Thursday, November 26, 2009

First use of McKenzie Friend in Scotland as Court of Session sweeps aside 40 years of lawyers monopoly over public access to justice

Lord WoolmanLord Woolman granted Scotland’s first Civil Law McKenzie Friend request FORTY YEARS after McKenzie Friends were first introduced to UK courts as a result of the 1970 McKenzie v McKenzie decision which set a legal precedent for court users in England & Wales to request and receive the invaluable assistance of a McKenzie Friend, Scotland’s Court of Session has finally, albeit grudgingly fallen into line with the rest of the country and many international jurisdictions by granting what many say is the first successful request for a McKenzie Friend to appear in Scotland's civil courts.

The unexpected turn of events in the Court of Session last Tuesday, 17th November 2009 saw the sitting judge, Lord Woolman allow the attendance of Scotland’s first ever McKenzie Friend in a long running civil damages action which named Motherwell College, North Lanarkshire Council & Edinburgh Law firm Simpson & Marwick as defenders. The case, a medical injury claim recently heard 'potentially explosive allegations' against the College from the witness box.

A spokeswoman for the Scottish Courts Service confirmed the first use of a McKenzie Friend in Scotland, issuing the following brief statement : "I confirm [the party litigant] was allowed to be assisted in the manner associated with the term “McKenzie Friend”. [The litigant's] supporter was advised by the Court as to the nature of his role and is seated behind [the litigant] in court in the place where an instructing agent (solicitor) would sit.”

The Scottish Courts Service was further asked to confirm this was the first successful use of a McKenzie Friend in a civil damages action in Scotland. However, the SCS said they did not keep such statistics or data, and therefore could not confirm one way or another.

A senior official of one of Scotland’s consumer organisations welcomed Lord Woolman’s decision to allow the use of a McKenzie Friend. He said : “The rights of party litigants in Scotland’s civil courts have been greatly enhanced by Lord Woolman’s decision allowing what we understand to be the first ever use of a McKenzie Friend in a Scottish court. We hope this will be the first of many successful applications to the Scottish courts for the use of McKenzie Friends in cases were consumers have found it difficult or too costly to obtain the services of a solicitor to represent their legal interests.”

However, Lord Woolman’s decision in requiring the McKenzie Friend to ‘sit behind’ the party litigant came in for criticism, due to the fact that in England & Wales, and most international jurisdictions were McKenzie Friends are allowed, the party litigant requesting the advice & assistance of a McKenzie Friend usually find their McKenzie Friend sits beside them, rather than behind them.

A senior barrister from England said today : “I have often attended hearings where McKenzie Friends have assisted party litigants, seated next to them. I have not attended a hearing where an English court has insisted or required that a McKenzie Friend must sit behind their party litigant. Such a seating arrangement would be counterproductive to the litigant who would be put in a position of having to constantly turn around, seeking advice on what to say or asking to see notes taken by the McKenzie Friend. I would think the judge’s patience would fray a little at such a constant head turning prospect, and therefore on that basis I would have to say your Scottish judge got it wrong on who sits where.”

A former party litigant whose experiences were recently reported in a Consumer report on Scotland’s Civil Courts today said : “I found the entire system stacked against me in court and it will come as no surprise I lost. If I had been able to use a McKenzie Friend I might have won my case, or at least come to a settlement but the judge in my case said I could not have a McKenzie Friend. The lawyers laughed at me when I was forced to drop my case and to this day I feel very bitter about it.”

He continued : “Where a Scotsman living in England or Wales, can enter an English court with a right to have a McKenzie Friend by his side to help him in his hour of need, yet a Scotsman living in Scotland asking for the help of a McKenzie Friend will still have to face the discretion of individual courts who may seat his McKenzie Friend miles away to the rear .. is not fair. This lack of fairness has to be put right.”

Lord gillLord Gill recommended McKenzie Friends be introduced in his Civil Courts Review. In the recent Civil Courts Review, conducted by Scotland’s Lord Justice Clerk, Lord Brian Gill recommended that McKenzie Friends should be introduced in Scotland, not only being allowed to sit beside a litigant but also to be granted a right of audience in some circumstances, to speak for litigants. However, Lord Gill’s detailed recommendations on the introduction & application of McKenzie Friends in Scotland’s courts conflicts severely with claims made by the Lord President to Holyrood’s Petitions Committee, where Lord Hamilton claimed that such assistance as provided by McKenzie Friends had always existed in Scotland, when in fact, no recorded use of McKenzie Friends in Scottish Civil Courts has taken place until now, this now confirmed by the Scottish Courts Service itself.

You can read my earlier articles on Lord Gill’s recommendations for the introduction of McKenzie Friends in Scotland, here : Scots Law 'shake up' as Lord Gill’s Civil Courts Review supports McKenzie Friends, Class Actions & wider access to justice for all

You can read my earlier reports on the battle to bring McKenzie Friends to Scotland here : McKenzie Friends for Scotland - A battle worthy of a McKenzie Friend

As legal experts in Scotland continue to assess the impact of Lord Woolman's ruling on McKenzie Friends, and the precedent the decision has now established, the race is now on to set rules and guidance for the Scottish Courts on the general application & acceptance of McKenzie Friends to provide unrepresented party litigants with advice & assistance during court appearances.

A legal insider pointed out today that in England & Wales, as soon as a litigant makes a request to have a McKenzie Friend assist their litigation, the English courts must consider that request on a Human Rights basis, as contained in the Lord President of the Family Division’s guidance to the English Courts, which clearly states :

• When considering any request for the assistance of a McKenzie Friend, the Human Rights Act 1998 Sch 1 Part 1 Article 6 is engaged; the court should consider the matter judicially, allowing the litigant reasonable opportunity to develop the argument in favour of the request.

• The litigant in person should not be required to justify his desire to have a McKenzie Friend ; in the event of objection, it is for the objecting party to rebut the presumption in favour of allowing the MF to attend.

• A favourable decision by the court, allowing the assistance of a McKenzie Friend, should be regarded as final and not as something which another party can ask the court to revisit later, save on the ground of misconduct by the McKenzie Friend or on the ground that the MF’s continuing presence will impede the efficient administration of justice.

What a McKenzie Friend May Do :

• Provide moral support for the litigant
• Take notes
• Help with case papers
• Quietly give advice on : points of law or procedure ; issues that the litigant may wish to raise in court & questions the litigant may wish to ask witnesses.

What a McKenzie Friend May Not Do :

• A McKenzie Friend has no right to act on behalf of a litigant in person. It is the right of the litigant who wishes to do so to have the assistance of a McKenzie Friend.

• A McKenzie Friend is not entitled to address the court, nor examine any witnesses. A McKenzie Friend who does so becomes an advocate and requires the grant of a right of audience.

• A McKenzie Friend may not act as the agent of the litigant in relation to the proceedings nor manage the litigant’s case outside court, for example, by signing court documents.

The full guidance from the Lord President of the Family Division on the use of McKenzie Friends in England & Wales can be downloaded here : President's Guidance: McKenzie Friends

One of the most important issues with regard to the use of McKenzie Friends in England & Wales, is that when a litigant makes a request for a McKenzie Friend, the request is considered with regard to Article 6 of Human Rights legislation. Currently, this is not the case in Scotland, and as yet, no guidance has been released from the Lord President’s office addressing these issues.

This Human Right of a McKenzie Friend to the unrepresented people across our country must not be separated by the hills of the Scottish Borders, simply on the basis the Scottish legal establishment, and the legal profession feel they will lose control over the courts and perhaps more importantly to them, control over access to justice and law firms profits.

Given the confused and contradictory claims by the Lord President, Lord Hamilton and the Scottish Government in its responses to the McKenzie Friend petition, and Lord Woolman’s following to the letter of Lord Hamilton’s ‘sit behind & far away’ policy, a right and entitlement to a McKenzie Friend in Scottish Law is long overdue and can no longer be allowed to remain 'in the the gift' of the Court. Give Scots the right of a McKenzie Friend.

