FAILED TO JAIL: Law Society’s self regulation ‘failed public’ as ex solicitor who posed as colleague to lure clients has jail sentenced quashed by Court of Session

Banned lawyer John O’Donnell escapes jail A BANNED SOLICITOR who was given a three month custodial sentence earlier this year for posing as a colleague to lure clients has had his jail sentence quashed during an appeal hearing at the Court of Session earlier this week.

John Gerard O’Donnell (64) was found guilty of breach of interdict and sentenced in February by Lord Stewart after the court heard details of O’Donnell’s eleven year trail of ruined clients and consistent failures by the Law Society of Scotland to protect the public & clients from rogue solicitors.

But earlier this week - Appeal judges admonished O'Donnell after hearing of mental health problems and lack of proof over criminal motive.

Lady Dorrian, who sat with judges Lord Drummond Young and Lady Clark, ruled that Lord Stewart acted incorrectly when he ordered O'Donnell to be sent to jail.

Lady Dorrian added: "We are satisfied that the Lord Ordinary erred in his approach to sentencing. We think a period of imprisonment is excessive.We propose recalling the sentence imposed and impose an admonition."

Lady Dorrian’s assertion that sentencing O’Donnell to there months in jail was “excessive” comes after Lord Stewart claimed in his February 2015 sentencing statement that "In order to punish Mr O'Donnell and to deter others, the court must impose a custodial sentence.”

Yesterday, the Law Society of Scotland claimed it had done all it could to protect consumers from O’Donnell and others like him who prey on members of the public and fleece taxpayer funded legal aid.

Lorna Jack, Chief Executive of the Law Society of Scotland said: “By holding himself out as a solicitor permitted to practice, John O’Donnell engaged in a course of conduct that breached a court order and flouted the Scottish Solicitors’ Discipline Tribunal and provisions of the statute that regulate the legal profession’

“The Law Society did all it could and should have done in relation to protecting the public and reputation of the profession by taking breach of interdict action against John O’Donnell.  Mr O’Donnell had breached an order of the court and it is therefore for the court to determine what sanction is appropriate.”

Jack continued: “It is essential to protect members of the public seeking legal advice and ensure they can continue to put their trust in solicitors. We will always take action against individuals if we have good reason to believe they are misleading people by holding themselves out as a solicitor when they are not entitled to do so.”

Legal insiders countered there was no real protection of the public interest, and the Law Society’s system of self regulation – where lawyers investigate their own – had once again failed.

Among many examples of O’Donnell’s activities, it was revealed in court he took the identity of a solicitor colleague - 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.

John O’Donnell’s identity was only revealed after a client visited Diary of Injustice and read of media investigations into the solicitor’s murky past.

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

An investigation by the media also established Mrs Campbell was referred to John O’Donnell by Gilbert S Anderson – employed 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

John O’Donnell featured in numerous media reports spanning over a decade relating to multiple negligence claims, 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.

The programme - aired in January 2014 to much consternation of the Law Society, certain parts of the legal profession and elderly aggrieved legal hacks – revealed staggering differences in how dishonesty is tolerated in the Scottish legal profession in comparison to cases in 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.”

Previous reports on John G O’Donnell can be read here John G O'Donnell - how one solicitor held up the Law Society