Sunday, July 24, 2011

Standards, but not as we know them : International Bar Association’s ‘Fantasy’ ethics guide for lawyers broken daily in Scots legal profession

Michael ClancyNo standards are good standards : Law Society of Scotland’s Director of Law Reform Michael Clancy sits on International Bar Association. A CODE OF ETHICS, a term not widely associated with the Law Society of Scotland & Scotland’s legal profession who were recently revealed to have hacked ‘difficult client’s private details in cases connected to complaints & financial damages claims made against negligent or ‘crooked’ Scottish solicitors, have been ‘updated’ in a guide published by the International Bar Association which describes itself as ‘the world’s leading organisation of international legal practitioners, bar associations and law societies’.

A clue to how useful the guide is to consumers may be in the inclusion of the Law Society of Scotland’s Director of Law Reform, Michael Clancy, who has at least twice stepped in to curtail moves to reform ethics, regulation & complaints in Scotland’s legal profession. Several currently serving & former MSPs at the Scottish Parliament have disclosed discussions with Mr Clancy over constituents problems & issues connected with ethics & regulation of the legal profession which fall very wide of the mark of what is little more than a ‘fantasy guide’ from the IBA as any client caught in the maelstrom of dealing with a complaint against their legal representative will know.

The International Bar Association's website states in a release on the subject :

The IBA International Principles is the 21st century version of a set of ethics for the legal profession first introduced more than 50 years ago, with the precursors to today’s edition as the ‘IBA International Code of Ethics’ (1956 and 1988). The gathering pace of globalisation and increase in cross-border transactions has led to the Code of Ethics being  revisited and republished, resulting in today’s publication. A thorough process with input from representatives of the legal profession from all continents has produced 10 core principles which should be common to all lawyers. 

The 10 core values constituting the IBA International Principles, compiled from input from representatives of the legal profession from all continents has produced principles which, the IBA says, should be common to all lawyers in 10 core areas:

1. Independence
  A lawyer shall maintain independence and be afforded the protection such independence offers in giving clients unbiased advice and representation. A lawyer shall exercise independent, unbiased professional judgment in advising a client, including as to the likelihood of  success of  the client’s case.

2. Honesty, integrity and fairness
  A lawyer shall at all times maintain the highest standards of honesty, integrity and fairness towards the lawyer’s clients, the court, colleagues and all those with whom the lawyer comes into professional contact.

3. Conflicts of interest
  A lawyer shall not assume a position in which a client’s interests conflict with those of the lawyer, another lawyer in the same firm, or another client, unless otherwise permitted by law, applicable rules of  professional conduct, or, if  permitted, by client’s authorisation.

4. Confidentiality/professional secrecy
  A lawyer shall at all times maintain and be afforded protection of confidentiality regarding the affairs of  present or former clients, unless otherwise allowed or required by law and/or applicable rules of  professional conduct.

5. Clients’ interest
  A lawyer shall treat client interests as paramount, subject always to there being no conflict with the lawyer’s duties to the court and the interests of  justice, to observe the law, and to maintain ethical standards.

6. Lawyers’ undertaking
  A lawyer shall honour any undertaking given in the course of the lawyer’s practice in a timely manner, until the undertaking is performed, released or excused.

7. Clients’ freedom
  A lawyer shall respect the freedom of clients to be represented by the lawyer of their choice. Unless prevented by professional conduct rules or by law, a lawyer shall be free to take on or reject a case.

8. Property of clients and third parties   
  A lawyer shall account promptly and faithfully for and prudently hold any property of  clients or third parties that comes into the lawyer’s trust, and shall keep it separate from the lawyer’s own property.

9. Competence
  A lawyer’s work shall be carried out in a competent and timely manner. A lawyer shall not take on work that the lawyer does not reasonably believe can be carried out in that manner.

10. Fees
  Lawyers are entitled to a reasonable fee for their work, and shall not charge an unreasonable fee. A lawyer shall not generate unnecessary work.

Each principle is clearly defined in the booklet available HERE and contains expanded commentary on how it could be used as a basis to establish codes of conduct for lawyers within different jurisdictions.