Wednesday, November 25, 2009

Scottish Ministers 'will fight' disclosure of secret legal advice ordering Law Society immunity from Freedom of Information laws

Helena Janssen OSSE - Law Society exempt from FOISecret legal advice ordered Scottish Ministers to keep Law Society exempt from Freedom of Information. BLACKED OUT DOCUMENTS containing secret legal advice issued by taxpayer funded Scottish Government lawyers show that Scottish Ministers WERE ORDERED by the legal profession to allow the Law Society of Scotland to keep its much coveted yet little-talked-about exemption from Freedom of Information legislation. The censored advice, issued by lawyers working for the Office of the Solicitor to the Scottish Executive, who are themselves, fully paid up members of the Law Society of Scotland has led to a policy by the present Scottish Government since it was elected in May 2007 to mislead members of the public, consumer groups, law reformers and FOI campaigners on the question of making Scotland’s legal profession accountable under Freedom of Information legislation.

KevindunionScottish FOI Commissioner Kevin Dunion. The so-far secret documents relating to the Scottish Government’s attempts to keep quiet about their involvement with the Law Society/FOI issue, have only now been grudgingly released by the Scottish Government in an attempt to persuade Scottish Information Commissioner Kevin Dunion from ordering the full disclosure of the legal advice, which has led to a policy of misleading the public for several years on the question of making the regulator of Scotland’s legal profession comply with Freedom of Information laws.

Secret papers disclosed during FOI investigation show Scottish Government ‘is afraid’ of Law Society of Scotland’s legal challenge against Freedom of Information compliance.

Helena Janssen OSSE - Law Society exempt from FOI Scottish Govt emails on Law Society FOI exemption Scottish Govt emails on Law Society FOI exemption (2) Scottish Govt emails on Law Society FOI exemption (3) Scottish Govt emails on Law Society FOI exemption (4) Scottish Govt emails on Law Society FOI exemption (5)

The move to keep the Law Society of Scotland free from scrutiny under Freedom of Information legislation will avoid any possibility that clients, the media and the general public could use FOI laws to find out key details of regulatory procedures at the Law Society itself, which are famed for allowing crooked lawyers to continue working no matter what they do to clients, discover actual records of complaints histories of Scottish solicitors, the criminal records of solicitors and staff working in the legal services sector, and also allow clients access to their own personal files held by solicitors, which are often ‘held to ransom’ by solicitors demanding payment before being handed over, in a vastly edited format.

While Scots are forced into the dark chasm of FOI exempt dealings with the Law Society of Scotland, the Law Society of England & Wales while also not FOI compliant, have an open policy of replying to Freedom of Information requests from the public, as I reported earlier, here : Criminal records of lawyers : Scots public kept in dark over convictions while England & Wales get ‘right to know’

Scottish Govt emails on Law Society FOI exemptionEmails between Civil Servants show Scottish Government fear Law Society action against Freedom of Information Scrutiny. A legal insider said last night : "I understand the Law Society warned the current SNP Scottish Executive and the previous administration that it would legally challenge any attempt by Scottish Ministers using Section 5 of the FOI(S) Act to bring them into compliance. The documents now released seem to confirm this.”. He went on : "The civil servants talking about how the Law Society would challenge against any such move, using 'legal privilege' and 'client confidentiality' is very much spot on in terms of what tactics the Law Society would use to prevent itself being made compliant with FOI legislation although I also understand from colleagues that an option of Judicial Review would have been used by the Law Society, should the then Scottish Executive or present Scottish 'Government' have proceeded to bring the Law Society within the scope of FOI."

One Scottish Government civil servant wrote in an email between legal departments : “I am aware that the LSS (Law Society of Scotland) is not subject to the FoI Act and I suppose that any attempt to bring them into line with the spirit of FoI would be resisted on the grounds of legal privilege/client confidentiality.”.

However letters sent out on the authorisation of the Justice Secretary, Kenny MacAskill to FOI campaigners claimed “No decision have yet been taken as a result of [a consultation on Freedom of Information in Scotland'] and Ministers are currently considering the requirement for any action on the issues considered, including coverage of the [FOI] Act” clearly portraying a deliberate policy by the Scottish Government to mislead the public with regard to FOI issues & the legal profession in Scotland.

Kenny MacAskillScottish Ministers will fight to prevent public knowing why lawyers are exempt from FOI legislation. While the legal advice apparently ordering Scottish Ministers to allow the Law Society of Scotland to keep its exemption from FOI legislation was made during the previous administration, the current SNP controlled Scottish Government have now forcibly warned Scotland's FOI Commissioner, Kevin Dunion, that they will fight to keep the public from knowing that Ministers have in effect been bullied by the Law Society of Scotland into keeping the Scots legal profession free of public scrutiny which would come with FOI compliance.

Law Society & faculty of advocatesLaw Society of Scotland & Faculty of Advocates remain secret, unaccountable to FOI scrutiny. The Law Society of Scotland is one of two key regulators charged with overseeing Scotland's legal profession, the other being the Faculty of Advocates who also enjoy complete immunity from Freedom of Information legislation, making the two regulators of Scotland's legal profession a dangerous unaccountable duo of self regulators who are subject to no oversight other than a passing glance from the beleaguered, scandal hit Scottish Legal Complaints Commission, who have spent the last year rubber stamping investigations into crooked lawyers carried out by the Law Society & the Faculty.

Jane IrvineSLCC Chair, Jane Irvine supports making the Law Society compliant with FOI legislation. Ironically, while the Law Society of Scotland & Faculty of Advocates are both exempt from Freedom of Information, and have threatened the Government to ensure their exemptions remain, the former Scottish Legal Services Ombudsman, Jane Irvine, who was appointed Chair of the Scottish Legal Complaints Commission, actually supports making the Law Society of Scotland comply with Freedom of Information laws, confirming this in a previous article I reported here : Legal Complaints Chief supports ‘consumer advantages’ of removing Law Society’s Freedom of Info immunity

Challenger 2 in IraqIraq War : SNP MPs badgered for Cabinet Minutes release on war ‘legal advice’ but now SNP Scottish Ministers will use public money to protect Law Society from FOI & fight release of Scottish Govt’s lawyers advice. This fight by the Scottish Government to keep information from the public which involves elements of the Scottish legal profession bullying the Government into submission over FOI protection for the public is in stark contrast to the SNP's position over the FOI battle for release of Cabinet meeting minutes from the Westminster Government in relation to the Iraq war, where, in a similar situation of legal advice against FOI release,UK Government lawyers based in Westminster also argued it would be against the public interest to release the Cabinet Minutes.

The now famous but still secret Cabinet Minutes containing references to the legal advice given to the Government on the legal basis of the war in Iraq, were ordered for release by England's FOI Tribunal which backed the original decision by the Information Commissioner for England & Wales, Richard Thomas, ordering the release of the Westminster Cabinet Minutes. However, Scotland has no FOI Tribunal, therefore the FOI Commissioner, and even applicants to the FOI Commissioner’s office must rely on going to the Court of Session in Edinburgh to force the release of information that Scottish Ministers may resist disclosing to the bitter end.

A senior official with one of Scotland’s consumer organisations branded the Scottish Government’s stance over the legal advice as “a grave mistake” and condemned the lack of attention to a clear public interest in making Scotland’s legal profession’s senior regulator comply with Freedom of Information legislation.

He said : "“The current arrangement consumers face with the regulation of legal services in Scotland, where the Law Society of Scotland & Faculty of Advocates are exempt from FOI legislation, yet the Scottish Legal Complaints Commission is FOI compliant, is not in the public interest.”

