How Law Society's 'cancelled' prosecution of Borders solicitor Andrew Penman ignited moves to reform regulation of Scotland’s crooked lawyers

Law Society of Scotland’s complaints whitewash provoked reforms. THE CANCELLED PROSECUTION OF BORDERS LAWYER ANDREW PENMAN, of Stormonth Darling Solicitors, by the Law Society of Scotland was one of the prime factors in starting a Scotland wide campaign to reform regulation of the legal profession, after the release of the investigation documents which revealed a Law Society Complaints Committee had been bullied into changing an original decision to prosecute Andrew Penman by Penman’s secret representative who attended the hearing, James Ness, a senior Law Society figure, now Deputy Director of Professional Practice.

Scotsman newspaper in better days followed the Penman case, eventually leading to its own editorials calling for self regulation of lawyers to end. As a result of significant publicity in the Scotsman newspaper on the Andrew Penman investigation, further cases came to light where it transpired many solicitors facing serious complaints had been legally represented at Law Society Complaints Committee hearings, particularly on serious issues such as embezzlement, allegations of client fraud, almost all complaints regarding the handling of wills, and even in cases where clients had been convicted of criminal charges. In all of these cases, while solicitors had been represented before Complaints Committees, clients had been denied equivalent representation.

Indeed, the practice of ‘legally’ representing a solicitor in front of a Complaints Committee, had become so common, it became accepted practice, unquestioned by any solicitor or lay members of the Complaints Committees, although deemed so sensitive the policy was kept secret from complaining clients and the general public, fearing claims of unfairness & prejudice. That secrecy broke, however, when due to the publicity on the Penman case, the Law Society was forced to disclose most of the Committee’s deliberations on Andrew Penman, sparking many clients to eventually find out they too had been similarly maligned by a hugely prejudicial policy of allowing a crooked lawyer legal representation before a Complaints Committee, while denying the same right to members of the public.

Former Legal Services Ombudsman Garry Watson changed recommendations on Law Society orders. As publicity grew around the Penman case, the practice of lawyers being legally represented before Complaints Committees, and being allowed to submit personal letters of pleadings to Committee members, while clients were denied similar rights, was criticised by the then Scottish Legal Services Ombudsman, Garry S Watson, who recommended the Law Society halt the practice, which it did, for a few months, until the publicity died down, then apparently re-started in secret. Garry Watson also asked for full explanations and disclosure over Penman’s secret representations, which never happened after the Law Society ordered Mr Watson to change his opinion, cancelling his order clients should be informed fully of Committee deliberations. After the Law Society restarted the practice, clients were of course none the wiser as queues of lawyers lined up to send their legal representatives to Complaints Committees, pleading in the first instance, threatening legal action and judicial reviews against Committee decisions if the former did not work.

Law Society’s reversal of prosecution helped bring consumer led reforms to regulation of lawyers. The Andrew Penman case, which clearly should have went to the Scottish Solicitors Discipline Tribunal as a prosecution, with Mr Penman being struck off, but did not, through the Law Society’s determination to “Save Private Penman” as some have said over the years, did bring gains to consumers in terms of revealing the thoroughly corrupt practices of self regulation carried out by the Law Society of Scotland, and its will to keep such practices secret, and of course, long lasting until even the present day.

Douglas Mill, brought down by his anti-client memos, and relentless policies to save crooked lawyer Andrew Penman from prosecution. ‘Saving Private Penman” helped bring two [costly] Scottish Parliamentary inquiries into regulation of the legal profession, the first one Chaired by Christine Grahame (a dud – the enquiry, I refer to, of course) and the second, chaired by David Davidson MSP, which after hearing of even more revelations of secret anti-client behaviour such as the Douglas Mill ‘memo’gate affair’, brought to light by the now Cabinet Chief John Swinney, resulted in the passage of the Legal Profession & Legal Aid (Scotland) Act 2007, which created the hapless and Law Society controlled Scottish Legal Complaints Commission, which would have been good, had perhaps someone such as John Swinney managed its formation process, instead of the hapless Justice Secretary Kenny MacAskill, who simply allowed the Law Society to pull all the strings, and fill the SLCC with a slew of Pinnochios whose noses stretch from here to the planet Pluto.

Law Society covered up details of decision not to prosecute Andrew Penman. The failure to prosecute Andrew Penman for offences which many solicitors since have been prosecuted and even struck off for, some even sent to jail such as ex solicitor Michael Karus, still reverberates around the legal profession, and has given clients the strength to complain against many a crooked lawyer – a good thing. Penman has also shed a much needed light on the very secretive nature of Scotland’s legal profession and how the Law Society of Scotland controls, or denies access to justice to anyone it so feels like intimidating. Again, another plus, if a costly one to Scotland, as generally one can conclude, the Scottish legal profession are not a very trustworthy bunch, either in legal service to their clients, or when it comes to regulating their own colleagues.

Here, at the request of several law students who are studying ‘regulation’ of the legal profession in Scotland, is the full report on Borders Solicitor Andrew Penman of Stormonth Darling Solicitors, Kelso. I would certainly not recommend anyone use that law firm, as reading the following will reveal.

Law Society investigating lawyer found that Andrew Penman had tried to fake the files. The Law Society report said : “The reporter had found it extremely difficult to obtain from the file a clear picture of what had taken place in the executry. The files had not been well kept and it was noted that throughout the files there were correspondence and telephone notes which were not in chronological order. It was noted that at several points there was correspondence which appeared not to have been dealt with and not to have been put on file as it was received but to have been put on at a later date. The reporter noted a number of' instances which suggested that correspondence had simply been accumulated off the file and then dealt with in a fevered bout of activity in order to deal with matters which had long been delayed. The reporter noted there was also evidence of what appeared to be a bungled and unsuccessful attempt to put the file into order. Correspondence of July 1990 and July 1991 had been put on the file at a point which clearly related to July 1992.“

“The reporter noted that the files disclosed numerous lengthy and unexplained delays and a repeated failure to respond to correspondence. There were dozens of letters on the files apologizing to third parties for delays in dealing with executry matters. These delays in many cases amounted to several months and in the case of the capital taxes office there were several delays, one of 18 months.”

Law Society investigating lawyer found Andrew Penman deliberately mislead the Royal Bank of Scotland, amounting to professional misconduct. Page two of the Law Society report said : “The reporter noted there was a complete failure on the part of Messrs. P. & J. Stormonth-Darling to deal with this matter. They completely failed to acknowledge the instructions they had received from the Royal Bank in this connection and failed to take any steps to deal with the matter. The reporter was of the view that the substantial and unnecessary delays which had taken place in the executry might amount not only to an inadequate professional service on the part of Messrs. P.& J. Stormonth Darling but professional misconduct on the part of Mr Penman the solicitor dealing with the matter up until the time the complaint was lodged with the Law Society on 17th October 1994. Further the reporter was of the view that the apparent deliberate attempt to mislead the Royal Bank in regard to the Banco di Roma account may amount to professional misconduct.”

The Law Society investigating lawyer went onto demand a prosecution of Andrew Penman, saying : “In respect of the extraordinary delays and the repeated failures to respond to correspondence and the apparent, deliberate attempt to mislead the Royal Bank the reporter was of the view that the professional misconduct was such that it would warrant prosecution before the Scottish Solicitors Discipline Tribunal The reporter was or the view that there had clearly been an inadequate professional service but in the, event of a referral to the Scottish Solicitors Discipline Tribunal this would be incorporated into the complaint.”

Law Society Complaints Committee said Andrew Penman mislead the Royal Bank, was a failure at handling an executry. The Committee’s consideration of the investigating lawyer’s findings revealed : “The Committee expressed grave concern at the way that this executry had been handled by Mr. Penman and the extraordinary delays and the complete failure to deal with correspondence in an adequate manner, The Committee were of the: view that there: had been very poor attention paid to the administration of this estate and that whilst the complainer's uncertainty in certain matters might have caused some confusion there was a general lack of effort on the part of the solicitors to deal with matters in a reasonable manner.. It was noted in connection with the proposed loan by the Royal Bank. to the complainer there was a complete and utter failure to deal with the matter in any way or even to acknowledge the instructions. In connection with the Banco di Roma account the Committee noted the failure on the part of Mr. Penman to deal with matters in a reasonable way. They were particularly concerned at the terms of the letter written by Mr. Penman to the Royal Bank on 29th September 1992 which appeared to be an attempt to mislead the Royal Bank into believing that matters were being actively dealt with when they were not.”

