Monday, September 08, 2008

Regulatory disclosure to solicitors clients 'a must' as legal ombudsman's report fails to name & shame rogue lawyers

If you were hiring a lawyer or legal firm to handle your legal business, you would surely want to know if there was anything in their past, such as client complaints or poor legal service, maybe charges of embezzling client funds or ripping off a few old ladies which might just make you think twice about using that particular legal firm or that particular solicitor ?

Just as you look at the ingredients of some foods, you surely want to look at the ingredients (and past) of your lawyer who will handle affairs concerning the most important parts of your life ?

Well here is an article today which might just interest readers so inclined to question their solicitor’s service record before committing themselves to a possibly horrendous experience they may never be able to recover from ….

In two announcements today by the Scottish Legal Services Ombudsman, the Law Society is criticised for their almost routine policy of 'not following' the Ombudsman's recommendations concerning two complaints, one a complicated family matter involving guardianship & the transfer of titles, and the other involving a fairly straightforward winding up of a deceased's estate.

The Legal Services Ombudsman, Jane Irvine, who will soon go on to her new post as the Chairman of the new Scottish Legal Complaints Commission, was critical in two of her reports of the Law Society of Scotland in their poor handling & regulation of both complaints which were reported to the Ombudsman’s office for further investigation.

Unfortunately, due to the demands of the legal profession, neither the complainers, or the legal firms involved in the complaints can be identified, making it highly probable, other clients may or already have fell victim to the same legal firms in similar or other issues which have went on to generate complaints.

The lack of identification of those legal firms and solicitors involved in what appear to be very serious illustrate the problems of informing and warning the public of crooked legal firms in Scotland.

If you can get through the Mrs X, Mr Y and various letters of the alphabet such as "T" assigned to represent the unidentified firms of rogue lawyers, then perhaps the notices may make some sense in their content.

However, from my own experience in issuing reports on how crooked a firms of lawyers are, or how corrupt the Law Society of Scotland has been in protecting a firm of crooked lawyers against a client complaint, it is much better to name and shame the legal firm and the solicitor concerned, not only to assist the poor client who has already been ripped off, but also to protect and warn the rest of us, and any potential clients of what this legal firm or solicitor has been doing to other clients.

Regulatory disclosure of all solicitors and legal firms, as I have written before, must be made mandatory to all prospective clients before they sign up a legal firm or solicitor to represent their interests. It is perhaps the ultimate level of consumer protection which must be applied in the circumstances of dealing with one's legal affairs, often the most important parts of your lives.

You can read my earlier article on regulatory disclosure here : Disclosing the regulatory history of lawyers in Scotland to help give choice to the consumer

Lets hope the new Scottish Legal Complaints Commission will be more effective in their investigation of client complaints against crooked lawyers and enforcement of the necessary action. However, as the SLCC is to be staffed by the Law Society of Scotland, perhaps they wont be as effective as promised by the Legal Profession & Legal Aid Act (Scotland) 2007.. and whose fault is that Mr Justice Secretary MacAskill ?

You can read more about the problems of the ‘independent’ Scottish Legal Complaints Commission here : Scottish Legal Complaints Commission - a mission of failure before it begins

The notices from the Scottish Legal Services Ombudsman follow :

Monday, 8 September 2008

Scottish Legal Services Ombudsman Notices :

Section 34A of the Law Reform (Miscellaneous Provisions)(Scotland) Act 1990

Failure of the Law Society of Scotland [LSS] to comply with a recommendation from the Scottish Legal Services Ombudsman arising out of an Opinion by the Ombudsman on the Law Society’s handling of a complaint.

Factual background and Ombudsman’s recommendation

Mrs X, Mrs Y and Mrs Z went to the solicitors T, for advice about applying for guardianship of Mr X [Mrs X’s son] and to transfer the titles to Mrs X’s house into the names of Mrs Y and Mrs Z. The house had originally been bought in Mrs X and Mr X’s names.

The solicitors T failed to secure guardianship of Mr X. Mrs X, Mrs Y and Mrs Z therefore instructed another firm of solicitors H in this matter.