He continued : “The public interest would undoubtedly be served if the Law Society of Scotland and the Faculty were made to comply with Freedom of Information, but such a move will require action from the Scottish Government. It appears this will never take place, according to the documents which have now been disclosed, and even worse, it appears the Scottish Government have been deliberately misleading public enquiries on this issue for several years.”

Douglas Mill 4Former Law Society Chief Douglas Mill threatened legal challenge against complaints reforming legislation LPLA Act which created the SLCC. This is of course not the first time the Scottish Government have been threatened with legal action by the Law Society of Scotland, where in 2006, during the Scottish Parliament’s consideration of the Legal Profession & Legal Aid Bill, which went onto create the Scottish Legal Complaints Commission, the then Law Society Chief Executive, Douglas Mill, threatened a legal challenge against the then Scottish Executive and the Scottish Parliament, claiming that lawyers had a human right to regulate complaints against their colleagues. I reported on that earlier threat of a legal challenge by the Law Society, here : Law Society of Scotland threatens Court challenge against Scottish Executive over LPLA legal reform Bill

A Scottish Government insider commented on his colleague’s frantic discussions over the Law Society & FOI compliance, saying : “The problem here is the many dark secrets of the legal profession will end up being revealed under FOI if they are made to comply with it.”

“If you find out through FOI your lawyer is a habitual crook and has rolled hundreds of clients, you are not going to use them or their firm for anything. I believe it is the desire of the Law Society and the profession to protect their secrets which we are seeing as the Government’s driving force of maintaining an indefinite exemption rather than groundless arguments of client confidentiality."

Clearly, the public interest would be served by making the Law Society of Scotland & Faculty of Advocates compliant with Freedom of Information legislation and continuing the present secrecy which allows both of these powerful regulators to remain outside the law and outside the reach of public scrutiny & accountability is only helping those within the profession who are exploiting such weaknesses for their own benefit against the public and all users of legal services in Scotland.

Monday, November 23, 2009

Calls to scrap 'complaints laundering' Scottish Legal Complaints Commission as expensive anti-consumer quango revealed as talking shop for lawyers

slcc squarePoliticians & consumer groups feel SLCC is having a laugh at Scots public. THE SCOTTISH LEGAL COMPLAINTS COMMISSION, which is due to publish its first annual report in December, has been roundly condemned by politicians, consumer groups, and members of the public forced to approach it over complaints against 'crooked lawyers' as being an expensive, incompetent & anti-consumer quango which is focussed more on salaries & expenses than its once promised task of cleaning up mounting complaints of corruption in Scotland's legal profession.

SLCC Expenses claims & salariesSLCC Chief Executive Eileen Masterman at 70K a year was named in a survey as one of the highest paid quango Chiefs in Scotland. While board members of the SLCC have raked in a staggering £135,000 plus in expenses claims over the past year, and its Chair, Jane Irvine nets £308 plus, a day, along with Chief Executive Eileen Masterman who gets a whopping £1350 per week, the complaints body has shown itself over the past year to be a very poor regulator of complaints against ‘crooked lawyers’, leaving many clients finding their complaints have been ‘whitewashed’ in a way reminiscent of the Law Society of Scotland’s Client Relations Office investigations, which are well known to have let thousands of crooked lawyers off the hook from even the most serious of complaints.

Debating chamberMSPs have been asked to assist consumers caught out by anti-client SLCC. While the SLCC has focussed on huge salaries and expenses claims, little by way of complaints victories for consumers have been achieved by the cash hungry quango. The public’s dealings with the SLCC have now reached such a low point that MSPs across Scotland have been called in by many constituents to help complainers get the SLCC to give them a fair hearing that Justice Secretary Kenny MacAskill had promised would be routine with the failing SLCC, once styled as a 'new broom' but which has now lost its bristles, and it seems, the will to address public complaints against the legal profession.

This morning, an MSP spoke of being called in by a constituent to ask the Scottish Legal Complaints Commission why it had continually failed to address serious issues in a complaint made against a rogue solicitor and his law firm which now includes a complaint against the Law Society itself.

The MSP said : "A constituent who has become embroiled in a dispute with the Scottish Legal Complaints Commission and the Law Society of Scotland over a complaint made against a solicitor, asked me to write into the SLCC seeking to untangle the mess they had made of my constituent’s problem. The responses I have received so far from the SLCC demonstrate nothing has been learned from the failures of the Law Society’s complaints system.”

“Each time I received a response to my enquiry, they would seek to complicate the issue further to the point that matters became very unclear as to what was happening with my constituent’s complaint and what they intended to do about it. I was left with the distinct impression I was dealing with an organisation that has a very bad attitude towards the public. Clearly the SLCC has become unfit for purpose.”

A member of the public who has been waiting several months for his complaint to be investigated by the SLCC said today : "I have been writing letters back & forth for months to people at the Scottish Legal Complaints Commission and I feel they are just doing all this on purpose to lose me in a paper chase. I think the legal profession are just having a laugh at us consumers by using the SLCC to launder complaints made against crooked lawyers. I have lost all trust in the SLCC. They should be replaced with something that can help people with complaints not hinder them and there should be no lawyers on whatever replaces it in the future.”

The Scottish Legal Complaints Commission was asked for information on how many MSPs had contacted it over problems faced by constituents who had encountered difficulties with the law complaints body. However, the SLCC refused to hand over any information or documents on this subject, and tersely said that requests for such information would now be charged for.

SLCC minutes Nov 2009 4 months behindQuango secrecy to maximum as SLCC website reveals lack of board meeting minutes and accurate information on its actual performance. While the SLCC was being secretive about its own difficulties and the lack of trust it suffers from public & politicians alike, the quango’s own website amazingly reveals today that up to today, 23 November 2009, it has failed to post any board minutes since July 2009, begging the question what has the Commission actually been doing all this time, while its members have been raking in huge expenses claims & salaries while complaints and the public have become its last priority. An insider commented on the lack of minutes information, claiming that due to poor media coverage which had revealed the SLCC to be unfit for purpose, the commission had now taken the decision not to release much information on its internal workings to the public, for fear that the details of its daily operation and board meetings would continue to portray it to be a pro-legal profession body, rather than an impartial regulator of consumer complaints against poor legal services.

SLCC report headerSLCC’s July 09 report into Master Policy claims revealed client suicides but quango did nothing. A spokeswoman for a consumer organisation today rounded on the SLCC and agreed the quango needed to be reformed. She said : “While the Scottish Legal Complaints Commission may argue this has been their first year of operation, they have without doubt made a huge mess of handling complaints and attending to their duties.” She continued : “Probably the worst example I can think of from the SLCC’s first year would be their Master Policy investigation, which revealed so much, yet has still to see any action or reform of the horrendous claims process which clients are forced to use when claiming negligence or damages against their solicitors. I think that failure on its own, demonstrates the SLCC is too weak, too unwilling, and too close to the legal profession to be of any use to consumers as the impartial, independent regulator it claims itself to be.”

"We need to move on from this mistake and create a fully independent regulator that is able to do the job the SLCC was supposed to do, but cannot do due to overwhelming influence and control from the legal profession itself."

You can read my earlier reports on how the Scottish Legal Complaints Commission handled their investigation into the Law Society of Scotland’s Master Insurance Policy, here : 'Ground-breaking' investigation into Law Society's Master Policy insurance reveals realities of corrupt claims process against crooked lawyers and here : Suicides, illness, broken families and ruined clients reveal true cost of Law Society's Master Policy which 'allows solicitors to sleep at night'

Well, I can only agree with the sentiments expressed by others, that the Scottish Legal Complaints Commission is most certainly, unfit for purpose, and should be replaced with a fully independent body which operates under external oversight, and is free of influence & control from the legal profession, to ensure that consumers are fully protected from the many rogue elements of Scotland’s very poor, untrustworthy, legal profession.