“The Committee concurred with the views of the reporter in this matter indicating that the apparent attempt to mislead the Royal Bank persuaded them that Mr Penman's acting in the matter were so serious and reprehensible as to amount to professional misconduct.”

“The Committee thereafter considered whether the professional misconduct was such that it would warrant referral to the Scottish Solicitors Discipline Tribunal. The Committee were of the view that the administration of the executry had been so appallingly badly done as to take the issue out of service into that of conduct and coupled with the apparent attempt to mislead the Royal Bank the conduct was such that it would warrant prosecution before the Scottish Solicitors Discipline Tribunal. “

Law Society Complaints Committee decided that Andrew Penman should be prosecuted : “The Committee were of the view that Mr, Penman's acting in respect of the extra-ordinary delays and failure to progress the administration of the executry and in apparently misleading the Royal Bank of Scotland were so serious and reprehensible as to amount to professional misconduct. The Committee determined to recommend to Council that Mr. Penman be prosecuted before the Scottish Solicitors Discipline Tribunal in relation to the professional misconduct and the service provided and any other matter which the Fiscal feels appropriate.”

Andrew Penman begged the Complaints Committee not to prosecute, citing personal humiliation in the media as an excuse, while his legal representative at the Committee, Mr James Ness used his influence among the Committee members to derail the decision to prosecute : “Written representations were then made as to why Mr Penman should not be prosecuted. It was pointed out that the action of the complainer in referring matters to the media prior to the complaint being considered Mr Penman's natural right to have the Tribunal or the Society decide whether the case was deemed fit for publicity had been denied. As a result of the complaint, and newspaper report Mr Penman had suffered personally and this had been a considerable punishment in itself. It was argued that a reference to the Tribunal would result in a fine and substantial cost to Mr Penman with little or no purpose beyond what the Society could achieve using its own powers given that the Society would be able to order a waiver of part or all of the substantial fee which could be charged for work done together with a compensation award of up to £1,000.00.”

A variety of further excuses were presented by Andrew Penman, through his legal agent Mr Ness, which persuaded the Committee not to prosecute, : “It was also pointed out that the complaint was from a beneficiary and not from the executor in the estate with whom Mr Penman had been working to resolve matters. The Committee considered the representations which had been made. The Committee were of the view that Mr Penman's dealings with the matter undoubtedly amounted to professional misconduct. They thereafter considered whether in light of the representations which had been made the scale of the misconduct could be said to be so serious as to justify prosecution or whether a reprimand would be more appropriate. The Committee noted that Mr Penman clearly accepted that matters had not been dealt with in a proper manner by him and that there had been delays in progressing matters.”

The Complaints Committee, arm-twisted by senior Law Society official James Ness, and lacking any equivalent representation for my points, then changed their verdict to save Mr Penman so he could ruin some more unsuspecting clients : “Having re-considered the matter and taking into account the representations which had been made the Committee were unanimously of the view that whilst Mr Penman's acting amounted to professional misconduct they were not such that would warrant a prosecution and a reprimand would be more appropriate. The Committee therefore determined to withdraw their recommendation for prosecution and to substitute a provisional finding of professional misconduct warranting a reprimand.”

Complaints Committee accused Andrew Penman of Professional Misconduct, and did nothing after Law Society intervention. The Complaints Committee in the lead up to their decision, began to excuse their change of mind over prosecution, stating : “It was noted that written representations had been received from the complainer dated 5th and 20th July. Representations had been received from Messrs. P & J Stormonth Darling dated 25th July and the Committee Secretary advised that Mr Penman had confirmed that he accepted the Committee's preliminary view on matters i.e. that he be reprimanded in respect of the professional misconduct. Having considered the written representations the Committee found no reason to depart from its previous view and, therefore, confirmed their previous findings.”

In addition to the swathe of excuses to explain their failure to prosecute, the Complaints Committee even claimed there had been no financial loss to the estate, which had in reality been ruined through the actions of both Andrew Penman as the legal agent, and Borders Accountant Norman Howitt, acting as the Executor. The Law Society were therefore unable to explain the reduction of a 300K capital residual estate to zero.

The official decision of the Complaints Committee read as follows : “THE COMMITTEE HAVING CONSIDERED THE FURTHER REPRESENTATIONS WHICH HAD BEEN MADE FOUND NO REASON TO DEPART FROM ITS PREVIOUS VIEW AND ACCORDINGLY FIND THAT THE CONDUCT OF MR PENMAN IN RESPECT OF THE EXTRAORDINARY DELAYS AND FAILURES TO PROGRESS THE ADMINISTRATIONOF THE EXECUTRY AND IN MISLEADING THE ROYAL BANK OFSCOTLAND WERE SO SERIOUS AND REPREHENSIBLE AS TO AMOUNT TO PROFESSIONAL MISCONDUCT. THEY REPRIMANDED HIM.”

“IN ADDITION THE COMMITTEE FOUND THAT AN INADEQUATE PROFESSIONAL SERVICE HAD BEEN PROVIDED BY MESSRS. P & J. STORMONTH DARLING IN RESPECT OF THE EXTRAORDINARY DELAYS AND FAILURE TO PROGRESS MATTERS DURING THE PERIOD FROM THE DATE OF DEATH TO OCTOBER 1994 WHEN MR PENMAN CEASED DEALING WITH THE MATTER. THE COMMITTEE DIRECTED THAT THE SOLICITORS SHOULD ONLY BE ENTITLED TO CHARGE A FEE IN RESPECT OF THAT PERIOD TO A MAXIMUM OF £3,000 PLUS VAT IN TERMS OF SECTION 42A(2)(a)(ii) OF THE 1980 ACT. IN ADDITION THE COMMITTEE DETERMINED THAT THE SOLICITORS SHOULD MAKE A PAYMENT OF £1,000 TO THE ESTATE BY WAY OFCOMPENSATION IN TERMS OF SECTION 42A (2)(d) OF THE 1980 ACT.”

As a matter of record, the £1,000 payment Mr Penman was ordered to make, was taken by Norman Howitt, the Estate Executor, to pay bills Mr Penman and Mr Howitt had accumulated themselves on failed advertising.

As a result of the Complaints Committee’s spineless decision, Borders solicitor Andrew Penman was never prosecuted for his actions, and was allowed to continue working at Stormonth Darling Solicitors, Kelso to this day. Insiders at the Law Society of Scotland have confirmed numerous complaints have been made by other clients against the Borders Law firm Stormonth Darling, since the Complaints Committee’s decision not to prosecute Mr Penman all those years ago.

You can read more about Borders Accountant Norman Howitt’s part in the Executry, and more, here : A picture is worth a thousand words - Images of fraud reveal corruption & deceit by lawyers & accountants in the Scottish Borders and you can read about how the Law Society of Scotland prevent clients being able to recover financial damages or take any legal action against crooked lawyers such as Andrew Penman, and the Law Society itself, here : Law Society intervention in claims 'commonplace' as ex Chief admits Master Policy protects solicitors against clients

Looking on the bright side, much good came from the Penman case, even if the bad remained.

What 'Penman' did, was alert the public to the fact the Law Society of Scotland, as a regulator, are thoroughly corrupt, as is the Scottish legal profession, throughout its entire fabric. No solicitor will stand against another, despite claims to the contrary, and those consumers who dare take issue with their ‘crooked lawyers’ face losing any right to access to justice, simply because lawyers consider it their right to fleece their clients, when needs must. Take my advice – don't let Andrew Penman happen to you …

Inconsistent prosecution of ‘crooked lawyers’ hits consumer protection as Glasgow solicitor admits embezzlement charges over client funds

Law Society only prosecute a handful of crooked lawyers. LAWYERS GONE BAD is a now familiar tale in Scotland, where it appears now more likely clients will end up being ripped off by their lawyer instead of being helped. The now widely held perception that Scottish solicitors are a touch less than honest was yet again reinforced today by news of another ‘crooked lawyer’, this time from Glasgow law firm Cannons, admitting to charges of embezzling funds from clients trust accounts.

