When lawyers fall out at Biggart Baillie LLP : SLCC's decision to dismiss lawyer’s ‘vexatious complaint’ against own law firm thrown out by judges

Lord President Lord Hamilton was critical of failures at the Scottish Legal Complaints Commission in appeal judgement for lawyer. THE COURT OF SESSION has allowed an appeal by a partner in the law firm of Biggart Ballie LLP against a decision of the Scottish Legal Complaints Commission (SLCC) to dismiss his complaint against his own firm as "vexatious and totally without merit". The judgement, handed down by the Lord President Lord Hamilton, Lord Bonomy & Lord Marnoch was critical of the SLCC’s decision to dismiss the complaint, relying on the fact David Hamilton Kidd, the solicitor who made the complaint was still a partner at Biggart Ballie. The blundering anti-client SLCC was also heavily criticised by the judges for failing to take steps “to identify with exactness against which solicitor or solicitors this complaint was truly directed”. The critical judgement ironically came on the same day Justice Secretary Kenny MacAskill made yet more appointments to the SLCC’s notoriously anti-consumer board.

While the Court of Session’s judgement scrapped the SLCC’s decision not to investigate the complaint filed by the solicitor, David Hamilton Kidd, and remitted it back to the SLCC to be dealt with, it is noted the solicitor who won the latest round in the numerous court challenges brought by solicitors against the SLCC has himself, faced controversy before, having an entry on the well known Scottish legal scandal expose website BentJudges.com, where during the course of the same law firm Biggart Baillie acting for a clients, letters appear to have been doctored so information was withheld from their client who then complained to the Law Society of Scotland. The Bentjudges.com website goes onto further report Mr Kidd “lost the client's file which contained documentary evidence incriminating his Biggart Baillie colleague, Alan McFarlane in a scheme to defraud a client”.

BentJudges.com reports : “In 2002/2003 the Scottish Legal Services Ombudsman (SLSO) found that the Law Society had twice failed to "understand or investigate" allegations of collusion and conflict of interest against the then law society president’s firm, Biggart Baillie LLP, and two partners. The SLSO findings on the Law Society’s investigation and re-investigation substantiates this website's contention that the Law Society’s failure in its statutory duty to investigate complaints is, without doubt, premeditated. The failures in question involved such extreme departures from established legal principles – coupled with a total disregard of clear-cut evidence of professional misconduct. Any possibility that those failures can be attributed to investigative negligence on the part of those distinguished Law Society legal minds, must surely be discounted.”

The then Scottish Legal Services Ombudsman (SLSO) investigated the complaint made against Biggart Baillie on the case, more of which is reported on the BentJudges.com website along with evidence of doctored letters withheld from the client who reported the law firm to the Law Society of Scotland. It is also noteworthy the SLSO was forced to reinvestigate the Law Society’s re-investigation after being told to look again at the complaint, and criticised the Law Society’s Client Relations office, under the Directorship of Phillip Yelland for not taking steps to intimate the complaints to either Mr Kidd or the other solicitor in the complaint, Alan McFarlane, in an almost re-run of the SLCC’s apparent lack of will to probe the identities of the solicitors at Biggart Baillie who were the subject of Mr Kidd’s complaint.

The SLCC has issued no comment and no estimate of the fees it cost to defend against the action which it has now lost.

The decision from the Court of Session in the latest case involving a solicitor taking on the SLCC, follows :

FIRST DIVISION, INNER HOUSE, COURT OF SESSION Lord President, Lord Bonomy, Lord Marnoch, [2011] CSIH 75 XA35/11 OPINION OF THE COURT delivered by THE LORD PRESIDENT in Application for leave to appeal by DAVID HAMILTON KIDD Applicant; against THE SCOTTISH LEGAL COMPLAINTS COMMISSION Respondents: Act: Davies; Stuart Kidd, W.S. Alt: Lindsay, Q.C.; Simpson & Marwick 25 November 2011

[1] The applicant is a solicitor, having qualified as such in 1973. In 1978 he became a partner in Messrs Biggart Baillie, Solicitors, subsequently Biggart Baillie LLP. He developed a particular expertise in child law. A major client of the firm for about fifteen years was the Scottish Children's Reporter Administration ("SCRA"). The applicant was the leading partner of the firm providing advice to that client.

[2] In about April 2008 the applicant fell ill with depression and anxiety and went off work. The firm continued to act for SCRA, the leading role then being taken by Jennifer Spence, an associate. Later in 2008 the applicant was considering returning to work but his doing so was not regarded as acceptable by his fellow partners. By letter dated 21 November 2008 he received notice, signed by thirty two of the thirty four other equity partners, suspending his entitlement to a share of the profits under the partnership agreement. He was instructed not to attend the office. His fellow partners decided that he must cease to be a partner. A proposal for his retirement was made. In January 2009 the applicant's solicitors were advised by solicitors acting on behalf of the partnership that, unless agreement to his retirement was secured, steps were likely to be taken to expel him. It was stated that significantly more than 80% of the equity partners (the percentage required for such expulsion) had already signed a notice of intention to that effect. Agreement was not immediately reached and the applicant technically remained a partner until December 2010.

[3] In early 2009 SCRA was giving further consideration to the provision to it of legal services. In about April 2009 a written proposal was made to it by Biggart Baillie LLP for the provision of such services - apparently for three years. It was presented under the name of Alan Strain, one of its partners. A number of service delivery areas were identified, the first of these (lot 1) being legal services in relation to the statutory functions of SCRA - essentially child law and related topics. Three other service areas - employment law, property law and general commercial law - were identified. Photographs and professional histories, of each of the legally qualified persons in Biggart Baillie LLP who were presented as able to provide the requisite services, were included in the proposal. For each lot a "lead person" was identified. For lots 2, 3 and 4 the lead person identified was a partner in the firm. For lot 1, however, the lead person identified was Mrs Spence, the associate. The applicant, designed as a partner, was presented as a member of the lot 1 team. The client partner was identified as Alan Strain, the lead person in the lot 2 (employment law) team. In an opening chapter of the proposal it was stated:

"Key to a successful partnership is structuring our service to meet your objectives. We achieve this by allocating a client partner for the contract and a lead person with responsibility for overseeing each service delivery area. ... We anticipate that complex cases will be handled primarily at Partner/Senior Associate level with appropriate support from Assistant Solicitors."

The applicant was not alerted prior to the submission of the proposal to the fact that his name and particulars were to be included in it. Nor was his consent obtained. He had sight of the proposal only many months later.

[4] The Scottish Legal Complaints Commission was established by section 1 of the Legal Profession and Legal Aid (Scotland) Act 2007 (2007 asp 5). Section 2 provides:

"(1) Where the Commission receives a complaint by or on behalf of any of the persons mentioned in subsection (2) - (a) suggesting -
(i) professional misconduct or unsatisfactory professional conduct by a practitioner other than a firm of solicitors or an incorporated practice;
(a complaint suggesting any such matter being referred to in this Part as a 'conduct complaint');
it must ... take the preliminary steps mentioned in subsection (4).
(2) The persons are -
(a) as respects a conduct complaint, any person;
(4) The preliminary steps are -
(a) to determine whether or not the complaint is frivolous, vexatious or totally without merit;
(b) where the Commission determines that the complaint is any or all of these things, to -
(i) reject the complaint;
(ii) give notice in writing to the complainer and the practitioner that it has rejected the complaint as frivolous, vexatious or totally without merit (or two or all of these things)."

By section 46(1) a "practitioner" includes a firm of solicitors and a solicitor. As regards a solicitor "unsatisfactory professional conduct" means "professional conduct which is not of the standard which could reasonably be expected of a competent and reputable solicitor, but which does not amount to professional misconduct. ...". The nature of "professional misconduct" is defined by the common law (Sharp v Law Society of Scotland 1984 SC 129, at pages 134-5).

[5] By section 5(1) it is provided that where the Commission determines under section 2(4) that a complaint is none of frivolous, vexatious or totally without merit, it must determine whether it constitutes a conduct complaint (or a services complaint). If it determines it is a conduct complaint, it must under section 6(1) remit the complaint to the relevant professional organisation (here the Law Society of Scotland) to deal with. Guidance on the application of the sifting provisions in section 2 is given in Law Society of Scotland v Scottish Legal Complaints Commission 2011 SC 94.