Thursday, November 19, 2009

Scottish court users advised to 'take along a note taker' as omissions in civil court transcripts jeopardise consumers access to justice

SCS logoIn some cases, notes of proceedings in Scottish courts 'are worthless'. Litigants who use Scotland's courts for civil proceedings have today been advised to take along witnesses or their own note takers, after revelations emerged in several long running damages actions of a pattern of serious omissions in the official notes of court proceedings which have in some instances, heavily compromised litigants legal positions and ruined clients trust in their own legal representation who were found to be less than competent during court proceedings.

Despite the fact Scotland's courts have had recording equipment fitted several years ago, notes from cases heard in Scottish Courts including the Court of Session, which have involved challenges against professions such as medical negligence claims against Health trusts, negligence claims against the legal & financial professions and even challenges against public bodies including Government department, have revealed that rarely do the full judgements or even court interlocutors contain a fully accurate account of the events which actually took place in court in front of litigants, leaving many court users bemused or facing severe difficulties in their cases or legal positions.

Unsurprisingly, these omissions in court documents & judgements seem to have a habit of occurring particularly where issues involve failures of litigants legal counsel, or in one example quoted to me, where a judge had heavily criticised a litigant’s legal team for not entering medical evidence into pleadings, which the litigant had only found to have been not produced after he had himself written to the Scottish Courts Service enquiring what papers his legal counsel had actually filed.

A Courts insider today said : “While every single word could not be written down that is said in a court case, there is a general reluctance by people working for the Scottish Courts service to note down such embarrassing details as litigants finding out only during a hearing after harsh criticism from the judge that their legal teams had not presented key evidence to their case.”

He continued : “I recall many attempts by a litigant to gain transcripts of a hearing where the judge apparently told the litigant’s QC he was ill prepared and was wasting his clients and the courts time after it came out no papers had been entered into productions. The client protested vigorously in letters to the SCS that his counsel had informed him otherwise, even copying letters from his solicitor that all productions had been sent in. This was however not the case and clearly his legal team had not followed through.”

“Had the hearing been recorded accurately I have no doubt the litigant would be in a stronger position to do something about the omissions of his legal team”

A solicitor working with a consumer organisation admitted there were serious shortcomings in courtroom transcripts in Scotland's courts. He said : "I suspect court users, and even the general public would get quite an eye opener if all court proceedings were accurately transcribed or even audio recorded. It may very well be that many of those who come to court may wonder what their legal representatives have been doing, after going over the recordings a few times after the event.”

He continued : “Scottish Courts do have the facilities to audio record cases, which I would definitely advise court users to request, but I would also advise anyone who may feel they need an independent note of what happened during their court hearing, to take along a friend or someone who can write down what took place in the court, and also if necessary, be a witness at a later date.”

In an example of a case where ‘dodgy note taking’ seems to have omitted key criticisms from the bench of a pursuer’s legal team who were representing a victim of medical negligence, a full list of medical examinations made by independent experts, and key expert witness testimony on the pursuer's condition and treatment in hospital had not been entered into evidence – this despite the pursuer having a letter from his solicitor giving a full numbered list of productions to the court, which in reality did not exist.

It appeared in this particular case, the pursuer’s legal team never expected the case to go to proof, and the whole episode only came to light when the sitting judge asked the pursuer’s QC where were the medical reports of his client, leaving the pursuer’s legal team speechless and asking for an adjournment to a later date. Sadly none of this was recorded in the report of the hearing that day, and now the pursuer finds himself without legal representation, after questioning his solicitor why he was told his productions had been entered, when clearly they were not.

Lord GillLord Gill recommends digital recordings of all civil court evidence. The extent of problems with court transcripts and recordings, was recently referred to in Chapter 6 of Lord Gill’s Civil Courts Review, where the Lord Justice Clerk stated : “Currently where evidence is recorded in civil cases this is done manually by a shorthand writer. In our view it would be more efficient to record digitally all evidence in civil cases, as happens in criminal cases. The cost of this should be borne by the SCS. The availability of digital recording facilities in all courtrooms would contribute to more flexible usage of accommodation. We understand, however, that to equip a court fully for digital recording could cost up to £15,000. That may be prohibitive in smaller courts. Mobile facilities could be made available in those courts when required. If parties required a transcript of the evidence a charge would be made for this service. In many instances a recording of the evidence would be all that would be required.”

Clearly problems do exist with transcripts of courtroom activity, which as Lord Gill concludes himself, would easily be curtailed by the digital recording of all evidence in civil cases.

You can download Lord Gill’s Civil Courts Review at the following links : Civil Courts Review

Volume 1 Chapter 1 - 9 (Covers McKenzie Friends, procedures, use of information technology in courts, advice etc, 2.99Mb)

Volume 2 Chapter 10 - 15 (Covers mainly the issue of Class (multi party) actions etc, 2.16Mb)

Synopsis (215Kb)

While Lord Gill’s recommendations are being considered .. and lets hope the powers that be don't take the usual eternity to consider them … if you feel you need a witness to your civil court hearing, which I would certainly recommend you do, take along someone with a pencil & notebook – it may very well save you later on if something goes wrong.

Courtroom notes and your lawyers version of events after the hearing may sound all well & good, but time & again, the most important references of events which end up determining whether your legal team have acted in your interests or otherwise, are simply not there fin the shorthand writer’s notes for you to refer to later on when difficulties arise. An extra body with a notepad may well be your saviour when needed later on.

Friday, November 13, 2009

Scottish Government spending £8.1 million on 225 lawyers salaries as more Scots miss out on legal representation, access to justice

SG lawyers salariesScottish Government now have hundreds of lawyers paid for by taxpayers. While thousands of ordinary Scots struggle trying to find or afford legal representation in our own country, documents released under Freedom of Information legislation reveal the Scottish Government has quietly authorised a multi million pound doubling of the numbers of lawyers employed by the current administration, at a total cost to taxpayers of well over the £8.1 million salary only figure released in response to information disclosure requests.

FOI on Scottish Government Lawyers SalariesFOI reveals MacAskill likes lawyers so much, he's employed over two hundred of them at our expense. Today it can be revealed the Scottish Government are spending a whopping £8.1 million pounds of public money on salaries alone of some 225 lawyers. The Scottish Government's FOI stated that : "The Scottish Government has 3 main offices which provide legal services to the Scottish Ministers and agencies for which they have responsibility: the Scottish Government Legal Directorate, the Office of Scottish Parliamentary Counsel and the Legal Secretariat to the Lord Advocate. These offices together employ 139 lawyers (as at 1 April 2009). The total annual salary for these lawyers (including national insurance contributions and superannuation) in financial year 2008-2009 was £8,146,000. In addition, a further 86 lawyers are seconded to other government offices and inquiries as part of the Government Legal Service for Scotland. Those lawyers’ salary costs are met by the host office or inquiry."

SLCC Marsh LSSScandal hit insurers Marsh & crooked regulators Law Society of Scotland & SLCC all get huge payments on the taxpayer. However, the Scottish Government failed to disclose in the FOI they also pay out huge bonuses to the legal staff as well as huge amounts of public money on their lawyers expenses claims, which include huge payments to the Law Society of Scotland for each lawyer's annual practising certificates, massive payments to Marsh UK for each of the lawyers indemnity insurance cover, and also a third gigantic payment to the Scottish Legal Complaints Commission to cover the complaints levy imposed on all solicitors working in Scotland who currently hold a practising certificate.

2006 pre SNP lawyer salaries SGPrevious totals of lawyers working for the Scottish Executive revealed half of today’s number. In a country where legal representation is becoming harder to obtain through cost, prejudice by the legal profession against particular cases or clients, and refusals by law firms to handle legal aid work, the huge increase in solicitors working for the Scottish Government from around 114 in late 2006 to today's 225 (also apparently on the rise) is an astounding slap in the face to people who find themselves locked out of the Scots legal system through no fault of their own, and also a sharp reminder to UK taxpayers that vast amounts of money are being needlessly wasted on legal teams working for the Government whose only real purpose seems to be to "gum up the works so the Government can get its way" - according to a former Justice Department employee.

