Monday, March 30, 2015

GIFT HORSE: Secret gifts register reveals rogue lawyers & law firms using hospitality relationships with Scottish Court Service staff to increase legal aid business, poach clients from rival solicitors

Legal Aid client poaching & hospitality racket in Scots Courts. LAWYERS accused of making suspicious, erroneous or fraudulent legal aid claims appear among a list of high earning legal aid law firms in a register of gifts & ‘hospitality’ received by staff at the Scottish Court Service (SCS).

The documents, finally disclosed to journalists after court bosses failed to convince the Scottish Information Commissioner it should remain secret – identify ‘significant’ hospitality relationships between law firms who have received tens of millions of pounds of legal aid, local courts and court employees right across Scotland.

And it has emerged the extent of ‘hospitality’ to court staff is so great - some local courts have been the scene of ‘gift wars’ between law firms – with solicitors raising the stakes over rivals using hospitality to ensure business came their way at the expense of competitors.

The extent of gift giving in exchange for business referrals - raises questions over whether it is appropriate for court staff – who run the courts at taxpayers expense - to enter into hospitality relationships  with solicitors who have a stake in dragging on court cases to beef up their fees and claims for legal aid.

And, some law firms on the list have been implicated in allegations of questionable legal aid claims. In other cases, law firms , activity resulting in criminal charges against staff.

In one case, the law firm of NS Lockharts Solicitors – run by Niels S Lockhart - a sole practitioner in Kilmarnock who was the subject of a Scottish Legal Aid Board investigation into huge sums of legal aid claims of over £600,000 in three years also appears in the list. NS Lockharts Solicitors are identified as providing hospitality to local court staff in Ayr Sheriff Court.

Lockhart ‘withdrew’ from the legal aid register after an investigation by the Scottish Legal Aid Board.

In another case of gift giving between lawyers on the legal aid ticket and court staff - the law firm of Bell & Co Solicitors are also identified as hospitality providers to staff at Kilmarnock Sheriff Court. However, Bell & Co hit the headlines two years ago when one of their Paralegals – Arlene Reid - was jailed for two years - for embezzlement and mortgage fraud totalling £87K after Reid defrauded her own employers and the Alliance & Leicester Building Society.

Gifts Register identifies Scots law firms ‘hospitality’ to court employees The list of law firms, together with a list of hospitality released by the Scottish Court Service identifies law firms who receive millions in taxpayer funded legal aid every year.

Hospitality on the list ranges from boxes of chocolates, alcohol, invitations to dinners with the ‘vested interests club’ - top lawyers, law firms, the Faculty of Advocates & the Law Society of Scotland,  big business hosts & even “Royal Garden Parties”. Other hospitality include trips on boats, gift vouchers for high street stores, dinner parties with Police, and - bunches of flowers.

The extent of hospitality relationships between court staff and law firms have raised suspicions SCS staff are providing lawyers & law firms with personal favours in return, which in some instances are leading to criminal cases ‘taking their time’ through the courts owing to overly friendly relationships with local law firms & local court staff.

Information has also been provided to journalists – alleging undeclared financial relationships between court staff and law firms, in relation to the purchase of properties & land, provision of free or discounted legal services to SCS staff in their personal legal affairs, and instances of SCS staff providing return favours for solicitors when asked to do so.

Speaking to Diary of Injustice earlier today, a solicitor from a law firm which has provided small amounts of hospitality as a matter of courtesy and thanks to local court staff, said he was aware some law firms were offering additional gifts to SCS staff as a way of drawing in business. He described the situation as “unfair practice”.

The solicitor told DOI he was aware of several cases where court staff received discounted or free legal services – from law firms who were taking clients from others including his own firm.

Asked if he believed all hospitality provided to court staff was being declared, the solicitor replied: “No, it is not.”

And. in an example of law firms poaching each other’s clients using hospitality to court staff – DOI uncovered a case where ‘regular’ criminal legal aid clients of one law firm - were allegedly directed to another law firm by a court clerk in receipt of ‘hospitality’.