[6] The Commission has made provision for complaints to it to be made by completion of a pro forma complaint form. The applicant completed and submitted such a form. In response to the question as to whom he was complaining about the applicant marked each of the boxes "solicitor" and "firm of solicitors". In respect of the former he said: "Of all those involved in preparing this tender I do not know who had actual knowledge of my position but certainly Alan Strain did. Alan Strain has since resigned."; in respect of the latter, he stated "Biggart Baillie LLP". The substance of his complaint was expressed as follows:

"A tender was submitted to SCRA on or about April/May 2009 in which it was misrepresented that I continued to be the lead (and only) partner in the core team that would deliver the core service to SCRA. The reality was that at the time the tender was submitted, it had already been made clear to me that there was no prospect of me being permitted to return to business and provide any legal services to any client or prospective client of the LLP. In making this misrepresentation in the tender SCRA were led to believe that there was a prospect that I could indeed actively resume the role as lead partner in the core team and thereby personally deliver legal services to them. That was untrue."

[7] By letter dated 10 March 2011 the Commission intimated to the applicant that it had determined that his complaint was "vexatious and totally without merit". To that letter it appended "Reasons for the Decision". The substance of the reasoning was expressed as follows:

"3.1 The issue to be determined is whether identifying Mr Kidd as a member of the core team at a time when he was absent on sick leave and Biggart Baillie LLP were actively pursuing his exit from the firm amounts or could amount after further investigation to either unsatisfactory conduct or professional misconduct. Mr Kidd was at the time of submission of the tender a partner in Biggart Baillie LLP. It is difficult to see how presenting him as such and even a partner who was a core member of the team, in a tender could amount to misleading a client and therefore a breach of the conduct standards. Biggart Baillie LLP knew that Mr Kidd's return was highly unlikely but until termination or resignation Mr Kidd remained a partner and Biggart Baillie LLP were entitled and to some extent obliged to treat him as one. There are a number of issues of law surrounding the rights and obligations of partners and firms and these are matters for Mr Kidd and Biggart Baillie LLP.

3.2 The complaint has to be considered in the context of an acrimonious dispute between Mr Kidd and Biggart Baillie LLP. It looks like it may have a vexatious element to it in that it has the appearance of being made in order to make trouble for Biggart Baillie LLP rather than for any other reason. For this reason the SLCC considers the complaint to be vexatious in addition to being totally without merit."

[8] It is now apparent that before the Commission issued that letter its officials had made certain enquiries, the results of which were set out in a "Gateway Recommendation" - although that document was not referred to in the Reasons for the Decision and it is not evident what reliance (if any) the author of the Reasons, whom we were informed was a single Commissioner, placed on the content of that document. The writer of the "Gateway Recommendation" had recommended that the complaint be rejected as totally without merit - though not as vexatious. The writer had observed:

"1.5 No practitioner has been named in this complaint, as the complainer has not identified the practitioner responsible for submitting the tender in question, however, given the writer's conclusion that the complaint is totally without merit, this information will only be sought should the recommendation not be accepted by the Board of the SLCC."

[9] Although, as mentioned above, reference had been made in the complaint to Alan Strain, no enquiry appears to have been made by the Commission of him as to any response he might be able to make to the complaint. Enquiries were, however, made of Biggart Baillie LLP, with the senior partner of which (Mr Murray Shaw) the Commission's Case Officer had correspondence. In the course of it Mr Shaw produced certain documentation, including a number of e-mails. One of these was an e-mail dated 2 December 2009 from Alasdair Peacock, the managing partner of Biggart Baillie LLP, to the applicant in which Mr Peacock had stated among other things:

"They [SCRA] were specifically told that you were on long term absence and as such you were not actively involved in delivering the service. They were well aware of this as you had not been involved for many months. If we had led the client to believe that you were to be actively involved then they would surely have commented on your lack of involvement since the tender was won. They have not done so."

It was stated elsewhere in the documentation that what SCRA were "specifically told" was communicated orally. No documentation passing from Biggart Baillie LLP to SCRA in amplification or qualification of the written proposal was produced.

[10] The nature of the exercise which the Commission has to undertake under section 2 has been explained in Law Society of Scotland v Scottish Legal Complaints Commission. It is a "sifting" exercise, the object of which is to secure that a conduct complaint, which in the judgment of the Commission is frivolous, vexatious or totally without merit, is not passed to the relevant professional organisation for investigation and determination. It is not for the Commission to determine the substantive merits of any conduct complaint nor to undertake any investigation beyond that necessary to discharge its sifting function. In particular, it is not for it to resolve any material dispute of fact which may have a bearing on the complaint. As Lord Kingarth observed at para [35] of Law Society of Scotland v Scottish Legal Complaints Commission, it may be necessary for the Commission to make further enquiry of the complainer to ascertain the basis on which the complaint is made. Ordinarily in a conduct complaint it will also be appropriate for the Commission to seek initial comment from the individual solicitor complained about, if known or ascertainable, on the complaint. That is because, if there is an immediate and instantly verifiable complete answer to the complaint, it is appropriate that that is known before any determination is made under section 2. An accepted complaint alleging professional misconduct or unsatisfactory professional conduct is necessarily a significant matter for any solicitor who is the subject of it; it is likely to be productive of stress (per Lord Kingarth at para [34]). If the solicitor has an immediate and instantly verifiable complete answer to the complaint, it is only fair to him or her that this should be known and taken into account at the sifting stage.

[11] It may be noted in passing that conduct complaints, in so far as directed against solicitors, are competent only against individuals, not against a firm of solicitors or an incorporated practice (section 2(1)(a), as read with section 46(1)). Thus, the comment should be sought from the individual or individuals in question. In some cases it may not be evident who that individual or those individuals are. In such circumstances it may be appropriate, for the purpose only of making that identification, to make enquiry of a relevant firm or incorporated practice.

[12] Section 21(1) of the 2007 Act provides: "Any person mentioned in subsection (2) may, with the leave of the court, appeal against any decision of the Commission under the preceding sections of this Part as respects a complaint on any ground set out in subsection (4)."

The persons mentioned in subsection (2) include the complainer and the practitioner to whom the complaint relates. Section 21(4) provides:

"The grounds referred to in subsection (1) are -
(a) that the Commission's decision was based on an error of law;
(b) that there has been a procedural impropriety in the conduct of any hearing by the Commission on the complaint;
(c) that the Commission has acted irrationally in the exercise of its discretion;
(d) that the Commission's decision was not supported by the facts found to be established by the Commission."
"The court" means the Court of Session (section 46(1)).

[13] Accordingly, any complainer must obtain the leave of this court to appeal against any decision of the Commission under section 2(1). This case comes before us as an application for leave. It was, however, accepted by parties that we should treat it as a "rolled up" application - that is, if we were satisfied that leave should be granted, we should proceed to decide whether or not the appeal should be allowed.

[14] On its face the written proposal carried, in our view, the clear representation to the client that the appellant would be available to provide legal services to it as part of the team providing advice on the primary area of the client's activities, performance of its statutory functions. That there was something unusual about the applicant's position was, however, obvious from the fact that, although he was the only partner identified for that area of work, he was not described as the lead person; his junior, Mrs Spence, an associate, was so described. As the applicant had, to the knowledge of the client, been off work for some time and Mrs Spence had meantime, it may be assumed, been the primary adviser, the representation made by the written proposal was consistent with the applicant not having as yet returned to work - even with an uncertainty as to when he would return. It was not, however, readily consistent with a situation in which there was no realistic prospect of his ever returning to provide, as a member of the lot 1 team, services to the client. If the latter was in fact the situation and the client had in fact been misled in that regard, the circumstances were such that the relevant professional organisation could conclude that there had been, at least, unsatisfactory professional conduct by the solicitor responsible for the framing and submission of the written proposal. The mere fact that the applicant was at the time of that submission still a partner of Biggart Baillie LLP in no way takes away from the representation on the face of the written proposal that he would actually be available in a practical sense to provide services to it. Whatever precisely were the rights and obligations under the partnership agreement of Biggart Baillie LLP with regard to the applicant as a partner suspended from entitlement to share in the firm's profits, the firm, and the responsible partner, had no right to represent the applicant to the client as available to provide legal services if in reality there was no prospect of his ever becoming so available. His continuing status as a partner did not warrant such a representation.