Naturally, one might wonder what on earth over two hundred lawyers get up to, working for the Scottish Government. Why does the Scottish Government need to shell out so much of our money on lawyers when most of us cant get one to even write a letter without costing an arm & a leg ?

Well, taking a deeper look into the likes of the Scottish Government Legal Directorate, and the Government Legal Service for Scotland (GLSS), much of their work revolves around giving legal advice to Ministers on legal matters, legislation, policy, issues relating to the Scottish Parliament, relations with Local Government, and also on correspondence & dealings with tens of thousands of ordinary Scots who contact the Scottish Government for help & assistance when problems occur with public services and the like.

For instance, if you are someone who has fallen foul of a public service or a failure of regulation, have exhausted all methods of resolution and have now turned to writing to the relevant Scottish Government Minister for assistance, the chances are your pleas for help will be given the short sharp shrift by a rather uncaring member of the Government Legal Service For Scotland (employed at your expense as a taxpayer) to write Ministerial advice along the lines of “We cannot help this person as it would mean interfering with the running of a public body” or “I would recommend not replying to this individual” or something like that .. not the kind of response one would expect, being after all, a taxpayer who pays for the outlandish salaries, expenses & bonuses of these Government employed solicitors. One note of advice to a Minister which stuck in my mind over the years read : “The Law Society of Scotland have informed us this person will shortly no longer have legal representation therefore the case is not a threat to the Government. I suggest we simply reply saying we note their comments and close with that.”

I wrote an earlier report on how lawyers from the Government treat public pleas for Government & Parliament for help, which you can read here : Scottish Government's £10m in-house lawyers make their mark against legal reforms & public access to justice

In another example, with regard to the use of tainted blood products in Scotland, it seems the Government employed lawyers offered plenty advice to Ministers from the previous and current administration on how to escape liability for the infections and even deaths of those who were infected in Scottish hospitals by blood products which almost certainly many knew had serious risks attached .. and there stands these duty bound taxpayer lawyers working for the Government, clamouring over each other to suggest ideas to delay enquiries, avoid liability, and ignore pleas for help from those victims of the blood products scandal … which, surely, is a little disgusting to say the least. You can read my earlier report on that, here : Scottish blood infections inquiry will be 'another whitewash' as documents expected to be withheld to cover up public liability. Whether copies of that advice will turn up at the Inquiry is anyone’s guess .. but I’m betting not.

An example of inherent bias in the Government's Legal Service for Scotland can easily be displayed in the long and bitter battle to enact increased rights of audience in Scotland's courts, via Sections 25-29 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990, which the GLSS and even the Civil Service wanted kept out of public reach.

While communications flew back & forth between Government Departments on how to stall or even repeal the little known legislation which would have helped tens of thousands of Scots over the years who have been unable to secure legal representation in Scotland's courts, lawyers working for the current and previous administrations continually put the boot in against allowing wider competition in the Scottish legal services marketplace, issuing advice to Ministers on ways to delay for decades, the implementation of laws first passed in 1990 but only enacted in 2007 after the media became interested.

The situation became so worry some for the Scottish legal establishment, Lord Hardie, who was serving as Lord Advocate in 1997, was apparently persuaded by legal teams working for the Government to actually advocate repeal of the 1990 access to justice laws, which I wrote about earlier, here : Former Lord Advocate Andrew Hardie revealed as major obstacle in removing lawyer-advocate monopoly on legal representation

MacAskill tight lippedJustice Secretary Kenny MacAskill has delayed reforming rights of audience in Scotland with the help of ‘legal advice’. Even after the 1990 rights of audience laws were finally enacted some 17 years later, by the previous Scottish Executive, lawyers at the GLSS and other Government Departments have fought a bitter battle to restrict applications from anyone else to practice law in Scotland, whispering in the ears of oh-so-willing-to-listen Ministers such as Justice Secretary Kenny MacAskill, that apparently, no one other than members of the Law Society of Scotland, should be allowed to practice Law and represent the public in the Scottish Courts, and today, only the Association of Commercial Attorneys have managed to secure a practising certificate, highly restricted in nature, and mostly, useless in terms of expanding competition in Scotland’s legal services sector … just it seems, as lawyers working for the Government always wanted …

At the end of the day, with access to justice in Scotland apparently being rationed only to those whose face fits with the legal establishment, why should taxpayers be shelling out millions of pounds for hundreds of lawyers to work for the Scottish Government, whose main aim seems to be to prevent the public from getting a fair hearing ?

Thursday, November 12, 2009

Glasgow lawyer who covered up husband's £24k client theft gets slap on the wrist by Law Society tribunal, continues working

Law Society of ScotlandLaw Society of Scotland investigation found McFarlane covered up £24,000 client theft by her own husband. In yet another case which demonstrates the lack of effective regulation of Scotland's legal services market and poor consumer protection, solicitor CATRIONA MACFARLANE, 49, of Hasties Solicitors, Glasgow, has been found guilty by the Scottish Solicitors Discipline Tribunal of professional misconduct but allowed to continue working as a solicitor.

The findings reported by the Scottish Solicitors Discipline Tribunal (SSDT), said that Catriona Macfarlane’s actions had left her client in a vulnerable position and left them exposed to an unacceptable risk after it had been revealed she covered up her own husband's theft of £24,150 from a client who had approached Mrs Macfarlane to act for him in a house purchase deal.

Law Society of Scotland v Catriona Macfarlane 1aSSDT heard lawyer covered up husband’s massive theft from client after cash was handed over for mortgage. In August 2006, Mr. A approached a mortgage broker, identified as Ideal Mortgages, to arrange a mortgage, giving Mr Nigel Macfarlane £24,150 to be used as a deposit on a property, and approached Catriona Macfarlane of Glasgow Law Firm Messrs Hasties to act for him in the purchase. The client, Mr A, was not aware at this time, that Catriona Macfarlane was married to his mortgage broker, Mr Nigel Macfarlane, nor did Macfarlane disclose this relationship to her client. Problems with the mortgage caused the house purchase to be delayed, which prompted the client to call his solicitor, Mrs Macfarlane, informing her he had handed £24,150 to the mortgage broker, who Mrs Macfarlane had still not disclosed was her husband. The SSDT judgement reported that Mrs Macfarlane's only reply to her client's telephone call was "She said only that she would call him back".

The Tribunal decision further reported : "She (Mrs Macfarlane) called back a short time later. She said that, having spoken to the broker, she was able to confirm that Mr A's money was safe and could be returned to him at any time. By this stage, she was aware that her husband had misappropriated Mr A's money. On 19 February, Mr Macfarlane came to Mr A's house and confessed … that he had spent his money. He promised to 'sort things out'."

“Mr. A and his wife were by this time suspicious. Although Mr. MacFarlane and the Respondent referred to each other respectively as “the broker” and “the solicitor” they shared the same surname. Mr. A and his wife confronted the Respondent on 19 February 2007. She confirmed that she and Mr. Macfarlane were married. She said that she “would sort things out”.

“On 26th February 2007 the Respondent advised Mr. A that she could no longer act for him and that he should seek separate representation. Mr. A was thereafter represented by new Solicitors. The transaction was completed in April 2007. All additional costs including penalty interest due to the sellers of the property were recovered from Nigel Macfarlane. The sums misappropriated by him were repaid in full."

