1997 September - Law Society of Scotland rejects Ombudsman's report, to save Andrew Penman from certain prosecution

9 September 1997 ...

The Scottish Legal Services Ombudsman (at this point in time, Mr Garry S Watson) .. finally submits his report to the Law Society over my complaint to him about how the investigation by the Law Society of Scotland against solicitor Andrew Penman, of Stormonth Darling Solicitors, 5, The Square, Kelso, was handled .... and ... surprise .. surprise .. the Law Society of Scotland do nothing - in fact ... they denied the Ombudsman's request to tell me what really happened in the hearing against Mr Penman .. and they also persuade the Ombudsman to do nothing more and, in later letters between myself & the Ombudsman, he seemed to even 'withdraw' from his findings after Law Society threats & intimidation .. and an intense personal campaign by the legal establishment in Scotland - and particularly, the lawyers 'club' in the Scottish Borders, against myself & my family ....

Of course, I was quite angry over this .. and sought further representation from my then lawyers (Mr David Reid, of Alex Morrison & Co, Queen Street, Edinburgh) to do something ...

My intention was to either take a judicial review against the Law Society's decision to reverse the recommendation of the prosecution against Mr Penman, and, to take the matter onto the European Court of Human Rights, if need be ....

However, Legal Aid was denied, denied, denied .. as usual .. on the persuasion of top Law Society officials to senior members of the Scottish Legal Aid Board .... (more to be revealed on this in later articles) ... and, shall we say ... there was no particular hurry on my solicitors part to do anything for me ... in a world of course, where you have to use a lawyer to sue a lawyer - a great non-starter, if ever there was one ...

Read on for the article, written by William Chisholm, of "The Scotsman" on the latest twist in the case ... and don't go thinking that Mr David Reid ever did much for me in the long run .. as more will be revealed about him - a solicitor who it was finally revealed, only last year,. who continually let me down, lied about work he was doing ... lied about Legal Aid claims ... lied & evaded instructions from me to progress case work .. etc ... and he is now .. a Law Accountant .. preparing client's bills & accounts from legal firms in the Scottish Borders and throughout Scotland ...

Law Society may face Euro court over 'whitewash'

Son hits out at decision on father's estate

By William Chisholm The Scotsman 9 September 1997

The Law Society of Scotland has been accused of overseeing a "whitewash" after rejecting an ombudsman's request for it to reopen a case against a Borders solicitor.

The original investigation by the society into the way Andrew Penman, of Kelso law firm P & J Stormonth Darling, dealt with the ￡300,000 estate of businessman Gino Cherbi, of Jedburgh, concluded that the solicitor's "appalling" handling of the matter warranted prosecution before a tribunal.

The investigation found "an apparent attempt to mislead the Royal Bank of Scotland and failure to collect estate assets".

The society initially recommended that M Penman be prosecuted for professional misconduct. However, the punishment was reduced to a reprimand after representations on Mr Penman's behalf.

The society gave no explanation for departing from the original intention to prosecute.

Specific difficulties relating to Mr Penman's private life and working life were outlined to the Law Society's committee, according to a senior official.

However, Mr Cherbi's son, Peter, who has been involved in seven years of legal wrangling over the estate since his father's death in 1990, refused to acced the society's decision and took the case to the legal services ombudsman, Garry Watson.

In a report which critisises the society's handling of Mr Cherbi's complaint, Mr Watson writes; "The ombudsman does not accept that the solicitor's livelihood was a factor which should have influenced the Law Society's procedures. In his view, that is a factor for the Law Society in it's capacity as a professional body representing its members, but not a factor in relation to its statutory duty to investigate complaints".

Mr Watson concludes; "it is most important that there is transparaency of decision making within committees and that reporters and committees provide their reasons for arriving at decisions.

"It is unclear why the committee changed its view with regard to prosecution after having heard personal representations from the solicitor's council member.

It is recommended that the complainer and the ombudsman are advised of these reasons"

The ombudsman also asks the Law Society to reopent the case against Mr Penman so that the question of loss to Mr Cherbi could be fully addressed. Mr Watson goes on to express concern about the serious delays by the society in finalising its report into the complaint.

Philip Yelland, the Law Society's deputy secretary, has now told Mr Watson that the detail of the representations made to the committee will have to remain confidential.

His statement to the ombudsman adds; "But I can assure both you and the complaier that the representations made in relation to those matters were sufficient to persuade the committee, made up of both qualified and lawy members, that the more appropriate disposal was by way of a reprimand"

He says reopening the case to take account of the question of loss is not competent in terms of current legislation and so the ombudsman's recommendations cannot be acted upon.

However, the Law Society has accepted the critisisms levelled at it by Mr Watson in relation to the delays and has sent Mr Cherbi a cheque for ￡250.

Mr Cherbi yesterday attacked the "shabby treatment" he has received from the Law Society and claimed that the ombudsman appeared to be powerless when the society closed ranks to protect its own. He described the ￡250 "pay-off" as an insult.

"I feel I owe it to my father's memory not to let this matter drop and have instruced my solicitor to apply for judicial review so that Mr Penman can be prosecuted" Mr Cherbi said. "If necessary this issue will be taken to the European Court".

He added; "I was extremely concerned to learn the Law Society received more than 1000 complaints each year about the conduct of solicitors. I sincerely hope other dissatisfied clients get better treatment if they find it necessary to approach the society because I find myself the victim of a whitewash".

Mr Cherbi claimed the inadequacies in the arrangements for investigating complaints against solicitors had led to additional expense. There was a legacy of debts and outstanding inheritance tax thanks to the delays in winding up Gino Cherbi's affairs, he said.

Mr Yelland said yesterday ; " In terms of the ombudsman's act as it now stands we have a duty to respond to his recommendations. We have fulfilled that duty. If Mr Cherbi wishes to pursue matters by way of judicial review then that is entirely up to him.

A separate complaint by Mr Cherbi against Norman Howitt, an accountant with John J Welch & Co, Galashoels, who acted as executor of his father's estate, is the subject of an inquiry by the Institute of Chartered Accountants of Scotland.