[15] The 2007 Act does not expressly require the Commission to give reasons for its determination under section 2(4)(a). But the Commission in practice gives reasons and has done so here. Accordingly, it is the validity of the stated reasons which must be addressed. Where the decision-taker has clearly taken a different line from the author of any background material, as the Commission did in relation to the Gateway Recommendation, we consider it appropriate to look only at the decision letter to discover the reasons for the decision.

[16] Paragraph 3.1 of the Reasons for the Decision essentially relies on the applicant's continuing status as a partner for the conclusion that the complaint was totally without merit. In that respect it is flawed - see para [14] above. It is not only arguably irrational but, in our view, clearly so. That part of the decision cannot, for that reason, stand. As to paragraph 3.2, the author seems to postulate that there may have been a malign subjective element in the making of the complaint. In a different context (Lord Advocate v McNamara 2009 SC 598 at para [31] and the cases there referred to - though cf paras [32]-[33]) it has been suggested that the test for vexatiousness of proceedings may be essentially objective. However that may be, it was accepted before us that, if the Commission's decision that the complaint was totally without merit could not stand, its decision that it was vexatious could not stand either.

[17] It is plain that the official in the Commission responsible for framing the Gateway Recommendation made enquiry of Biggart Baillie LLP and took into account that firm's version of events, including what, according to it, the client had been told orally about the applicant's position. The Commission's decision letter makes no reference to that ex parte account, perhaps advisedly so. Even at its highest that information does not go so far as to suggest that the client was informed, privately or otherwise, that there was no realistic prospect of the applicant ever returning to provide services as part of the core team. In these circumstances the court must proceed upon the basis of the Commission's expressed reasons for its decision. Its decision cannot stand and must be set aside.

[18] No steps were taken by the Commission to identify with exactness against which solicitor or solicitors this complaint was truly directed. The view was taken (para 1.5 of the Gateway Recommendation) that, as the writer's conclusion was that the complaint was totally without merit, it was unnecessary to seek that information at that stage. It is, however, important that the solicitor or solicitors be identified - not least because he, she or they should have an opportunity personally to comment on the complaint - albeit at this stage only for the purpose of assisting the Commission to decide whether the complaint is frivolous, vexatious or totally without merit.

[19] In all the circumstances we shall grant leave to appeal, allow the appeal, set aside the Commission's decision of 10 March 2011 and remit to it to proceed as accords.

Lawyers fees rip YOU off @ £137+ per hour : Save yourself some money & hurt by going elsewhere for your access to justice

The Law Society of Scotland Edinburgh HQ provides access to justice ? More like a license to steal from clients. DURING A BIG FREEZE, plumbers & repairmen are often demonised for charging what are branded ‘exorbitant fees’ by the press for coming out to fix your broken down gas boiler, frozen pipes or whatever the disaster is at home. Last winter for instance, we were treated to headlines such as “Big Freeze means big money for plumbers” who were alleged to be charging £150 an hour for repairing your frozen or broken pipes. However lawyers get away with this all the time, charging anything from £137 upwards an hour, yet newspapers, and most consumers pay no attention to these rip-off fees from the legal profession until its too late, that is, when the bill lands through your letterbox for yet another botched up job done by your soon-to-be unfriendly lawyer who has taken three years and several thousand pounds more to do a job you were told, or thought, could land you a tidy sum and be completed in a few months at most.

Now, as consumers you all like to think you are savvy, and wont be taken in by a cowboy builder who claims they can miraculously knock half your house down and rebuild it complete with a solid gold extension for £10.52 +VAT. In fact many [although not all] consumers do appear to be able to spot the cowboys in the building trade.

Not so with the legal profession, where it appears just about all of you, that is, everyone & anyone strolling through the doors of some lawyer’s office lose all their common sense and their supposed consumer savvy to the little-more-than-a-snake-charmer sitting behind the desk, promising you access to justice, a reasonable deal on a house or some resolution to some [let’s be honest, idiotic] dispute between you & your neighbours which is going to be blown out of all proportion by yours & their lawyers for years, at a cost of tens of thousands of pounds to both of you and your families.

Have you heard the one about the boundary dispute between two neighbours which started in 2006, where both parties have forked out over SEVEN THOUSAND POUNDS and are still nowhere near a court or a resolution to their squabble? There must be thousands of cases like this in Scotland & throughout the UK, and all that happens is your friendly lawyer who is billing you for several pints of blood by the hour, is making themselves & their law firm a lot richer while you get a lot poorer.

How about the one where the lawyer arm twists you into writing a will, appointing your lawyer as your executor and its witnessed by the secretaries of the law firm ? Again, thousands of times a year this happens throughout Scotland and the rest of the UK, and thousands of times a year there are complaints about the same lawyers ripping off the wills of their dead clients yet not one of these consumers who believe themselves to be savvy enough to spot a hot deal, or a cold crook, twig to the fact they are being ripped off in a scam which sees lawyers steal hundreds of millions of pounds from deceased’s estates every year throughout the UK.

Divorce, wills, boundary disputes, land & property transactions, damages claims, negligence, you name it, your lawyer provides it, all in the name of access to justice. Its actually business, and a very profitable one for them.

We could sit here talking about examples where lawyers have ripped off consumers all day, thousands of cases happening all over the country, to people who consider themselves able to spot a hot deal on the internet, yet when it comes to dealing with a lawyer, just about all consumers seem to turn into a soggy old bar of soap waiting to be scooped up and thrown in the bin.

So, the next time some lawyer tells you they exist to provide access to justice, and want to rip you off at £130 plus an hour, or when your solicitor hands you some surprisingly cheap estimate of what you legal troubles will cost you to resolve, walk out of your lawyers office before your life becomes a living hell and you join the thousands of people out there every year who have to deal with the same ‘surprisingly cheap estimate from their lawyer’ which then turns out to be anywhere up to 17 times the figure a few years on from when you first stupidly engaged your solicitor on some frivolous issue just because you were promised a megabucks settlement which turned out to be fantasy.

You made a mistake hiring your lawyer in the first place, you know that now. You realise your will is a bit of a scam, because the lawyer is going to help themselves to most of it, you realise your years long boundary dispute, or your years long trek to court to sue a hospital over a medical injury is going nowhere because the case is really more about your lawyer making their fees, rather than any final settlement for you obtaining the ‘justice’ you claim you deserve.

So, why don't you do something about it and stop throwing your money at lawyers you know nothing about who are in reality doing this on a regular basis to client after client ? We are in a recession, you know, and the last people you should be going anywhere near is the best pals of the bankers, the lawyers who are so worried about their dwindling business, they are beginning to place stories in newspapers in attempts to bring more clients through the doors of their chambers of horrors.

AND NOW THE GOOD NEWS : LAWYERS PROFITS IN STEEP DECLINE 

FIGURES put out by the Law Society of Scotland (which means we have to take these with a pinch of salt) claim the value of the legal sector to Scotland is around £2.2 billion pounds, perhaps one of the reasons that even the First Minister has been wired up to the Law Society’s lobby machine to promote Scottish lawyers in the middle east while stripping away consumer protection from crooked lawyers in Scotland.

Earnings of Scottish solicitors have taken a dive since the recession of 2008, however, to compensate for their loss of earnings, theft of client funds, fraudulent fee demands, embezzlement, negligence, and the numbers of cases being taken on by solicitors to scoop up fees and dropped later on without a result are swelling by the day.

Profits per partner have fallen from £104,000 in 2008 to £64,000 in 2010, while fees per partner are down from £125,000 to £104,000 over the same period. This reflects the fact that solicitors were able to charge £146 per hour on average in 2008 but were charging £137 per hour by 2010. To compensate for this, salaries have risen as a proportion of fees from 30% in 2008 to 34% almost in percentage terms, in line with the rising levels of fraud against clients.

The figures also report there are 10,380 too many solicitors in Scotland, plus about the same number of paralegals, who are also looked after by the Law Society of Scotland (escpecially the ones who like to steal from client' accounts to fund their spending, or even drug habits).

