How lawyers regulate themselves is to blame for current mess says Legal Aid Board. AHEAD of a BBC Scotland investigation Lawyers Behaving Badly which reports on failings in how lawyers regulate themselves, to be broadcast later today at 10:35pm on BBC One Scotland, the Scottish Legal Aid Board (SLAB) has revealed it has long standing concerns that it can take too long for the Law Society of Scotland and the current mix of lawyer controlled regulators to investigate and make decisions in disciplinary cases involving solicitors.
In a lengthy statement issued to the media earlier today, a spokesperson for the Scottish Legal Aid Board said: “We welcome the BBC’s interest in this important subject. We have been concerned for some time that it can take too long to get decisions in disciplinary cases involving solicitors.”
The spokesperson continued: “The legal aid system was set up to enable people who could not afford legal help to get access to it, rather than as a regulatory system for solicitors. While there were some regulatory aspects in the Legal Aid (Scotland)1986 Act, and further compliance aspects have been developed for areas like criminal registration, it is an on-going and developing process.
“When a solicitor who provides legal aid is found guilty of any offence it is obviously of concern to us, as it will be to the Law Society of Scotland as the statutory regulator of the legal profession in Scotland.”
“In the cases highlighted by the BBC where a solicitor was convicted for assault and the clerk of court was convicted for embezzlement, the Scottish Solicitors’ Disciplinary Tribunal determined in 2001 and 2004 respectively that neither offence was sufficiently serious for either solicitor to be struck off.”
“At the time these cases took place we did not have the statutory powers through Section 31 of the Legal Aid (Scotland) Act to exclude a solicitor from undertaking legal aid work and representing legal aid clients. Section 31 powers were with the Law Society of Scotland and the Faculty of Advocates until May 2011, at which time they transferred to SLAB.”
“Since taking over the Section 31 powers, we have put in place a procedure we will follow in determining whether to exclude a solicitor or advocate. We are also to be notified by the Law Society of Scotland whenever there are disciplinary findings against a solicitor. Where we consider that a lawyer has acted in an inappropriate manner we will exercise sanctions available to us under the legal aid legislation.”
“It remains the case, though, that while we are robust in our protection of the legal aid fund and the regulation of solicitors registered to provide legal assistance, there is a limit to the powers we can exercise if the profession’s regulatory body itself doesn’t find it necessary to prevent a solicitor from practising.”
“Solicitors undertaking criminal legal aid must register with us, and we have powers to de-register a solicitor from criminal legal aid work where we have evidence of abuse of the legal aid fund or breaches in our criminal Code of Practice. Where appropriate, a report is sent to the Procurator Fiscal, who makes a determination on whether to prosecute or not. This is not a matter for the Board.We will continue to monitor those solicitors on the Registers and act decisively against those who breach the Code.”
“Following investigations by the Board we did just that when we de-registered the solicitor Iain Robertson and his firm Robertson and Ross. In 2010, both he and the firm were removed from the criminal register for failing to comply with our Code of Practice. A sum of £221,847 was also repaid to the Legal Aid Fund.
“The registration process for civil is different to the criminal scheme and a solicitor cannot be de-registered. The only sanction to exclude a solicitor from undertaking legal aid is to use Section 31 powers. At the time these powers lay with the Law Society. This option was not employed in respect of Mr Robertson.”
The spokesperson for the Legal Aid Board also said SLAB supported an idea from the Scottish Legal Complaints Commission (SLCC) that a regulator’s forum should be set up, stating : “We believe there should be greater coordination between the regulators of the legal profession and we support the Scottish Legal Complaints Commission’s suggestion that a legal regulators’ forum is set up.”
However, it was recently revealed the troubled SLCC, which itself is viewed with suspicion from clients & solicitors alike, and appears to be more part of the problem rather than part of a solution, has its own issues of perceived pro-lawyer bias with a full complement of staff & Law Society insiders revealed in an exclusive Diary of Injustice report here : A SPECIAL RELATIONSHIP : Investigation reveals Scotland’s ‘independent’ legal regulator is mired in family, business & personal links to legal profession & Law Society
In response to today’s media coverage of the forthcoming BBC investigation, the Law Society of Scotland attempted to blame the Scottish Legal Aid Board for failings in dealing with problem lawyers who are still working with firms receiving large amounts of tax payer funded legal aid.
The Law Society Press Release stated : “We have yet to see the full documentary. However, coverage in advance of the broadcast has focused on the issue of the criminal and civil legal aid registers. The BBC has raised concerns over 33 solicitors who have had findings of professional misconduct against them and are on the legal aid register.”
