Friday, April 27, 2012

Crooked lawyer impersonates DEAD COLLEAGUE to lure clients in fraud scam as Law Society of Scotland’s self regulation of solicitors fails yet again

O'Donnell MontageSolicitor John O’Donnell named in yet another crooked lawyer scandal as Law Society’s self regulation of lawyers fails to protect consumers. AN INVESTIGATION by the Sunday Mail newspaper has revealed twice suspended but still working as a solicitor John G O'Donnell has been impersonating a DECEASED LAWYER colleague as part of an elaborate fraud, while staff at Davidson Fraser, the law firm he was working at in 2009, said nothing to clients. The Law Society of Scotland did nothing to prevent the rogue solicitor continuing his reign of scams against clients even after being twice suspended & made bankrupt, and O’Donnell was only found out after one of his clients, widow Elizabeth Campbell, 69, saw his photograph in an earlier article in the Sunday Mail newspaper featuring the solicitor who was pretending to be the now deceased solicitor Colin Davidson while ‘representing’ Mrs Campbell in legal cases & a land deal he then went on to ruin.

SLAB CASTaxpayer funded lawyer working at Citizens Advice referred clients to fraudster law firm & lawyer. The paper’s investigation of O’Donnell has also revealed how a taxpayer funded lawyer, Gilbert A Anderson who works for Citizens Advice Scotland as an in-court legal adviser at Hamilton Sheriff Court in a taxpayer funded position paid for by the Scottish Legal Aid Board (SLAB), passed on clients to O’Donnell at law firm Davidson Fraser without alerting anyone to the notorious solicitor’s past treatment of clients and his disgraceful record as a solicitor which includes two suspensions of his practising certificate and over TWENTY ONE negligence claims made by O’Donnell’s former clients to the Law Society of Scotland’s Master Insurance Policy. The investigation also reveals Mr Anderson’s name appeared on the Davidson Fraser law firm’s letterhead.

ssdtTribunal ineffective at protecting consumers from rogue solicitors. Additionally, in an interesting twist to one of the hearings at the Scottish Solicitors Discipline Tribunal, where proceedings more often than not play into the hands of double dealers and those regulators such as the Law Society of Scotland who fail to protect the public from crooked lawyers, it was also revealed that Elaine Motion of Balfour & Manson, acting as the Law Society’s Fiscal who ‘prosecuted’ John O’Donnell at the SSDT, was approached by solicitor Steven Gold, (O’Donnell’s own solicitor) at a Law Society Christmas Party in 2009, where a shady deal was proposed. While the Tribunal report was at pains to say no deal had been done to save O’Donnell, the fact remains he went on to work at other law firms while the Law Society sat back and did nothing to protect unsuspecting clients.

A ‘stripped down’ ‘account’ of the meeting between Elaine Motion & Steven Gold, is reported in the Tribunal's hearing into one of the complaints against O’Donnell, which is published online here Council of the Law Society of Scotland v John G O'Donnell and reprinted below to give a flavour of the double dealing behind the closed doors world of self regulation of Scottish solicitors :

Law Society of ScotlandLaw Society’s 2009 Christmas party was scene of deal to save O’Donnell from disciplinary moves. Page three of the Council of the Law Society of Scotland v John G O'Donnell states : “In December 2009, Elaine Motion and Steven Gold, Solicitor were both at a Law Society’s Christmas Drinks Party. They were involved in a conversation with regard to the health and welfare of the Respondent. Mr Gold made representations on behalf of the Respondent to Elaine Motion to the effect that it would be humane and advantageous to everyone involved if a way could be found to allow the Respondent to hand in his practising certificate without having to undergo the ordeal and expense of an appearance before the Tribunal. Elaine Motion was sympathetic to the representations but indicated that she would require to discuss matters with the Law Society of Scotland who would make the decision. There was no undertaking given at this meeting to Steven Gold that if the Scottish Solicitors’ Discipline Tribunal struck the Respondent’s name from the Roll of Solicitors in Scotland no further Complaints would be brought against the Respondent and no undertaking was given that if the Respondent accepted pleas of guilty to the outstanding Complaint, no further proceedings would be brought against him.”

Those who follow the murky word of self regulation of Scotland’s legal profession will have trouble believing much of the SSDT’s account of matters, in the light of O’Donnell’s continued disregard of the law and the Law Society of Scotland’s failure to protect consumers from serial crooked solicitors and law firm staff who apparently stand by and watch while clients are robbed blind.

Two other SSDT reports relating to complaints made by clients against solicitor John O’Donnell who was found guilty on both occasions are also published online HERE & HERE.

The ongoing saga of John O’Donnell and his trail of victims is indicative of the poor protection for consumers of legal services, let down by regulators such as the Law Society of Scotland & Scottish Legal Complaints Commission (SLCC).