Of those 10,380 solicitors wrecking havoc throughout the country and dipping their fingers into your finances, 3659 work in private practices as principals, with a further 3416 as partners or juniors. Of the rest, 1734 work in the public sector either for the Scottish Government, councils or quangos, doing as much damage as they can to public services in Scotland and taking as much as they can from the public purse, and 761 work as in-house legal advisers for private companies, which is probably why a lot of private companies are suffering because they are being provided by bad & expensive legal advice. A higher proportion of solicitors are men, with the split currently standing at 54% to 46%.

New brooms or new stooges ? MacAskill appoints 4 more board members at £212 a day each for 5 years to anti-client Scottish Legal Complaints Commission

Justice Secretary Kenny MacAskill swells the anti-client law quango SLCC’s board. KENNY MACASKILL, Scotland’s Justice Secretary has today appointed two lawyers George Clark and Ian Leitch & two non-lawyers Ian Gibson and Samantha Jones to positions giving a daily remuneration of £212 each plus expenses & other benefits lasting FIVE YEARS to swell the already burgeoning board of the anti-consumer Scottish Legal Complaints Commission (SLCC), the scandal ridden law complaints quango created in 2007 as an ‘independent’ offshoot to the Law Society of Scotland whose pitiful, often corrupt performance as the self regulator of Scotland’s legal profession saw case after case where lawyers covered up for each other after solicitors financially ruined their clients by virtue of fraud, theft or negligence, or in other cases, had been accused of stealing MILLIONS OF POUNDS of taxpayer funded legal aid and escaped any criminal prosecution.

Revelations in Called to the Bars saw more consumer hate at the SLCC than consumer protection. Since the Scottish Legal Complaints Commission took over as the ‘single gateway’ for complaints against Scotland’s growing numbers of crooked lawyers, it has spent more time insulting clients than chasing after crooked lawyers. In last year’s annual report by the Scottish Solicitors Discipline Tribunal (SSDT), itself a lawyer organised quango with little oversight, the SSDT’s Chairman revealed there have been no recommendations made under the legislation which created the SLCC to prosecute ANY crooked lawyer as a result of complaints made by clients, a story reported by Diary of Injustice in an earlier article here : Law complaints quango Scottish Legal Complaints Commission 'a failure' as Discipline Tribunal reveals no prosecutions of crooked lawyers in two years

The SLCC’s poor record on recommending prosecutions is amazingly even worse than the rare prosecutions of crooked lawyers before the SSDT which are carefully stage managed by the Law Society of Scotland’s own complaints regime to give an appearance of effective regulation when in fact there is none.

It was also revealed in last year’s annual report the SLCC had, again, as it has done in each year since 2008, sent most complaints back to the Law Society of Scotland for investigation, and had only ever upheld one single complaint against an unnamed crooked lawyer, reported by Diary of Injustice in January of this year, here : ‘One complaint upheld’, 928 more sent back to Law Society & £1.8million spare cash : Scottish Legal Complaints Commission's 2010 annual report

This is the third round of appointments to the Scottish Legal Complaints Commission in 2011, where in the first case, the Justice Secretary was forced to give a lawyer only job to one of the Scottish Government's own lawyers because no one else wanted it, reported in an earlier article by Diary of Injustice here : Poisoned Chalice : MacAskill forced to parachute Government’s own lawyer onto Scottish Legal Complaints Commission after Advocates shun job offer

Later in March of 2011, a second round of appointments were made to the SLCC by Kenny MacAskill, reported in an article here : One more ex-cop for anti-client Scottish Legal Complaints Commission as Justice Secretary hands out five year quango jobs at £212 per day

The new intake of board members to the lavish expenses claiming domain of the SLCC’s Board will join its ranks already populated by quangocrats with several job each, lawyers & former senior Police officers who between them already soak up mammoth personal expenses of over £150K a year in remuneration claims. The SLCC is funded by a levy on all Scottish solicitors which is ultimately recouped from client fees which, excluding the usual fraud, overcharging & false accounting have rocketed in recent years to support failed projects such as the SLCC.

All four appointments made today by Kenny MacAskill will be for five years and will run from January 1, 2012 to December 31, 2016. All four of appointments are part-time and attract a remuneration of £212 for a time commitment of up to six days per month, announced in a Scottish Government Press Release : Appointments to Scottish Legal Complaints Commission

Mr Clark is a property and private lawyer. A practising solicitor since 1974 and a partner in Morton Fraser LLP for 31 years. He was also chairman of Edinburgh Solicitors Property Centre Ltd for 13 years and a non-executive director of the Scottish Rugby Union. He is currently working as a consultant with Morton Fraser and is the Senior Independent Director of Scottish Building Society and is also chairman of its Nomination and Remuneration Committee. Mr Clark brings professional standing and strategic development skills to the Board along with a broad range of experience in conveyancing and working in the public and private sector.

Mr Clark is a member and chair of Private Rented Housing Panel with a remuneration of £315 a day.

Mr Leitch has a local government and parliamentary legal background. He recently took early retirement from his post as Assistant Clerk/Chief Executive of the Scottish Parliament. Previously he was Director of Resources and Governance at the Parliament. In local government he served as a Depute Chief Executive and council solicitor to a unitary authority. Mr Leitch also served as a Justice of the Peace for a number of years. Mr Leitch brings strong performance management skills as well as a background in public law and civic engagement experience.

Mr Leitch does not hold any other ministerial public appointment.

Mr Gibson has wide experience in public, private and voluntary sectors. He was Regional Director of the Scottish Ambulance Service for four years and the Director of Macmillan Cancer Relief Scotland and Northern Ireland for nine years. As a board member of the Care Commission he sat on the Complaints Review Committee. He is currently a consultant for Lloyds TSB Foundation of Scotland, the independent chair of the Highland Adult Protection Committee and a board member and vice chair of NHS Highland. Mr Gibson brings strategic and performance development skills to the Board along with extensive experience from the public, voluntary and private sector.

Mr Gibson is a member and vice chair of NHS Highland with a remuneration of £10,785 per annum.

Dr Jones has a degree in Law from the London School of Economics and a Doctorate in Social-Legal Studies from the University of Oxford. Between 1992 and 2000, she worked at the Ministry of Defence and Northern Ireland Office. From 2000 until 2010, she worked at the Scottish Parliament, initially as Clerk to the Standards Committee and latterly as Programme Manager of the Parliament's HR Change Programme and Corporate Change Programme. She is now currently a self employed Landscape Photographer who has her own business on the Isle of Mull. Dr Jones is also a consultant and her most recent project was the Aros Hall Feasibility project which is jointly funded by the Scottish Government, the BIG Lottery and LEADER. Dr Jones is also Chair of Mull Theatre Ltd and a Volunteer Crew Member on the Tobermory RNLI Lifeboat. Dr Jones brings good customer focus skills to the board along with experience of strategic and organisational improvement.

Dr Jones does not hold any other ministerial public appointment.

The SLCC was established by virtue of the Legal Profession and Legal aid (Scotland) Act 2007. Its main functions are to resolve complaints alleging inadequate professional service or negligence by legal practitioners, to refer complaints which allege professional misconduct or unsatisfactory professional conduct to the relevant professional body and to promote good practice in complaints handling. It has achieved none of these aims and has left consumers of legal services in Scotland in an even worse position than they were before in dealing with complaints against ‘crooked lawyers’.

A legal insider commenting on the latest appointments to the SLCC said he “did not expect the law quango to improve from its traditionally mediocre performance on complaints”, and branded the SLCC “.. an expensive white elephant with plush offices its work level does not justify”.

Speaking to Diary of Injustice this afternoon, a client with a complaint which has been bounced back & forth between the SLCC & Law Society of Scotland several times simply described the Scottish Legal Complaints Commission as “thoroughly prejudiced against clients” and “a rubber stamp for crooked lawyers”.

No comment has been issued by anyone from the Scottish Legal Complaints Commission at time of publication.