James Klotz, Chair of the IBA BIC says : We are hopeful that the “IBA International Principles” will serve as a basis for codes of conduct throughout the global legal profession and beyond. It is our aim that governments and other appropriate authorities in relation to furthering and improving the rule of law and defending liberty and justice will also realise the value of the core principles, so essential to the independence of the legal profession and democracy.’ He added, ‘We believe that fledgling bar associations struggling to establish independence, will find the principles a particularly great resource.”

For a reality check on the IBA’s guide to ethics, the following article may provide a more informed view on the realities of relationships between clients & solicitors in Scotland’s legal services market : Toxic levels of complaints, poor standards of service & soaring fraud by solicitors makes Law Society of Scotland 'World's worst regulator'

In the cold reality of what is Scotland’s invariably dishonest legal services market, each & everyone one of the IBA’s 10 principles, values or whatever they wish to call them, appears to be broken multiple times on a daily basis.

Scots clients & consumers, especially in today’s difficult financial times,, have no guarantees, safety or reason to put any faith or trust in their relationship with their legal representatives as far as I can see from the weekly lists of cases of breaches of client trust brought to the attention of Diary of Injustice on a regular basis.

Michael Clancy BACKGROUND :

Michael Clancy recently stepped into block a petition at the Scottish Parliament calling for the repeal of the Solicitors (Scotland) Act 1980, which I reported on here : Law Society ‘warns’ Scottish Parliament : Solicitors (Scotland) Act 1980 ‘should not be repealed’ by msps or Scottish Government

Mr Clancy also recently served on the Calman Commission review of devolution, viewed by many Scots as little more than a move to curtail more power being handed over to the Scottish Parliament & Scottish Government. An article reporting on Clancy’s role in this matter is here : Vested interests take priority as Calman Implementation Group ‘contaminated’ by Law Society of Scotland’s ‘reform blocker’ appointment

13 comments:

Anonymous said...

None of our rogues in Scotland will ever obey those kind of ethics.MONEY FIRST for Scottish Lawyers as you well know!

Anonymous said...

1. Independence
A lawyer shall maintain independence and be afforded the protection such independence offers in giving clients unbiased advice and representation. A lawyer shall exercise independent, unbiased professional judgment in advising a client, including as to the likelihood of success of the client’s case.

PROTECTED BY THE MASTER POLICY WHEN IT ALL GOES WRONG!

2. Honesty, integrity and fairness
A lawyer shall at all times maintain the highest standards of honesty, integrity and fairness towards the lawyer’s clients, the court, colleagues and all those with whom the lawyer comes into professional contact.

HAHA WHAT A JOKE AN HONEST LAWYER!

3. Conflicts of interest
A lawyer shall not assume a position in which a client’s interests conflict with those of the lawyer, another lawyer in the same firm, or another client, unless otherwise permitted by law, applicable rules of professional conduct, or, if permitted, by client’s authorisation.

MONEY FIRST CLIENTS LATER

4. Confidentiality/professional secrecy
A lawyer shall at all times maintain and be afforded protection of confidentiality regarding the affairs of present or former clients, unless otherwise allowed or required by law and/or applicable rules of professional conduct.

NOT IF THE LAW SOCIETY WANTS ALL THE DETAILS ON THE CLIENT!

5. Clients’ interest
A lawyer shall treat client interests as paramount, subject always to there being no conflict with the lawyer’s duties to the court and the interests of justice, to observe the law, and to maintain ethical standards.

NONSENSE LAWYERS INTERESTS ALWAYS FIRST WE HAVE NEWSPAPERS HERE TOO YOU KNOW MR IBA!

6. Lawyers’ undertaking
A lawyer shall honour any undertaking given in the course of the lawyer’s practice in a timely manner, until the undertaking is performed, released or excused.

AN UNDERTAKING FROM A LAWYER WOW I CAN SEE EVERYONE BELIEVING THAT!

7. Clients’ freedom
A lawyer shall respect the freedom of clients to be represented by the lawyer of their choice. Unless prevented by professional conduct rules or by law, a lawyer shall be free to take on or reject a case.

MASTER POLICY ENCOURAGES LAWYERS TO CAUSE THEIR CLIENTS TO SUICIDE

8. Property of clients and third parties
A lawyer shall account promptly and faithfully for and prudently hold any property of clients or third parties that comes into the lawyer’s trust, and shall keep it separate from the lawyer’s own property.