The Sunday Mail’s investigation into John O’Donnell follows :

Exclusive  Dodgy Lawyer back at it - Sunday Mail 22 April 2012EXCLUSIVE : DODGY LAWYER BACK AT IT

COLIN YOU A LIAR

Client's fury at identity fraud

By Russell Findlay, Sunday Mail 22 April 2012

A banned solicitor has been accused of conning a client by impersonating another lawyer in an elaborate fraud. The client also claims that John O'Donnell, 61 cost her 50,000 by botching a land deal and that he failed to turn up to defend two small claims for her.

Widow Elizabeth Campbell, 69, believed that the solicitor working for her was called Colin Davidson. But she discovered "Colin" was actually O'Donnell - who is serving two five year bans from working as a solicitor and is bankrupt - when she saw his photo in the Sunday Mail.

Elizabeth, from East Kilbride, said : "I met "Colin" in his office many times between March and September last year. I was stunned when I came across a Sunday Mail story about O'Donnell which carried his photo. I recognised him as the man I knew as Colin. I was shattered."

Elizabeth claimed that O'Donnell botched a land deal dispute by allowing it to be sold for less than its true value, costing her 50,000. And she also accused him of lying by saying that he defended two small claims cases at Hamilton & Glasgow Sheriff Courts.

Elizabeth, who suffered from depression after her husband's death four years ago, said she had trusted "Colin" when they first met.

She said : "He said that he understood as he had also suffered. I thought to myself, I've got a soul mate here" Then I discovered that he had failed to represent me at Hamilton and Glasgow Sheriff Courts for small claims and two decrees were awarded against me. Debt collectors began chasing me yet he continued to lie and say that he had been in court. I've been able to recall the Glasgow case but the Hamilton case is still against me."

O'Donnell was given a five year ban in 2009 and another five-year ban in 2010 due to his appalling track record of professional misconduct. His bankruptcy also disqualifies him from practising.

In March last year, the Sunday Mail warned the Law Society of Scotland that O'Donnell was allegedly working for the real Colin Davidson’s firm Davidson Fraser. Former Bankrupt Davidson - who has since died - told us then : "He's not employed here."

Elizabeth believes she was targeted because she was vulnerable. She said : "He only took around 210 from me. I think the long- term aim was to get my house." She added that staff at the law firm's office in Clarkston Road, Glasgow seemed aware of the deception, making excuses when she asked why people called him John.

She said : "I was so angry that I was going to attend Davidson's funeral. I wish I had done just for O'Donnell's reaction. I find it incredible that he has been able to get away with this, especially given that the Law Society was warned what was going on."

Law Society chiefs have refused to say if other clients were also duped and declined to comment on the case. A senior legal insider said that O'Donnell could now face criminal prosecution for working as a solicitor without a practising certificate.

BID TO BEAT BAN AT LEGAL BODY'S CHRISTMAS PARTY

Another lawyer tried to strike a deal for O'Donnell at a Law Society Christmas party in 2009. A Scottish Solicitors' Discipline Tribunal report said Steven Gold asked Law Society prosecutor Elaine Motion to consider dropping complaints against O'Donnell if he agreed to surrender his practising certificate.

Motion met O'Donnell as the Society considered five more complaints. But because he was not struck off by the SSDT, Motion decided that O'Donnell "may be hearing from her again".

LINKS TO SOLICITOR PAID BY OUR TAXES

Elizabeth was referred to Davidson Fraser by taxpayer funded lawyer Gilbert Anderson.

Anderson is a Citizens Advice Bureau adviser at Hamilton Sheriff Court whose wages are paid by the Scottish Legal Aid Board. He said yesterday : "I gave her a list of firms and she asked if I knew of any particular firm. Davidson Fraser were not specified."

However, Anderson's name appeared as an employee on the firm's letter headed paper in July 2011.

He said : "The moment Mrs Campbell brought that to my notice I was down to Davidson Fraser to find out exactly what they were doing. Mr Davidson said he was under the impression I was going to work for them. But I said no, I said I would consider. It was agreed that he was to remove my name."

Davidson also used a room to meet clients at the volunteer-run South Side Advice Centre in Glasgow. But he was kicked out in October due to a number of complaints.

Tuesday, April 17, 2012

Law Society of Scotland ‘deliberately failed’ to report mortgage fraud solicitor to Crown Office as cosy Tribunal deal allows lawyer to escape justice

copfs & LssWill Crown Office act after Law Society & SSDT covered up mortgage fraud case solicitor ? THE CREDIBILITY of the Law Society of Scotland's self-regulation of solicitors along with poor disciplinary procedures and cosy, secret deals in the murky world of lawyers regulating their own colleagues has yet again been brought into question after it took revelations in a Scottish newspaper of a solicitor involved in a criminal deception of a mortgage fraud to bring the case to the attention of Scotland’s Crown Office & Procurator Fiscal Service (COPFS) for an investigation.

The actions of the solicitor, who falsely overstated his income to obtain a mortgage, have in previous circumstances, led to ordinary members of the public being brought before the courts and given stiff penalties for exactly the same kinds of criminal offences.