The LSS investigated 11 complaints of inadequate professional service against the firm of solicitors T and one complaint of professional misconduct against an individual named solicitor in that firm. The LSS upheld 6 complaints of inadequate professional service. The LSS decided to take no action in relation to the other 5 inadequate professional service complaints and the complaint about professional misconduct.

Mr Y complained to me on behalf of Mrs X, Mrs Y and Mrs Z about the LSS’s handling of their complaint and in particular that it was guardianship of Mr X that his family wanted and that they had instructed the solicitor accordingly.

Following my investigation, I concluded that I was critical of the manner in which the LSS had reached its decision in relation to Issues 1, part of 7 and 9. I was not persuaded or satisfied with the reasoning provided by the LSS in respect of these issues. I therefore recommended that the LSS reconsider all of these issues.

In relation to Issue 1 – I found that Mrs X, Mrs Y and Mrs Z had plainly and clearly asked the solicitors by letter to represent them in gaining guardianship of Mr X and this had not happened. There had been a failure to carry out an instruction. I recommended that the LSS should reconsider this complaint and provide detailed reasoning for its decision.

Regarding Issue 7 – I did not think that the LSS had provided clear reasoning in reaching its decision in relation to this complaint. The LSS had upheld Issue 5 which looked at the solicitors’ failure to provide the complainers with clear advice and instructions as to the format of the medical reports required and how to obtain these. Issue 7 looked at the failure to identify and approach the appropriate medical practitioners directly. I did not think that that the LSS had provided sufficient detailed reasoning in relation to identifying appropriate medical practitioners. In relation to Issue 5, the LSS had concluded that there was an obligation on the solicitors to ensure that the complainers were aware of the terms of the Act. I thought this should apply equally to this complaint.

In relation to Issue 9, I considered that the LSS had given too much weight to one piece of evidence and felt that there was in fact no evidence of what had or had not been said during a meeting.

I also recommended that the LSS pay Mr Y compensation and costs for the stress and inconvenience caused by the LSS’s inadequate investigation.

The LSS’s reasons for not accepting the Ombudsman’s recommendations

The LSS considered my recommendations and did not consider that it was necessary to accept the recommendations.

In the LSS’s view, the Committee had provided comprehensive reasons for its decisions and, in particular, why it had departed from the Reporter. The LSS said that the Committee’s reasons were sustainable. They were not perverse, illogical or clearly wrong. The LSS was not persuaded that the points made by the Ombudsman were so fundamental that the decisions reached by the Committee ought to be disturbed. The LSS was also content that the decisions were properly explained.

Issue 1 – The LSS said that the phrase “Guardianship” was legally meaningless. The LSS said that what could be sought was either a Financial Guardian, Welfare Guardian or both. The LSS went on to explain that such a Guardian was appointed by the Court and it was a specific person who was appointed. Accordingly, to say that a number of people wanted Guardianship, was, in legal terms meaningless. Accordingly, to say that the solicitors had plain and clear instructions regarding Guardianship could not be correct. The LSS said that as the term did not make sense in law, they were therefore not clear instructions. The Committee did not consider that the solicitor could be criticised for not doing something which could not be achieved in law. The LSS stated that what the Committee had done was to look behind the issue and note that at the root of the complainer’s concerns was the transfer of the title of the property.

It was the LSS’s view that on the instructions the solicitors had, they exercised their professional judgement that in order to obtain what the complainers were really after was best done by way of an Intervention Order and the Committee considered that this was a reasonable exercise of judgement.

Issue 7 – Again, the LSS did not understand why the Ombudsman did not totally follow the Committee’s reasoning in relation to this issue. The Committee noted that the solicitors agreed with the complainers that the complainers should approach the medical practitioners as a cost saving measure. The LSS wanted to emphasise that there was an agreement that the complainers would do this and the solicitors could not be criticised for failing to identify and approach when it had been agreed otherwise in order to (a) save money and (b) the complainers would know whom to approach as treatment was already being given.