However, the switch did not result in a good move for the clients -  who ended up jailed for minor criminal offences after a trainee solicitor from the law firm they were sent to – messed up their defences and pleadings.

Commenting on the documents, the Scottish Legal Aid Board said: “If there was ever any evidence that a solicitor providing legal aid had acted in an inappropriate manner in relation to the provision of legal aid we would investigate and, if appropriate, use the sanctions available to us under the legal aid legislation.”

In an earlier investigation by DOI, it was revealed Gillian Thompson OBE – now the Judicial Complaints Reviewer (JCR) – authored a report on undeclared relationships between employees of the Scottish Court Service, law firms, and other vested interests. The report, published by DOI – revealed court staff are making money on the side via relationships with law firms.

Diary of Injustice reported on concerns regarding hospitality involving Scottish Court Service employees where Ms Thompson was asked by the Scottish Court Service to investigate reports of irregularities in hospitality given to court staff. The request for the investigation came after the SCS received Freedom of Information requests regarding hospitality in the courts, prompting concerns some staff may have accepted gifts or hospitality but failed to register.

Report said SCS Registers were insufficient, and Court staff involved in private gain failed to declare. Gillian Thompson’s Report on Hospitality & Gifts in the SCS stated:  “The information currently captured on the registers is insufficient to provide assurance that staff are using their common sense and considering issues such as conflict of interest.

Ms Thompson went on to recommend the “SCS should revise the Policy on Acceptance of Gifts, Rewards and Hospitality to ensure that it is fit for purpose for all staff, taking account of the various roles performed within SCS. It may also be time to revisit the levels of value for gifts and hospitality.”

The former AIB’s report also revealed court staff were using their positions to earn money privately from their links with lawyers and law firms operating in courts, stating “Several staff raised the issue of sheriff clerks who carry out extrajudicial taxations and private assessments and who personally benefit financially from these activities.”

Ms Thompson’s report roundly condemned this practice, stating: “Not only is it inappropriate in terms of the civil service code requirements for staff who are public servants to be able to receive private gain from their employment it is also highly divisive when other staff see such benefits being derived from simply being in the right post of Auditor of Court within the Sheriff Courts.”

Ms Thompson recommended in her report the “SCS should bring the practice of sheriff clerks profiting privately from their employment by SCS to an end as quickly as possible”.

HOW COURT CHIEFS LOST HOSPITALITY INFORMATION BATTLE

The Scottish Court Service initially refused to release the gift register, claiming “the names of the gift or hospitality provider would be deemed as personal information” and “as the provider of the gift or hospitality was not made aware at the time that their name may be released, we consider disclosure of such is likely to bring the Scottish Court Service into conflict with the data protection principles.”

However, the request – from DOI – triggered a review of hospitality policy at the Scottish Court Service, leading to names of ‘'hospitality’ providers being added to the register.

Richard Warner of the SCS said: “I can advise you that due to your request for this information, the Scottish Court Service has changed the policy covering hospitality and gifts to ensure that the provider of any hospitality or gift are made aware that their name shall be entered on to our register and may be disclosed if requested in any future information request. This policy change shall take effect as from 1 January 2014 so the release of names may be considered in any future request for gifts or hospitality offered from this date. The policy also states that if the provider does not consent to their name being considered for release then the gift or hospitality cannot be accepted by a member of staff.”

After a request for review of refusal to disclose the information, the SCS again refused - this time around, claiming it would cost them too much to contact each law firm to ask permission to disclose their ‘hospitality’ to court employees. The SCS claimed they would have to contact every lawyer who gave a gift and this would cost too much to provide the information.

DOI journalists took the matter up with the Scottish Information Commissioner – who requested Courts Chief Eric McQueen provide an explanation as to why the courts were blocking release of information on hospitality relationships between the legal profession and court staff.