It was reported in the Sunday Mail newspaper earlier this month that former Dickson Minto solicitor Alistair Cowan (37) was ‘prosecuted’ before the Scottish Solicitors Discipline Tribunal (SSDT) late last year after a complaint was made to the SSDT by the Law Society of Scotland relating to a case involving MORTGAGE FRAUD. Mr Cowan was accused of inflating details of his his annual salary as a solicitor employed at Dickson Minto to obtain a higher mortgage from the Halifax PLC. The solicitor went onto use the loan from the Halifax to purchase a £445K flat in Edinburgh’s New Town, however Cowan, now with HBJ Gateley only suffered a ‘slap on the wrist’ with a three years supervisory work order after a Law Society investigation which led to him being found guilty of professional misconduct by the tribunal late last year.

Even though the solicitor’s actions clearly amounted to offences considered criminal in law, no report of the case or of Mr Cowan’s conduct was ever made by either the Law Society of Scotland or the Discipline Tribunal to the Police or Scotland’s prosecution service, the Crown Office, raising more questions over why the dark world of self regulation of Scottish solicitors, administered by the Law Society of Scotland & Scottish Solicitors Discipline Tribunal appear to consistently avoid any reporting of offences of a criminal nature committed by solicitors to Scotland’s prosecuting authorities.

Some have now also questioned by, even with the Law Society of Scotland being represented at the tribunal hearing by its ‘Fiscal’, part-time Sheriff Paul Reid who is also a solicitor in private practice of Glasgow Law Firm Fleming & Reid, and receives a daily fee paid out of public finds of around £583 for each day of service in court.

Sheriff Reid, who recently featured in a Scottish Law Reporter investigation which reported on his role as a solicitor in defending Scots QC Desmond Cheyne from claims of unpaid building work debts, is known to have a record of stiff sentencing of members of the public in all manner of criminal trials, however no report of the case involving the mortgage fraudster solicitor managed to filter through to the Crown Office from anyone connected with the SSDT hearings including the Sheriff himself. This was confirmed when Crown Office admitted to the newspaper they had no record of the case.

Asked by Diary of Injustice for a statement in the light of media coverage of the SSDT case and the apparent mortgage fraud, a spokesperson for the Crown Office said : “Following media reporting the Crown was made aware of the allegations against this individual. As the matter is now under consideration it would not be appropriate to speculate on the possibility of any future proceedings.”

The full report of the SSDT decision can be read online here : Council of the Law Society of Scotland v Alistair Lindsay Cowan

It is unclear what level of guidance if any exists from the Judiciary of Scotland for their members (judges & sheriffs) who appear in what are effectively closed door ‘private prosecutions’ brought by the Law Society of Scotland before the Scottish Solicitors Discipline Tribunal. However if a member of the Judiciary of Scotland has knowledge of a criminal offence, certainly it would be expected of them to report the matter to the appropriate authorities, something which did not occur in this case.

BACKGROUND : CROWN OFFICE ON MORTGAGE FRAUD :

In at least two previous instances this year, Scotland’s Crown Office released statements to the media relating to similar cases where individuals had lied about their income to obtain mortgages, resulting in confiscation orders being made by the courts :

£35,000 Confiscated from Mortgage Fraudster

At Kirkcaldy Sheriff Court on 28 February 2012, a Confiscation Order for £35,000 was made against Anzelika Trifonova (DOB 01/02/1980 or 01/12/1980). Trifonova, a Latvian national living in Rosyth, had previously pled guilty to a common law mortgage fraud. She was sentenced to 250 hours community service. Trifonova was found to have made £86,000 from the mortgage fraud.

Lindsey Miller, Head of the Serious and Organised Crime Division (SOCD) and the current POCA champion, said : "Anzelika Trifonova lied about having a job in order to gain a mortgage worth £85,500, and in doing so, made a significant amount of money from crime. The Crown takes mortgage fraud extremely seriously, and will seek to recover any money made in this way using its powers under Proceeds of Crime legislation. Ms Trifonova is the latest in a long line of criminals who have discovered that they will be forced to pay back the money they make through crime. This should act as a warning to others considering committing crime. The money recovered from Ms Trifonova will now be added to the millions of pounds taken from criminals via the Proceeds of Crime Act, and will be reinvested in activities for young people through the CashBack for Communities programme."

£75,000 Confiscated from Edward Lyons

At Glasgow Sheriff Court on 1 february 2012, a Confiscation Order for £75,000 was made against Edward Lyons (DOB 14-02-1958). Lyons, from Glasgow, had previously pleaded guilty to two mortgage frauds and transferring criminal property. He was sentenced to 300 hours community service. The mortgage frauds were committed when the accused obtained two mortgage loans by falsely claiming that he was self-employed and in receipt of a salary well in excess of his actual earnings. The transfer of criminal property took place when he used money gained through the mortgage fraud to give a £30,000 gift to his daughter Ashley Lyons.

