longer fit for purpose.  We know the processes for legal complaints are slow, cumbersome, expensive and failing to deliver for solicitors or clients.  There are gaps in consumer protection, contradictions and loop holes in the law.  This is why change is so desperately needed to allow the legal sector to thrive and ensure robust protections are in place for consumers.

“The Scottish Government’s independent review offers the chance to build a consensus on how reforms should be taken forward.  It is vital for the work of the group to move as quickly as possible so new legislation can be introduced before the Scottish Parliament.”

The Law Society has highlighted its concerns about areas of legal services which remain unregulated in Scotland.

Wiseman said: “One area we will highlight to the review group is the growing level of unregulated legal services where consumers are at risk if something goes wrong. Many people are unaware that some types of legal services are not regulated – for example, receiving employment advice from a non-solicitor.  They may have little or no course of redress if something goes wrong. Consumers deserve the same level of protection whether they choose to go to a solicitor, and are therefore covered by Law Society client protections, or to use another legal services provider.”

Two former Law Society presidents, Christine McLintock and Alistair Morris, will serve on the legal services review panel.

Wiseman said: “I am particularly delighted that Christine McLintock and Alistair Morris will be part of the review group. With their considerable board-level expertise alongside their combined insight and knowledge of the legal sector, they will prove invaluable to the review process. They understand the need for reform and, having both served on regulatory sub-committees, bring a deep commitment to the public interest.”

Christine McLintock, as former general counsel for Pinsent Masons, was responsible for the firm’s in-house legal service, professional risk management and compliance. Christine joined the Law Society’s Council in 2005 and has served on the Society’s Board since its inception in 2009. Prior to that, she was a member of the Strategy and Governance Group and was Convener of the Education and Training Committee, before to serving as President in 2015-16. She is currently part of the team working on the regulation of licensed legal services providers and is Convener of the Law Society’s Public Policy Committee.

Alistair Morris was appointed CEO of Pagan Osborne in 2005, having built extensive expertise in private client work at the firm. He was elected to join the Law Society Council in 1992, becoming one of its longest serving members at 24 years. Alistair also served as a board member between 2009 and 2016, and was Convener of the Guarantee Fund Sub-committee (now Client Protection Fund Sub-committee) prior to his election as President in 2014. Alistair currently sits on the Judicial Appointments Board for Scotland.

The Dean of Faculty, Gordon Jackson, QC, has responded to an announcement by the Scottish Government of an Independent Review of the Regulation of Legal Services.

Mr Jackson said: “I welcome that this review is taking place. It is very important that the legal profession retains the confidence of the public. I know that the Faculty of Advocates has earned that confidence, and that this thorough review will demonstrate that an independent referral bar has been, and will continue to be vital in maintaining an effective and fair justice system.

“The Faculty will willingly co-operate fully with the inquiry and I am confident that the considerable experience of the Faculty’s representatives, Laura Dunlop, QC, and Derek Ogg, QC, will be of great value.”

Review should include judiciary:

Scotland’s judges have earned themselves widespread criticism and condemnation at Holyrood and from the Judicial Complaints Reviewer (JCR) – after top judges failed to address complaints and become more transparent and accountable like other branches of Government.

Ongoing efforts by the Scottish Parliament’s Public Petitions Committee to create a register of judges’ interests have been flustered by two Lord Presidents – Lord Gill & current top judge Lord Carloway.

The proposal to bring greater transparency to Scotland’s judiciary – Petition PE1458: Register of Interests for members of Scotland’s judiciary – first debated at the Scottish Parliament’s Public Petitions Committee in January 2013 – calls for the creation of a publicly available register of judicial interests – containing information on judges’ backgrounds, figures relating to personal wealth, undeclared earnings, business & family connections inside & outside of the legal profession, membership of organisations, property and land, offshore investments, hospitality, details on recusals and other information routinely lodged in registers of interest across all walks of public life in the UK and around the world.

The current review could include the judiciary in terms of how judges regulate themselves, however the Scottish Parliament should be left to get on with the task of creating a register of judges’ interests – given the five years of work already undertaken by MSPs on the thorny question of judicial declarations.

REVIEW THE REVIEW: Third attempt at reforming biased system of solicitors self regulation.

The latest review of the way lawyers regulate themselves marks the third attempt at addressing problems created by Scotland’s pro-lawyer system of self regulation, where lawyers write the rules, and look after their own.

In 2001, the Scottish Parliament’s Justice 1 Committee, under the Convenership of Christine Grahame MSP, met to consider evidence in relation to calls to reform regulation of the legal profession.