John Kelly, Freedom of Information Officer at the SIC said: “Having written to and discussed the matter with the SCS, without being required to do so by way of a formal Decision Notice, the SCS has agreed to provide you with the information requested, subject to redactions in terms of section 38(1)(b) of FOISA on the basis that to disclose some of the names of individuals would breach the first data protection principle of the Data Protection Act 1998 (the DPA). I understand that the names of Solicitor and Law Firms will be provided.”

After the intervention of the Scottish Information Commissioner, the SCS subsequently released the hospitality list to DOI.

Richard Warner for the SCS said: “Having reconsidered your request, and the SCS response, I now attach a list which indicates law firms where this information has been recorded.  For the reasons stated in our earlier response this does not include the names of any individuals concerned as there could have been no expectation on their part that this information would be circulated or published widely.  As indicated previously, steps are being taken to ensure that individual persons are made aware at the relevant time that their details made be released as a result of an information request.”

Wednesday, March 25, 2015

GOOD LORD, RULES? Scotland’s top judge keeps MSPs next move on register of judges interests on hold - as files reveal two year consultation on judicial complaints rules is exercise in ‘perception’

Top judge Lord Gill & the two year rules consultation. TWO YEARS after Scotland’s top judge Lord Brian Gill launched a ‘consultation’ on amending rules governing complaints about the judiciary, documents obtained from the Judicial Office appear to suggest the entire exercise is little more than an attempt to delay calls for greater judicial accountability.

The development comes as legal observers await the next move by members of the Scottish Parliament’s Public Petitions Committee in their two year investigation of judicial transparency and proposals to create a register of interests for judges - Petition PE1458: Register of Interests for members of Scotland's judiciary.

In cryptic exchanges between staff of the Scottish Court Service, a short series of emails reveal the consultation exercise on amending complaints rules is seeking to create a process where there is a ‘perception’ complaints about the conduct of judicial figures are being more fully investigated and dealt with than under the current regime of judicial self regulation – where Lord Gill decides the fate of each complaint himself – usually resulting in the dismissal of a complaint.

And despite calls for Gill (73) to update members of Holyrood’s Public Petitions Committee on the rules consultation, over four months since the last exchange from Scotland’s longest serving judge – dubbed Lord NO-NO for his refusal to face MSPs questions at Holyrood – the Lord President has yet to report back to the Public Petitions Committee on his intentions to ‘improve’ the process by which court users, litigants, legal agents and the public can make complaints about judges.

In the documents released by the Scottish Court Service in response to a Freedom of Information request, it is clear little activity with a motive to create fair rules around judicial accountability has taken place on the ‘consultation’ which began in early 2013.

In one poorly edited email, the true nature of the consultation emerges –  a staff member at the Scottish Courts Service states: “… it has to be agreed to - and perception about this being a process for the complainer to be satisfied? However, I might be remembering incorrectly - let me know.”

Two years of silence & secrecy ensue, while Lord Gill and his colleagues on the bench fly around the world to posh meetings with big business, vested legal interests, and lavish state visits to Qatar.

Then, finally in mid January of this year, court staff again discuss the rules which are yet to be implemented, two years on.

An email dated 15 January 2015 from the “Head of Strategy for the Judicial Office” states: We discussed and you agreed to prepare a response to the consultation on the Complaints About the Judiciary (Scotland) Rules. Firstly, I attach:

1. Consultation document.
2. Consultation responses.
3. Consultation response analysis.
4. Minute from to the Lord President setting out draft new rules.
5. Copy of draft guidance - this will need further amendments depending on what you determine.
6. Current rules and guidance which are all online:
Complaints about the Judiciary

What needs done:
• Review the documentation.
• Consider the draft new rules, 'minute and the report on the complaint rules consultation.

What have we:
a. Accepted and included in the new rules;
b. Needs to go into guidance; and
c. Consider what needs to be published in response to the consultation.
• Once the above is done we should discuss your findings and then consider next steps

The Scottish Court Service refused to identify the authors of, or release any of the consultation responses or any further material on the discussions relating to proposed new rules on judicial complaints.