Lindsey Miller, Head of the Serious and Organised Crime Division (SOCD) and the current POCA champion, said : "Edward Lyons committed two mortgage frauds and transferred criminal property, both of which are serious offences in themselves.Transferring criminal property is classed as a "lifestyle offence" under the Proceeds of Crime Act - allowing the Crown to investigate his income over the six years preceding his arrest. The court found that £148,793.71 of his income during this time could not be accounted for legitimately. We are satisfied that the £75,000 confiscation order represents the amount of money available to us from Lyons at this time. We can also apply to the court to vary the amount of the order should further funds become available, and we intend to make full use of this power. Mortgage fraud and the subsequent laundering of the associated free proceeds is often seen by criminals as an easy way to make money. This case should act as a reminder that the Proceeds of Crime legislation is wide-ranging and by committing lifestyle offences under POCA, criminals throw open their entire financial dealings over six years to detailed investigation by forensic accountants, lawyers, and ultimately the court."

The Crown Office have previously said in cases involving confiscation orders served as a result of a conviction for mortgage fraud :

A Confiscation Order is an order made by the court following criminal conviction, to pay a fixed sum of money from the proceeds of crime. An application for confiscation is one of the tools at the disposal of the Crown under the Proceeds of Crime Act 2002 and Proceeds of Crime (Scotland) Act 1995. The Serious and Organised Crime Division works together with colleagues at the Civil Recovery Unit, and other law enforcement agencies, such as the Scottish Drugs Enforcement Agency, UK Police Forces, HM Revenue and Customs and Department for Work & Pensions (DWP) to identify and recover the proceeds of crime.

Proceeds of Crime legislation is also used by the Civil Recovery Unit acting on behalf of Scottish Ministers. The Civil Recovery Unit investigates and recovers the property realised through criminal activity of individuals, in the civil courts without the need for criminal conviction. Money recovered under the Proceeds of Crime Act is invested by Scottish Ministers in community projects aimed at alleviating the effects of crime. To date, more than £60 million has been invested in a range of activities for young people through the CashBack programme. Details can be found at http://www.cashbackscotland.com

Commenting on comparisons of case of the solicitor who was found guilty at the SSDT, and those made public by the Crown Office, a Scottish Government Justice Department insider told Diary of Injustice : “It would be reasonable for the public to expect the exact same application of the law to any solicitor who has also engaged in a mortgage fraud.”

Asked if a proceeds of crime confiscation order should be applied in any cases of mortgage fraud no matter the profession of the individual charged with committing the offences, the Justice Department insider replied “Yes”.

The Sunday Mail reports :

Lawyer dodges con rap Sunday Mail April 1 2012Lawyer who lied to get a bigger mortgage avoids prosecution

Apr 1 2012 By Russell Findlay, Sunday Mail

A PROPERTY lawyer who lied about his income to get a ­mortgage has avoided ­prosecution for fraud. Alastair Cowan, 37, told the Halifax he earned £130,000 when he made £80,000 at ­Dickson Minto in Edinburgh. Cowan made the claim in a letter signed by an unnamed partner in the firm. He used the loan to buy a £445,000 flat in Edinburgh’s New Town.

Dickson Minto discovered the scam during a probe into another employee but Cowan left the company as a result. They reported him to the Law Society of Scotland, who sent the case to the Scottish ­Solicitors’ Discipline Tribunal. Cowan admitted professional misconduct and the SSDT ordered him to work under supervision for three years with his new firm HBJ Gateley.

In 2010, crime clan boss Eddie Lyons was given 300 hours’ community service after admitting two mortgage frauds. The Crown Office said they had no record of Cowan’s case. Neither Dickson Minto nor Cowan returned our calls.

Tuesday, April 10, 2012

Protection Racket : SLCC’s ‘whitewash’ investigation of Law Society of Scotland’s conduct complaint process ends in failure to publish full report

SLCCSLCC’s Investigation into Law Society’s conduct complaints system ends up in missing final report. AN INVESTIGATION carried out by the Scottish Legal Complaints Commission (SLCC) into the Law Society of Scotland's Conduct Complaints Process under powers the Society itself helped to frame in the Legal Profession & Legal Aid (Scotland) Act 2007 which created the SLCC has unsurprisingly resulted in the board of the hapless anti-client law complaints quango claiming it could take “reasonable assurance” in the Law Society’s overall complaints handling system, despite the fact the Law Society, SLCC and several solicitors continue to be locked in expensive courtroom battles in Scotland’s Court of Session over which of the two regulators has jurisdiction in complaints investigations.

Curiously however, while the announcement from the SLCC claimed the Law Society’s “processes, procedures and controls under review could benefit from a number of improvements”, no full report on the actual review has been made available to the public or media, and neither has any final report been published on the SLCC’s website, leading to concerns from some campaigners the SLCC and Law Society are operating on a closed shop loop, branded this morning by one Glasgow based campaigner as a “lawyer’s merry go round cover up society which does nothing for transparency or openness”.

The announcement from the Scottish Legal Complaints Commission, states that in November 2011 the SLCC concluded a review of the Law Society of Scotland's Conduct Complaint Process under its powers set out in section 36(5) of the Legal Profession and Legal Aid (Scotland) Act 2007. The review concluded that the SLCC Board could take 'reasonable assurance' in the Law Society's overall complaints handling system but recognised that the processes, procedures and controls under review could benefit from a number of improvements.