The inquiry, gained by the late, widely respected MSP, Phil Gallie, heard evidence in relation to how complaints were investigated by the legal profession.

However, Mr Gallie was replaced by Lord James Douglas Hamilton, and the Committee eventually concluded not to amend how the Law Society regulated Scottish solicitors.

A second, more substantive attempt to reform regulation of the legal profession came about in 2006, with the Scottish Parliament’s then Justice 2 Committee taking on consideration of the proposed Legal Profession & Legal Aid (Scotland) Act, which received Royal Assent in 2007.

The LPLA Act led to the creation of the now widely derided Scottish Legal Complaints Commission – once touted as an ‘independent’ solution to handing complaints against solicitors and advocates.

A mere nine years after the creation of the SLCC in 2008, the badly run legal quango, often itself the subject of scandal, charges of incompetence and downright bias – has become as much a threat to consumer protection as the Law Society itself was in the days when complaints were handled at the Law Society’s former HQ in Drumsheugh Gardens, Edinburgh.

Regulating the legal profession: Usual suspects selected by legal profession to carry out independent review on regulation of solicitors:

The independent review of the regulation of legal services in Scotland is expected to consult widely with stakeholders and report to Scottish ministers by the end of 2018.

The independent chair of the review is Esther Roberton, current chair of NHS 24. Ms Roberton has extensive senior leadership experience in the NHS and other areas of public life.  She is also currently a board member of the Scottish Ambulance Service (2014-18).  She was chair of SACRO (2010-2014) and until recently also sat on the Crown Office and Procurator Fiscal Service Audit and Risk Committee (COPFS ARC).

The review panel have confirmed their participation as follows:

•    Christine McLintock – immediate past president Law Society of Scotland
•  Alistair Morris – chief executive of the management board, Pagan Osborne (Law Society of Scotland)
•      Laura Dunlop QC – Hastie Stables (Faculty of Advocates)
•      Derek Ogg QC – MacKinnon Advocates (Faculty of Advocates)
•   Neil Stevenson – chief executive of the Scottish Legal Complaints Commission
•      Nicholas Whyte – chair of Scottish Solicitors’ Discipline Tribunal
•      Ray Macfarlane –  chair of the Scottish Legal Aid Board
•      Jim Martin – outgoing Scottish Public Services Ombudsman
•      Dr Dame Denise Coia – chair of Healthcare Improvement Scotland
•      Prof Lorne Crerar – chairman, Harper Macleod LLP
•    Prof Russel Griggs – chair of the Scottish Government’s Independent Regulatory Review Group
•     Trisha McAuley OBE – independent consumer expert

 

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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

 

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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.

 

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DISHONEST LAW: Latest annual report of discipline tribunal where lawyers appear in front of themselves – reveals pitiful 31 case workload in the fairy tale land of solicitors’ self regulation

Lawyer vs lawyer tribunal protects bad apples, again. AMID the usual claims of client protection while attempting to polish the bad apples from the rotten – the latest annual report of the Scottish Solicitors Discipline Tribunal (SSDT) – the body charged with ‘prosecuting’ rogue solicitors who rip off their clients – details a dry, if ‘increasingly complex’ series of cases where rogue solicitors are hauled before their own colleagues to face the music.

This year’s thirty eight page report from the lawyer vs lawyer tribunal – covering the period 1 November 2013 to 31 October 2014 and only now published in the second week of March 2015 – details the usual, typically less than honest world of self regulation of the legal profession – where lawyers investigate themselves and then recommend their colleagues appear before themselves for a quick slap on the wrist.

The grand workload of the tribunal for the last year has – unsurprisingly – not seen a busy year, with 31 cases taken to the Tribunal during the 12 months, along with another 11 appeals against decisions of the Law Society of Scotland and other miscellaneous applications. The Tribunal managed to break away from the hustle & bustle, and occasional dodgy deals at parties by making findings of professional misconduct in 24 cases.

And – dishonesty – the habitual daily workout of some in Scotland’s legal profession – made famous by Alistair Cockburn’s performance on the BBC Scotland’s investigation Lawyers Behaving Badly – only merits a single mention in the entire report of a year’s worth of prosecuting dodgy solicitors.

2013-2014 SSDT Annual Report – revealing slaps on the wrist dished out to rogue solicitors. In this year’s SSDT Annual report – and like others before it – there is little to show the legal profession have any regard for client protection. Typically, solicitors receive pittance fines – which are usually made up from hikes in legal fees as soon as they get back to work. Along with fines, the traditional slap on the wrist was handed down on several occasions.