The LSS noted that I had made reference to Issue 5. The LSS commented that there was a difference between Issues 5 and 7 in that the identification of the doctors was a different issue from giving the doctors clear information as to the form of the medical report required to satisfy the Court.

Issue 9 – The LSS stated that it was for the Committee to assess the evidence. There was conflicting evidence from the parties as to what happened. The other two pieces of evidence were, firstly, the £500 payment to account and secondly, the fact that the file was silent. The Committee regarded the latter issue as neutral. The Committee considered that the payment of £500 was a factor to be weighed up in the balance. It was accepted that it did not prove that the solicitors told them, but it was supportive of the solicitors’ position.

The LSS did not accept that the payment was an irrelevant factor; rather it was one factor to be weighed in the balance. It did not prove that the solicitor did not do something, but it was supportive of their position and the Committee were entitled to decide the weight to be attached. The LSS said that if this matter was considered irrelevant then all the Committee would have been left with was two conflicting views and a silent file and would not have been able to uphold the issue because of lack of evidence.

The LSS was content that the decision reached was reasonable and reasonably explained.

The Ombudsman’s view

I was concerned that the LSS had missed the crux of Mrs X, Mrs Y and Mrs Z’s complaint in relation to Issue 1. Put simply the complainants had asked the solicitors to do something for them and this was not carried out. The LSS had attempted to look behind the request and had not upheld the complaint on this basis. If a specific instruction has been given to a firm of solicitors, a client would expect this to be acted upon and if there was a problem with the instruction as given, I would expect the solicitors to explain this to the client and explain what they are able to do. This was the complaint that the LSS agreed to investigate and is the issue that the LSS has side stepped.

In relation to Issue 7, I accept that the complainants had agreed to approach the medical practitioners themselves as a cost saving mechanism. There should have been a duty on the solicitors to ensure that the complainants knew exactly who to contact. The Act is specific regarding the qualifications required by the medical practitioner completing the form and this was not something that the solicitors explained to Mrs X, Mrs Y and Mrs Z. The LSS has already upheld the complaint that the solicitors failed to provide the complainers with clear advice and instructions as to the format of the medical reports required. The Committee stated that the solicitor had an obligation to ensure that the complainants were aware of the required terms of the Act. Applying this same logic, it would appear equally that the solicitors failed to provide the complainers with clear advice in relation to the appropriate medical practitioners to approach as this was also a specific requirement under the Act. I do not think that the LSS has looked at this complaint consistently and in line with the other complaints that it has already decided.

Regarding Issue 9 – I think that too much weight was given to the fact that £500 was paid on account. I do not think that this shows one way or another whether the solicitors told the complainants about civil legal aid. I think that the LSS could have simply stated that there was insufficient evidence to uphold this complaint rather than attaching so much importance to the £500.

Jane Irvine
Scottish Legal Services Ombudsman

Case No.2

Scottish Legal Services Ombudsman

Section 34A of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990

Failure of the Law Society of Scotland to comply with a recommendation from the Scottish Legal Services Ombudsman arising out of an Opinion by the Ombudsman on the Law Society’s handling of a complaint.

Background and Ombudsman’s recommendation

Following the death of the complainer’s husband, the complained of firm of solicitors handled the administration of his estate. The complainer complained of a lack of information from the solicitors which put her in difficult circumstances.

The complaint has been considered by the LSS. The LSS decided not to investigate some of to the issues raised and subsequently closed its complaint file when it appeared the complainer had abandoned the complaint.

When I examined the matter although concluding the LSS handled the complaint in a generally satisfactory manner, I was concerned at the speed with which the decision was taken to close the complaint file. Part of that concern was that the complainer may not be familiar enough with the British system to manoeuvre her way through it at a particularly distressing time. I had observed the LSS Sifting Panel’s comments that further information should be sought on the solicitors’ alleged failure to communicate with the client. In light of those comments I recommended the LSS consider whether to provide the complainer with another opportunity to give the LSS the information it had requested. I considered it reasonable for the LSS to set a clear time limit to receiving that information.