While the SLCC has decided not to publish any report or details of how the review took place, a brief set of recommendations were published on the SLCC’s website, stating :

*Policies and procedures, including the Complaints Investigation procedures manual, should be finalised.
*Defined timescales and Key Performance Indicators should be established.
*An effective version control system should be implemented for key documents.
*The quality assurance process should be formalised and reviews documented.
*Management information on complaints could be refined, including the use of trend analysis.

The SLCC’s announcement went onto state “These findings have been discussed with the Law Society of Scotland which has accepted the overall finding of 'reasonable assurance' and the recommendations in relation to complaints handling. These will be monitored by the SLCC in terms of its on-going oversight role and some will form the subject of future reviews.”

However, no reports of discussions between the Law Society & SLCC have been published on the SLCC’s website, possibly due to claims from Commission insiders there have been “difficult moments” between the regulators during the review, and alleged insistence from the Law Society of Scotland the SLCC should not publish ‘certain material’ gathered during the review.

No one from the Scottish Legal Complaints Commission has issued any further comment on the review of the Law Society’s Conduct Complaints Process, and no statement has been issued by the Law Society of Scotland, leading observers to conclude the SLCC’s review was not a happy affair, leading in turn to the lack of published material on conclusion of the ‘independent’ law quango’s investigation of the Law Society’s conduct complaints system.

While the SLCC appear to have held back from criticising the Law Society over its closed shop complaints procedures, Court of Session judge Lord Carloway did not mince his words, claiming an opinion issued at the Court of Session last week the Law Society’s complaints procedures were failing to protect the public, after it emerged the Law Society had taken over a year to send a misconduct complaint to the SLCC about a case where Greenock solicitor William Murnin was alleged to have a “potential” £232,000 deficit in his firm’s client accounts.

Diary of Injustice reported on judge’s criticisms of the Law Society & Scottish Legal Complaints Commission last week, here : Law Society, Scottish Legal Complaints Commission criticised by judge over failures, delays investigating solicitor’s £232K client fund deficit case

The full opinion of Lord Carloway can be read here : OPINION OF THE COURT delivered by LORD CARLOWAY in the appeal by WILLIAM MURNIN Appellant; against (First) THE SCOTTISH LEGAL COMPLAINTS COMMISSION; and (Second) THE LAW SOCIETY OF SCOTLAND Respondents:

While neither the Law Society of Scotland or Scottish Legal Complaints Commission were able to explain to the court the year long delay in the Law Society’s reporting of the complaint to the SLCC, claims emerged last week from legal insiders ‘“there were negotiations going on between the Law Society & ‘representatives’ of Mr Murnin between January & June of 2011” a pattern reminiscent of previous cases where solicitors have asked their colleagues, and solicitors working for the Legal Defence Union to intervene in complaints investigations and secretly bargain away any disciplinary action or overt publicity which may impact on their professional livelihoods. The allegations, put to one Law Society insider, have not been refuted.

Thursday, April 05, 2012

Law Society, Scottish Legal Complaints Commission criticised by judge over failures, delays investigating solicitor’s £232K client fund deficit case

SLCC Law SocietyLaw Society & SLCC criticised by judge amid concerns over dodgy complaints procedures. SENIOR Judge Lord Carloway of Scotland’s Court of Session has criticised the Law Society of Scotland's "inadequate system" of dealing with complaints against solicitors after failures & delays were revealed in a Law Society investigation of Greenock solicitor William Murnin, who has been suspended from practising as a lawyer since 22 July 2010 after a Law Society audit discovered a “potential” £232,000 deficit in the solicitor’s firm's client account.

It took the Law Society of Scotland over a year from May 2010, when they began their investigation, until June 14 2011 to submit the complaint to the Scottish Legal Complaints Commission (SLCC), which in turn led to the accused solicitor launching an appeal against the SLCC’s consideration of the complaint, on the grounds it was referred to the SLCC outwith its one year rule.

Reflected in the court’s opinion on the case, issued earlier this week, solicitor William Murmin had been accused of overcharging clients and was the subject of a lengthy investigation. The Law Society of Scotland’s Guarantee Fund Committee eventually met in January 2011, nearly a year on from the Society’s investigation into the solicitor and decided to make a complaint to the SLCC. The complaint, which was not submitted to the SLCC until June 14, some six months on from the Guarantee Fund Committee’s meeting, said Murmin "may be guilty of professional misconduct or unsatisfactory conduct regarding alleged breaches of the Solicitors (Scotland) Accounts Rules 2001 through overcharging of fees to various client ledgers so creating a deficit on the firm client account".

The Court’s opinion reports that An allegation of misconduct was made against the appellant in relation to events occurring before 18 May 2010, when a financial compliance inspection of the appellant's firm by the second respondents revealed a potential deficit on the firm's client account of about £232,000. The second respondent's Guarantee Fund Committee met on 13 January 2011 and determined to make a complaint. The appellant was advised of this on 10 March, but the complaint was not submitted to the first respondents until 14 June 2011.