Chairman of the legal profession’s in-house tribunal commented: “Details of the Tribunal’s workload over the past 12 months are set out in this report. The Tribunal has continued to be very busy with cases becoming more complex and taking up more Tribunal time.”

The Tribunal is also dealing with a lot of Complaints which involve Secondary Complainers who have made claims for compensation.

There have again been a large number of cases involving the Council on Mortgage Lenders Handbook. It is hoped that members of the profession take time to read these decisions and be reminded of their obligations in terms of the Handbook.

The Tribunal is receiving an increasing number of Appeals under section 42ZA by Lay Complainers who often have difficulty in framing their Appeal in a structured and relevant way. The Tribunal accordingly has prepared guidance for Lay Complainers to try to assist them with this.”

Going on to comment on the state of the tribunal’s online website – which has suspiciously deleted many findings against rogue Scots lawyers, Chairman Cockburn said: “The Tribunal Findings continue to be put on the Tribunal website which can be accessed at http://www.ssdt.org.uk The Tribunal experienced technical difficulties with its website during the year owing to the age of the website. A temporary website is now in place and the Tribunal is working towards having a new website in operation in 2015.”

“Tribunal hearings continue to be held in public, normally at The Scotsman Hotel in Edinburgh. The diary part of the Tribunal website details the substantive business scheduled to be heard but not procedural business. In certain cases, business is not put into the diary if the hearing is to be held in private.”

DISHONESTY FACTOR:

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.”

LEGAL WORLD’S TRIBUNAL WHERE LAWYERS APPEAR IN FRONT OF THEMSELVES:

Just how complex are the rules around prosecutions of solicitors for ripping off their clients?

Notes from the SSDT report reveal the hurdles put in place by the legal profession to protect their own …

In cases of professional misconduct the Tribunal will receive a Complaint from the Law Society fiscal which will then be served upon the Respondent. The Respondent has three weeks in which to lodge answers (although extension of time for lodging answers requests are often received and are sometimes granted provided there is a valid reason). The matter will then be set down, either for a procedural hearing, a preliminary hearing or a substantive hearing. Procedural hearings are used to clarify whether or not there are any preliminary issues and identify whether evidence is going to be required. Preliminary hearings are set down where there are preliminary points which have to be decided before the Complaint can proceed to a substantive hearing. These usually take place by way of a debate. At a substantive hearing the Tribunal will either proceed to make a finding of professional misconduct, find the Respondent not guilty of professional misconduct or remit the matter to the Law Society under section 53ZA on the basis that the Tribunal considers the Respondent’s conduct may amount to unsatisfactory professional conduct.

If there is a Secondary Complainer involved in the Complaint they only become a party to the proceedings after a finding of professional misconduct is made. Prior to any finding of professional misconduct, Secondary Complainers have no direct input into the Tribunal process. If a finding of professional misconduct is made and if the Secondary Complainer has requested compensation, it will be up to the Secondary Complainer to provide the Tribunal with the necessary evidence. The Tribunal will then decide whether or not it is appropriate to make an award of compensation in favour of the Secondary Complainer. There can be cost implications for the Secondary Complainer if additional Tribunal time is required to deal with their claim and an award is not made in their favour.

In relation to section 42ZA Appeals the Tribunal receives the Appeal either from the solicitor, or from a Lay Complainer. Lay Complainers when making an Appeal under section 42ZA often have difficulty in focusing their Appeal and setting out clearly and succinctly what their grounds of Appeal are. The Appeal should identify any error of fact or law made by the Law Society. The Appeal will be served on the Law Society and the Solicitor/ Lay Complainer and three weeks are allowed for the lodging of answers. Again there may be circumstances when an extension of time for lodging answers is given.

The Tribunal cannot give Lay Complainers advice with regard to the making of their Appeals. The Tribunal however does understand that it is difficult for Lay Complainers to deal with the formal Tribunal process and guidance notes have been made available on the Tribunal’s website. If Lay Complainers are unable to put their Appeal in the proper form, despite having been given warning in terms of Tribunal rule 23 and being given the opportunity to amend, the Appeal may be struck out as being manifestly unfounded. Procedural hearings are usually held for section 42ZA Appeals so that it can be clarified whether or not the matter is to proceed by way of submissions or whether the facts are in dispute. Sometimes there are three parties to 42ZA Appeals being the Appellant, the Law Society and the solicitor/Lay Complainer, in whose favour the Law Society previously made a Determination.