As I considered the speed of decision to close the complaint file had inconvenienced the complainer I recommended the LSS should pay her £25 in compensation and £10 towards the cost of bringing her complaint to me.

The LSS’s reasons for not accepting the Ombudsman’s recommendations.

The LSS does not accept my recommendations. Its stated view is that the Ombudsman had recognised the LSS provided the complainer with a letter stating clearly if she did not respond within 14 days then the file would be closed. The complainer was not in touch within that period and the file was then closed. The question then arises as to whether the LSS ought reasonably to have adjusted its process to take account of any special circumstances pertaining to the complainer. The Ombudsman had suggested two such circumstances that the complainer might not be familiar with “the British System” and secondly that she was going through a distressing time.

The LSS stated has two sources of information to indicate that understanding English or a “British system” was not an issue for the complainer. She had stated she was not a native English speaker but thought her level good enough. The LSS said the standard of correspondence from the complainer was very good.

If the LSS treated all non British people differently or automatically adjusted its process without due cause then that could be seen as discrimination in itself. In the LSS’s view each situation required to be looked at objectively in order to form a reasonable conclusion. In this case the complainer had not indicated she had any special needs and it was reasonable and supportable that her English was not at a level where it would be a barrier thus requiring an adjustment to the process. The LSSS had taken advice from its Head of Diversity in reaching this considered view.

The LSS noted the Ombudsman’s second contention was that the complainer was suffering a distressing time. That was sadly very much the case. It was also very unfortunately often the case for many complainers if not nearly all to be in a distressing situation upon contacting the LSS. Often the reason they have contacted a solicitor is because they have suffered a distressing life event. It is therefore doubly distressing to have to require to make a complaint on top of that.

There was in the LSS’s view no good reason why it required to adjust its process to take account of the complainer’s situation.

Ombudsman’s view

I considered the LSS response had failed to address the concerns I had identified and had concluded that when linked together amounted to circumstances that merited the LSS contacting the complainer for further information albeit with a very specific deadline.

I had drawn the LSS’s attention to the specific but linked difficulties i.e. by implication the exceptional circumstances the complainer faced. I considered the LSS’s response separated these concerns, appearing to examine them as unrelated matters.

I had referred to the complainer’s knowledge of “the British System” but there was however no special pleading with regard to her knowledge of the English language which is how the LSS had interpreted that reference. The problems identified were in relation to how solicitors carry out their functions and how the Inland Revenue operates. Both of these are to do with the legal and tax systems in Scotland and Britain.

The other linked concern I highlighted was in relation to the complainer’s personal circumstances. I agreed many complainers who approach the LSS experience similar and no doubt even more distressing circumstances. The complainer’s situation was cited as only one of the concerns I had identified. I had also set my recommendation in the context of the view of a LSS Sifting Panel that the complainer should be asked for further information on the solicitors’ alleged failure to communicate with her.

I confirmed my appreciation the LSS’s 14 day time limit for replies from complainers can move things on successfully. I had however in the past identified a concern which continues in light of this LSS response with the differing time limits allowed to complainers and to complained of solicitors.

The matters I had identified gave me enough concern to recommend the reconsideration by the LSS of its decision. Those matters were deliberately linked in the recommendation to underline that view.

The LSS second response

In its response to my views the LSS confirmed it adhered to its initial response. The LSS felt it had acted fairly albeit appreciating the complainer in common with many others found herself in highly distressing circumstances.

Ombudsman’s conclusions

This is a complaint which raises issues of the use of reasonableness when examining all a complainer’s circumstances relevant to a complaint. My view remains that in this case it is not a matter of language but of a lack of familiarity with both the legal and the tax systems in Scotland. The LSS is also aware that I consider time limits are necessary and important to a complaints process and hence why I took care to specify in the recommendation that it was reasonable for the LSS to set a clear time limit to receiving that information. However as the time limit for a complainer is 14 days rather than the 21 days statutory time limit for solicitors, I consider that a tight deadline and in particular not that long when it the result is to exclude someone from a complaint process. I agree with the LSS that complaints have to be managed and setting time limits is an important part of that process. However it is a very serious step to throw a complaint out of a complaint system leaving a lay complainer nowhere else to go - save court and so I consider these cases very seriously.