The complaint form, which was intimated to the appellant, read simply that the appellant: "may be guilty of professional misconduct or unsatisfactory conduct regarding alleged breaches of Rules 4 and 6 of the Solicitors (Scotland) Accounts etc Rules 2001 through overcharging of fees to various client ledgers so creating a deficit on the firm client account".

However, it was accompanied by a letter which stipulated the amount involved and that the sum was made up of overcharging on thirteen different client files. It also gave some information on the background, including the date of the inspection, the invitation to the partners of the firm, including the appellant, and then to the appellant alone, to attend the Committee interviews on 1 and 22 July 2010. The appellant had not attended these interviews and, on the latter date, his practising certificate was suspended under section 40 of the Solicitors (Scotland) Act 1980. Further details of the Committee meetings in September, October, November 2010 and January 2011 were given; it being said that it was at the final meeting that a decision was made to make the complaint. The accompanying letter was not copied to the appellant but it is not disputed that he was aware of the nature and extent of the allegations summarised in the complaint form.

By letter dated 24 June 2011, the first respondents intimated to the second respondents their intention: "to make a decision not to accept the complaint for investigation on the grounds that it has been made outside the time limits".

They invited a response on this and, in particular, whether: "There are exceptional circumstances that prevented you from submitting your complaint earlier...".

A similar, but not identical letter, was sent to the appellant intimating the first respondents' intention and requesting any comments before any decision was made. It stated that the second respondents had been asked to outline: "any exceptional circumstances which prevented them from submitting the complaint at an earlier stage".

The appellant made no comment. By letter dated 28 June 2011, which was not copied to the appellant, the second respondents submitted that "the subject matter to which the complaints pertain is of such a serious quality" that the first respondents ought to exercise their discretion to allow the complaint to be considered given the "overwhelming public interest in investigating these matters". There was no explanation proffered for the lateness of the complaint.

On 21 July 2011 the first respondents intimated that they were accepting the complaint and, in accordance with the statutory scheme, remitted it to the second respondents to investigate. The letter narrated that, "on the face of it, the complaint appears to be time barred". It was recognised that the second respondents could have complained timeously but had failed to do so. The letter continued:

"However, the [first respondents are] mindful of the severity of the allegations and the need to protect the public should the petitioner's practising certificate be reinstated. In the circumstances, the [first respondents recommend] that the need to establish the specifics of the complaint and the gravity of the allegations should be considered to be an exceptional reason for accepting the complaint even though it has not been made within [the first respondents'] time limits".

The solicitor, William Murmin, formerly of Murmin McCluskey in Greenock, then lodged an appeal on the grounds the Scottish Legal Complaints Commission had erred in law in holding that, on a proper construction of Rule 4(6), a bare and unsupported assertion by the second respondents, that the misconduct complained of was grave, was sufficient to amount to exceptional circumstances, thus allowing the SLCC to investigate the case outwith its one year rule. The appeal, heard earlier this week by Lord Carloway, Lord Hardie & Lord Wheatley was refused, with the issue of expenses expressly reserved.

Lord Carloway, stating in his opinion what many clients, campaigners & observers to the decades old appalling system of self regulation of Scotland’s legal profession have known for years, said delays at the Law Society in taking action on cases “will risk the real possibility that serious complaints against solicitors will not be processed by the first respondents [Scottish Legal Complaints Commission] and the public will be denied the protection to which they are entitled.”

The judge also criticised the Scottish Legal Complaints Commission for its role in the case, after it was revealed the SLCC had initially refused to accept the complaint against the solicitor, on the grounds it had been made outwith the time limit and had then changed its mind and would investigate, after the Law Society said the complaint was of “such a serious quality". Lord Carloway’s opinion stated “the court is concerned by the first respondents' (SLCC) exercise of their discretion to entertain the complaint outwith the time limit.”

The full opinion of Lord Carloway can be read here : OPINION OF THE COURT delivered by LORD CARLOWAY in the appeal by WILLIAM MURNIN Appellant; against (First) THE SCOTTISH LEGAL COMPLAINTS COMMISSION; and (Second) THE LAW SOCIETY OF SCOTLAND Respondents:

While Lord Carloway recorded in his opinion that no explanation for the delays was offered to the court, legal insiders have told Diary of Injustice this morning of allegations “there were negotiations going on between the Law Society & ‘representatives’ of Mr Murnin between January & June of 2011”, a pattern reminiscent of previous cases where solicitors have asked their colleagues, and solicitors working for the Legal Defence Union to intervene in complaints investigations and secretly bargain away any disciplinary action or overt publicity which may impact on their professional livelihoods. The allegations, put to one Law Society insider, have not been refuted.

No statement has been issued on the Law Society of Scotland’s website at time of publication.