The existing rules on judicial complaints - in force since 2013 - were condemned by Moi Ali - Scotland’s first Judicial Complaints Reviewer as ““window dressing” during an evidence session at the Scottish Parliament’s Public Petitions Committee in September 2013, reported here: As Scotland’s top judge battles on against transparency, Judicial Complaints Reviewer tells MSPs judges should register their interests like others in public life

Coverage of a full debate on the creation of a register of interests for Scotland’s judiciary – held at the Scottish Parliament on 7 October 2014 - where MSPs overwhelmingly backed a motion urging the Scottish Government to create a register of judicial interests was reported here: Debating the Judges

Previous articles on the lack of transparency within Scotland’s judiciary, investigations by Diary of Injustice including reports from the media, and video footage of debates at the Scottish Parliament’s Public Petitions Committee can be found here : A Register of Interests for Scotland's Judiciary

JUDICIAL COMPLAINTS – NO INDEPENDENT ELEMENT

JCR should have more powers – Moi Ali. In the second annual report as Judicial Complaints Reviewer, Moi Ali called for the Scottish Government to give more powers to the JCR’s office to deal with errant judges. Ms Ali said: “I think fundamentally the problem is the legislation. “The way it’s created, it’s about self- regulation so you have judges judging judges’ conduct. There isn’t really an independent element.“I’m presented as the independent element but, without the powers, I can’t be independent. We have the appearance of independent oversight but not the reality.”

After Scottish Ministers refused to give the JCR role a wider remit in 2014, Moi Ali stepped down from the position, citing she had no power and the role was "tokenistic".

Moi Ali’s third and final report as JCR : Report of the Judicial Complaints Reviewer 2013-2014 - details complaints of alleged racial bigotry, bullying, lying, conflicts of interest and making secret recordings of meetings.

Commenting on the attitude of the judiciary, Moi Ali said: "Unfortunately, there has been little interest in the positive difference that the JCR could make.Although I have had a good working relationship with the judicial office, I have met the Lord President just once in three years.”

"My interactions with both the Lord President's office and the judicial office have focused more on what I cannot do rather than what I can do and as such, an opportunity for whole system improvement has been lost.

In an earlier letter to MSPs, Moi Ali wrote of her support for the creation of a register of judicial interests and an increase in judicial accountability & transparency.

Ms Ali told MSPs: “The position of the judiciary is incredibly powerful. They have the power to take away people’s assets, to separate families, to lock people away for years. Some of these people will not have committed a crime. They may be women who want protection from abusing partners, fathers who want access to their children, or people whose home is at stake due to various legal or family wrangles. People going through the court system face stress and anxiety, perhaps financial pressures, and fear about the future. Their perspective is important and must be a consideration in this matter.

Given the position of power held by the judiciary, it is essential not only that they have absolute integrity but crucially, that they are seen to have absolute integrity. Again, a register of interests is a way of demonstrating that a judicial office holder is impartial and has no vested interest in a case –financially, through family connections, club/society membership or in any other way. Conversely, the refusal to institute a register of interests creates suspicion that in turn undermines judicial credibility. So once more, a register of interests is good for the judiciary and good for the public.”

Thursday, March 19, 2015

WOLFFE HALL: As Edinburgh City Council demand return of Parliament House land titles, papers reveal Scottish Ministers refused to help recover ‘gift’ of Scotland’s top court buildings to Faculty of Advocates

Court battle looms over Scotland’s top court buildings swiped by legal fraternity AS LAND GRABS go, the Faculty of Advocates ‘assuming title’ to parts of the nation’s top court buildings – Parliament House in Edinburgh - must rank pretty high on the list of Scottish land swindles.

Even more so if you take into account the land grabbers in this case – highly paid advocates clad in Victorian robes – who appoint each other as judges, prosecutors and the like, and debate ordinary folk’s lives, loves & rights as if they did not even exist – have the last say and last word on ‘justice’ and many aspects of politics and public life in what passes for ‘modern day’ Scotland.

