TO CATCH A BRIEF: It takes Eleven years for Law Society’s self regulation client ‘safety net’ to catch up with banned solicitor who left trail of destruction, dishonesty & negligence

Jail for banned lawyer John O’Donnell A BANNED SOLICITOR who posed as a colleague to get round a ban on practising law has been found guilty of breach of interdict and jailed for three months - after leaving an ELEVEN year trail of destroyed clients & legal problems across Scotland.

John Gerard O’Donnell (64) – who also appeared in a special BBC Scotland investigation – Lawyers Behaving Badly – was finally sentenced by Lord Stewart at the Court of Session on Friday. However, O’Donnell was freed for a period of two weeks to enable him to decide if he wants to appeal.

The custodial sentence comes after a catalogue of evidence heard during court proceedings revealed many examples where the Law Society of Scotland system of self regulation – lawyers investigating themselves – fails to protect the public.

Among many examples of unacceptable behaviour, the court heard solicitor John O’Donnell took the identity of another solicitor - Colin Davidson - in order to dodge a five year ban imposed by the Scottish Solicitors Disciplinary Tribunal in 2009 after they found O’Donnell guilty of professional misconduct for a third time.

Despite the ban - O'Donnell started working for a firm on Glasgow's south side - operated by solicitor Colin Davidson. O'Donnell impersonated Mr Davidson, using his name to sign legal documents and posed as Davidson to clients. O’Donnell also gave instructions to an advocate – giving the impression that he was allowed to work as a solicitor.

However, things fell apart in the scam - when John O’Donnell’s real identity was discovered – after a client visited Diary of Injustice and read of media investigations into the solicitor’s murky past.

Representing O’Donnell at the hearing, defence advocate Richard Murphy told Lord Stewart that O'Donnell had suffered in the past from mental illness. He added: "He never intended to return to practice but he ended up doing more than what he intended to do." Mr Murphy also told the court that O'Donnell would never return to practising law, and offered to pay a fine as an alternative to a prison sentence.

However, the judge Lord Stewart said he had no option but to send O'Donnell to prison. Lord Stewart said: "In order to punish Mr O'Donnell and to deter others, the court must impose a custodial sentence.”

One of O’Donnell’s victims – widow Elizabeth Campbell (71) – only discovered O’Donnell was not Colin Davidson after she visited Diary of Injustice law blog and saw his picture along with media investigations into O’Donnell’s decade long trail of client scams.

Mrs Campbell had been referred to John O’Donnell by Gilbert S Anderson – who worked at Hamilton Citizens Advice Bureau - in a position funded by the Scottish Legal Aid Board.

Letters obtained by the Sunday Mail newspaper & Diary of Injustice - revealed Anderson sent O’Donnell a handwritten note saying “possibly in my mind a cash for Colin £3000” indicating he hoped O’Donnell would be able to scam fees from the elderly widow.

Diary of Injustice reported on the case involving John O’Donnell & Gilbert Anderson, here : Crooked lawyer impersonates DEAD COLLEAGUE to lure clients in fraud scam. Gilbert Anderson was the subject of further investigations, reported here: BREACH OF TRUST : Citizens Advice investigates taxpayer funded Hamilton CAB lawyer

Clients of O’Donnell discovered his identity on DOI – Lord Stewart. The opinion issued by Lord Stewart during mid-November stated: “Mrs Campbell went to the Hamilton Citizens’ Advice Bureau.  At the time she was “very upset, depressed and undergoing therapy”.  She was referred from the Citizens’ Advice Bureau to Colin Davidson, solicitor, at Davidson Fraser & Co, solicitors, at the Clarkston Road office.  From 29 March 2011 to 6 October 2011 Elizabeth Campbell put her affairs in the hands of Colin Davidson at Davidson Fraser & Co—or so she thought.  On 13 April 2012 Mrs Campbell discovered from an internet website—perhaps the website called “A Diary of Injustice in Scotland” http://petercherbi.blogspot.co.uk/ —that the man she thought was Colin Davidson was in fact John O’Donnell.”

“…when she first went to 311 Clarkston Road Mrs Campbell met a male who introduced himself as “Colin Davidson”, a male whom she thereafter—and without being corrected—called “Mr Davidson”.  She identified John Gerard O’Donnell in court as the man whom she had known as “Colin Davidson”.  She had “lots” of meetings with the pseudo Davidson; and she has documented specifically meeting him at the office on 29 March, 4 April, 13 April, 21 April, 28 April, 8 June, 5 July, 7 July, 20 July, 21 July and 19 September 2011.  There were moments of Feydeau-like farce, for example when the real Colin Davidson appeared or when Mrs Campbell heard other people, including the secretary, referring to the pseudo Davidson as “John”.  The explanation given to Mrs Campbell by Mr O’Donnell was that it was “a family thing”: he said that some people knew him as John but he was Colin Davidson.”

MOTION TO COVER: QC who represented Law Society was approached at party over O’Donnell deal:

Elaine Motion QC – head of Edinburgh law firm Balfour & Manson who represented the Law Society of Scotland in the Court of Session against John G O’Donnell, also represented the Law Society during hearings against O’Donnell at the Scottish Solicitors Discipline Tribunal. Prior to one earlier attempt to prosecute O’Donnell at the tribunal, O’Donnell’s lawyer tried to broker a secret deal with the QC at a Law Society Christmas party in 2009.

A ‘limited account’ of the 2009 meeting between QC Elaine Motion & solicitor Steven Gold - who acted for O’Donnell – was documented in the SSDT’s findings relating to a complaint against O’Donnell -published here Council of the Law Society of Scotland v John G O'Donnell

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.

John O’Donnell has featured in numerous media reports relating to 21 negligence claims made against him by clients, and continuing investigations into his conduct for over a decade which the Law Society of Scotland was unable, or unwilling to prevent.

LAWYERS BEHAVING BADLY:

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.”

If you have poor experiences with the legal profession in Scotland or feel you are the victim of a rogue solicitor, tell the media. Diary of Injustice would like to hear from you. Email us more details via scottishlawreporters@gmail.com