However, the Scottish Legal Complaints Commission late today issued the following statement, praising the court for its decision yet ignoring Lord Carloway’s ‘concerns’ the SLCC exercised its “discretion to entertain the complaint outwith the time limit”. The SLCC also claimed it had acted in the public interest in the Murnin case, although as previous coverage in the media seems to indicate the SLCC has refrained from acting in the public interest 99% of the time with regard to complaints made by clients about their solicitors to the hapless law quango.

jiSLCC Chair Jane Irvine, pictured finger-pointing on the SLCC’s multi million pound stairwell at its plush location in the Stamp Office, Edinburgh. Speaking after the ruling was issued, Jane Irvine the Chair of the SLCC stated "This is an important decision for the SLCC.  Not only does it recognise that we are making sound decisions in the public interest, it also recognises the vital role the SLCC has in the monitoring and regulation of the Scottish legal profession."

The SLCC statement went onto say : “The SLCC is pleased with the Court's ruling to refuse an appeal made by Mr W Murnin against the SLCC's decision to accept for investigation a complaint made about his conduct by the Law Society of Scotland. The SLCC accepted the complaint for investigation, even though it had been made outside the one-year time limit because the exceptional circumstances of the complaint led us to the view it was in the public interest to do so. The SLCC is very satisfied to note that the ruling acknowledged we applied our powers and discretion properly, in line with legislation and our own rules, and that we reached a well reasoned decision.”

The SLCC statement pointedly failed to give any further information on why the complaint took over a year to send to the SLCC, information, which Commission insiders allege “is well known to some senior staff and members of the SLCC’s board”.

Clearly however, this case demonstrates yet again there is NO SAFETY in clients allowing their solicitors to hold funds in client accounts. Clients are, and have been previously advised to withdraw any funds being held by or administered by Scottish solicitors, on the grounds the Guarantee Fund and the Law Society’s arrangements for detecting fraud & compensating clients for financial losses as a result of their solicitors actions, are wholly inadequate.

Wednesday, April 04, 2012

Clients of Scots solicitors miss out on ‘right to know’ as UK Legal Ombudsman moves to name & shame ‘crooked lawyers’ in England & Wales

Legal OmbudsmanLegal Ombudsman for England & Wales now operating naming & shaming policy. CROOKED LAWYERS operating in England & Wales who are being investigated over complaints from clients and law firms who are considered ‘serial offenders’ in their poor treatment of clients & consumers could now be publicly identified by the Legal Ombudsman (LeO), even if the complaint is yet to be decided, according to an announcement made earlier this week by the independent regulator of complaints against the legal profession south of the border.

The policy, popularly known as ‘naming & shaming’ has taken well over a year for the LeO to implement after several consultations took place amid bitter arguments and veiled threats from the legal profession, who are worried consumers may end up seeing a different ‘warts, complaints, swindling, corruption & all’ view of lawyers other than the carefully manicured image projected by the Law Society and the UK’s legal services industry.

The LeO originally announced in November 2011 they would be going ahead with ‘naming & shaming’ in early 2012, reported by Diary of Injustice here : Scots to be ‘kept in dark’ on details of crooked lawyers while Legal Ombudsman’s ‘naming & shaming’ policy ‘will protect’ consumers in England & Wales

Earlier this week, Legal Ombudsman issued a statement & media release on its website confirming the naming & shaming policy is now operational : “As of 1 April 2012 we are collating names of lawyers and law firms subject to complaints resolved by an ombudsman's decision. Any data collected will be made publicly available at the end of July 2012 and then subsequently every quarter.”

The statement (pdf) went on to say : “In November last year, the Office for Legal Complaints (OLC), which is the board of the Legal Ombudsman, announced its decision that it is right to publish the names of lawyers in some specific circumstances, in line with the powers given to the Board under the Legal Services Act 2007.”

“The policy – which starts from 1 April 2012 – is to identify lawyers or law firms that are the subject of complaints in two different ways. The first of these is to publish, once a quarter, a table that summarises the number of ombudsman decisions each legal entity has been the subject of, what the outcome was (so remedy or no remedy), and the area of law in each case. The first quarterly information will be available on the Legal Ombudsman website in late July.”

The second is where there is a pattern of complaints, or circumstances where it is in the public interest to publish the details of a lawyer or law firm, then, pending approval from the Board, the Legal Ombudsman will publish this information immediately. This is regardless of whether there has been an ombudsman decision on the case.”

Liz France, Chair of the Legal Ombudsman’s board, said: “After careful reflection, based on the consultations we undertook, I am confident that the approach we are taking strikes the right balance. It meets our aim to be open in all we do while not providing information which is excessive to the purposes of publication – protecting consumers of legal services from detriment and helping to improving standards of service.”

Further information is available on the Legal Ombudsman’s consultations page HERE. Diary of Injustice reproted on the Legal Ombudsman’s consultation over naming & shaming here : Legal Ombudsman moving to name & shame crooked lawyers in England & Wales, crooked Scottish solicitors records to remain protected by secrecy for now

Which logoConsumer group Which? have previously given their backing to the Legal Ombudsman’s plans to identify crooked lawyers in England & Wales. A spokesperson for Which? told Diary of Injustice last year : “Which? strongly supports the principle of the LeO publishing complaints data under a strict and published policy , including in some circumstances the name of the law firm concerned. We set out our position in our response to the LeO consultation (page 51: opening up regulatory data)) pointing out that it is the expectation of Government that complaints handling bodies are as transparent as possible.”

