DISHONEST LAW: Latest annual report of discipline tribunal where lawyers appear in front of themselves - reveals pitiful 31 case workload in the fairy tale land of solicitors’ self regulation

Lawyer vs lawyer tribunal protects bad apples, again. AMID the usual claims of client protection while attempting to polish the bad apples from the rotten - the latest annual report of the Scottish Solicitors Discipline Tribunal (SSDT) – the body charged with ‘prosecuting’ rogue solicitors who rip off their clients – details a dry, if ‘increasingly complex’ series of cases where rogue solicitors are hauled before their own colleagues to face the music.

This year’s thirty eight page report from the lawyer vs lawyer tribunal - covering the period 1 November 2013 to 31 October 2014 and only now published in the second week of March 2015 – details the usual, typically less than honest world of self regulation of the legal profession - where lawyers investigate themselves and then recommend their colleagues appear before themselves for a quick slap on the wrist.

The grand workload of the tribunal for the last year has – unsurprisingly – not seen a busy year, with 31 cases taken to the Tribunal during the 12 months, along with another 11 appeals against decisions of the Law Society of Scotland and other miscellaneous applications. The Tribunal managed to break away from the hustle & bustle, and occasional dodgy deals at parties by making findings of professional misconduct in 24 cases.

And – dishonesty – the habitual daily workout of some in Scotland’s legal profession – made famous by Alistair Cockburn’s performance on the BBC Scotland’s investigation Lawyers Behaving Badly – only merits a single mention in the entire report of a year’s worth of prosecuting dodgy solicitors.

2013-2014 SSDT Annual Report – revealing slaps on the wrist dished out to rogue solicitors. In this year’s SSDT Annual report – and like others before it – there is little to show the legal profession have any regard for client protection. Typically, solicitors receive pittance fines – which are usually made up from hikes in legal fees as soon as they get back to work. Along with fines, the traditional slap on the wrist was handed down on several occasions.

Chairman of the legal profession’s in-house tribunal commented: “Details of the Tribunal’s workload over the past 12 months are set out in this report. The Tribunal has continued to be very busy with cases becoming more complex and taking up more Tribunal time.”

The Tribunal is also dealing with a lot of Complaints which involve Secondary Complainers who have made claims for compensation.

There have again been a large number of cases involving the Council on Mortgage Lenders Handbook. It is hoped that members of the profession take time to read these decisions and be reminded of their obligations in terms of the Handbook.

The Tribunal is receiving an increasing number of Appeals under section 42ZA by Lay Complainers who often have difficulty in framing their Appeal in a structured and relevant way. The Tribunal accordingly has prepared guidance for Lay Complainers to try to assist them with this.”

Going on to comment on the state of the tribunal’s online website – which has suspiciously deleted many findings against rogue Scots lawyers, Chairman Cockburn said: “The Tribunal Findings continue to be put on the Tribunal website which can be accessed at www.ssdt.org.uk The Tribunal experienced technical difficulties with its website during the year owing to the age of the website. A temporary website is now in place and the Tribunal is working towards having a new website in operation in 2015.”

“Tribunal hearings continue to be held in public, normally at The Scotsman Hotel in Edinburgh. The diary part of the Tribunal website details the substantive business scheduled to be heard but not procedural business. In certain cases, business is not put into the diary if the hearing is to be held in private.”

DISHONESTY FACTOR:

An investigation by BBC’s Lawyers Behaving Badly featured the case of John O’Donnell, and went on to reveal the startling differences in how dishonesty in the Scottish legal profession is treated lightly compared to England & Wales – where dishonesty is automatically a striking off offence.

Alistair Cockburn, Chair, Scottish Solicitors Discipline Tribunal. Featured in the investigation was the Scottish Solicitors Discipline Tribunal (SSDT) Chairman’s attitude towards solicitors accused of dishonesty in their representation of clients legal affairs. During the programme, it became clear that dishonesty among lawyers in Scotland is treated less severely, compared to how English regulators treat dishonesty.

Sam Poling asks: The Scottish Solicitors’ Discipline Tribunal hears all serious conduct cases against solicitors. Last year they struck off nine of them. But is this robust enough?

Alistair Cockburn Chairman, Scottish solicitors discipline tribunal replies: It is robust in the sense that it doesn’t just give convictions on the basis that somebody’s brought before us charged by the Law Society.  We are mindful, particularly when reminded of the lay members, of a duty to the public.

One is always concerned when there is deception but you can have a situation where solicitors simply lose their place. They make false representations in order to improve their client’s position, not necessarily their own. And you would take that into account in deciding what the penalty was but there’s no suggestion that such conduct wasn’t deemed to be professional as conduct. 