LAW WARS : Court upholds SLCC’s decision to reject lawyer’s complaint against ex Law Society President Jamie Millar over Regulation Committee fiddle

Court of Session refuses lawyers appeal over complaint against ex Law Society President. A DECISION of the Court of Session to refuse a Glasgow lawyer permission to appeal a decision by the Scottish Legal Complaints Commission (SLCC) to dismiss a complaint against the now former President of the Law Society of Scotland, Jamie Millar over allegations he misled fellow lawyers with regards to the society’s creation of a Regulation Committee to comply with the requirements laid down in the Scottish Government’s Legal Services Act 2010 reveals its not only clients of crooked lawyers who face a rough time with their complaints with the notoriously anti-consumer law complaints quango whose Board members have openly insulted & chastised complainers & lawyers alike.

Now former Law Society President Jamie Millar was alleged to at the time of his presidency to have misled the rest of the Law Society over the creation of a new committee.The complaint in this latest case, made by Glasgow lawyer & Law Society Council member Walter Semple alleged the Law Society’s President at the time, Jamie Millar had deliberately misled the profession in a communication to Glasgow Council members which said that it was necessary to change the Society's constitution in order to create the new Regulatory Committee required under the Legal Services (Scotland) Act 2010. Mr Semple’s complaint alleged Millar knew the Council already had such powers without the need to create a new Committee and that he had went back on his word having said at a meeting of Council that he would resign if the complaint of misleading the profession was found to be justified, all of which was in breach of the prohibition in the Solicitors Practice Rules of knowingly misleading other solicitors.

The Law Society quickly issued a statement welcoming the Court’s decision to halt Mr Semple’s complaint although the Law Society did not mention the fact the SLCC is subject of continuing legal challenges in the Court of Session brought by the Law Society of Scotland as reported earlier in 2010 here : Bitter feud between regulators as Law Society of Scotland take Scottish Legal Complaints Commission to Court of Session over complaints role.

The Law Society stated : The Scottish Legal Complaints Commission (SLCC) had earlier decided to reject the complaint on the grounds of it being 'totally without merit'. An application for leave to appeal the SLCC decision was rejected by the Court of Session on Tuesday, 22 November, following a hearing on 8 November.

In April, a member of the Law Society Council made a complaint to the SLCC against the conduct of Jamie Millar who was then President of the Society. This related to a communication that was issued to solicitors on the Society's constitution in advance of the AGM in March this year. Mr Millar's term of office as President was for one year only and concluded in May. The Society was informed that the SLCC rejected the complaint as being totally without merit. The SLCC will therefore be taking no further action in the matter. This application to leave to appeal the decision was made to the Court of Session and was heard today.

Current Law Society President Cameron Ritchie, fresh from a grubby tour of Dubai along with Chief Exec Lorna Jack, apparently at significant expense to drum up business for the Scottish legal market. Cameron Ritchie, who succeeded Mr Millar as President when his one year term of office came to end in May, said: "I have always considered Jamie Millar to be a person of honesty and the highest integrity. The Law Society was fortunate to have him as its president during what was a particularly difficult time within the legal profession. It was regrettable that he had to face some unfair and wholly unjustified accusations during his last few months in office. He may no longer be our president but we are fortunate to still have Jamie serving on our Council, standing up and speaking out for solicitors, both within his Glasgow constituency and across Scotland."

However, for a more accurate take on Jamie Millar, Diary of Injustice reported his installation as Law Society of Scotland President in the annual musical chairs event, here : Law Society welcomes new President, firm has links to dishonest Borders solicitors who mishandled wills & executry estates

The idea to create the Regulatory Committee came about in response to heated debate between the Law Society & the SNP minority Scottish Government of 2007-2011 over the terms of the Legal Services Act (2010) as it passed through the Scottish Parliament. The Legal Services Act came about after the Office of Fair Trading (OFT) recommended changes to Scotland’s closed shop monopolistic legal services market which is dominated & controlled by members of the Law Society of Scotland. The Scottish version of the Legal Services Act, which has existed in England & Wales from 2007, is a pale and ‘profession biased’ comparison to its southern counterpart.

During bitter exchanges between the Law Society of Scotland and the SNP minority Scottish Government, Scottish Ministers were forced to back down time & again over proposals in their bill designed to open up access to justice for ordinary Scots. In one instance, the then Communities Minister Fergus Ewing was hauled over the coals by the Law Society and quickly changed parts of the planned legal reforms, In another key capitulation, the Scottish Government’s plan for Scottish Ministers to be able to appoint lay members to the Law Society’s ruling Council was thrown out after the Society protested, reported by Diary of Injustice, here : Scottish Government back down on lay appointments to Law Society Council as lawyers interests threaten to break pro-consumer legal services bill

The Scottish Government’s own website lists the current status of the Legal Services (Scotland) Act 2010, reporting that although certain sections in the Act have been commenced (see the Legal Services (Scotland) Act 2010 (Commencement No. 1 and Saving Provision) Order 2011), the bulk of the provisions establishing the regulatory frameworks for licensed providers, confirmation agents and will writers are not yet in force. The timetable for full implementation of the Act is currently under consideration, and key stakeholders will be consulted in due course.The Scottish Government conducted a consultation on "Ownership and control of firms providing legal services under the Legal Services (Scotland) Act 2010" between February and May 2011. More details can be found HERE

The entire story of the Legal Services Bill, the arm twisting & threats from the legal profession over the loss of their exclusive control over access to justice markets, and the bill’s passage through the Scottish Parliament, along with video coverage of testimony before the Justice Committee is here : Legal Services Bill - The failure to open up access to justice in Scotland

The judgement from the Court of Session by Lord Mackay of Drumadoon, Lord Bonomy, Lord Marnoch in the appeal of Walter Semple against the decision of the Scottish Legal Complaints Commission to dismiss the complaint against Jamie Millar, follows :

OPINION OF THE COURT [2011] CSIH 74 delivered by LORD MARNOCH in Application for Leave to Appeal under Section 21(1) of the Legal Profession and Legal Aid (Scotland) Act 2007 by WALTER GEORGE SEMPLE Applicant; Against a Determination of the Scottish Legal Complaints Commission Act: Party; Fyfe Ireland LLP Alt M Ross; Shepherd & Wedderburn LLP

22 November 2011

[1] This is an application for leave to appeal brought under Section 21 of the Legal Profession and Legal Aid (Scotland) Act 2007 in respect of a Determination made by the Scottish Legal Complaints Commission ("the respondents") arising out of a Complaint made by Walter George Semple ("the applicant").

[2] In deciding that the applicant's Complaint was "totally without merit" the respondents summarised the Complaint for their determination in the following terms:

"Issue 1: Mr Millar deliberately misled the profession in a communication of 16 March 2011 addressed to Law Society of Scotland's Council Members for Glasgow where he stated 'We must change our constitution to create this [new regulatory] committee. Without it, we will be unable to continue regulating the existing solicitor profession when the relevant parts of the Act commences (sic) over the summer.' Mr Millar knew this statement to be incorrect as he was aware that the Council had the necessary powers under the Law Society of Scotland's existing constitution. In making this statement, Mr Millar has breached Rule 14(1) of the Solicitors (Scotland) (Standards of Conduct) Practice Rules 2008 which states that solicitors must not knowingly mislead other solicitors.

Issue 2: Mr Millar went back on his word given at a meeting of the Council of the Law Society held on 25 March 2011 following the Law Society of Scotland's Annual General Meeting, where he stated that he would investigate the allegation of misleading the profession in terms of the communication of 16 March 2011 and would resign as President if the complaint was justified, in that he has failed to resign despite his investigation showing the complaint to be justified. In going back on his word, Mr Millar has breached Rule 14(1) of the Solicitors (Scotland) (Standards of Conduct) Practice Rules 2008 which states that solicitors must not knowingly mislead other solicitors."

As regards the first of these issues, it was pointed out that the communication referred to was in fact an e-mail, not addressed to the Law Society of Scotland's Council Members for Glasgow, but sent by way of a Council newsletter by three of those Council Members to their constituency members in Glasgow and Strathkelvin. There is, however, no doubt that, in reaching their determination on issue 1, the respondents had regard to the correct document. In this connection, it should be made clear, for the avoidance of doubt, that Mr Millar, against whom the Complaint was raised, was at the time of the events complained of the President of the Law Society of Scotland and a Council Member for Glasgow and Strathkelvin.