Legal Services Consumer PanelSpeaking on the LeO’s plans to publish complaints data & the identities of law firms who perform poorly for clients, Elisabeth Davies, Chair of the Legal Services Consumer Panel (LSCP), said last year : “Research shows that UK consumers are now leaving well over 100 million comments online every year about their experience with businesses across the economy. Lawyers cannot escape this welcome emergence of consumer power, but instead should seek and then use such feedback to improve the service they offer.

She continued : “The courts will decide the fate of the Solicitors From Hell website. However, such websites fill a vacuum that exists because official complaints data about lawyers is not publically available to help consumers identify good quality lawyers. The Panel will continue to push the Legal Ombudsman to name those law firms who regularly provide poor service.”

oftThe Office of Fair Trading (OFT) also supports the Legal Ombudsman’s naming & shaming policy. The OFT stated in its submission (pdf) to the LeO’s consultation : “We appreciate that you need to balance the interests of consumers with the reputational impact on firms and individual lawyers. However, the OFT remains firmly of the view that the publication of named complaints data could incentivise legal service providers, due to reputational considerations, to maintain and/or improve the quality of service they provide to consumers.We believe that essential data would include:

* The number of complaints made against individual firms and lawyers;
* The nature of those complaints and placing them into categories to help see if a pattern develops;
* The ratio of complaints upheld against an individual firm or lawyer;
* Areas of law where complaints tend to focus;
* Which aspects of service the complaints tend to focus; and
* Whether the complaints tend to come from private or publically funded cases.

Diary of Injustice has been following the Name and Shame debate in England & Wales and it should not be forgotten the Law Society of England & Wales has, at rumoured costs of up to half a million pounds, used the courts to silence private individuals efforts to set up websites naming & shaming ‘crooked lawyers’, the most famous of which was Rick Kordowski’s Solicitors from Hell website.

While consumers of legal services in England & Wales are expected to benefit from the tough stance on naming & shaming taken by Adam Sampson, the Legal Ombudsman, there are no equivalent statutory moves being made in Scotland by the Scottish Legal Complaints Commission (SLCC) to name & shame many of Scotland’s ‘serial rogues’ from the legal profession who regularly get away with a slap on the wrist or secret shady deals done between the SLCC, Law Society of Scotland & the Legal Defence Union.

Even though the SLCC, Law Society of Scotland or the Faculty of Advocates currently refuse to name & shame their serial offenders who fail their clients, there are other routes, as Diary of Injustice reported earlier this year, here : NAME & SHAME YOUR CROOKED LAWYER : Have you been treated roughly by your solicitor ? It’s time to talk, rate, review, name & shame YOUR crooked lawyer

No one from the Scottish Legal Complaints Commission or the Scottish Government was available to comment on the lack of public information available about Scottish solicitors’ regulatory history, however a former Law Society Council member speaking to Diary of Injustice indicated any moves to name & shame ‘crooked lawyers’ in Scotland “will be fiercely resisted by the Law Society of Scotland”.

The insider also suggested any moves made in petitions to the Scottish Parliament or pleas to the Scottish Government to amend legislation to enable the SLCC to identify solicitors who are the subject of complaints “will be lobbied against by the Law Society of Scotland”.

THOSE WHO KEEP COMPLAINTS AGAINST SCOTS SOLICITORS HIDDEN FROM PUBLIC VIEW :

Philip YellandMisplaced trust with complaints : Philip Yelland. Philip Yelland, the Law Society of Scotland’s director of standards, previously director of regulation and before that head of the Law Society’s “Client Relations Office” has been in charge of regulating crooked lawyers in Scotland for over TWENTY YEARS yet from Penman to the present and beyond, most crooked Scottish lawyers have either received a slap on the wrist or no punishment at all while the client ends up financially ruined and excluded from the courts to make sure justice can never be done. Would you trust anyone like this with your complaint ? Make sure you use the media first before trusting the Law Society or SLCC with your lawyer problems.

Lawyer sued for 1 million Sunday Mail June 3 2007Law complaints regulators like the Scottish Legal Complaints Commission & Law Society of Scotland turn out to be client-haters rather than consumer protectors. Consumers, clients & readers may get a lot further in their complaints and obtain a lot more satisfaction from a media investigation of their crooked lawyers long before the Law Society of Scotland or blundering Scottish Legal Complaints Commission get round to putting pen to paper. Put simply, its more difficult for so-called regulators like the Law Society of Scotland or SLCC to let a crooked lawyer off the hook if they have already been in the newspapers a few times. Its also more difficult to let a crooked lawyer off the hook if, as usually turns out to be the case, the media reveal they have been ripping off many of their clients, not just you, or someone you know

If you have a story about a crooked lawyer, contact Diary of Injustice via scottishlawreporters@gmail.com with full details of what happened, how you were treated and what you have done about it so far.