The great Parliament Hall land title swindle – revealed by land reform campaigner Andy Wightman - where land titles to the buildings of Scotland’s top courts were ‘gifted’ by Scottish Ministers to the Faculty of Advocates - has now prompted Edinburgh City Council to demand the return of what is, common good property – our top courts – which clearly have significant interest to the nation.

However, Scottish Ministers – including the First Minister, lawyers and other Govt. advisers, appear to feel otherwise.

A trove of eighty eight pages of documents  released to DOI under Freedom of Information legislation reveal the Scottish Government plan to do nothing over their handing over of the Parliament Hall land titles to the Faculty of Advocates.

And, throughout the documents – which contain communications between civil servants, briefings to Ministers, land reports and letters from Edinburgh City Council asking for meetings, it is clear Scottish Ministers favour leaving the titles to the nation’s top courts with the vested interests of the legal profession.

The titles to the Laigh Hall – Parliament House – Queen Street - currently stand in the name of “SIDNEY NEIL BRAILSFORD Queen's Counsel, Treasurer of HONOURABLE THE FACULTY OF ADVOCATES Edinburgh, as Trustee and in Trust for said Faculty”. Sidney Brailsford is none other than High Court Judge Lord Brailsford.

Scottish Government files reveal how court titles were handed over to advocates After a series of briefings with Ministers – involving everyone from the Lord Advocate & Solicitor General to the Cabinet Secretary for Justice, Minister for Legal Affairs and others, a position was adopted by Scottish Ministers “That we confirm to Council officials that it is the Scottish Government's position that title to Parliament Hall was taken by Scottish Ministers in good faith and with the full knowledge and consent of the Council. The Scottish Court Service and Faculty of Advocates therefore have good title to the property and Ministers propose no further action.”

Lawyers for the Scottish Government also sought to distance themselves from the huge £58 million taxpayer funded spend on the Scottish Court buildings – long after titles were handed over to the advocates.

One lawyer stated in an email: “Was the PH [Parliament Hall] refurb about £60m? It went over in the SCS [Scottish Court Service] budgets I think but from my recollection of briefing on their budget it is not easily identifiable within their budget lines. So SCS [Scottish Court Service] spent the money not SG [Scottish Government]?”

In another memo, it is revealed Edinburgh City Council may be compelled to take legal action to recover the titles and details an example of how Common Good land disputes have affected legislation in the past.

“The City of Edinburgh Council has intimated to the Scottish Government that it considers that it is the rightful heritable proprietor of both Parliament House and the Laigh Hall. It contends that the property was part of the Common Good Fund which is made up of grants of land owned by the Council. Consequently it maintains that Scottish Ministers should never have taken title to it. Representatives of the Council have asked that the position be rectified and the property returned to the Council. Scottish Government officials have met with Council officials and suggested to them that their remedy lies with the Keeper.

The Council may feel compelled to take action because, in their view,the property may have been part of the Common Good. Ministers, will be aware of disputes over Common Good land in the past. For example, when the Long Leases (Scotland) Act 2012, which converts ultra-long leases to ownership, was going through Parliament [redacted] land reform campaigner argued that the Waverley Market in Edinburgh was part of the common good. Edinburgh City Council said it was not part of the common good but still argued that the Waverley Market should not convert to full ownership under the Bill, so that the Council would remain the landlord in the lease over the property. In the end, the Bill was amended so that commercial leases with less than 175 years to run were not covered, which had the effect of excluding the Waverley Market from the Bill.”

An internal Scottish Government briefing of the meeting which took place between Edinburgh City Council and the Scottish Government makes for grim reading at the Council after Scottish Government civil servants stated the Council’s claim for a return of the titles may rest on moral rather than any legal right:

“Parliament House - Meeting With City of Edinburgh Council - 3 Dec. 2014 - - Main Points

SG - this was a courtesy meeting to hear what the concerns of CEC were as they had had difficulty finding somebody in central government to engage with.