 

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SNOOPED OFF: Lawyer involved in £500K public contract industrial espionage complaint struck off by Scottish Solicitors Discipline Tribunal

Lawyer copied details of rival law firm’s bid to win £500K public contract. A SOLICITOR from the Edinburgh based law firm Dundas & Wilson has admitted stealing details from rival law firm Brodies LLP in order to win a £500,000 public contract involving five Scottish local authorities who proposed to share services for waste management and recycling.

Lawyer Keith Armstrong (41) who resigned from Dundas & Wilson in July 2012 after representatives of Renfrewshire Council contacted the law firm over the similarity of details contained in competitive bids, admitted in evidence to the Scottish Solicitors Discipline Tribunal he stole details from rival law firm Brodies LLP in order to help win the contract.

It transpired from the tribunal hearing that documents which Armstrong had ‘acquired’ came from papers held by his partner, Kate Mayor (36) who was at the time business development manager for Brodies LLP.

As a result of the tribunal hearing, Keith Armstrong has subsequently been struck off the roll of solicitors. He now works for energy giant SSE PLC, (formerly Scottish & Southern Electricity), who were recently fined £10.5m by industry regulator Ofgem for mis-selling gas & electricity contracts

The Scottish Sun reports:

LAWYER SWIPED FILES FOR £500K DEAL PLOT

Exclusive: By Russell Findlay 13 July 2014 Scottish Sun

A TOP lawyer stole secret files from a rival in a plot to win a £500,000 contract. Dundas & Wilson partner Keith Armstrong. 41. copied a draft bid belonging to blue chip competitor Brodies.

He admitted swiping the document from under the nose of innocent missus Kate Mayor, 36 – then Brodies business development manager before “fraudulently and deceitfully” using it in his own firm’s tender.

A source said yesterday: “For a partner to commit what amounts to industrial espionage is unprecedented. The scandal has rocked the legal establishment.”

The Edinburgh companies with combined turnover of £100million were battling for the contract from North Lanarkshire. North Ayrshire. East Dunbartonshire. East Renfrewshire and Renfrewshire councils in 2012.

Armstrong was rumbled after officials noticed 27 parts of the two rival bids were identical. He owned up to his bosses and quit before the contract was eventually won by Pinsent Masons.

Armstrong, right, of Edinburgh. was struck off following a probe by the Scottish Solicitors’ Discipline Tribunal. Chairman Alan McDonald ruled: “His conduct is so grave it is very likely to bring the profession into disrepute.”

The divorcee, now working for power giant SSE. last night refused to comment at the £615.000 home he shares with Ms Mayor in Morningside. Brodies also declined to comment.

SSDT REPORT CENSORED IDENTITIES OF LAW FIRM:

Curiously, the opinion published by the SSDT directed that neither Brodies LLP or Mr Armstrong’s current employer Scottish & Southern Energy should be mentioned by name or identified in any way in the report …

Tribunal heard lawyer ‘copied’ terms of bid from competitor. On or around 22 May 2012 a representative of RC (Renfrewshire Council) contacted D&W (Dundas & Wilson), noting that some concern had arisen in respect of certain similarities between the Tenders submitted by D&W and that submitted by another Tenderer. RC had compiled a comparison document setting out the relevant text of concern and by email of 22 May 2012 invited D&W to attend a meeting on 24 May 2012  to  discuss  matters. 

The  other Tenderer, namely  Firm  X (Brodies LLP), was  also invited to a similar  meeting  on that  date. D&W immediately  commenced  an internal investigation. In the course of said investigation the Respondent admitted to D&W that  he  had  been  responsible  for  the  text  that  had  been highlighted and  that  he  had  plagiarised  these  from  another Tender document for the project belonging to Firm X.

In  particular  the Respondent accepted that on 28 or 29 April 2012 at his dwelling  house, without the permission or consent of  his  partner,  Ms  B,  who  was  at  the  time  a  Business Development  Manager  at  Firm  X, he accessed  the Tender as prepared  by  Firm  X  for  the  project,  copied  parts  of  said  draft Tender  and  made  use  of  that  information  when  completing D&W’s  Tender  for the project.

Amstrong was represented at the hearing by William Macreath of the Legal Defence Union & Levy McRae, the Law Society of Scotland was represented by Elaine Motion QC.