Lynne Sim, a partner with Cannons Law Partnership, admitted embezzling £16,956.84 between December 2005 and May 2006 from various trust accounts to pay off clients who were allegedly awaiting payments from other companies. She claimed she planned to pay the money back into the accounts when payments arrived.

The court heard that discrepancies in the law firm’s client accounts emerged while Ms Sim was on maternity leave with one client saying he had received a payment in respect of a dispute with an insurance company, but the insurers denying that any payment had been made. When investigations began, it transpired that funds to pay a cheque had been taken from the trust account of another client.

In mitigation, Ms Sim’s defence solicitor, Iain Fleming told the court there was no financial gain for his client, and insinuated his client might even have suffered a financial loss, because she had repaid not only the sums that were diverted, but also the interest that would have been lost, claiming it was all a question of "borrowing from one account to pay other clients".

While Ms Sim has been suspended by the Law Society of Scotland for acting as a lawyer for 10 years, and has of course, been prosecuted, admitted guilt, and will be sentenced next month, the problem here is there is a great deal of unevenness in the legal profession’s resolve to prosecute and deal with ‘crooked lawyers’ in a way which will protect consumers from repeat offenders, many of whom slip through the Law Society’s closed shop complaints system, going onto fleece hundreds more unsuspecting clients throughout Scotland who know nothing of their crooked past.

Crown Office letter revealed lack of will to prosecute crooked lawyers. A prime example of this would be the recent case of another Glasgow lawyer, Catriona Macfarlane, who covered up her mortgage broker husband’s theft of funds from a client she also represented, a story you can read more about here : Glasgow lawyer who covered up husband's £24k client theft gets slap on the wrist by Law Society tribunal, continues working, which, suspiciously the Crown Office failed to pick up on for a prosecution, which I further reported, here : Law Society ‘routinely fails to report crime' as Crown Office admits it never received report on Glasgow lawyer theft cover-up investigation

‘Crooked lawyers’ not always struck off despite Law Society claims :

The lesson here of course, is not to trust your lawyer with your funds, handle them yourself. After all, its your money so why surrender it to some poorly regulated lawyer who can basically do as they please with it, and if lost to you, will take years to recover through complex claim procedures against the infamous “Guarantee Fund” and lengthy Law Society red tape, which still does not guarantee a full refund after being plundered by a lawyer.

For a little guidance on Client accounts, I wrote an advisory on the subject last year, here : Advisory : Clients must protect their money from unsafe legal firms as Law Society's Guarantee Fund fails.

Process of ‘watering down’ Lord Gill’s civil courts reforms begins as Faculty of Advocates question public benefit, costs of access to justice changes

Faculty of Advocates raise questions over civil justice reforms. It seems the not unexpected process of ‘watering down’ the huge changes to Scotland’s CIVIL JUSTICE system proposed by Lord Gill in his recently published Civil Courts Review, which took two years to complete, and saw Scotland’s civil justice system described as being “Victorian”, has begun with the first salvoes being fired by the Faculty of Advocates, who issued their public response to Lord Gill’s civil court reforms last Thursday.

While the Faculty announcement began by stating they supported many of the practical recommendations in the Scottish Civil Courts Review, the Faculty expressed serious doubts about whether the substantial cost involved in proposed structural changes to the court hierarchy would increase efficiency or lead any other significant public benefit.

The full 62 page Faculty of Advocate response to Lord Gill’s Civil Courts Review is here : Download the Faculty Response (.pdf - 879KB)

The Faculty picked out one point in its press release, regarding Lord Gill’s proposal to remove from the Court of Session cases worth less than £150,000, allowing such cases to be considered in Scotland’s Sheriff courts, where currently the limit is around £5,000. This is of course, where advocates earn most of their huge fees, representing civil cases in the Court of Session, so one would naturally expect advocates to be a little queasy at the thought of losing a large chunk of their income …

The Faculty said : “While it is not opposed in principle to raising the current limit of £5,000, the Faculty describes the proposed £150,000 figure as "inexplicably high" and adds: "It is three times the figure that applies to equivalent courts in England and 10 times that in Northern Ireland."

The Faculty went onto claim “as far as the jurisdiction of Court of Session is concerned, there is no evidence of public dissatisfaction with the present system but a change along the lines proposed in the Gill Report would displace more than 2,000 cases out of a total of 3,400 to the Sheriff Court.” - they must be looking in all the wrong places to be able to make such a claim .. or perhaps not looking at all …

The Faculty’s release stated : "The Faculty would submit that there should be far greater research into relative costs of litigation in the Sheriff Court and the Court of Session before a properly informed decision of appropriate level of the privative (exclusive) jurisdiction of the Sheriff Court can be made."

The Faculty response continued, pointing out that the majority of personal injury cases in the Court of Session are conducted on a "no win no fee" basis under which advocates and solicitors are paid by the recovery of judicial expenses from the losing side. Pursuers who raise damages actions in the Court of Session are entitled to the services of counsel but the Faculty’s response “notes that the Gill Report is silent on whether there would be sanction to use counsel in the Sheriff Court.”

The Faculty one again commented : "Without such certification the effect of increasing the limit (to £150,000) would be to exclude access to an independent referral Bar in those personal injury cases which proceed in the Sheriff Court. An important right that most pursuers in such actions currently have would thereby be removed."

“Oh how the quest to retain fees does tend to colour one’s response to reform” – said one legal insider.

On the brighter side, well, slightly, Page 55 of the Faculty’s 62 page response on the Civil Court Review supports the implementation of McKenzie Friends for Scotland, something I have long reported on. You can read more of my coverage of the campaign to bring McKenzie Friends to Scotland here : Bringing McKenzie Friends to Scotland - The story so far

Faculty of Advocates on McKenzie Friends : McKenzie friends Recommendation 149

“The Faculty would contend that a person without a right of audience should be entitled to advise a party litigant in court but only where the court considers that such participation would be of assistance to it. The Faculty recognises the merit in the recommendations that the court should be entitled to refuse to allow any particular person to appear on specific grounds relating to character and conduct and that the rules of court should specify the role to be played by the individual and should provide that he or she is not entitled to remuneration.”

The Faculty there again expressing the legal profession’s obsession in ensuring that anyone standing as a McKenzie Friend to assist an unrepresented party litigant in a Scottish Court, receives no financial reward for doing so … not that I am in favour of McKenzie Friends being able to charge clients a fee for their services to the tune a solicitor does, but come on, how is this going to be enforced if a client who wins their case decides to give a compensatory reward to their ‘free’ McKenzie Friend later on ? I do hope for instance, we are not going to see the likes of Richard Keen, the Dean of the Faculty chasing people around for receiving a box of Milk Tray for their help to those many members of the public the Faculty itself, and not forgetting of course, the Law Society solicitor membership have denied court access …

On the subject of Class Action litigation (Multi party actions), the Faculty’s response also supports the long time coming introduction of such litigation to Scots Law, stating on Page 25 of their response, Chapter 13 (Multi-party actions) : “There should be a special multi-party procedure.”

The report also says that “Where a number of pursuers have a common factual or legal basis to their claims but initiate proceedings on an individual basis, it should be open to defenders to apply to the court, or for the court on its own initiative, to transfer the cases to the multi-party procedure.”

The Faculty suggested, with regards to public funding of class actions : “There should be a special funding regime for multi-party actions which could be administered by SLAB (The Scottish Legal Aid Board). If a person seeks public funding to bring a multi-party action, that should be by way of an application to the multi-party action fund. Class members who are not representative parties should be able to apply for civil legal aid.”

It should be noted, the Faculty expressed support for the principle of providing the public with a just, fair and cost-effective resolution of legal disputes, saying : "It is beyond argument that not every part of the current system works efficiently, but the radical restructuring exercise proposed is not necessarily the answer. The answer lies in reform of current practice and procedure which the Faculty of Advocates fully supports."

However, the Faculty’s arguments to tweak, fiddle and meddle around with current practice & procedure will definitely not give Scotland anywhere near the reforms proposed in Lord Gill’s Civil Courts Review.

Lord Gill described Scotland’s civil justice system as “Victorian” and failing society. As Lord Gill himself said in his speech to last year’s Law Society of Scotland's 60th Anniversary conference : "The civil justice system in Scotland is a Victorian model that has survived by means of periodic piecemeal reforms. But in sustance, its structure and procedures are those of a century and a half ago. It is failing the litigant and, therefore, failing society."