Sam Poling: So there are levels of dishonesty which sit comfortably with you, satisfactorily with you?

Alistair Cockburn: No it’s not a question of saying sitting comfortably with me.  I’ve told you…

Sam Poling: OK that you would accept?

Alistair Cockburn: No I’d be concerned on any occasion that a solicitor was guilty of any form of dishonesty.  One has to assess the extent to which anyone suffered in consequence of that dishonesty.  You have to take into consideration the likelihood of re-offending and then take a decision.  But you make it sound as if it’s commonplace.  It isn’t.  Normally dishonesty will result in striking-off.

English QC’s agree ‘dishonesty’ is a striking off offence. The SSDT Chairman’s comments on dishonesty compared starkly with the comments of the English QC’s - who said dishonesty was undoubtedly a striking off offence.

Andrew Hopper QC: “I cant get my head round borrowing in this context. Somebody explain to me how you can borrow something without anyone knowing about it. That’s just taking.”

Andrew Boon Professor of Law, City University, London: “They actually say in the judgement they would have struck him off but the client hadn't complained.”

Andrew Hopper QC “We’re dealing with a case of dishonesty and that affects the reputation of the profession. I would have expected this to result in striking off.”

Andrew Boon, Professor of Law: “The critical thing is the risk factor. If somebody has been dishonest once the likelihood is that they are going to be dishonest again unless they’re stopped.”

As Sam Poling went on to report: “but he [O’Donnell] wasn't stopped. The tribunal simply restricted his license so that he had to work under the supervision of another solicitor.”

LEGAL WORLD’S TRIBUNAL WHERE LAWYERS APPEAR IN FRONT OF THEMSELVES:

Just how complex are the rules around prosecutions of solicitors for ripping off their clients?

Notes from the SSDT report reveal the hurdles put in place by the legal profession to protect their own …

In cases of professional misconduct the Tribunal will receive a Complaint from the Law Society fiscal which will then be served upon the Respondent. The Respondent has three weeks in which to lodge answers (although extension of time for lodging answers requests are often received and are sometimes granted provided there is a valid reason). The matter will then be set down, either for a procedural hearing, a preliminary hearing or a substantive hearing. Procedural hearings are used to clarify whether or not there are any preliminary issues and identify whether evidence is going to be required. Preliminary hearings are set down where there are preliminary points which have to be decided before the Complaint can proceed to a substantive hearing. These usually take place by way of a debate. At a substantive hearing the Tribunal will either proceed to make a finding of professional misconduct, find the Respondent not guilty of professional misconduct or remit the matter to the Law Society under section 53ZA on the basis that the Tribunal considers the Respondent's conduct may amount to unsatisfactory professional conduct.

If there is a Secondary Complainer involved in the Complaint they only become a party to the proceedings after a finding of professional misconduct is made. Prior to any finding of professional misconduct, Secondary Complainers have no direct input into the Tribunal process. If a finding of professional misconduct is made and if the Secondary Complainer has requested compensation, it will be up to the Secondary Complainer to provide the Tribunal with the necessary evidence. The Tribunal will then decide whether or not it is appropriate to make an award of compensation in favour of the Secondary Complainer. There can be cost implications for the Secondary Complainer if additional Tribunal time is required to deal with their claim and an award is not made in their favour.

In relation to section 42ZA Appeals the Tribunal receives the Appeal either from the solicitor, or from a Lay Complainer. Lay Complainers when making an Appeal under section 42ZA often have difficulty in focusing their Appeal and setting out clearly and succinctly what their grounds of Appeal are. The Appeal should identify any error of fact or law made by the Law Society. The Appeal will be served on the Law Society and the Solicitor/ Lay Complainer and three weeks are allowed for the lodging of answers. Again there may be circumstances when an extension of time for lodging answers is given.

The Tribunal cannot give Lay Complainers advice with regard to the making of their Appeals. The Tribunal however does understand that it is difficult for Lay Complainers to deal with the formal Tribunal process and guidance notes have been made available on the Tribunal's website. If Lay Complainers are unable to put their Appeal in the proper form, despite having been given warning in terms of Tribunal rule 23 and being given the opportunity to amend, the Appeal may be struck out as being manifestly unfounded. Procedural hearings are usually held for section 42ZA Appeals so that it can be clarified whether or not the matter is to proceed by way of submissions or whether the facts are in dispute. Sometimes there are three parties to 42ZA Appeals being the Appellant, the Law Society and the solicitor/Lay Complainer, in whose favour the Law Society previously made a Determination.