CEC - an elected member had triggered an examination of the Parliament House non domino title and CEC officials concluded that the title trail was mistaken and CEC had an interest still. They had examined titles from the 1550s, 19th century, 1905 Common good records, 1925 entry in registers etc.

They were unhappy with the Scottish Ministers title and the subsequent transfer to the advocates and the SCS. It seemed that their case rested on a perceived moral right, rather than any legal titular right.

SG emphasised that it had no locus because:
• Questions about land registered titles are for the Keeper and the Keeper's indemnity;
• The Scottish Government had transferred the property to the Advocates (Laigh Hall), and the Scottish Courts Service** a judicial led body at arms-length from the SG and so we could not discuss what we did not own.”

A detailed briefing prepared by a civil servant sets out what happened and how the Faculty of Advocates ‘secured’ ownership to parts of the sprawling, highly prized real estate which is Scotland’s top court and symbol of judicial & legal power:

“The position as regards title to the entire property is unclear, however, it would appear that Scottish Ministers (formerly the Secretary of State for the Environment, Transport and the Regions) did own part of it and so steps were taken to register a title in order to remove any uncertainty. Consequently, a voluntary registration was granted in favour of Scottish Ministers on 23/11/2005 with a date of entry of 10/11/2005.

As part of the process of registration the Keeper of the Registers of Scotland received a letter from the City of Edinburgh Council confirming that the Council had no right, title or interest in the property. On that understanding, the Keeper issued Ministers with a Land Certificate without exclusion of indemnity which has the effect of the Keeper having to indemnify a proprietor who suffers a loss as a result of the title being successfully challenged.

Scottish Ministers subsequently made an onward transfer in January 2006 of part of the property, namely Laigh Hall which sits underneath Parliament Hall, to the Faculty of Advocates who now hold a registered title.

When the Scottish Court Service became an independent body corporate on 1 April 2010 title to Parliament House was transferred to it under the Property Transfer Order made under powers in the Judiciary and Courts (Scotland) Act 2008. Scottish Ministers therefore no longer hold a title to either Parliament House or the Laigh Hall.”

At this time Edinburgh City Council is thought to be considering its next move.

If legal action is to take place, the Council will ultimately be represented by top advocates who as members of the Faculty of Advocates will have an interest in ownership in Parliament House. The case will be defended by the Faculty of Advocates and will be heard in a court within Parliament House – partly owned by the Faculty of Advocates and the ‘arms length’ institution of the Scottish Court Service – so ‘arms length’ it squanders £60 million of taxpayers money on buildings not even owned by taxpayers.

As previously reported, Scotland’s First Minister Nicola Sturgeon has already given her blessing to the multi million pound title handover freebie to the Faculty of Advocates. The First Minister claimed there was “no easy solution to the issue of restoring title to the City of Edinburgh Council”. The First Minister’s response to a question from Green Party MSP Alison Johnstone during First Minister’s Questions, follows:

Parliament House handed over to Faculty of Advocates FMQ's Nicola Sturgeon 19 February 2015

Official Report of debate: Alison Johnstone (Lothian) (Green): It transpired this week that the 17th century old Parliament hall in Edinburgh was transferred from the collective ownership of my constituents to Scottish ministers without knowledge or recompense to the common good fund.

The City of Edinburgh Council failed in its role as steward of the fund, but is now seeking to resolve the situation. Can the First Minister assure my constituents that any requests from the council to restore ownership of that common good asset to the council will be considered seriously and favourably?

The First Minister - Nicola Sturgeon: I will briefly state the background to this issue, of which I am sure that Alison Johnstone is aware.

The Scottish Government’s position is that title to Parliament hall was taken by Scottish ministers in good faith, and that that was done with the full knowledge and consent of the council. The Scottish Courts Service and the Faculty of Advocates, therefore, have now got good title to that property.

Of course, I am more than happy to ask the relevant minister, Marco Biagi, to; meet and discuss the matter with the City of Edinburgh Council, but as far as I can see there is no fault here on the part of the Scottish Government.