"If you were to sit down and devise a justice system for the 21st century, it would be nothing like we have. The judicial structure should be based on a proper hierarchy of courts and the procedures should be appropriate to the nature and the importance of the case, in terms of time and cost. Scottish justice fails on all these counts. Its delays are notorious. Its costs deter litigants whose claims may be well founded. Its procedures cause frustration and obstruct, rather than facilitate the achievement of justice."

I’m not against everything the Faculty say in their reaction but given my own experience in Scotland’s civil justice system, and the experiences of many reported to me over many years, I think I would sooner take the recommendations of Lord Gill, who for probably the first time in Scotland’s legal establishment, told us exactly how inadequate, creaky, and unfit for purpose, our beloved Scots Law really is …

Surely this is a time to reform, rather than tweak and twiddle with the curtains as those earning a substantial crust at clients cost, might have us believe …

Legal Complaints Chief calls for more powers against ‘crooked lawyers’ after Justice Committee fails to invite 'independent' law regulator to hearings

Jane Irvine, SLCC Chair. JANE IRVINE, Chair of the Scottish Legal Complaints Commission has called for wider powers of complaints handling against ‘crooked lawyers’ particularly on conduct issues, to be given to the beleaguered law complaints quango, in a letter to the Scottish Parliament’s Justice Committee on proposals over regulation contained in the Legal Services Bill. However, in the same letter, Ms Irvine went onto express expressed her ‘disappointment’ over the SLCC not being called to give oral evidence on aspects of the ‘access to justice’ bill, which has now ended its evidence hearings at Holyrood.

Curiously, the Parliament invited, & heard from the two main regulators of Scotland’s legal profession (the Faculty of Advocates & the Law Society of Scotland) who were both notably critical of many aspects of the proposals on complaints handling and regulation of non-lawyers who may enter the expanded legal services market but it seems no one on the Justice Committee wanted to hear or question the SLCC’s similarly critical point of view over much of the bill.

You can read my earlier coverage of the Faculty of Advocate’s appearance at Holyrood on the Legal Services Bill, along with video clips of the hearings, HERE and the Law Society of Scotland’s evidence session, along with video clips of their evidence, HERE. All previous articles on the Legal Services Bill can be found HERE

A spokeswoman for the Justice Committee issued a terse statement to media enquiries on whether the SLCC would be called to give evidence : “It is entirely up to the Justice Committee members to decide who to call to give oral evidence. To date, the Committee has received two written submissions from the SLCC and has not sought to call the SLCC to also give oral evidence however I am aware that the SLCC wishes to give oral evidence, if invited to do so.”

After failing to be called to give evidence, SLCC Chair Jane Irvine issued a second written submission to the Justice Committee, detailing the points the SLCC had wished to make on aspects of the Legal Services Bill.

Jane Irvine said : “The SLCC should have the power under its existing and amended statutory functions to receive, process, refer, investigate and determine complaints. Consumers and legal services providers are effectively being provided with a one-stop shop for making their complaint.”

Ms Irvine continued, expressing hope that the Law complaints body’s jurisdiction could be widened to investigate all complaints (many of us have proposed, campaigned on this point for over a year, however only now does the SLCC think it should have more powers).

Jane Irvine claimed the SLCC is ‘a strong independent body’. Jane Irvine continued : “As the SLCC is a *strong independent body* serving as a single Gateway for legal complaints, regulation could be improved if its jurisdiction was widened to investigate all legal complaints, whether they be conduct, service, handling or the new regulatory type of complaint, about all legal service providers (including CAs). This will ensure consumers and legal services providers know which body has the responsibility for handling complaints and where complaints are to be made in the first instance.”

“The Bill should be an opportunity to make services better for consumers. It should not create more complexity for consumers, nor for the practitioners who serve them. It will be for the SLCC to determine the type of complaint made and against whom, in the same way as the SLCC is doing at present for service, conduct and handling complaints. The SLCC, and not consumers or legal services providers, will then determine whether complaints are about ‘legal services’ or other services, such as financial or accountancy services.“

“Responsibility would be placed on the SLCC to secure regulation of services and consumer redress in circumstances where things go wrong, which should reduce the risk of duplication of activities by regulators. Also, it is not left to the consumer to identify how or if the legal services provider is regulated; they know where to raise their concerns.”

You can read many of my previous reports on the SLCC HERE, which do not exactly portray it as the independent regulator adept at consumer protection which some might claim it to be …

The SLCC Chief then expressed her opinion that the Commission should also be able to investigate conduct complaints against solicitors, which are currently handled by the Law Society of Scotland.

Ms Irvine continued : “The Bill provides for service and conduct complaints to continue to be investigated by separate bodies. The SLCC is of the view that the interests of consumers and legal services providers would be better served if it was to have the right to investigate conduct complaints, in addition to service. It is the SLCC’s experience that a significant proportion of complaints comprise both service and conduct elements …. The SLCC considers that consumers often tend not to distinguish between these aspects and instead have an expectation that all the circumstances of a complaint will be examined by one body.”

Talk about stating the obvious …. and its only taken how many years to realise that one since the LPLA Bill had its Scottish Parliament hearings back in 2006 ?

However, while Jane Irvine now calls for the power to investigate conduct complaints against lawyers, the SLCC has not modified its refusal to investigate mishandled complaints by the Law Society of Scotland and then there’s also the SLCC’s first ever decision, which was to refuse to investigate any complaints prior to 1st October 2008 – hardly a very helpful decision to thousands of clients who suffered at the hands of Law Society complaints whitewashes.

Jane Irvine goes on in her letter to criticise many aspects of how complaints against any “approved regulator” (relating to complaints against non-lawyer legal service providers) will be handled by the Scottish Legal Complaints Commission, pointing out a number of omissions exist in the proposals contained in the Legal Services Bill on what will be done in the event of complaints against the regulators themselves in the expected event they fail to properly investigate complaints against lawyers or non-lawyers – which given our experience with the Law Society of Scotland, the Faculty of Advocates, and even the SLCC itself, we can surely expect to be the norm.

Jane Irvine pointed out the bill before the Justice Committee lacked any means to even handle complaints against an approved regulator : “There appears to be no procedure laid down in the Bill as to how a delegated complaint against an Approved Regulator is to be dealt with (unlike other complaints which are covered by reference to the 2007 Act). Complaints about Approved Regulators may be of a different nature to service / conduct / handling complaints, therefore a different investigation procedure may be required.”

The SLCC Chief ender her written submission by expressing her disappointment having been left out of the Committee hearings, saying : “I am disappointed not to be called to give evidence given the SLCC’s central role in complaints and conduct handling. The SLCC will continue to have an important role to play at the heart of the regulatory process and I am happy to participate in any further consultation or informal discussions about the Bill and future regulations.”

The written submission from the Scottish Legal Complaints Commission giving detailed evidence on the Legal Services Bill can be downloaded HERE

All written submissions on the Legal Services Bill can be found here : Legal Services Bill written submissions

You can read my own submission on the Legal Services Bill, which deals mainly with regulation HERE (pdf)

It remains however, the Legal Services Bill appears significantly flawed in its approach to regulating both lawyers and non-lawyers, by failing to bring in fully independent regulation of Scotland’s legal services sector, which consumer organisations, campaign groups, clients, and critics of the legal profession have been calling for years to be implemented. Until closed shop self regulation is dropped, Scots will have no consumer protection when it comes to legal services. That much is certain.

Thomson review of solicitor advocates proposes ‘common standards, conduct’ after Lord Gill’s ‘dereliction of duty’ criticisms in murder appeal

Scottish Government published the Thomson review of solicitor-advocates. A REVIEW OF SOLICITOR ADVOCATES carried out by the Scottish Government has recommended there should be a single code of conduct for solicitor-advocates & advocates, as well as a single complaints process for clients to use when the standard of their legal representatives fall beneath the acceptable mark. Oddly enough, all the issues covered in the Thomson review could mostly be resolved by implementing the much needed panacea of full independent regulation, which we all know is now necessary to shape up Scotland’s poorly regulated legal profession.