The SSDT’s verdict : availabe for download in pdf, here: Law Society v Catriona Margaret Macfarlane

Solicitor Catriona Macfarlane, of Loganswell, Newton Mearns, Glasgow, and employed by Glasgow Law Firm Messrs Hasties Solicitors of Lynedoch Crescent, Glasgow, who was enrolled as a solicitor on 4 October 1982 was found guilty by the SSDT of Professional Misconduct in respect of her failure to disclose to her client the extent of her knowledge of her husband’s actings and her failure to timeously advise her client to seek separate independent advice and her failure to withdraw from acting for her client, all in breach of the Code of Conduct for Scottish Solicitors 2002.

The Scottish Solicitors Discipline Tribunal issued punishment, censuring Mrs MacFarlane, and issued a fine of £2500 to be forfeit to Her Majesty and Direct in terms of Section 53 (5) of the Solicitors (Scotland) Act 1980.

Further, Mrs Macfarlane was informed that for a period of 3 years, her practising certificate shall be subject to such restriction as will limit her to acting as a qualified assistant to and to being supervised by such employer as may be approved by the Council or the Practising Certificate Committee of the Council of the Law Society of Scotland. Mrs Macfarlane was also found liable in the expenses of the Complainers and of the Tribunal.

A representative of one of Scotland's consumer organisations condemned the decision to allow Mrs Macfarlane to continue as a solicitor, also branding the fine & practising certificate reduction as "weak".

She said : "This case shows us nothing has changed. Weak punishments like this are no deterrent for rogue solicitors who have the ability to rip off their clients without fear of losing their jobs & livelihood. Cases like this show that the Law Society of Scotland and SSDT are not serious about consumer protection from rogue solicitors.”

“How can the public have any confidence in the legal profession if all solicitors get is a slap on the wrist and fine when they are caught in major wrongdoing such as this case where, according to the SSDT findings, the solicitor covered up for her own husband's theft of clients money."

She continued : "I'm sure the public expected a lot more after the LPLA Act (2007) came into force but as we can see, the legal profession are still looking after their own, with the Scottish Legal Complaints Commission making not one bit of difference to the rising levels of fraud against consumers by their legal representatives."

MacAskill tight lippedJustice Secretary Kenny MacAskill accused of being a soft touch on poor regulation of crooked lawyers. A member of the public who is experiencing huge problems with the Scottish Legal Complaints Commission and the Law Society of Scotland over his complaint branded the whole system of regulation of lawyers in Scotland as ‘a con against the public, and also condemned the Scottish Government for being soft on crooked lawyers.

He said : “Where is the long arm of the Justice Secretary when all these crooked lawyers are stealing to order from their clients ? I cant get a fair hearing with this useless SLCC or the Law Society, and writing to the Scottish Government has also done no good. Any lawyer who covers up a theft or steals from theri clients should be jailed because if I had done it, I would go to jail. Why the special dispensation for lawyers to steal as they like ?”

COPFSCrown Office silent on criminal charges against lawyers. The Crown Office were asked today if Catriona Macfarlane and her husband, Nigel Macfarlane, would face criminal charges for the cover up and theft of their client’s funds, which albeit were repaid, still rank as theft (which in most people’s book is still a criminal offence). So far, no response from the Crown Office, who are well known to have a soft touch against criminals in the legal profession itself, often apparently refusing to prosecute solicitors of even very serious crimes.

You can read an earlier article I wrote on how the Crown Office mishandle prosecutions against solicitors, here : Justice Secretary 'hush hush' on criminal records of lawyers as Crown Office claims its too costly to keep details on legal profession's crooks

A source at the Law Society of Scotland today alleged it had not passed on any details of any criminal activity detected during their investigation to the Crown Office, which is no big surprise, as the Law Society of Scotland usually cover up any details of criminal activity they discover during the course of their 'investigations' into crooked lawyers and I doubt the Scottish Legal Complaints Commission, had they been involved, would have done any different (another non-surprise).

SLCC squareAnti-client’ Scottish Legal Complaints Commission would have done no differently, issuing just another slap on the wrist. Trust in the Scottish legal profession will never be established until fully independent regulation (not the half-baked, half-house Scottish Legal Complaints Commission slap handed version) is enacted to protect consumers from thousands of cases of serious fraud, negligence and the poor handling of clients legal affairs which occur each year in Scotland.

Please support the implementation of fully independent regulation for legal services in Scotland.

Tuesday, November 10, 2009

Lord Hamilton accused of ‘being deluded’ over McKenzie Friends in Scotland as judge's attack on Holyrood petition contradicts courtroom reality

Lord HamiltonScotland's Lord President of the courts, Lord Hamilton. SCOTLAND'S CHIEF JUDGE LORD HAMILTON has been accused of "being deluded" over the use of McKenzie Friends in English Courts, and providing “a gravely mistaken account” to the Scottish Parliament's Petitions Committee of the attitudes of Scotland's Courts to unrepresented party litigants who have made requests for assistance in the form of a McKenzie Friend, only to be refused consistently by Sheriffs and even courtroom colleagues of the Lord President himself for a staggering FORTY YEARS while courts in England & Wales have without much trouble allowed McKenzie Friends to operate successfully & diligently over the same four decade period.

Lord Hamilton to Holyrood - McKenzie Friends sit behind litigants (no they dont) Pg 1Lord Hamilton attacked the petitioner, also challenged the introduction of McKenzie Friends in Scotland. In a bizarre outburst by the Lord President over the use of McKenzie Friends in England & Wales, Lord Hamilton alleged that McKenzie friends sat behind litigants in English courts (rather than in reality, beside them), and then proceeded to attack the member of the public who had raised the petition at the Scottish Parliament, a Mr Stewart MacKenzie, accusing him of failing to understand that Scottish courts had always allowed the use of McKenzie Friends. Amid all this, the Lord President failed to back up his claims with written evidence. Lord Hamilton's letter to the Petitions Committee stated : "As you will be aware, this expression, which owes its origin to English procedure, can be used in two senses : in its original sense it referred to an individual assisting a party litigant by sitting he hind him or her in court and assisting that litigant by making notes, helping with case papers or quietly giving advice on the conduct of the case, as well as providing moral support in court (Civil Courts Review, Chapter 11, para 42).

The Lord President's claim that a McKenzie Friend sat behind the individual they had been called to assist in English courts was quickly rubbished by several institutions in England & Wales.

A group which provides McKenzie Friends to unrepresented parents in need of legal assistance commented : "If Lord Hamilton thinks that a McKenzie Friend sits behind a party litigant he should make the journey south and attend cases where McKenzie Friends are being used successfully in England & Wales. He would plainly see the McKenzie Friend sits next to the litigant and assists them accordingly."

We have provided qualified individuals acting as McKenzie Friends in hundreds of cases and not once have any been asked to sit behind the person they were there to assist, nor would we add, have any of our McKenzie Friends ever been asked to leave a courtroom.”

An English barrister, asked for reaction on Lord Hamilton's claims, branded the Lord President's letter fantastic & ludicrous. He said : "The Lord President should stick to writing about things he knows about as he plainly does not know about the workings of the English courts system. Lord Hamilton is deluded if he thinks McKenzie Friends sit behind the very litigants they are there to assist."

He continued : "If you think about it for one minute, what judge would allow a litigant to constantly turn around and ask questions, take advice, or be passed notes & papers throughout a hearing ? Having a McKenzie Friend sit anywhere other than next to the person they are there to assist is quite frankly, barmy."

Lord Hamilton then went onto personally attack the petitioner, Mr Stewart Mackenzie's understanding of how Scottish courts deal with McKenzie Friends requests, claiming there was "never any difficulty with such assistance being provided". Lord Hamilton's letter went onto state : "Contrary to the apparent understanding of the petitioner in this petition, the Scottish Courts - certainly the Court of Session, and, I understand, also the Sheriff Courts - have never had any difficulty with such assistance being provided; it is the existing practice of the Court to permit it; there is no need for its "introduction". It is, of course subject to the control of the presiding judge, who, if the facility were being abused, would be entitled to stop it."