Tribunal Decision : The Tribunal having considered the Complaint at the instance of the Council of the Law Society of Scotland on behalf of Firm X against Keith Guy William Armstrong, formerly of Dundas & Wilson, Solicitors, Saltire Court, 20 Castle Terrace, Edinburgh and now c/o Levy McRae Solicitors, 266 St Vincent Street, Glasgow;

Find the Respondent guilty of Professional Misconduct in respect of his having accessed confidential information belonging to another firm of solicitors in relation to a project, having copied and thereafter used part of that firm’s Tender document in his own firm’s Tender and his fraudulently and/or deceitfully having allowed it to be submitted as his own firm’s work bringing his integrity into question;

his actions being deliberate and wholly inconsistent with the requirements to maintain mutual trust and confidence with his fellow solicitors in allowing a Tender to be submitted, part of which had been plagiarised from another firm’s Tender which he knew or ought to have known, was not only confidential but was of a commercially sensitive nature and his actions drawing the profession at large into disrepute;

Strike the Respondent Keith Guy William Armstrong from the Roll of Solicitors in Scotland;

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 will not include the name of Firm X or the Respondent’s current employer or otherwise identify them.

 

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DISHONESTY TRIBUNAL: 35 cases of dodgy lawyers with a mere 9 struck off & 26 slaps on the wrist is a “busy year” claims Scottish Solicitors Discipline Tribunal

Dishonesty among lawyers is tolerated more in Scotland. A SCOTTISH TRIBUNAL tasked with judging corrupt lawyers and applying sanctions from a slap on the wrist to a striking off, is generally viewed as an old pals act back slapping exercise which tolerates dishonesty among the Scottish legal profession much more than it’s English counterpart, say critics & clients who have endured lengthy and in many cases almost pointless hearings of the Scottish Solicitors Discipline Tribunal (SSDT).

The SSDT, who claimed in a recent legal profession internal media story that they had been through a “very busy” year to 31 October 2013, revealed the tribunal heard a less than stellar 35 cases compared to 26 for the previous year. The Tribunal claimed it had a “significant increase in business” in its hearings, which now also include appeals by lay complainers against decisions of the Law Society of Scotland not to make a finding of unsatisfactory professional conduct.

However, out of the 35 cases which actually made it to the tribunal through the usual maze of self protecting self regulation where lawyers regulate themselves, a paltry NINE cases resulted in solicitors being struck off, with the remaining solicitors receiving slaps on the wrist, broken down as three suspended from practice, two had a restriction placed on their practising certificate, four were fined and censured and a further six were censured.

And, while the SSDT claims to take its duties to deal with the worst elements of dodgy lawyers seriously, it has been reported by the legal profession’s internal media that in only two of the cases brought before the tribunal in the past year, undisclosed amounts of compensation were ordered by the tribunal to be paid.

A summary of the cases heard before the tribunal in it’s “busy year” claimed that: “In all, nine cases involved failure to complete conveyancing procedures in a proper manner (with or without other failures), and the same number saw a failure to comply with the accounts rules. Eight cases involved misleading the Law Society of Scotland or other parties, and seven a failure to reply to the Society or others. There were numerous other findings of misconduct including five of dishonesty.”

As of today, the 2013 annual report has yet to be published on the tribunal website, which is well known for its lack of information and more often than not publishing of judgements months after they have occurred – a move viewed by many in the media as an attempt to hide the true scale of dishonesty and dodgy lawyers from the public’s attention.

DISHONESTY IS THEIR GAME: The Scottish way of dealing with dishonest lawyers often gives a slap on the wrist whereas solicitors found guilty of dishonesty stand a greater chance of being struck off in the rest of the UK:

Dishonesty in Scots solicitors more common than lawyers would have us believe. SCOTTISH solicitors “make false representations in order to improve their client’s position, not necessarily their own”. This was a claim made by solicitor Alistair Cockburn, Chairman of the Scottish Solicitors Discipline Tribunal (SSDT) in response to key questions raised by BBC Journalist Sam Poling in a recent investigative programme Lawyers Behaving Badly which is no longer available for public viewing.

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

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

In comparison to the light way in which the Scottish tribunal appears to treat dishonesty among legal colleagues in all its various shades, English legal experts who studied the judgements of the Scottish Solicitors Discipline Tribunal condemned the way dishonest lawyers are more often than not let off the hook in Scotland.

Speaking on a case where a well known Scottish solicitor accused many times before of dishonesty was at it again, English QC Andrew Hopper said on national television: “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 added : “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.”

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

Very few complaints made by clients against Scottish solicitors which involve serious allegations of dishonesty have ever resulted in solicitors being struck off by the Scottish Solicitors Discipline Tribunal, and an ongoing media investigation into judges undeclared earnings from top Scots law firms has turned up links between serving members of Scotland’s judiciary, law firms, and solicitors who have frequently been accused of dishonesty yet never struck off.

 

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

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

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

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

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

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

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

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

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

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

Sam Poling: OK that you would accept?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

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