[3] Turning, then, to the first issue it appears to us that in those parts of the e-mail or newsletter complained of what was said in no way represented statements of fact but, on the contrary, can only be regarded as expressions of opinion regarding the relevant law. References in the Complaint and in the reasoning of the respondents to whether what was said was "accurate" or "inaccurate" or "true" or "untrue" are accordingly inappropriate, the real question being whether the opinion was or was not honestly expressed. In the course of the hearing before us Mr Semple and, we think, also counsel for the respondents were good enough to accept that that was so. Once the question is so framed, however, the considerations that the e-mail or newsletter was signed by three practising solicitors and that the opinion expressed has since had the support of senior counsel strongly suggest that the answer to that question lies in the affirmative. Mr Clancy, who apparently advised the Law Society in relation to legal matters, may or may not have agreed with that opinion and may or may not have been consulted but what is certainly clear is that neither the President nor his other two colleagues were in any way bound by what Mr Clancy may have said. In any event, as can be seen from the newsletter, the members of the Society were being encouraged to attend the imminent annual general meeting at which the principal business was to discuss the proposed changes to the constitution. In our opinion, the holding of an open debate on the question at issue can only mean that, while what was said in the newsletter may well have been intended to influence the membership, it cannot have been calculated to "mislead" the membership. It may be true, as Mr Semple submitted, that those who voted by proxy did not have the advantage of hearing the debate, but it is equally true that Mr Millar and his co-signatories were prepared to have the validity of their opinion discussed and examined by their peers. What is more, it is clear that when the meeting actually took place the applicant, Mr Semple, was allowed to express his own contrary opinion.

[4] Turning now to the second issue, it seems to us that, whatever may have been said at the time, it cannot have been within the contemplation of any of those present that the President should offer his resignation in a situation where the opinion which had been expressed had the support of senior counsel. In any event, we are of the opinion that, properly construed, and with particular reference to the phrase "offered to resign", what was said amounted to no more than a statement of intent. As such, it was capable of being withdrawn at a later date, particularly where circumstances had altered in the interim.

[5] What we have said above is in large measure contained within the reasons given by the respondents for their decision and on the whole matter we do not consider that they either erred in law or acted irrationally in holding on the material before them that the Complaint in question was wholly without merit. In our opinion, therefore, the present application falls to be dismissed.

AVOID THE BIG R.I.P-OFF : Make sure you choose someone capable & honest as your Executors instead of a THIEF or a CROOKED LAWYER

Avoiding crooks after death : Law Society of Scotland solicitors make the worst Executors possible. NOVEMBER, the month of writing wills according to the Law Society of Scotland, whose members are engaged in their annual campaign to persuade their clients and the vast uninformed swathes of the general public to write a will, and, name a lawyer as their executor to ensure a ‘perfect execution of your last wishes’.

However, the ‘perfect execution of your last wishes’ when a client takes the idiotic decision to make their solicitor as their Executor, is very far from perfect for those you leave behind, as the normal pattern which follows is the solicitor acting as your Executor empties your bank accounts & sells your possessions to line their own pockets.

Choose someone better qualified to be your Executor is a claim often bandied about by the legal profession, who, lets face it are there to sell themselves and their services, not do you a favour just for the hell of ensuring what you leave after death is passed onto those you want to leave it to. The list of reasons why you should appoint a professional will be long, incredulous, corrosive, divisive, and in some respects, just plain full of lies to get you to sign up to a dodgy will written in a lawyer’s office, witnessed & signed by one of their own colleagues or secretaries, naming themselves as your Executor. Don't do it. Whatever you do, do NOT choose a solicitor as your Executor.

I am not going to sit here and give you examples of how some dead rich celebrity who thought they were being clever by appointing people close to them along with a ‘professional’ as executors will help you avoid a rip off, because well, it doesn't help. In fact, appointing one of your intended beneficiaries or say, a loved one, along with a solicitor or other professional to act as two Executors of your will, can do even more harm when both begin to battle with each other when, for instance, it is discovered the lawyer decides to help themselves to your money instead of passing it on to your family, The result of such a dual appointment often ends in a negative value of your remaining estate after your oh-so-trustworthy solicitor turns into a shark, intentionally burning up all your remaining assets to fight the other Executor for control of your remaining estate.

Speaking not just as a journalist but also as a victim of the sheer greed of the legal profession & the Law Society of Scotland, simply put, don't appoint a lawyer as your executor. Those you leave behind as beneficiaries will regret it, and I can assure you they will be treated to the horrific Andrew Penman & Norman Howitt experience which happened to my family. You can read all about this here : The Andrew Penman Crooked Lawyer Experience & The Norman Howitt Crooked Accountant Experience

Some basic tips about who to appoint as your Executor and what to say in your will to limit anything which you do not want to happen.

For an Executor, choose someone you feel your family and beneficiaries will trust, or at least they like. In most cases a will is divided up between partners & children or relatives, so choose your remaining partner and one of the children as Executors. If you choose two Executors, at least there are checks & balances on both. Choose someone who will not side with one against the other, or use their position for their own ends to generate huge fees (as a lawyer usually does) for their own work as your Executor.

Now the question of fees.

Within your will, you can easily set financial limits on who should be paid how much to wind up your estate or carry out work as your Executor. This is a good idea to put it down in writing how much, if anything your Executors should be paid. If for instance, your Executors are also beneficiaries, it may well be they do not require payment because they are going to receive the bequest you made them in your will.

At some point, unfortunately, your Executors may require the services of a solicitor or a bank for certain documents regarding your finances but these services should not be strung out for months & years just because a lawyer wants to fatten up his wallet.

To avoid a rip-off if your Executors need to use a solicitor or bank, a good idea is to set strict limits on how much should be paid out of your estate for any legal fees, so you limit how much a lawyer can plunder from your finances. After all, you don't want to leave your money to your solicitor do you, you want to leave it to y our family, right ?

Now, where to store your will.

Obviously you should make several copies of your will. Your Executors should be given copies, or at least told where they can obtain a copy of your will, if, for instance you choose to store it in a safe deposit box at a Bank or with someone who can be trusted.

Often another ruse of the legal profession is to claim they will store your will for free. However, this is simply, a lie. Your solicitor will charge you on a yearly basis for storing your will, property titles and other documents. If they don't you can be sure they will charge for all those years of ‘free storage’ when they come to administer your will, by inflating their fees exponentially.

A case last year which was drawn to my attention of a will, stored for free for ten years, turned out to be not so free when the solicitor charged the estate a whopping TEN THOUSAND POUNDS for ten years of storage. As there was nothing written into the will to say it had been stored for free by the solicitor, the family fought the fee demand but were forced to pay, after an expensive court action. As you see therefore, lawyers have an answer to everything when it comes to money.

Being an Executor is too difficult, it must be done by a lawyer – says the lawyer !

Don't listen to the legal profession about the winding up of an estate being incredibly complicated and the position of an Executor being so frightening it can only be performed by a solicitor. This is all nonsense. There are many people out there each year who manage to navigate the maze of winding up an estate without the need to use a lawyer. Its much cheaper, it usually ends up settled more amicably, honestly and without the five, ten or fifteen years of fuss a lawyer may make of it, just to keep sending in bills for work he never did.

Earlier this year I reported on how the Office of Fair Trading (OFT) had exponged the myth that writing a will meant it was required to appoint a solicitor as an Executor, in an article here : Where There’s A Will There’s A Crook : OFT say choose your will writing service wisely, consider costs, avoid making a solicitor your executor

Here’s what the OFT had to say back in February 2011 :

• Consumers making a will should not be led to believe that appointing a professional executor is essential or the norm.
  

• Consumers should not be encouraged to appoint a professional executor unless it is clearly in their best interests.
  

• Providers should be satisfied, before the will is drafted, that the consumer has the information necessary to make an informed choice. The consumer should understand the options around executor appointments and be aware of the likely basis of charging for the professional executor service.

The OFT reminded consumers there is no requirement in law to appoint a professional executor, although, according to a survey published by the OFT last year, some 43 per cent chose to appoint (usually through ignorance) the same professional will-writer or solicitor who wrote their will.