However, Lord Hamilton's criticisms of the petitioner, and claims that Scottish Courts allowed the use of McKenzie Friends, were not backed up by a single shred of evidence provided by the Lord President in his letter to the Petitions Committee, and his assertions that courts had no difficulty with the use of McKenzie Friends were even rebuffed by insiders at the Scottish Courts Service, who admitted McKenzie Friends requests made by unrepresented litigants in Scottish courts WERE ROUTINELY REFUSED over the past 40 years to the present day.

Lord WoolmanLord Hamilton’s colleague Lord Woolman refused McKenzie Friend days after Lord Gill’s recommendation to allow. To make matters worse for the Lord President's claims to Parliament, a spokeswoman for the Scottish Courts Service admitted when questioned that a second request by an unrepresented party litigant for a McKenzie Friend in a long running damages action being heard in the Court of Session itself, was refused by Lord Hamilton's colleague, Lord Woolman, the day after the Lord Justice Clerk, Lord Gill announced his Civil Courts Review, stating that McKenzie Friends should be introduced to Scottish Courts.

A spokeswoman for the Scottish Courts Service confirmed that : "The request for a McKenzie friend formed one part of a six part motion and was refused. There was no judgment issued nor reason recorded, only the decision."

You can read my earlier report on Lord Gill’s Civil Courts Review, which recommended the implementation of McKenzie Friends in Scotland, here : Scots Law 'shake up' as Lord Gill’s Civil Courts Review supports McKenzie Friends, Class Actions & wider access to justice for all

A senior solicitor from a Glasgow law firm confirmed today that McMenzie Friend requests were usually refused in Scotland, and that life was made as difficult as possible for those making the request.

He said : "It doesn't take much to realise Scottish Courts do not want McKenzie Friends showing up to assist party litigants. Lord Hamilton's claims to the contrary are with respect, aloof from the reality those of us who work at the sharp end in the legal system know to be the case."

He continued : "Anyway, if the Lord President is so convinced Scotland's courts are happy to allow the use of McKenzie Friends, why didn't he provide any details of such instances to the Parliament in his letter ? I think that omission speaks for itself because there are no such examples to give."

Lord Hamilton to Holyrood - McKenzie Friends sit behind litigants (no they dont) Pg 2Lord Hamilton ‘fears’ English style reforms to Scotland’s Courts. Lord Hamilton continued in his letter to the Petitions Committee, claiming that if similar legislation which has successfully served the rest of the UK for nearly two decades, were introduced in Scotland, it would allow individuals to address the court on behalf of litigants, rather than simply be their McKenzie Friend. Lord Hamilton continued : "In England and Wales matters have, as the Civil Courts Review notices, op cit. been taken further. Section 27(2)(c) of the Courts and Legal Services Act 1990 envisages that a court in England or Wales may - perhaps in furtherance of a pre-existing common law facility - grant a right of audience in relation to particular proceedings . This may be done on a discretionary basis (see izzo v Philip Ross & Co (a firm), [2002] BPIR 310, where it was described by Neiberger J as "an indulgence"). That, if authorised in Scotland, would allow an individual granted such rights to address the court on behalf of the lay litigant. (There are conflicting views in the Outer House as to whether the court has already at common law such a power - see Civil Courts Review, Chapter 11, para 43. There is no Inner House authority in favour of the court having such a power). The Judges of the Court of Session would have no objection in principle to such a discretionary power being available - though the discretion would require to be carefully exercised to avoid disruption to court business and injustice to other parties.”

A retired Sheriff today expressed his dissatisfaction with the tone of Lord Hamilton’s statements on the McKenzie Friends issue, particularly the idea that a McKenzie Friend might, in the words of Lord Hamilton, be asked to sit behind a party litigant in a courtroom.

He said : “While I do not personally recall having any such request made to me for a McKenzie Friend during my time on the bench, I would have found it contrary to the good running of the court and the interests of justice if a party litigant were to be forced to keep turning around to seek consultation with their McKenzie Friend assistant.”

He continued : “I fear that fighting the introduction of something which the Courts in England & Wales appear to have lived with for so long is not in the public interest and I would hope the Parliament and Lord Hamilton can accept the recent recommendations of the Lord Justice Clerk, Lord Gill, to introduce the McKenzie Friend to Scotland as expediently as possible.”

Finally, Lord Hamilton in his letter challenging the "introduction" of McKenzie Friends in Scotland, referred to the recent limited expansion of rights of audience in Scotland, where Section 25 of the Law Reform Miscellaneous Provision) (Scotland) Act 1990, which only came into force in 2007, after 17 years of campaigning for its introduction amid bitter delaying tactics from Scotland's legal establishment, fearing competition from non-lawyers and non Law Society members. Lord Hamilton again failed to mention in his letter to the Scottish Parliament that such ‘fresh’ rights of audience as he referred to, were conferred in a very limited and restricted manner on the Association of Commercial Attorneys, who were forced to agree a practicing certificate limiting the ACA solely to Construction Law cases …

Lord Hamilton concluded : "Fresh rights of audience in Scotland have previously been conferred by primary legislation (see Law Reform Miscellaneous Provision) (Scotland) Act 1990 section 24 ("solicitor advocates") and section 25 )members of professional and other bodies. The judges are of the view that, if an equivalent to section 27(2)(c) of the Courts and Legal Services Act 1990 (or its common law source) is to be recognised in Scotland, this should be done by primary legislation. If that were done, it may be that the exercise of the discretion could be regulated by the rules of court."

If there’s one thing for sure in all of this, it is that “discretion of court” certainly on the issue of McKenzie Friends, cannot be allowed to continue to strangle the rights of unrepresented party litigants of access to justice in Scotland’s courts.

The facility of McKenzie Friends has operated successfully in England & Wales for 40 years, and in many countries around the world, who all mostly treat the request for use of a McKenzie Friend as a Human Rights issue. What we have seen is that in the 40 years since McKenzie Friends have existed in England & Wales, the Scottish Courts have consistently refused to allow litigants to use a McKenzie Friend, demonstrating well enough that Scotland’s courts cannot be trusted on applying discretion in use of McKenzie Friends.

Given 40 long years have rolled by without almost a single McKenzie Friend in Scotland, it now falls to the Scottish Parliament to speak for the people of Scotland, and ensure that unrepresented individuals who cannot access justice simply because they cannot obtain the services of a solicitor, can, within a certain legislative framework which must be respected by the judiciary, apply for the use of a McKenzie Friend to assist their access to justice in Scotland’s courts, when so needed.

You can read my previous articles on the battle to bring McKenzie Friends to Scotland’s courts, here : McKenzie Friends for Scotland and please support the Scottish Parliament petition to bring McKenzie Friends to Scotland’s courts, which you can view here : Petition 1247 : McKenzie Friends for Scotland

Thursday, November 05, 2009

Consumer warning on wills : Don't make your lawyer your executor as soaring cases of 'will fraud' show Law Society closes ranks on complaints

Will fraud bkIf you made your lawyer an executor in your will, think again. Anyone who has written a will, making their lawyer an executor, either in a sole or joint position with another, are being urged to take immediate action to change their choice of executors after leaked complaints details revealed a huge rise in serious fraud committed by solicitors and other professionals against dead clients affairs they are charged with managing.

Law Society of ScotlandLaw Society of Scotland 'regularly whitewashed complaints against solicitors acting as executors'. Figures revealed on fraud against wills reveal the Law Society of Scotland, the governing body of all Scottish solicitors, has blocked or dismissed up to 80% of complaints made against lawyers who have seriously mishandled the estates of their dead clients, and in many cases committed serious fraud with large sums of money simply going unaccounted for and families losing out on rightful inheritances from their loved ones.

