Scottish Legal Aid Board Chiefs were told by Law Society to keep report on legal aid scandal lawyer a secret. WORRIED officials at the Law Society of Scotland have ordered bosses at the Scottish Legal Aid Board (SLAB) TO REFUSE Freedom of Information requests for copies of the Law Society’s own, as-yet-unpublished, damning ‘reporter’s report’ on solicitor Niels S Lockhart who, the Sunday Mail newspaper recently revealed stood accused by Legal Aid Chiefs of making “unnecessary & excessive” claims for legal aid, while raking in over £600,000 in legal aid funds paid out of the public purse in over two years.
Last Friday, Diary of Injustice published the full Scottish Legal Aid Board report on Niels S Lockhart SCOTTISH LEGAL AID BOARD S31 COMPLAINT REPORT TO THE LAW SOCIETY OF SCOTLAND : NIELS S LOCKHART (pdf)along with a summary of SLAB’s allegations, running to twelve heads of complaint alleging on the part of Mr Lockhart : 1) Excessive attendances, (2) Lack of Progress, (3) Splitting/Repeating Subject Matters, (4) Inappropriate Requests for Increases in Authorised Expenditure, (5) Matters resubmitted under a different guise, (6) Standard Attendance Times, (7) Attendances for Matters Not Related to the Subject Matter of the Case, (8) Unreasonable Charges, (9) Double Charging for Correspondence, (10) Account entries not supported by Client Files, (11) Attempt to Circumvent Statutory Payment Procedure for Property Recovered or Preserved, (12) Continued Failure to act with Due Regard to Economy.
The full story of what happened to that report, along with the involvement of the Law Society of Scotland & the Legal Defence Union, is here : One law for lawyers : Secret Report reveals Legal Aid Board, Law Society & Legal Defence Union ‘cosy relationship’ in Lockhart case. My earlier report on the Lockhart case, along with the Sunday Mail’s exclusive investigation is here : Calls to investigate Scottish Legal Aid Board & Law Society over ‘dodgy dealings’ in ‘voluntary removal’ of £600k lawyer from legal aid register
A Director of the Scottish Legal Aid Board, who was asked to provide the Law Society’s own ‘reporter’s report’, which is rumoured to agree with most of the headings of complaints made against Mr Lockhart by the Scottish Legal Aid Board, said : “I cannot provide you with the Law Society of Scotland’s reporter’s report, as this is covered by section 34/section 26. For the same reason, I cannot provide you with the letter sent to the Board by the Law Society in December 2010, although its content is summarised in the information we did provide you. I am happy however to seek the consent of the Law Society of Scotland to the release of the information they provided and will revert to you when I receive their reply.”
After several days, the SLAB Director confirmed the Law Society had refused disclosure of their report on Niels Lockhart, saying : “I contacted the Law Society of Scotland to seek consent to release to you the reporter’s report in the complaint against Niels Lockhart and the letter from the Society in response to the redacted letter from the Board I provided you with last week. The Society has declined that consent, so I am afraid I remain prohibited by section 34 of the Legal Aid (Scotland) Act 1986 from releasing it to you.”
After seeking a review of the decision to withhold the Law Society’s report on Lockhart, yet another Legal Aid Board Director was brought in to study the original decision to refuse disclosure of the Law Society’s secret Lockhart report.
He said : “In his response of 16 March 2011, **** indicated that he had withheld disclosure of the Law Society Reporter’s report on the basis that Section 26 of the Freedom of Information (Scotland) Act 2002 provides that information may be withheld if its release is prohibited under another enactment. In this case, **** explained that Section 34 of the Legal Aid (Scotland) Act 1986 prohibits release of information provided to the Board in the course of the discharge its functions without the consent of the individual who provided it, to do so would be a criminal offence. He undertook to seek such consent. In his email of 21 March 2011, he intimated that such consent had been withheld by the Law Society of Scotland. It is my conclusion, upon review, that **** has acted appropriately in withholding the information; and that the lack of the Law Society’s consent, remains an impediment to the release of that report.”
A solicitor who spoke to Diary of Injustice last week over the Lockhart scandal, said today it was rubbish to suggest the Legal Aid Board needed the permission of the Law Society to publish their own report on SLAB’s complaint.
He said : “The Law Society’s report on a complainer’s complaint is the property of the complainant and can be published if they so wish. It is therefore fallacious of the Legal Aid Board to suggest they need the permission of the Law Society to disclose it under Freedom of Information legislation.”
He continued : “SLAB are the complainant so they can publish it if they like although it now looks like they have more to hide than the Law Society in the Lockhart case because they did nothing about it.”
An official with one of Scotland’s consumer organisations agreed the decision by the Scottish Legal Aid Board to withhold the Law Society’s own report on Lockhart was wrong.
She said : “Given the amount of media coverage this case has received, it is surely in the public interest the Law Society’s own reporter’s report on Mr Lockhart is also disclosed by the Legal Aid Board, whether the Law Society want it or not.”
She continued : “After all we are talking about legal aid which is paid for by public funds and if these allegations made by the Scottish Legal Aid Board against Mr Lockhart were also held to be true by the Law Society’s own investigating solicitor, then it is certainly in the public interest for us to see these reports, a copy of the agreement between SLAB & the Law Society, and question why nothing was done to recover amounts of legal aid paid to Mr Lockhart which SLAB themselves called unnecessary & excessive claims. If this turns out to be as much a failure at the Legal Aid Board as well as the Law Society who apparently both did nothing about allegations involving possible misuse of public money, the public have a right to know”.