While the costs for preparing a will can be relatively modest, the costs for a professional executor to administer an estate can be high and vary considerably. For an average estate, consumers can pay between £3,000 and £9,000. Failing to shop around for executor services could be costing UK consumers around £40 million a year, according to OFT estimates.

You can read my earlier coverage about wills here : You and Your Will

An article I wrote in 2009 covered extensive examples of fraud committed by lawyers & Executors against wills : Consumer warning on wills : Don't make your lawyer your executor as soaring cases of 'will fraud' show Law Society closes ranks on complaints

Over the six years of this blog, some readers have come to me asking me to be their Executor. I have refused. It is simply not feasible for me to be an Executor to a hundred wills.

However, in one case recently, the two Executors of a will of a friend came to me for help, as they could not reach an agreement on a particular transaction. I was happy to talk to both, at no cost. There is no cost because I have already been through this experience. After our talk, the two Executors resolved their differences and the property involved in the transaction was sold for a higher value than the suspiciously lower value presented to them by a solicitor. The family received what had been left to them without further worry.

Lets call it, free mediation, backed up by the possibility if the two Executors had not resolved their difficulties, headlines would have ensured they did, as my primary concern was of course for the remaining family as beneficiaries who had been put in the unenviable position where one Executor had been poisoned by a crooked lawyer out to buy up what he hoped would be a cheap house. It felt good to protect another family from a lawyer led rip-off and it doesn't cost anything to prevent a fraud, really. It was a service, and a duty, to a friend. I would encourage others to do the same.

Incidentally, some people might wonder why the not-so-merry month of November is designated as a good month by the legal profession to run will writing campaigns. Well simply, as one solicitor told me, its because old people tend to die off in the winter, or there are more fatal accidents during the winter. Lovely people aren’t they .. the legal profession who come up with all this kind of stuff. If you take my advice you will steer clear of them when writing up your will. They are not in it for you, they are in it for themselves, and when it all goes wrong, the Law Society of Scotland and the equally prejudiced complainer-hating Scottish Legal Complaints Commission (SLCC) will be of no use to you at all.

One of the most important things you need to remember is, where there is a will, there is a crooked lawyer from the Law Society of Scotland. So, when you come to write your will, don't appoint a THIEF or a CROOKED LAWYER (or as someone recently asked me A BANK) as your sole Executor. Those who you leave behind don't need to live through yet another horror story after having to get through your death. A free guide from Citizens Advice Scotland on Will writing is HERE although I must admit there is a lot of rubbish in the guide such as naming solicitors & banks as executors which is just a complete no-no in the 21st Century. Just make sure you miss out any of the parts which suggest you need to appoint a solicitor to do this or that, at horrendous cost to your estate and your remaining family.

If you want to discuss with others, issues about wills and problems in writing wills or problems with Executors, I would encourage you to visit the Consumer Action Group forums and participate. If there is an issue or a problem with a will in Scotland involving crooked Executors or crooked lawyers which you feel should be published, please contact me via scottishlawreporters@gmail.com

Lord Advocate Mulholland in the dock as Crown Office dithers over prosecuting yet another CROOKED LAWYER who stole £116K from client accounts

Another case of “Inadmissible evidence” for the Crown Office ? SCOTLAND’S CROWN OFFICE & PROCURATOR FISCAL SERVICE, fresh from revelations they REFUSED to prosecute FOURTEEN lawyers who were reported to prosecutors by the Scottish Legal Aid Board (SLAB) for stealing millions from Scotland’s taxpayer funded £160 MILLION legal aid budget under the former Lord Advocate now Dame Elish Angiolini DBE QC, face allegations the same policy is continuing under Lord Advocate Frank Mulholland QC after a new case reported in the Sunday Mail newspaper revealed prosecutors in Hamilton are DITHERING over whether to prosecute yet another crooked lawyer Antony David Murphy, who stole £116,000 from clients accounts holding deposits from homebuyers.

Antony David Murphy, (55) was finally struck off last week by the Scottish Solicitors Discipline Tribunal (SSDT) after long running complaints were finally acted on by the Law Society of Scotland due to fears the clients who had lost much of their money with Murphy would turn to the media and generate a series of unwelcome headlines for the notoriously corrupt system of rubber-stamp self-regulation run by the Law Society of Scotland & Scottish Legal Complaints Commission (SLCC).

The full judgement and details of the complaints made against Anthony Murphy can be downloaded from the SSDT’s website HERE or viewed online here : Council of the Law Society of Scotland v Anthony David Murphy :

Edinburgh 14 September 2011; The Tribunal having considered the Complaint dated 11 May 2011 at the instance of the Council of the Law Society of Scotland against Antony David Murphy formerly of 31 Chapel Street, Hamilton. Lanarkshire now of 3 Chateau Grove, Hamilton, Lanarkshire;

;Find the Respondent guilty of Professional Misconduct in respect of his knowingly permitting a client to sell heritable property to a third party when his clients were contractually bound to sell to others,

;His knowingly falsely representing to his professional body that his accounting records had been destroyed when they had not and his acting recklessly by clearing monies out of his client account that he could not be sure were due to him as fees and in so doing his removing approximately £116,200 worth of clients monies to which he was not entitled, all in breach of Article 7 of the Code of Conduct for Scottish Solicitors 2002,

;His failure to account to the liquidators of Company A and Company E or respond to the reasonable enquiries of the liquidators and his breach of Rule 4 of the Solicitors (Scotland) Accounts Rules Etc 2001;

;Order that the name of the Respondent Antony David Murphy be struck off the Roll of Solicitors in Scotland; Find the Respondent liable in the expenses of the Complainers and of the Tribunal including expenses of the Clerk, chargeable on a time and line basis as the same may be taxed by the Auditor of the Court of Session on an agent and client, client paying basis in terms of Chapter Three of the last published Law Society’s Table of Fees for general business with a unit rate of £14.00; and Direct that publicity will be given to this decision and that this publicity should include the name of the Respondent.

However not all the heads of complaint were found by the SSDT to have been proven, and controversially the tribunal backed away from finding Murphy had defrauded the Inland Revenue, where in its judgement it stated : “The Tribunal is also not able to find, on the basis of the evidence led, that the Respondent acted dishonestly by not disclosing money to the Inland Revenue.”

A legal insider commenting on the decision said the Law Society of Scotland were reluctant to inform on or find in complaints that solicitors were defrauding HMRC due to fears it may encourage UK tax authorities to take a closer look at law firms, many of whose accounts are known to be a mess and “full of fraudulent activity”.

CLIENT ACCOUNTS AT SCOTTISH LAW FIRMS ARE DANGEROUS HAVENS FOR YOUR MONEY :

In a shocking example of the level of endemic fraud within the Scottish legal profession showing how solicitors steal from client accounts on a regular basis, just one of the cases brought to the attention of Diary of Injustice over the past year told the story of an apparently small but well known law firm in the Scottish Borders which was found to have dozens of bank accounts where client funds had been lost on a regular basis and worse still, one of the solicitors in the law firm, a well known fraudster, has, according to information seen by Diary of Injustice, 23 different bank accounts in different banks & different names, some using variations of his own name, others allegedly in his family members name with control signed over to him.

Legal insiders this afternoon have indicated the Law Society of Scotland are not eager to see Murphy prosecuted by the Crown Office. A decision is yet to be made by the Procurator Fiscal in Hamilton. Diary of Injustice can also reveal today another investigation being carried out by authorities into a well known advocate accused of legal aid fraud is said to be “going badly” with expectations of a prosecution diminishing due to “interference from legal circles in the investigation”.

The Sunday Mail reports :

No action taken against lawyer who swiped £116k from clients

Nov 20 2011 By Russell Findlay, Sunday Mail

A BENT lawyer who swiped £116,000 from his clients has not been prosecuted. Tony Murphy, 55, was struck off last week for raiding accounts containing deposits from homebuyers.The slippery brief from Hamilton, Lanarkshire, was first exposed by the Sunday Mail three years ago.

He was reported to the Crown Office last June. But they have taken no action against him. A Crown Office spokesman said: "The procurator fiscal at Hamilton has received a report concerning a 51-year-old male and it remains under consideration."