A LAWYER SHOULD STEAL AS MUCH AS POSSIBLE OF THEIR CLIENTS PROPERTY PLENTY EXPERIENCE THIS AS WE ALL KNOW

9. Competence
A lawyer’s work shall be carried out in a competent and timely manner. A lawyer shall not take on work that the lawyer does not reasonably believe can be carried out in that manner.

INCOMPETENCE USED AS AN EXCUSE TO COVER STEALING CLIENTS ASSETS OR LEGAL AID

10. Fees
Lawyers are entitled to a reasonable fee for their work, and shall not charge an unreasonable fee. A lawyer shall not generate unnecessary work.

LAWYERS CHARGE WHAT THEY WANT WE ALREADY KNOW THEY LOAD THEIR FEES AND LIE ABOUT THE COST OF WORK THEY NEVER DID JUST TO STEAL MORE

Anonymous said...

How does Clancy's ethics fit in with this :

http://www.thefreelibrary.com/News+Special%3A+Revealed%3A+Top+lawyer+at+the+centre+of+12+negligence...-a0144833629

REVEALED: TOP LAWYER AT THE CENTRE OF 12 NEGLIGENCE CLAIMS
EXCLUSIVE Brief who's making a career out of failure
By Russell Findlay

THIS is the high-flying solicitor at the centre of a remarkable 12 negligence claims.

John O'Donnell, 54, makes a comfortable living from conducting complicated property transactions.

But we can reveal insurers Royal & Sun Alliance have already been forced to pay out £350,000 on seven negligence claims against him. And at least five more worth £200,000 are still being contested. His firm, John G O'Donnell & Co, is based in Cathcart, Glasgow. The Law Society for Scotland, who govern the conduct of lawyers, keep his record of complaints a secret.

O'Donnell has also been accused of misconduct but the Law Society, â„¢ has not brought any cases to the Scottish Solicitors' Discipline Tribunal. The claims centre on complicated transactions involving property and mortgages. 9 One case settled with an £81,000 payout involved Glasgow boxing promoter Alex Morrison, 67, for whom O'Donnell acted in the 2002 sale of his Sydney Street gym to Scottish Enterprise for £130,000. The sale money should have gone to Morrison's offshore firm, Decafarm Ltd, but was instead issued to O'Donnell's.

Decafarm complained to Strathclyde Police fraud squad but the procurator fiscal decided not to prosecute. 9 In other cases, his clients took out two mortgages on property and sold the property, paying off one mortgage. The others lender then had to pursue the solictor for negligence to get their money back - and his insurance paid out.

Last night, ex-SNP leader and legal reform campaigner John Swinney said:

"This appears a clear example of why a robust and independent complaints handling system is required.

"I hope forthcoming legislation to be considered by Parliament will address these issues."

Peter Cherbi, of Injustice Scotland, said: "If you buy a tin of beans, you can see the ingredients on the label. If you're paying a solicitor, you should be aware of what he or she has been up to.

"I'm also asking Justice Minister Cathy Jamieson to revoke the exemption of the Law Society ofScotland from the Freedom of Information Act."

Last month, it emerged that complaints against lawyers had risen 30 per cent in a year to almost 5000.

But a Law Society of Scotland spokesman said: "The consumer protections for clients of Scottish solicitors are second to none."

Last night, a legal firm issued a statement on his behalf. It read: During 2000-2002, John O'Donnell received treatment for a mental illness. He was diagnosed with clinical depression. During those dark days, Mr O'Donnell accepts his own high standards slipped.

"Indeed, when making a determination, the Law Society of Scotland makes reference to his illness, citing this as 'extenuating circumstances'.

"In 2003, Mr O'Donnell started a new legal practice and has many loyal and satisfied clients."

Two years ago, the Sunday Mail revealed that O'Donnell's office was searched by police as part of a money-laundering probe into McGovern crime family lieutenant, Russell Stirton, 46.

Anonymous said...

No one believes this ethics crap about any profession after the bankers did what they did and got away with it!
Are the IBA trying to drum up business for lawyers around the world with this rubbish?
It wont work here!

Anonymous said...

SCOTTISH LAWYER ETHICS MEANS THIS KIND OF THING HAPPENS ALL THE TIME

http://www.dailyrecord.co.uk/news/scottish-news/2010/07/18/shamed-lawyer-stays-out-of-court-despite-admitting-221k-of-bogus-claims-86908-22421816/

LIAR AID : Fury as shamed lawyer stays out of court despite admitting £221k of bogus claims

Jul 18 2010 Exclusive by Derek Alexander, Sunday Mail

A LAWYER has escaped the dock – after handing back more than £200,000 of bogus legal aid claims.