Further, of course, title has since been passed on, so it may very well be that there is no easy solution to the issue of restoring title to the City of Edinburgh Council. I think that any questions on how the situation has arisen probably have to be directed to the council.

TOP JUDGE SILENT OVER PARLIAMENT TITLE SWAP

In the summer of 2013,  Scotland’s top judge Lord Gill – head of the Scottish Court Service Board, and the Scottish Court Service Chief Executive Eric McQueen appeared before MSPs at the Scottish Parliament’s Justice Committee to give evidence on court closures and the millions spent on Parliament House – yet neither the judge nor the Courts chief mentioned their astonishing secret to the MSPs present – that the title to Scotland’s highest court buildings had been swiped by the Faculty of Advocates in a deal on the sly with Scottish Ministers.

During questions from Justice Committee MSPs, SCS Chief Executive Eric McQueen gave evidence on the massive £60 million taxpayer funded spend on Parliament House.

The Court Service Chief told MSPs: “We are just coming to the end of the Parliament house contract; in total, the budget for it was £65 million and I think that we expect the final spend to be in the low £60 millions. The project has been delivered on budget, on time and on quality. How it has been delivered is a tribute to the Scottish Court Service.

McQueen continued: “I will give a potted history of the Parliament house situation. About 10 years ago, a scheme was in place that was going to run to way over £120 million. That was brought to a stop to allow us to reassess things and to consider the best strategy. At the same time, we looked at a business case for moving away from Parliament house altogether and having a development on a greenfield or brownfield site on the outskirts of Edinburgh. The major problem with Parliament house is that it is a grade A listed building and is a site of special historical interest. It should be a landmark building for the whole of Scotland.”

In an intervention, the Convener of the Justice Committee – Christine Grahame MSP said: “I am glad that you did not move to a greenfield site. It would have been a bit like going to B&Q. I do not mean to malign B&Q, but I like the old Parliament house building.”

Eric McQueen replied : “Had the decision been taken to move out of Parliament house, that asset would have been left with the Scottish Government. The infrastructure and the services were shot, and there was no fire certificate in place for the building. It would have cost as much to move out as to redevelop the building. From the point of view of the benefit to the nation and to the Scottish Government's purse, the investment of the £65 million in Parliament house over that five or six year period was quite a sensible business case decision.”

Sitting beside Eric McQueen was Lord President Brian Gill, who did not at any stage of the meeting volunteer information to the Justice Committee in relation to the titles arrangements of Parliament House, despite the multi million pound taxpayer funded refurbishment.

Pressed for a statement on why Lord Gill or Eric McQueen did not inform the Justice Committee of the fact tens of millions of pounds of taxpayer money had been spent on a building partly owned by the Faculty of Advocates – the Judicial Office refused to give any comment.

Sunday, March 15, 2015

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.

Friday, March 06, 2015

CAPITAL JUDGE: As top judge suspends sheriff over £28m law firm writ alleging links to £400m Heather Capital collapse, what now for Lord Gill’s battle against a register of interests & transparency for Scotland’s judiciary

Alleged judicial links to collapsed hedge fund force top judge to act. SCOTLAND’S top judge Lord Brian Gill – who has waged a bitter two year battle with the Scottish Parliament over proposals to create a register of judicial interests – has been forced to suspend a judicial colleague after allegations surfaced in a writ concerning links between a serving sheriff and his former law firm to individuals under investigation in connection with the collapse of Heather Capital -  a multi million pound hedge fund.

Lord Gill (73) suspended Sheriff Peter Black Watson (61) after demanding sight of a multi million pound writ against Glasgow law firm Levy & Mcrae – where Watson was formerly a partner.

It has been reported Watson offered to step aside temporarily – while the litigation concluded - however a Judicial Office spokesperson said “The Lord President concluded that in the circumstances a voluntary de-rostering was not appropriate and that suspension was necessary in order to maintain public confidence in the judiciary.”