Lord Gill criticised a solicitor-advocate for leaving the trial of his client to lobby the Government for more legal aid fees. The review of solicitor-advocates was instituted after the Law Society persuaded Mr MacAskill to act on the criticisms from Scotland’s Lord Justice Clerk, Lord Gill in the February 2009 appeal of Alexander Woodside over the conduct of his defence during his original trial at Glasgow’s High Court for murder during 1998. One of Mr Woodside’s defence team, Gerry Brown, a solicitor-advocate with Livingstone Brown solicitors in Glasgow, and Convener of the Law Society of Scotland’s “Criminal Law Committee” had ‘absented himself’ from the trial of his client to travel to London for the day to lobby for more legal aid fees in a lobby group organised by the Law Society of Scotland.

Lord Gill branded Mr Woodside’s solicitor-advocate’s conduct as “a dereliction of duty” and expressed the following concerns : "This appeal has highlighted problems of rights of audience that seem not to be unique to this case. I think it would be opportune if there were to be a review of the working of the system overall." He added: "I fail to see how any practitioner could be justified in absenting himself from any part of a murder trial except in an emergency."

The main recommendations of the review, which is being chaired by Senior Scottish Investment Banker Ben Thomson who was appointed by Justice Secretary Kenny MacAskill, after the Law Society intervened and turned Lord Gill’s criticisms into one of those dreaded establishment in-house reviews, which at least did come up with some useful recommendations not entirely liking to the Law Society : (1) A universal standard examination for admission as a pleader in the Supreme Courts should be established and all pleaders should be reviewed on a regular cycle (2) There should be one code of conduct for all pleaders (3) The complaints process should be enhanced and provide for one process for advocates and solicitor advocates.

The Scottish Government’s media release on the publication of Mr Thomson’s report quotes the investment banker as saying : "There is a great deal that we can be proud of in our legal profession in Scotland, and I believe that maintaining the two separate branches of the profession preserves our strong Scottish traditions and encourages healthy competition. However it is apparent that there are different rules and conventions surrounding advocates and solicitor advocates which can cause issues. Our recommendations look to address these issues, by proposing a common qualification, common standards, and a common monitoring and complaints process for all pleaders. We have been pleased to see that there is widespread support for these proposals amongst those with whom we have discussed them."

Law Society of Scotland President Ian Smart. The Law Society, who must be pleased with themselves for deflecting any major parliamentary attention into the under-regulated solicitor-advocates who can whoosh off on Law Society lobbying expeditions, commented via their President Ian Smart, saying : “We want to see changes brought in that will make sure that we have a fair and effective system that works for everyone and that clients are properly represented in court whether by an advocate or a solicitor advocate. This is very much a draft report and further consideration must be given to the report’s recommendations and their implementation, for example, whether there should be a single complaints process for those appearing in the Supreme Courts. We will continue to contribute to discussions before the final report is published in March this year.”

Scottish Legal Complaints Commission may end up investigating solicitor-advocates. However, it turns out the single complaints process proposed in the Thomson review would see complaints given to the hapless Scottish Legal Complaints Commission, which itself has had a year of scandal over its shoddy conduct towards clients making complaints against members of the legal profession, while racking up huge expenses claims for its board members and so far having no success stories to present to the public. The Law Society are of course, concerned that involving the SLCC in the regulation of solicitor-advocates will cloud the ease in which most complaints against solicitor-advocates – even from judges, have been treated with slight of hand.

The Thomson review on solicitor advocates can be downloaded here : Rights of Audience Review and any comments you wish to make on the Thomson review, and solicitor-advocates should be submitted by February 19, 2010 to thomsonreview@scotland.gsi.gov.uk

Admittedly, I was not going to cover this particular review, but after details of a complaint against a solicitor advocate in a civil case was passed to me this morning by a colleague in the media, I think its probably fair to say the public should have a shout in this review, and hopefully express some views which some in the know should take into account.

As solicitor-advocates also operate in civil courts, it is obviously important to ensure they are effectively regulated, to ensure consumer protection, which clearly is just as remiss in the world of solicitor-advocates, as it is in the remainder of Scotland’s sub-standard legal profession. If any readers do have experiences of using solicitor-advocates, I would urge them to participate in the review, and send in comments to the review team in the contact details listed above, along with download links to the actual review itself.

Clearly the concerns expressed by Lord Gill, and the interests of consumers must ensure that fully independent regulation is applied to solicitor advocates, and all other branches of the legal profession, if of course, we are to have any trust in those whom we pay to represent our legal interests and ensure access to justice …

Scotland to get ‘talking’ McKenzie Friends as consumer pressure on court access & rights of audience prompts new proposals for Legal Services Bill

Scottish Parliament will hear proposals to introduce ‘talking’ McKenzie Friend to Scotland. MCKENZIE FRIENDS FOR SCOTLAND will soon ‘move from silent pictures to the talkies’, and have legislative backing for their use in Scots Law, according to sources today at the Scottish Government’s Justice Department, after Communities Safety Minister Fergus Ewing gave testimony to Holyrood’s Justice Committee last Tuesday informing MSPs the issue of McKenzie Friends will be introduced to the Legal Services Bill during ‘Stage Two’ of its passage through the Scottish Parliament.

Communities Safety Minister Fergus Ewing reveals McKenzie Friend for Scotland reforms. Speaking to the Justice Committee, the Scottish Government’s Communities Safety Minister, Fergus Ewing said : “As the committee might be aware, we are considering introducing to the bill a number of areas at stage 2. In brief, those are McKenzie friends, which have been the subject of much discussion and debate in recent months; possible amendments to rights of audience in the supreme courts, subject to the recommendations of the on-going Thomson review; various technical amendments to the 1980 act; and the regulation of will writers.”

A spokeswoman for the Scottish Government’s Justice Department issued a brief confirmation of the Communities Safety Minister’s comments, saying : “We are considering an amendment to the Legal Services (Scotland) Bill regarding McKenzie friends.”

This change of heart comes as a surprise, after my coverage of the Scottish Parliament’s debate on Lord Gill’s Civil Courts Review, where Mr Ewing appeared to derail any early hopes of creating legislation to ensure that Scots could enjoy the same rights as court users in the rest of the UK to request and utilise the services of a McKenzie Friend. You can read my report on that particular debate, which features video footage of the Communities Safety Minister talking on the issue of McKenzie Friends, here : Holyrood debate reveals civil justice reforms & McKenzie Friends may be a long way off as Scottish Ministers stumble over Lord Gill review proposals

However, even better news awaits for Scots who find themselves in court but without a lawyer, as a legal insider today revealed the amendments being considered by the Scottish Government may go much further than just allowing McKenzie Friend in Scotland, as one of the options currently under discussion will actually give a McKenzie Friend the right to speak on behalf of a party litigant, which is a dramatic departure from the rules governing McKenzie Friends in England & Wales who are not allowed to address the court on behalf of the person they are assisting.

He said : “I understand one of the issues under discussion for inclusion in the Scottish Government’s McKenzie Friend proposals on the Legal Services Bill is to allow a McKenzie Friend to address the court on behalf of a party litigant in certain circumstances.”

He continued : “While I’m sure many would welcome these developments, I understand the Law Society of Scotland is firmly against such a move to grant McKenzie Friends full rights of audience so you can expect a few letters of sharp protest from the legal profession to the Parliament if this proposal reaches the Justice Committee intact.”

A spokeswoman for one of Scotland’s consumer organisations said she was delighted to hear of the idea that McKenzie Friends were to be given the right to speak on behalf of unrepresented court users.

She said : “If McKenzie Friends were to be granted full rights of audience in Scotland, it may greatly assist unrepresented court users who like many of us are easily lost in the maze of court procedures and legal technicalities. Allowing a McKenzie friend to speak on behalf of a party litigant may very well speed up cases and ensure that access to justice is delivered to many who cannot afford or cannot obtain any form of legal representation provided by solicitors.”

The change of heart by the Scottish Government on the issue of McKenzie Friends comes after considerable debate in the Scottish Parliament over Petition 1247, which has seen widespread support from all quarters and even support from other international jurisdictions, for the introduction of McKenzie Friends in Scotland, where for forty years, the legal profession, opposed to extending rights of audience and courtroom assistance to anyone outside the legal fraternity has ensured that McKenzie Friends were kept out of the reach of Scots court users for four decades.