A criminal probe into Iain Robertson has been dropped after he returned £221,847 to the Scottish Legal Aid Board. Amazingly, Robertson is even allowed to continue claiming legal aid for civil cases while waiting to discover if he will be struck off.

The scandal centred on the 57-year-old shamed solicitor and his firm Robertson & Ross in Paisley. Another lawyer – Aberdeen-based Alastair Gibb – was also investigated.

Scots Lib Dem justice spokesman Robert Brown demanded to know why Robertson is not being taken to court. He said: “It seems that the Crown Office have some questions to answer as to why they didn’t prosecute what appears to be a straightforward fraud involving a significant amount of money.”

Labour justice spokesman Richard Baker added: “This is a very serious issue and we should have clarity on why the Crown Office decided not to proceed. “The sum of cash is huge and I’ll be interested to know why the lawyers involved haven’t faced criminal charges.”

Robertson was accused of submitting £223,000 worth of false claims for taxpayers’ cash from SLAB over an 18-month period. The claims were based on Gibb travelling thousands of miles from Paisley to see clients in Aberdeen and Peterhead prisons. In reality, Gibb was living in Kingswells, near Aberdeen.

Earlier this month, Robertson agreed to pay have back £221,847 to SLAB and was banned from claiming criminal legal aid cash in the future. But he’s still allowed to claim legal aid for any civil cases he undertakes. Gibb, 60, did not renew his certificate to practise as a solicitor with the Law Society of Scotland after SLAB called in police two years ago.

Fraud squad detectives submitted a detailed report about the case to Crown prosecutors in April, 2008. But officials marked the case “no proceedings” and stubbornly refuse to explain their decision.

Last year Robertson & Ross received £367,600 in legal aid compared to £832,000 between 2007 and 2008. Legal aid exists to pay fees for those who can’t afford to hire a solicitor.

Gibb claimed he was sacked by Robertson & Ross but was awarded a cash settlement by the firm before an unfair dismissal tribunal. He said: “What went on between SLAB and Robertson & Ross is totally outwith my knowledge, other than that I assisted SLAB once. I’m now 60 and don’t have a hope in hell of getting a job now. I’ve been wiped out.”

In December, 2008, Robertson was censured by the Scottish Solicitors’ Discipline Tribunal for ripping off a client for £21,308. He took cash payments from the woman while claiming legal aid for the work. He was fined £5000 and found guilty of professional misconduct.

A SLAB spokesman said: “Iain Robertson and Alastair Gibb have been investigated. The sum of £221,847 has been paid back.”

Robertson said: “It was accepted that payments had been wrongly claimed and as the supervising partner I had to accept responsibility. “We dealt with the matter and agreed the figures. I’m disappointed that SLAB have taken the decision they have.”

A Crown Office spokeswoman said: “We received a report in relation to two men aged, 60 and 57, in relation to an alleged incident in Paisley in 2008. After full and careful consideration of the facts and circumstances, Crown Counsel instructed there should be no proceedings in relation to this matter.”

Anonymous said...

Ethics is not the first thing that springs to mind if the words "Scottish lawyers" are mentioned together..

Anonymous said...

I dont see anything about Human Rights in those 10 principles they are supposed to be following.Probably because lawyers don't give a sh*t about their clients Human Rights unless a lot of money is going to come out of it (probably via legal aid)

Anonymous said...

Lawyers writing about ethics.. they dont know the meaning of the word and that is proved even in the comments to your posting.

Anonymous said...

The IBA seem to think too much of themselves although as you point out with those kind of people on it little wonder they come up with this nonsense.

Anonymous said...

Instead of some anonymous international pro-lawyer lobby group (the iba) making such a grand sweeping set of claims about solicitors alleged integrity & ethics why isnt the Scottish Legal Complaints Commission coming out with an equivalent agreeable rant?

Anonymous said...

Yes pure fantasy and a good measure of spin!

Anonymous said...

10 points of BS as far as I am concerned.The IBA are full of it!

Anonymous said...

Where Mr Clancy is concerned deeds clearly speak louder than words.