The remaining 20% of complaints made against 'crooked lawyers' who have plundered the affairs of their one trusting, now deceased clients, usually end up in 'slap on the wrist' punishments with small fines or a weak reprimand, with the offending solicitor allowed to continue working, and only in the highest profile cases, do solicitors find themselves facing criminal charges, due to a policy of reluctance by the Crown Office to pursue members of the legal profession who actively, and it seems routinely commit crime.

A spokeswoman for one of Scotland's consumer organisations today recommended that if a member of the public has written a will and appointed their solicitor or accountant as their executor, they should immediately reconsider their choice, preferably appointing someone closer to them by way of a relative, setting out clearly a set of instructions and a timeline by which an executor should handle the duties set out in writing in the will.

She said : "Given we are seeing an ever rising tide of fraud committed by professionals such as solicitors & accountants who are openly abusing their position as trusted executors of dead client's estates, I would recommend that people take immediate steps to re-write their will, naming others more trustworthy as their executors.”

She continued : "Instead of appointing a lawyer you think you can trust as your executor, appoint someone closer to you such as a wife or another relative, ensuring there are clear written instructions on what they should do, how it should be done, exactly how much they can be paid for what they do if you feel they should be paid, and exactly how long it should take to wind up your affairs after death, passing on whatever it is you wish your family, friends, a charity etc to inherit, within a given length of time and with the minimum of fuss."

A legal insider today backed up the timely advice on wills, saying : "I am a solicitor, and I have clients who have written their wills with my firm. However I have refused all requests to be executor on an estate, and I can tell you from my own experience dealing with other legal firms in the cases of a deceased estate, there is no way I would ever appoint another solicitor to be my executor. It is a stupid move in today's society."

He continued : "Yes, it may be inevitable that a solicitor is needed to work on some aspects of a deceased’s estate, but for goodness sake, don’t put a lawyer in the driving seat of executor because that will almost always put a will in the slow lane for years to come, and cause problems far beyond any imagination.”

“To prevent problems, people should take the simple step of making someone they really trust as their executor, and giving them strict instructions and time limits on how their affairs should be handled. This is very easy to achieve, if people would only use a little common sense in making sure whoever they choose to appoint as executor is locked into a certain agreement on what they can and cannot do."

Scotsman coverage of some of the stories relating to Andrew PenmanScotsman reported on Law Society’s protection of Andrew Penman who ruined estate. For years its been well known in the legal profession that handling a will is almost like having a license to steal because at the end of the day you know the Law Society will back solicitors up 100% against any complaints over what went wrong. Readers will be familiar with my own past on this issue, where a crooked lawyer by the name of Andrew Penman of Stormonth Darlng Solicitors, Kelso teamed up with an accountant (and executor), Norman Howitt now of Borders accountants JRW Group, to ruin my late father's estate, details of which can be read HERE here and HERE.

Many people, especially the elderly, can be lulled into a false sense of security by an oh-so-smart solicitor, making them believe believing their lawyer is always there to help them and will of course, act honestly after the client has died and do exactly what has been asked of them as an executor. Today however, some shocking examples of fraud committed by solicitors against their deceased client's wishes can be exposed :

Example 1

will photo stockSolicitor ripped off dead client & family, paid huge interest to his own Bank. An elderly man recently deceased had left his home, possessions & sizeable investments to his wife & family in what he obviously thought was a simple straight forward will, making the mistake of appointing his solicitor as his executor. The first thing the solicitor did was open up three overdraft accounts with a local High Street bank which coincidentally, the solicitor also deals with on a business & personal basis. Over the three years the solicitor took to process his deceased client's estate, the High Street Bank received a staggering £27,000 in interest alone on the overdraft accounts, despite there being no debts on the deceased’s estate. Documents also now reveal the solicitor negotiated some cheap personal finance from the same High Street bank to purchase a second home.

The widow of the deceased, upon being told the investments in the will had been cut in value by three quarters, made a complaint to the Law Society of Scotland after discovering through careful investigation her late husband's investments had been changed around by the solicitor at his own discretion rather than being realised and handed over to the family as per the instructions contained in the will. Now the Law Society have backed the solicitor against the family, despite a £250,000 loss being incurred in the late husband's investments, together with the loss of title deeds to the home in which the widow still lives, while it seems the solicitor has experienced a remarkable increase in his own personal wealth, along with 3 recent top of the range cars.

Example 2

will photo stockSolicitor & accountant ripped off client’s charitable donations via her will. The result of the charitable intentions of a deceased elderly nurse who bequeathed her substantial entire savings including her house, in total valued at over £2 million to charitable causes, has so far resulted in not one of her wishes being respected by the solicitor and a long time friend, an accountant, she made executors of her will.

Charities who were named in the initial will have, after two years, yet to receive a penny, while again, a local High Street Bank has received over £18,000 in interest on several overdraft accounts opened by the solicitor allegedly to pay debts on the estate which never existed. Meanwhile the solicitor has also bought himself a second house, as has the deceased's' long time friend' the accountant, and the charities who were due to receive sums of money are now questioning whether they will receive anything, given a recent letter to one charity from the solicitor suggesting "there was little left in the estate to cover the charitable bequests" - this despite the fact the nurse had no debts whatsoever, and owned her own home.

The paralegal who brought this case to the attention of Law Society of Scotland has been sacked from solicitor’s law firm, and since there is no one to independently monitor how the solicitor and accountant, both acting as executor, have so fraudulently mishandled the estate of their client (and victim) nothing will probably be done against those who have so obviously plundered the estate of their dead client. Even the charities themselves are apparently reluctant to make a complaint to the Law Society of Scotland, possibly because a fleet of solicitors wives and family relatives sit on one of the charities concerned.

Example 3

will photo stockSolicitor stole 400k from will, no action by Law Society. A solicitor named as executor in an estate of an elderly unmarried man who had no surviving family, dying three years ago, tore up the original will of his client, and replaced it with one he had created to cover up the fact that a whopping £400,000 has disappeared from his deceased client's bank accounts.

The will, which left a substantial bequest to a care home managed by the deceased's local authority, has also seen the usual huge payments of interest fees to a local High Street Bank, in one case alone of £14,000 of pure interest, the same bank handling the solicitor's law firm accounts.

The local authority had questioned when the bequest was to be made over to them, after being told by the solicitor there was little left to pay out his client’s wishes. The Law Society are supposedly still looking into the case, with as yet no action against the solicitor concerned.

Example 4

will photo stockSolicitor acting as executor stole over £30,000 from children’s trust. A deceased soldier who appointed his lawyer as executor, leaving everything to his wife & children, has unwittingly placed his family in the position of having to endure sickening refusals by the legal profession to do anything to recover over £30,000 of investments which were placed in a trust by the deceased client, for his children. The solicitor, acting as executor, cashed in the trust and used it to pay off gambling debts which everyone including the Law Society is now trying cover up.

Even serving one's country it seems, is no guarantee to not being ripped off after death by crooked lawyers out to line their own pockets, with the likes of the good old Law Society of Scotland and the Scottish Legal Complaints Commission sitting back and doing absolutely nothing.

Sadly, these are but a handful of cases brought to my attention recently where lawyers & accountants, mistakenly appointed as executors in wills by ever trusting clients, have ended up fleecing the funds entrusted to them, for their own personal gain. My own advice to anyone writing a will, or anyone who has written a will, is, if you have appointed a lawyer as your executor, go back and re-write your will immediately naming someone you really can trust to handle your affairs after death.

Please, also take the advice of consumer organisations to stipulate exactly how and who should respect your wishes after you die, ensuring you also place limits on, or forbid the use of overdraft accounts by solicitors which are ostensibly used by the legal profession to waste your money with High Street banks in bargaining to secure cheap personal finance for lawyers. Taking these steps and taking the time to carefully think through your final wishes will save your remaining family a lot of heartache and ensure what you want actually occurs, rather than allowing the legal profession and others to march off with what you may have wished to go to your loved ones.