While Scotland’s legal fraternity were generally against the implementation of McKenzie Friends in Scotland, the UK’s Ministry of Justice, several consumer organisations including Which? & Consumer Focus Scotland were very much in favour of extending McKenzie Friends, and Holyrood also received a key supporting representation from the original McKenzie Friend himself, Australian Barrister Ian Hanger QC, whose presence in McKenzie v McKenzie 1971 originated the entire concept of a McKenzie Friend, which has now reached across the globe to many international legal jurisdictions.

You can read my earlier coverage of Ian Hanger QC’s support for the introduction of McKenzie Friends in Scotland, here : McKenzie Friends for Scotland gain support from ‘original McKenzie Friend’ while Scottish Government hint at delays to civil justice reforms and reports of support from the Ministry of Justice & consumer organisations, here : McKenzie Friends for Scotland backed by Ministry of Justice & Consumer Focus as Holyrood petition moves to end 40 year Scots access to justice delay

Also, not forgetting that Lord Gill’s Civil Courts Review supported the introduction of McKenzie Friends to Scotland, which I featured in an earlier article, here : Scots Law 'shake up' as Lord Gill’s Civil Courts Review supports McKenzie Friends, Class Actions & wider access to justice for all

One of the strongest political supporters of McKenzie Friends in Scotland, has been independent MSP, Margo MacDonald, who attended all sessions where the Scottish Parliament’s Petitions Committee discussed the McKenzie Friends issue.

Margo MacDonald MSP – instrumental in bringing McKenzie Friends to Scotland.

Lord Woolman granted first use of McKenzie Friend in Scotland’s civil courts. It is widely thought that Ms MacDonald’s support has been instrumental in ensuring the McKenzie Friends debate reached the critical stage that Scotland’s courts were eventually forced to grant the first use of a McKenzie Friend in Scotland, after a ruling in the Court of Session, issued by Lord Woolman in mid November in the long running civil court damages action of Wilson, Martin v North Lanarkshire Council & C Simpson & Marwick, finally establishing a legal basis for the use of McKenzie Friends in a Scottish court, albeit Lord Woolman’s ruling only permitted the McKenzie Friend to sit behind the party litigant … an issue which most see as continuing to obstruct court users while opposing counsel have no such impositions of difficult seating arrangements.

You can read my coverage of the first use of a McKenzie Friend in Scotland, here : First use of McKenzie Friend in Scotland as Court of Session sweeps aside 40 years of lawyers monopoly over public access to justice

Lord Woolman’s initial ruling in Wilson, Martin v North Lanarkshire Council & C Simpson & Marwick,, and a second ruling in TODS MURRAY v [Defenders] (1) ARAKIN LIMITED; and (2) Mr Andrew McNamara on 1st December 2009, came after the Lord President, Lord Hamilton and Scotland’s Justice Secretary Kenny MacAskill both claimed in letters to Holyrood’s Petitions Committee there was no need to introduce McKenzie Friends to Scotland as such assistance had already existed in Scottish Courts. However, both the Lord President & Justice Secretary’s claims were not supported by facts as an investigation revealed that all McKenzie Friends requests up to Lord Woolman’s November 2009 ruling had been refused by Scottish judges in civil action cases.

You can read my earlier report on Lord Hamilton’s ‘claims’ to the Scottish Parliament, here : Lord Hamilton accused of ‘being deluded’ over McKenzie Friends in Scotland as judge's attack on Holyrood petition contradicts courtroom reality

You can read all my earlier reports on the battle to bring McKenzie Friends to Scotland here : McKenzie Friends for Scotland - A battle worthy of a McKenzie Friend

While we wait to see what proposals the Scottish Government have in store for a ‘talking’ McKenzie Friend for Scotland, and no doubt, what rules will govern their use and surely, what guidance the court must follow when a request is made for the use of a McKenzie Friend, you can read the full guidance from the Lord President of the Family Division on the use of McKenzie Friends in England & Wales, which can be downloaded here : President's Guidance: McKenzie Friends.

What we need is a similar model of guidance, expanded, and importantly, ensuring that McKenzie Friends are dealt with as a Human Rights Article 6 issue, for use in Scotland’s courts as is the case in the rest of the UK.

Consumer experiences required for Scottish Government’s consultation on regulating non-lawyer will writers : Help protect YOUR final wishes

Scottish Government announced snap public consultation on will writing. REGULATING NON-LAWYER WILL WRITERS is the subject of the recent snap consultation announced by the Scottish Government, where responses are being sought from consumers, consumer organisations & bodies representative of the law & business who turn over enormous profits from charging the public for writing a will and administering a client’s wishes after death.

The consultation has a limited lifetime of less than 12 weeks, as the Government are considering tabling amendments to the Legal Services (Scotland) Bill which would introduce regulation of non-lawyer will writers & companies which provide such services. Responses must be in by 19 February 2010 and if you value your family and how you wish them to deal with your will after your death, I suggest all readers submit their thoughts, or even experiences in already writing their will, with either a lawyer, or a non lawyer so that any new regulation applied to handling wills in Scotland is inclusive of actual consumer experiences, and protective against any possible malpractice by unregulated individuals & businesses who offer will writing services.

Details about the consultation and the present situation of will writers can be found here : Section 1 Background and current situation, Section 2 Views on the regulation of will writers and please also read Section 3 Options and consultation questions before you fill out the consultation form.

The consultation form can be downloaded from the Scottish Government’s consultations website page here Regulating non-lawyer will writers with a direct download available (in pdf format) here : Regulating non-lawyer will writers: a consultation paper

You can also complete an online version of the consultation paper, which can be found here : Annex A Consultation questionnaire and don't forget to fill out the Annex B Respondent information form

All responses on this consultation should be emailed to steven.day@scotland.gsi.gov.uk or mailed to : Steven Day, Legal System Division 2W, St. Andrew‟s House, Regent Road, Edinburgh, EH1 3DG and if you have any queries contact Steven Day on 0131 244 2691.

Consumer Focus Scotland have already responded to the plans to regulate non-lawyer will writers, stating : “"We would at this time suggest that the Scottish Government also give consideration to the potential to introduce regulation for individuals or organisations offering will writing services. Whilst such will writing firms have had little presence in Scotland in the past, we are aware some of them have begun to advertise their services here. The Institute of Professional Willwriters has concerns that the recession will lead to an increase in the number of unscrupulous willwriters. Whilst we have no specific evidence of consumer detriment caused by willwriters in Scotland, we have concerns that bad practice will not be discovered until a person has died, by which time it is too late and the family must deal with the consequences of the bad practice."

In February 2008, Citizens Advice warned people to be wary of adverts and cold calls promising cut-price wills. Which? covered the story in an article in April 2008. Citizens Advice Bureaux reported increasing numbers of people who had been conned into parting with many hundreds of pounds by bogus will writers cashing in on people's desire to make sure their financial affairs are settled according to their wishes after they die. More recently, Citizens Advice has suggested that the case for independent regulation is considered, but cautioned that it would need to be proportionate to keep small, specialist will-writing firms in the market whilst enabling mass providers, such as banks, to develop will-writing services.

Law Society’s member solicitors currently cause most of the ‘will fraud’ in Scotland. The Law Society of Scotland said : "The Society has serious concerns about the way in which will writers are currently able to operate without being subject to any form of regulation. A number of our members have reported incidences where they have received visits from clients who have been charged substantial sums of money by will writing companies to have wills drawn up that have either not achieved their intended testamentary objective or have lacked legal competence altogether. The Society would therefore urge the creation of a regulatory scheme for will writers, including requirements such as an entrance qualification, complaints handling through the Scottish Legal Complaints Commission, indemnity insurance and CPD to ensure greater protection for the public." – laughable comments from the Law Society, since it is their member solicitors who each year, rip off millions of pounds from dead client’s wills & bequests …

The Society of Will Writers has summarised its position on the regulation of non-lawyer will writers in Scotland as follows:

* all will writers should be trained to a minimum standard and be required to maintain that standard through the use of Continuing Professional Development;
* all will writers should carry and maintain professional indemnity insurance to a minimum agreed to meet today's consumer needs;
* all will writers should comply with and adhere to an agreed Code of Practice;
* suitable disciplinary measures, including independent arbitration, should be in place;
* the consumer is held at all times at the heart of the Will Writers code of practice.