My conclusion remains that the complainer’s circumstances when taken as a whole merited the LSS using the flexibility available to it to give one final and limited opportunity for the complainer to provide the information the LSS required. I concluded in simply adhering to its formal response the LSS has failed to appreciate and therefore give appropriate consideration to the actual terms of my recommendation.

Jane Irvine
Scottish Legal Services Ombudsman


Anonymous said...

What fucking use is writing a report if you dont identify anyone? Fairly stupid waste of money the whole exercise No one gets anywhere complaining against a lawyer they should just go and do some DIY complaints relief themselves

NoJusticeInSNPScotland... said...

Write to Alex Salmond & Kenny MacAskill about your injustice... and let us all know how you get on!

Anonymous said...

One of the best ideas I've heard for a long time Peter.If a lawyer is crooked or has been fiddling other clients we should all be told about it no exceptions!

Good work and keep it up !

Anonymous said...

I don't see why we should be forced to declare our past service to clients.If they don't like the look of us they can use the door or ask around but I suppose you will end up getting your way in a consumer driven world

Anonymous said...

Excellent idea Mr Cherbi.

If a lawyer has been the subject of complaints all clients should get to know about it.

major headache said...

Jane Irvine needs to appreciate we aren't all fucking algebra experts so get writing something we can all understand about bent lawyers diddling the public!

Billy Connolly on fucking algebra

Anonymous said...

Mr Cherbi I have to thank you for such a brilliant story and idea.
I am with a legal firm I have heard nothing but bad about since I had a spot of trouble over a bill they claimed I hadn't paid when I had.After they realised they were in the wrong they did apologise but ever since then their work for me has been sloppy and expensive to the point I will no longer be using them after they complete their current workload for me.
I think they have guessed I will be leaving them which is why their work has been so poor since our little spat and why they have obviously been overcharging me.
If I had heard the things I now know about my solicitor and his partners I would have steered well clear of them as you say in your blog and after I finish with them I will send you some material you can use as you like.

Grateful that someone in Scotland has the courage to stand up to legal thuggery!

Anonymous said...

From what you write about lawyers Peter, I don't think anyone would dare use a lawyer if they knew what else they were up to!

Good writing as ever.

Anonymous said...

LOL @ Billy Connolly - I think he speaks for us all on this story.

I have never thought much of "Ombudsmen" to be honest and this latest posting by Peter Cherbi only confirms my fears that lawyers should not be allowed to regulate themselves, nor for that should anybody regulate themselves.

I see this particular Ombudsman is to be the Chairwoman? of a new commission which does not sound "independent" by any definition assigned to the word "independence".Can we hope she does better in that post or will her staff who seem to be made up of Law Society workers do their utmost to bungle complaints against their legal friends as they have spent their lives doing so far?

Anonymous said...

To the previous post complaining about a 'consumer driven society';

The facts demonstrate that the Public has little or no consumer rights when seeking access to the Law in Scotland - just read the Which Magazine Super Complaint and the responses by the Scottish Consumer Council and the OFT.

Nothing could more eloquently underline the pressing need for an end to the Law Society's monopoly that the suggestion that paying clients should be content to choose a legal representative based 'on the looks of us'.

It is high time solicitors who have been found guilty of misconduct should be named and shamed and those details listed and publically available for at least two years.

Unfortunately Ms. Irvine will be surrounded by former Law Society staff at the SLCC - so expect no change there.

Anonymous said...

I agree this ombudsman's report is too complicated for anyone to understand especially without the identities of the lawyers.

This has to change and the lawyers named and shamed as you suggest.Everyone has the right to know if shady goings on have taken place even if the Law Society thinks otherwise and closes ranks with their colleagues.

Anonymous said...

A clever idea Peter and one I fully support.I think there should also be statistics available on just how successful lawyers really are at their job such as case wins and losses and other types of business they perform so potential clients can evaluate whether to go with a particular lawyer or not.