Watson’s former law firm -  Levy & McRae, is one of several companies being sued by Heather's liquidator, Ernst & Young, after the fund's collapse in 2010. Watson was a director of a company called Mathon Ltd - a key part of the Heather empire.

The collapsed hedge fund Heather Capital – run by lawyer Gregory King is now the subject of a Police Scotland investigation and reports to the Crown Office. Gregory King – a lawyer - is named along with three others – lawyer Andrew Sobolewski, accountant Andrew Millar and property expert Scott Carmichael in a police report.

A statement from the Judicial Office for Scotland issued last week confirms: Sheriff Peter Watson was suspended from the office of part-time sheriff on 16 February 2015, in terms of section 34 of the Judiciary and Courts (Scotland) Act 2008.

“On Friday 13 February the Judicial Office was made aware of the existence of a summons containing certain allegations against a number of individuals including part-time sheriff Peter Watson.

The Lord President’s Private Office immediately contacted Mr Watson and he offered not to sit as a part-time sheriff on a voluntary basis, pending the outcome of those proceedings.

Mr Watson e-mailed a copy of the summons to the Lord President’s Private Office on Saturday 14 February.

On Monday 16 February the Lord President considered the matter.

Having been shown the summons, the Lord President concluded that in the circumstances a voluntary de-rostering was not appropriate and that suspension was necessary in order to maintain public confidence in the judiciary.

Mr Watson was therefore duly suspended from office on Monday 16 February 2015.”

At the Court of Session yesterday (Thursday) judge Lord Woolman heard more details of the summons mentioned by the Judicial Office in their statement relating to the suspension of Sheriff Watson – who was formerly a partner at the Glasgow based law firm of Levy and Mcrae – who are now being sued for £28 million over allegations relating to their involvement in the downfall of Heather Capital.

In CA207/14 Paul Duffy v Levy & McRae &c Shepherd & Wedderburn (Pursuers) Simpson & Marwick (Defenders) - Former Dean of the Faculty of Advocates - Richard Keen QC - who is representing Paul Duffy of Isle of Man based liquidators Ernst & Young - told the court the action proceeded on the basis of "breach of fiduciary duty and dishonest assistance". Keen alleged there had been "a fraud" on Heather Capital. Further details were reported by the Herald newspaper here

The Scottish Sun previously reported on a dossier handed to prosecutors which focussed on Glasgow-based Mathon Ltd. Mathon was linked to the failed £400m Heather Capital hedge fund run by King.

The Gibraltar-based investment scheme was launched in 2004 and some of the cash was loaned by Mathon to bankroll developments across Scotland. But many of the Mathon-funded plans did not happen — and some of the cash was never repaid.

Reports in the Scottish Sun revealed liquidator Paul Duffy, of Ernst & Young, has been battling to recover investors' money since being appointed in 2010. They filed a £100million writ in an Isle of Man court against accountancy giants KPMG -  who were Heather's auditors.

In court papers, they claim that the developments were a "fabrication and a sham". And a judge has said it is likely that "fraudulent conduct exists”.

While the Judicial Office have so far refused to give further comment at this time on the allegations linking judges to court litigation involving collapsed hedge funds - the details surrounding directorships  of members of Scotland’s judiciary should now be brought to the attention of the Scottish Parliament’s Public Petitions Committee - who are currently considering proposals to create a full register of judicial interests as called for in Petition PE1458: Register of Interests for members of Scotland's judiciary.

The move to bring transparency to judges wealth, links to business & other interests comes after it emerged members of the judiciary have a significant proportion of their undeclared riches in offshore tax havens, arms length trusts, shareholdings in vested interests, energy firms, land ownership, companies linked to public contracts - some within the justice system itself, companies involved in organised crime and secretive links to big business, finance & banking.

Previous articles on the lack of transparency within Scotland’s judiciary, investigations by Diary of Injustice including reports from the media, and video footage of debates at the Scottish Parliament’s Public Petitions Committee can be found here : A Register of Interests for Scotland's Judiciary

Sunday, March 01, 2015

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