I am certainly in favour of regulating will writers in Scotland, as at present there is no regulation of these businesses & individuals who charge a fee for writing up wills and potentially going onto help handle a deceased’s estate after death. In the interests of consumer protection, regulation must be applied to the will writing industry, but certainly a more effective form of regulation than that offered by the Law Society of Scotland against solicitors who mishandle wills (currently & for many years, the cause of most will writing & will handling fraud in Scotland).

With regard to this consultation, we must remember that one of the highest incidences of fraud in the Scottish legal profession itself comes from lawyers administering wills of dead clients, which I have written about in an earlier article, here : Consumer warning on wills : Don't make your lawyer your executor as soaring cases of 'will fraud' show Law Society closes ranks on complaints.

Despite the Law Society of Scotland’s claims to regulate the legal profession effectively, it usually does nothing when a ‘crooked lawyer’ rips off a client’s will. Over the years, Scotland’s lawyers, and many accountants, have milked the estates of their dead clients to the tune of many hundreds of millions of pounds, where an army of unchecked crooked lawyers such as “Andrew Penman”, who habitually ruin estates of dead clients in case after case, run around in Scotland wiping out their dead client’s last wishes for the solicitor’s own personal profit & financial gain, often leaving families facing years of difficulty and horror in dealing with the final wishes of their departed loved one who only wished what they once had was passed onto their remaining family & beneficiaries.

Scotsman reported on Law Society’s protection of Andrew Penman who ruined estate. For years its been well known in the legal profession that handling a will is almost like having a license to steal because at the end of the day you know the Law Society will back solicitors up 100% against any complaints over what went wrong. Readers will be familiar with my own past on this issue, where a crooked lawyer by the name of Andrew Penman of Stormonth Darlng Solicitors, Kelso teamed up with an accountant (and executor), Norman Howitt now of Borders accountants JRW Group, to ruin my late father's estate, details of which can be read HERE here and HERE.

Indeed, frauds committed by lawyers against a client’s last wishes appear to know no bounds of depravity, with even charitable bequests by individuals being pocketed by lawyers & law firms, rather than the intended organisation or charity the money has been bequeathed to.

It is reasonable to expect that, since lawyers are so crooked when it comes to writing, and even handling a client’s will … non-lawyers who are not regulated can in some cases, but not all, get up to the same tricks, scams, and wholesale theft their counterparts in the legal world have fine tuned to an art over many decades, under the wing of the ever crooked self regulating Law Society of Scotland, who will whitewash any complaint made against their member solicitors who just happen to rip off yet another dead client’s will.

Here are just a few examples on what happened to wills handled by solicitors, where the Law Society of Scotland did nothing after fraud had been discovered.

Example 1

Solicitor ripped off dead client & family, paid huge interest to his own Bank. An elderly man recently deceased had left his home, possessions & sizeable investments to his wife & family in what he obviously thought was a simple straight forward will, making the mistake of appointing his solicitor as his executor. The first thing the solicitor did was open up three overdraft accounts with a local High Street bank which coincidentally, the solicitor also deals with on a business & personal basis. Over the three years the solicitor took to process his deceased client's estate, the High Street Bank received a staggering £27,000 in interest alone on the overdraft accounts, despite there being no debts on the deceased’s estate. Documents also now reveal the solicitor negotiated some cheap personal finance from the same High Street bank to purchase a second home.

The widow of the deceased, upon being told the investments in the will had been cut in value by three quarters, made a complaint to the Law Society of Scotland after discovering through careful investigation her late husband's investments had been changed around by the solicitor at his own discretion rather than being realised and handed over to the family as per the instructions contained in the will. Now the Law Society have backed the solicitor against the family, despite a £250,000 loss being incurred in the late husband's investments, together with the loss of title deeds to the home in which the widow still lives, while it seems the solicitor has experienced a remarkable increase in his own personal wealth, along with 3 recent top of the range cars.

Example 2

Solicitor & accountant ripped off client’s charitable donations via her will. The result of the charitable intentions of a deceased elderly nurse who bequeathed her substantial entire savings including her house, in total valued at over £2 million to charitable causes, has so far resulted in not one of her wishes being respected by the solicitor and a long time friend, an accountant, she made executors of her will.

Charities who were named in the initial will have, after two years, yet to receive a penny, while again, a local High Street Bank has received over £18,000 in interest on several overdraft accounts opened by the solicitor allegedly to pay debts on the estate which never existed. Meanwhile the solicitor has also bought himself a second house, as has the deceased's' long time friend' the accountant, and the charities who were due to receive sums of money are now questioning whether they will receive anything, given a recent letter to one charity from the solicitor suggesting "there was little left in the estate to cover the charitable bequests" - this despite the fact the nurse had no debts whatsoever, and owned her own home.

The paralegal who brought this case to the attention of Law Society of Scotland has been sacked from solicitor’s law firm, and since there is no one to independently monitor how the solicitor and accountant, both acting as executor, have so fraudulently mishandled the estate of their client (and victim) nothing will probably be done against those who have so obviously plundered the estate of their dead client. Even the charities themselves are apparently reluctant to make a complaint to the Law Society of Scotland, possibly because a fleet of solicitors wives and family relatives sit on one of the charities concerned.

Example 3

Solicitor stole 400k from will, no action by Law Society. A solicitor named as executor in an estate of an elderly unmarried man who had no surviving family, dying three years ago, tore up the original will of his client, and replaced it with one he had created to cover up the fact that a whopping £400,000 has disappeared from his deceased client's bank accounts.

The will, which left a substantial bequest to a care home managed by the deceased's local authority, has also seen the usual huge payments of interest fees to a local High Street Bank, in one case alone of £14,000 of pure interest, the same bank handling the solicitor's law firm accounts.

The local authority had questioned when the bequest was to be made over to them, after being told by the solicitor there was little left to pay out his client’s wishes. The Law Society are supposedly still looking into the case, with as yet no action against the solicitor concerned.

Example 4

Solicitor acting as executor stole over £30,000 from children’s trust. A deceased soldier who appointed his lawyer as executor, leaving everything to his wife & children, has unwittingly placed his family in the position of having to endure sickening refusals by the legal profession to do anything to recover over £30,000 of investments which were placed in a trust by the deceased client, for his children. The solicitor, acting as executor, cashed in the trust and used it to pay off gambling debts which everyone including the Law Society is now trying cover up.

Even serving one's country it seems, is no guarantee to not being ripped off after death by crooked lawyers out to line their own pockets, with the likes of the good old Law Society of Scotland and the Scottish Legal Complaints Commission sitting back and doing absolutely nothing.

The few examples above (just four out of hundreds), show that even lawyers, supposedly guaranteed & regulated by the Law Society of Scotland, are incapable of honestly handling the affairs of their deceased clients – so any regulation brought in to oversee non-lawyer will writers, must be much more effective than the dismal offerings of regulatory guarantee by the legal profession.

Don't let your will and what you leave behind to your family fall victim to another crooked lawyer such as Andrew Penman or any unregulated individual or business who can offer no guarantees your final wishes will be handled properly without your family being ripped off. Give your views on this consultation and help all Scots to ensure their wills are afforded the proper respect & honesty they deserve.

Ex-Law Society Chief who led campaign against complaints reforms, resigned over anti client memos, now supports independent regulation of lawyers

Former Law Society Chief Executive Douglas Mill, eventually brought down by his own memos. DOUGLAS MILL, former Chief Executive of the Law Society of Scotland who once threatened a legal challenge against the Parliament over regulation reforms, whose secret memos revealed he masterminded a policy of defeating claims & complaints made against ‘crooked lawyers’, and who famously attempted to frame critics of the legal profession for a spectacular mafia style murder attempt on his own colleague, Law Society Chief Accountant Leslie Cumming, (which later turned out to have been staged by rogue lawyers in fear of being investigated for criminal activity), has written to the Scottish Parliament’s Justice Committee admitting that independent regulation of an expanded legal services market is needed in Scotland, after concerted campaigns by consumer groups & law reformers to open up Scotland’s closed shop legal services market saw the introduction of the Legal Services Bill, currently being considered by MSPs.