No Justice In An SNP Scotland... said...

Hi all seekers of the truth and justice in Scotland (and beyond),

For personal reasons, I will make but one contribution to this excellent injustice forum...

This is just to suggest (though many of you will have already done this) to write to Alex Salmond MSP / MP, First Minister of Scotland, and Kenny MacAskill MSP, Scotland's Cabinet Secretary FOR JUSTICE (a misnomer if ever there was one!), about your case of Scottish injustice or cases of Scottish injustice you feel strongly about. And remember to let readers know how they respond to your pleas, cries and (very often) screams for help. It is important that fellow injustice victims and the wider public know the kind of men they really are and what their idea of Scottish "Justice" really is.

Details for both men here :

Alex Salmond MSP / MP, First Minister of Scotland

Kenny MacAskill MSP, Cabinet Secretary FOR JUSTICE (ahem!)

I wish everyone seeking the truth and justice in Scotland well. Believe me when I say; you'll need all the luck, strength, fight, determination, tenacity and will in the world to achieve it in Scotland ... especially from these two "gentlemen" ... who are ultimately the two where the change has to come from.

Best of luck with your fights for the truth and justice in Scotland ... where Scottish Injustice is indeed rife today under Salmond and Macaskill.

Am I right or wrong Mr Cherbi?

Anonymous said...

"Mrs X, Mrs Y and Mrs Z went to the solicitors T, for advice about applying for guardianship of Mr X [Mrs X’s son] and to transfer the titles to Mrs X’s house into the names of Mrs Y and Mrs Z"

This looks ridiculous in a publicly funded report on something which obviously went very wrong.

As Peter says,name and shame the solicitors involved.

Anonymous said...

Hi Peter

I can't make any sense of this Jane Irvine stuff at all.I agree with the people who are saying these reports should be written much clearer so everyone can understand them and I think everyone including the complainers should be identified.

Another thing I would suggest is the Ombudsman be required to look at every complaint the Law Society investigates and make a report on what they did or didn't do.

Anonymous said...

It doesn't take much to see no one is getting justice with complaints against their lawyers.
Maybe the trap is to fall into their complaints system in the first place and then they steer you in their own direction.
You all should avoid using lawyers in that case or as some people are now suggesting roll your sleeves up and sort out the thief yourselves.
Oh whats that now? can't have people sorting out thieves? well if the thieves wont sort themselves out who will?

Peter Cherbi said...

Thanks for all your comments, and I must say I am impressed with the common points you all raise regarding the issue of naming & shaming the legal firms involved, and that such reports should be written with a view so that everyone is aware of just what was going on, and with which legal firm.

I particularly liked the comparison of Billy Connolly's take on algebra ... as a fan of Mr Connolly, I wonder what he would have to say about errant lawyers ...

#"no justice in SNP Scotland" - I'd say you are probably about right on that one ... The SNP have failed Scotland on justice without a doubt and no one in the party seems willing to correct it.

# Anonymous @ 12pm

Excellent suggestions.I agree entirely.

# Anonymous @ 3.34pm

Be careful how you phrase that, but what you say is shared by many as a viewpoint.

Anonymous said...

No wonder hardly anyone bothers going to the Legal Services ombudsman if that's all she can do!
We need someone with TEETH!
How about you Mr Cherbi?

Anonymous said...

Good story - you are right about naming and shaming the lot of them.

Anonymous said...

I don't think the Law Society will agree with you on this one Peter.Every lawyer has probably had complaints made against them and I'm sure if most people knew their lawyer's history they wouldn't touch them with a barge pole.
I used to work for CAB and I can tell you the most frequent issue we dealt with was bad legal advice and lawyers who were fleecing their clients.No one wants to make all that public because it would and should cause the collapse of the legal profession in its present format.

Keep up the good work as others here say.

Anonymous said...

I saw no coverage of these Ombudsman notices in the newspapers and reading them I can see why.Complete disgrace that anyone can present such a farce to the public funded with public money.Those lawyers should have been named and shamed as you say.The complainers should also be identified along with the staff from the Law Society who handled it.