The Scottish Legal Aid Board have not released a copy of the ‘minute of agreement’, which was apparently drafted up after discussions with the Law Society & the notorious Legal Defence Union, leading to speculation that if they had wanted to, Legal Aid Chiefs could have pursued their allegations against Mr Lockhart to effect some measure of repayment to public funds, however the deal was signed and Mr Lockhart was allowed to quietly ‘remove himself’ from the legal aid register, this after a four year long investigation by the Law Society of Scotland into SLAB’s twelve heads of complaint against Mr Lockhart.
Commenting on the Lockhart-Legal Aid scandal, John Lamont MSP, the Scottish Conservative’s Justice Spokesman said : “Legal aid is a vital and valuable resource that rightfully extends proper justice to those who otherwise could not afford it. Any abuse of this system is abhorrent and we must do everything we can to ensure that we identify and punish those who try to commit legal aid fraud."
The Scottish Legal Aid Board were approached for comment on the case and were asked several questions.
A spokesperson for SLAB issued a general statement on the case, saying : "The Board takes very seriously any cases of abuse or fraud of legal aid, the latter is a matter for the Crown Office. This case did not involve fraud. As a result of the Board's actions in refusing to pay Mr Lockhart's accounts, public funds were protected. In this case the Board was concerned to ensure that Mr Lockhart stopped undertaking legal aid as early as possible. The Board does not have the powers to prevent or stop solicitors from practising civil legal assistance regardless of their behaviour. Such powers correctly rest with the Law Society. However, as a consequence of the Legal Services (Scotland) Act, this power will transfer to the Board from 1 May 2011. Where there is evidence of fraud or abuse of legal aid, the Board will use this new power to take timely and appropriate action. In Mr Lockhart's case, the agreement reached meant that he stopped, for all time, all legal aid work."
The Scottish Legal Aid Board were asked if they thought this a proper way to go about protecting public finances from solicitors who are accused of making "unnecessary and excessive" legal aid claims by allowing a solicitor to walk away from such evidence as contained in the report without any repayment to the public purse.
A spokesperson replied : “Public funds were protected as the Board has only paid what it saw fit. Many accounts were not paid by the Board. Because Mr Lockhart was under investigation for a considerable period of time by the Law Society, we invested a large amount of staff resources to intensively scrutinise the firm's accounts for that considerable period of time. Therefore, there is no need for monies to be repaid.”
SLAB were asked if they would like to comment on the involvement of the Legal Defence Union on behalf of the solicitor, while a claimant who may have been accused of wrongly or fraudulently claiming legal aid could have expected to be charged with a criminal offence.
A spokesperson replied : “Mr Lockhart was not accused of fraud. It was not a criminal matter. Where fraud may be involved, the Board's position is the same whether it involves a solicitor or an applicant. The case will be referred to the Crown Office. In such cases, an applicant can seek the services of a solicitor and can apply for legal aid. Where a case is being investigated by the Law Society, as in Mr Lockhart's case, it is not a matter for the Board whether the solicitor has accessed the services of the LDU to advise and represent them. The LDU is not paid from public funds.”
SLAB were asked if they would like to offer any comment on why the Law Society took 4 years to investigate Mr Lockhart and whether SLAB finds this 4 year investigation time span a satisfactory state of affairs.
A spokesperson replied : “This is a matter for the Law Society to comment on. It was very disappointing to the Board that the matter was not concluded earlier given the large amount of resources that the Board continued to have to put into scrutinising and refusing to pay Mr Lockhart's accounts in order to protect the public purse.”
SLAB were asked if they will be reviewing or curtailing the involvement of the LDU to negotiate away any prospect of a solicitor being charged with fraudulent claims of legal aid or being required to repay SLAB for erroneous or fraudulent claims of legal aid in the future.
A spokesperson replied : “If a case involves fraud the Board always refers the matter to the Crown Office. This would be done without referral to other parties. In this case there was no question of the LDU being able to negotiate away any prospect of a solicitor being charged with fraudulent claims of legal aid or being required to repay SLAB for erroneous or fraudulent claims of legal aid in the future.”
The Law Society of Scotland are rumoured to have demanded a halt to releases of information on legal aid scandals. A legal insider at the Scottish Government today confirmed the Law Society of Scotland were demanding no more releases of documents which may reveal several further secret deals between the Legal Aid Board & the Law Society over legal aid irregularities. The insider alarmingly claimed the collective figures over the years where numerous solicitors are suspected of making the same kinds of “inflated & unnecessary” claims as Mr Lockhart did, may run into MILLIONS OF POUNDS taken from the legal aid budget, funded by taxpayers.
Do you think the public purse was protected by the Scottish Legal Aid Board in the case of Niels S Lockhart who was subject to twelve very serious heads of complaint against his conduct and his legal aid claims, complaints which took the Law Society of Scotland FOUR YEARS to investigate, only to be binned after Legal Aid Chiefs withdrew their complaint when the Legal Defence Union brokered a deal to allow Mr Lockhart to walk away from allegations of excessive legal aid claims ? I don't !