Douglas Mill attacks Law Society for change of views & Parliament for lack of research. Mr Mill, who begins his letter expressing surprise at the volt-face in Law Society of Scotland policy in relation to Alternative Business Structures, going onto criticise and even the lack of a research base on the issues contained in the Legal Services Bill said : “I was privileged to serve on the Scottish Executive’s Research Working Group on the legal services market in Scotland which reported in 2006. One of the issues examined was restrictions on business structures and the conclusion reached by the Committee was The issue of Alternative Business Structures appeared to be likely to stay on the agenda and policy development work would be required to establish the extent to which they suited Scottish circumstances and how they might be best regulated if they were to become a reality in Scotland. To the best of my knowledge no subsequent research or policy development took place. Particularly when this Report identified not just one market for legal services in Scotland but a number of segmented geographical and practice area markets, it is at best very surprising for a Parliament committee to introducing evidence-based legislation to be proceeding without the underpinning research which such a profound piece of legislative change demands.”

Douglas Mill then went onto attack the philosophies contained in the Legal Services Bill as being conceived in the late 90s and early 2000s, when law firms were rolling in profits & giving senior partners huge bonuses. Mr Mill told the Justice Committee that such proposals now ”surely require examination in the current economic climate”.

On the subject of ‘independence of the Scottish Legal Profession, Mr Mill who as we all know is not shy in stating his views, comparing some of the proposals contained in the Legal Services Bill as something akin to forcing a ‘Banana Republic’ legal profession on Scotland (but we already have that, don’t we ?)

Mr Mill stated in his letter to the Justice Committee, again critical of their motives over the Legal Services Bill : “Independence of Scots Law and the Scottish Legal Profession -The Bill strikes directly at the heart of these and it is worrying to hear in some quarters that saying so is in some way “scare-mongering”. The potential for direct Governmental control of the legal profession contained in for instance section 35 could reduce Scotland to the type of legal profession seldom seen outside South America and Equatorial Africa. Whilst there are significant pressures towards the assimilation of Scottish and English law it surely ill-becomes a Scottish Parliament to facilitate that.”

Douglas Mill’s view of regulatory difficulties, mostly caused by himself and the Law Society. On the subject of regulation, it is hardly surprising Douglas MIll vents his frustrations at the regulatory aspects of the alternative business proposals contained in the bill. Mr Mill commented : “Regulatory Difficulties – I agree with the issues mentioned by Professor Alan Paterson from Strathclyde University in his Written Submission. I would say however that in my experience of being effectively the regulator of the legal profession in Scotland for approximately 12 years, my views are stronger based on significant direct experience. These difficulties take a number of forms:- (a) Regulation of solicitors at the moment is a relatively straightforward matter as the ultimate penalty is striking a solicitor off the Roll of Solicitors and denying him/her their livelihood. No such significant penalty will apply to non-lawyer proprietors.”

Mr Mill continues in his submission to state the Law Society of Scotland cannot regulate ‘conventional solicitor firms’ and Alternative Business Structures, calling the situation a “profound conflict and an impossibility for the Law Society of Scotland.”

Sadly Mr Mill ignores the fact that most of the Law Society’s regulatory difficulties grew out of his 12 years of being the Law Society of Scotland’s Chief Executive, and continues in a ramble on regulation which ends with an attack on the Law Society itself, who, in Mr Mill’s own words ‘appear’ to have “accepted section 92 of the Bill which simply allows Scottish Ministers to control the representative body is, in the view of many, the final nail in its coffin as a representative body.”

In a strong statement to the Justice Committee on the issue of money laundering laws, Mr Mill goes onto accuse the Legal Services Bill of facilitating ownership of legal firms and their use as money laundering portals, although it seems several Edinburgh law firms have helped clients with dodgy secret foreign bank accounts in countries outside the tax jurisdiction of the UK authorities, leaving Mr Mill’s praise of the Law Society & profession in this regard, rather hollow.

Douglas Mill’s 12 years as THE regulator of Scottish lawyers led him to attempt to frame critics for a murder attempt on colleague Leslie Cumming, over reputed money laundering investigations. Mr Mill on the subject of money laundering said : “Whilst money laundering obligations sat uncomfortably on solicitors’ duties of confidentiality when they were introduced, they are now accepted as entirely necessary. Indeed the Law Society of Scotland and the legal profession in Scotland are to be congratulated for their excellent record in this area. The Bill quite simply facilitates ownership of legal firms and their use as money laundering portals. As Professor Paterson says, “Ensuring that the fitness for involvement test is effective to exclude criminal elements from investing in or taking control of law firms is a significant issue.” Significant and impossible to ensure. I have spoken to solicitors in Glasgow involved in criminal law who are very well aware of the potential danger of control by criminal elements.”

Mill continued to condemn the bill’s proposals, saying : ““The money laundering rule of law and mortgage fraud implications are such that with the greatest conceivable respect the mechanisms in the Act are frankly risible.

Douglas Mill might worry about lawyers & criminals coming together, but as I reported earlier, its already happening, on a huge scale : Scotland's Got Crooked : Police investigation reveals hundreds of crooked lawyers & accountants assisting organised crime gangs

Mill also went onto claim it was inappropriate that lawyers be asked to put their own money into a ‘Guarantee Fund” which would also cover non-lawyers, putting forward the idea that a separate Guarantee Fund should be created by the Scottish Government for the non-lawyer entrants into the Alternative Business Structures legal services market.

Mill said : “Again Professor Paterson is correct in identifying that for the protection of the public, the Guarantee Fund presently operated by the Law Society of Scotland is essential. It is entirely inappropriate for traditional solicitors to be asked to be joint and severally liable for the financial actings of non-lawyer proprietors. The alternative is the funding of a separate Guarantee Fund for Alternative Business Structures. This is an area where the Government has to be careful or the disaster of the Scottish Executry Services Board will be repeated.”

It should be noted that despite Mr Mill’s claims of public protection via the Law Society’s current “Guarantee Fund” arrangements, the Law Society version is itself, mired in scandal and woefully short of funds, which you can read more about here : 'Ground-breaking' investigation into Law Society's Master Policy insurance reveals realities of corrupt claims process against crooked lawyers and here : Advisory : Clients must protect their money from unsafe legal firms as Law Society's Guarantee Fund fails

In a final swipe at the Scottish Government’s proposals, Douglas Mill attacks the regulatory architecture of the Legal Services Bill, even going so far as to propose an equivalent of the English Legal Services Board, to be independent of the Law Society of Scotland and the Scottish Government – interesting turn around from Mr Mill .. who I’m sure wants to head up any such organisation, much to the detriment of consumers, and Scots everywhere.

Ex Law Society Chief finally admits independent regulation is a must if the legal services market is to be opened up in Scotland. Mr Mill said : “A Regulatory Architecture - I have to say in passing that the financial memorandum is totally and utterly unrealistic. For Alternative Business Structures to work in Scotland on a regulatory basis there requires to be a strong body independent of both the Law Society of Scotland and the Government and it has to be funded properly. In other words, there would require to be a Scottish equivalent of the Legal Services Board down South with all the costs that would imply. One alternative is however for the English Legal Services Board to have jurisdiction over ABSs with “outlets” in Scotland although this may correctly be seen as politically inappropriate.”

Douglas Mill’s letter to the Justice Committee on the Legal Services Bill can be downloaded in pdf format HERE

Douglas Mill does make some good points, particularly of course on independent regulation of the legal services market – including of course, independent regulation of solicitors. However, if we are to see it, people such as Mr Mill, despite his self proclaimed 12 year experience as THE regulator of solicitors in Scotland, must be kept well away from any ‘independent’ body to ensure the public get the protection they have as yet, never had against ‘crooked lawyers’ and others working in the legal services sector in Scotland.

Mill’s confrontation with John Swinney effectively ended his run as the Law Society’s Chief Executive. For those not in tune with the recent past, Douglas Mill will be best remembered for spectacularly resigning in January 2007 a few weeks after video coverage was published of his terse confrontation with the now Cabinet Secretary for Finance, John Swinney over Mill’s own memos against clients of ‘crooked’ law firms, which the Herald newspaper reported the previous year had demonstrated a resolve to defeat client’s damages claims against Scottish solicitors & law firms and the infamous “Master Policy” Professional negligence insurance scheme run by crooked insurers Marsh UK & the Law Society itself.

You can read more about Douglas Mill’s resignation over the memo-gate affair, here : Breaking News : Law Society Chief Executive Douglas Mill who lied to Parliament, pursued 'personal vendetta' against critics - to resign and some previous reports on Douglas Mill, HERE