“In each of the cases mentioned, the Society did act properly, investigating the complaints thoroughly and taking action to the independent Scottish Solicitors' Discipline Tribunal. It is only because of the actions of the Society and our evidence gathering that the findings of misconduct were made against the solicitors involved. However, it is always a matter for the independent tribunal to decide what action is taken against a solicitor found guilty of misconduct, whether that be a fine, censure, restriction, suspension or strike off. In these cases, the tribunal chose not to strike off the solicitor concerned.”
“It is the Scottish Legal Aid Board and not the Law Society of Scotland which maintains the legal aid registers. Whilst the Board has the ability to remove a solicitor from the register, the Society has no such power other than through the civil legal aid quality assurance scheme where a poor service has been provided by the firm directly to clients. In cases involving the abuse of legal aid money, we are dependent on the Board in making a conduct complaint through the Scottish Legal Complaints Commission for us to investigate and, where necessary, take to the discipline tribunal. In the specific cases raised directly with us by the BBC, the Scottish Legal Aid Board either chose not to complain or made a complaint but then withdrew it.”
Late this afternoon, a legal insider rubbished the Law Society’s attempt to blame the Legal Aid Board for failings in how the Society dealt with solicitors featured in the BBC programme.
He said: “The Law Society is disingenuous in its claim to effectively regulate its own members.”
He continued: “The fact is S31 complaints have been put to the Law Society of Scotland regarding solicitors who have taken hundreds of thousands of pounds of legal aid in a relatively short period of time, yet the Law Society chose to take years to deal with those complaints, constantly replace its own investigator and in the end, did nothing and allowed the solicitor to remain in work.”
HOW REGULATORS ‘DEALT’ WITH DODGY LEGAL AID SOLICITOR COMPLAINT :
A solicitor who ruined pensioner's legal affairs was given slap on the wrist by law complaints regulator SLCC. KILMARNOCK solicitor Niels S Lockhart, who was accused by the Scottish Legal Aid Board (SLAB) of making £670K worth of dodgy claims for legal aid work and who then went on to ruin the legal affairs of a pensioner and other clients was allowed to continue working as a lawyer after the Scottish Legal Complaints Commission (SLCC), the ‘independent’ regulator of solicitors decided his firm NS Lockhart Solicitors need only pay a meagre fine of ONE HUNDRED POUNDS to a victim who had complained about the legal nightmare she had been put through.
Solicitor Niels Lockhart was the subject of lengthy investigations by the Scottish Legal Aid Board which were uncovered by Diary of Injustice & the Sunday Mail newspaper and reported earlier here : One law for lawyers : Secret Report reveals Legal Aid Board, Law Society & Legal Defence Union ‘cosy relationship’ in Lockhart case
Diary of Injustice published the full SLAB S31 complaint report to the Law Society of Scotland obtained after a Freedom of Information disclosure, here : SCOTTISH LEGAL AID BOARD S31 COMPLAINT REPORT TO THE LAW SOCIETY OF SCOTLAND : NIELS S LOCKHART
Diary of Injustice also revealed via a Freedom of Information investigation the Scottish Legal Aid Board asked Law Society to withdraw complaint after a secret deal was reached with Legal Defence Union. “In November 2010 SLAB advised the Law Society of Scotland that they had negotiated with Mr Lockhart his voluntary removal from the provision of legal assistance with effect from 1 November 2010 and acknowledged that the Society had separately received information from Mr Lockhart signalling his intention to withdraw from provision of all types of legal assistance. In the light of this, we sought to know from them whether they accepted SLAB’s withdrawal of the S31 complaint against Mr Lockhart.”
“In December 2010 the Law Society wrote to SLAB advising that they had accepted SLAB’s withdrawal of the complaint and that they were closing their file and taking no further action.”
Diary of Injustice also published the investigation carried out by the Scottish Legal Complaints Commission into Niels S Lockhart. The report, now in the hands of media outlets, can be viewed online here : SLCC Investigation of complaint against Niels S Lockhart of NS Lockhart Solicitors, Kilmarnock.
Crown Office also refused to prosecute dodgy legal aid lawyers. An exclusive report in the Sunday Mail newspaper also raised questions about the Crown Office lack of will to prosecute lawyers who were accused of legal aid fraud, revealing that FOURTEEN lawyers accused of multi-million pound legal aid fraud escaped justice as Scotland’s Crown Office fail to prosecute all cases in 5 years. Legal aid bosses reported 14 lawyers to prosecutors for allegedly fiddling a fortune in taxpayers' cash - but not a single one has been put in the dock. Eleven suspected fraud cases were marked no proceedings, one lawyer was declared insane, one died and the other is still being considered. Crown officials did not identify any of the lawyers involved or reveal the scale of their alleged fraud. The revelations were made by Crown Office and Procurator Fiscal Service director of operations Scott Pattison in response to a freedom of information request.