Murphy was found guilty of professional misconduct by the Scottish Solicitors' Discipline Tribunal. He collected deposits from 29 buyers but then acted in the sale of the development to another company. Only part of the deposits were returned and Murphy also took a £50,000 fee after court action against the firm. He was also found to have failed to account to the liquidators of two companies and to have falsely represented to Law Society officials that his accounts had been destroyed in a flood.

Murphy was linked to dodgy builder Stephen Connelly who has been struck off as a company director until 2018. He left homebuyers and taxpayers £485,000 out of pocket when his Glen Isla Homes firm failed.

TRIBUNAL’S DECISION IN MURPHY CASE RE-WROTE COMPLAINT, BACKED AWAY FROM CLAIMING TAXMAN WAS DEFRAUDED

After hearing evidence from the complainers, some of which was reporter by the SSDT in the judgement Council of the Law Society of Scotland v Anthony David Murphy, the Tribunal found Ms Grandison and Mr Ritchie to be credible and reliable witnesses and accepted their evidence. The Tribunal found the facts in Articles 1.1, 2.1, 2.3, 3.1, 10.1, 10.4, 10.5, 10.6, 10.7, 10.9 and 10.10 of the Complaint to be proved beyond reasonable doubt. The facts in Articles 2.2, 3.2, 10.2, 10.3 and 10.8 of the Complaint the Tribunal found proved beyond reasonable doubt subject to the following deletions and amendments. With regard to Article 2.2 the Tribunal deleted the final two sentences as no evidence was led with regard to this. In connection with Article 2.4 the Tribunal deleted from “Enquiries were made” in line 12 to “Company D” in line 18 and from “Enquiries” in line 21 to “Company D” in line 23, as the Tribunal was not satisfied beyond reasonable doubt that these facts were proved on the evidence. In connection with Article 3.2 the Tribunal deleted the last two sentences as no evidence was led to substantiate this. In connection with Article 3.3 the Tribunal deleted from “They delivered” in line 6 to “of another” in line 13 and from “It was clear” in line 18 to “number of years” in line 25, because the Tribunal did not consider the evidence sufficient to substantiate this and the Tribunal also made a number of minor amendments in this Article to reflect the evidence led. In connection with Article 10.2 the Tribunal deleted the sentence starting “The Respondent” in lines 5 and 6 as this was not borne out by the evidence. In relation to Article 10.3 the Tribunal deleted from the words “The Complainers” in line 2 to “Respondent” in line 6 as the Tribunal was not satisfied that this had been proved on the basis of the evidence led. In connection with Article 10.8 the Tribunal deleted the last three sentences as this was not spoken to in evidence. The Tribunal also deleted Articles 4.1 – 9.1 and 11.1 to 11.2 as the fiscal did not lead any evidence with regard to these averments.

On the facts found as proved the Tribunal had no hesitation in finding the Respondent guilty of professional misconduct. In respect of the Company A matter, the Respondent was aware that his client, Company A had concluded missives with a number of individuals in respect of the sale of units to them. Despite this knowledge and without advising the prospective purchasers or their solicitors, the Respondent acted on behalf of Company A when it negotiated and sold its interests in the development to a third party. The Tribunal considered that the Respondent brought the profession into disrepute by knowingly permitting his client to sell heritable property to a third party when his client was contractually bound to sell to others. The Tribunal also considered this to be a breach of Article 7 of the Code of Conduct for Scottish Solicitors 2002. It is important in order to preserve the integrity of the conveyancing system in Scotland, that solicitors should not, where they are aware that a client has concluded missives with a number of purchasers, proceed to negotiate a separate transaction and act in the sale of a development site to a third party knowing that the client would be in breach of the various contracts with prospective purchasers. The Respondent should have refrained from acting for Company A in respect of the subsequent transactions. As a result of the Respondent’s actions a number of purchasers were financially disadvantaged in that they did not receive their full deposits back. The Tribunal found it unnecessary to decide whether the Respondent’s conduct in this matter also amounted to a breach of Article 1 and / or Article 5a of the Code of Conduct. The Tribunal however had no hesitation in finding that the Respondent’s conduct in acting in this manner amounts to professional misconduct in terms of the Sandeman test. (Richard Allan Sandeman-v-The Council of the Law Society of Scotland [2011] CSIH 24 P433/10).

The Tribunal also found the Respondent guilty of professional misconduct in respect of his knowingly falsely representing to the Law Society that his accounting records had been destroyed in a flood when they clearly had not been. Article 7 of the Code of Conduct for Scottish Solicitors provides that “solicitors must act honestly at all times and in such a way as to put their personal integrity beyond question”. The Respondent was in breach of this code by providing false information to his professional body and the Tribunal consider that this would be regarded by competent and reputable solicitors as serious and reprehensible. The Tribunal was also extremely concerned by the fact that the Respondent acted so recklessly in clearing money out of his client’s accounts on 4 November 2008 when he could not be sure that these monies were actually due to him. The Tribunal was satisfied on the basis of the evidence from Morna Grandison that in doing so he removed approximately £116,200 of client’s money to which he was not entitled. The Tribunal consider this to be totally unacceptable and it puts the Respondent’s personal integrity in severe doubt.

The Tribunal also found the Respondent guilty of professional misconduct in respect of his failure to account to the liquidators of Company A and Company E and failure to respond to the reasonable enquiries of the liquidators concerning matters of importance identified by the liquidators. The Tribunal consider that it puts the Respondent’s personal integrity into question when he does not answer questions about client’s funds. The Tribunal also had concerns with regard to the apparent unlimited use of a credit card on the Company A and Company D accounts but the clients did not make a complaint about this and the Tribunal was unable to find it proved beyond reasonable doubt that the Respondent was not authorised to use this money.

The Tribunal also found the Respondent guilty of professional misconduct in respect of his breach of Rule 4 of the Accounts Rules due to the shortfall of more than £8,000 on his client account. The Tribunal was not able to find a breach of Article 9 of the Code of Conduct or find the Respondent guilty of professional misconduct in respect of misleading the solicitors acting for the purchasers of the properties at Property 2, because it is not clear to the Tribunal what the Respondent had been told by Company C. The Tribunal accordingly cannot find that what the Respondent stated in his letter of 10 September 2007 was dishonest. Company C were the finders for the purchasers and accordingly it is likely that the purchasers would have had some contact with Company C. No evidence was led with regard to what any of the purchasers were told. The Tribunal is also not able to find, on the basis of the evidence led, that the Respondent acted dishonestly by not disclosing money to the Inland Revenue.

Conviction of ‘Paid Hitman’ over Leslie Cumming ‘murder bid’ leaves more questions than answers in Law Society’s organised fit-up of critics scandal

Robert Graham was convicted of the attack on former Chief Accountant Leslie Cumming of the Law Society of Scotland. ROBERT GRAHAM (aged 46), an alleged ‘paid hitman’ who stood accused of an attempted ‘murder hit’ which took place in January 2006 at Murrayfield, Edinburgh against Leslie Cumming, the now former Chief Accountant of the Law Society of Scotland, was convicted today at the High Court in Edinburgh after a trial lasting nine days. Mr Graham was found guilty by a majority jury verdict and was remanded in custody to appear for sentencing on 15 December. Mr Graham was extradited back to Scotland from Australia last year to be charged with repeatedly striking Mr Cumming on the head and body with a knife or similar instrument to his severe injury, permanent disfigurement and to the danger of his life in the attack which took place six years ago.

The High Court heard earlier this week from Graham who denied attempting to murder the Law Society accountant, claiming he did not assault Mr Cumming, rather he intervened in the attack, (allegedly carried out by another party), to stop Mr Cumming getting “a bigger hiding”. During the accused’s testimony, Graham told the court he was born in Ireland as Paul Francis McGhee before emigrating to New Zealand at the age of nine but in Britain he called himself Robert Graham. The court also heard from a witness that Graham had confessed to a colleague that he had "done a judge in" and was paid £10,000 by a guy in a BMW to give him "a good working over".

The witness who told the court of the alleged boast by Graham, scaffolder Nicholas Wells said he started work at Wembley Stadium in January 2006 and Graham joined a few weeks later. In a statement to police, he said: "He told me around this time he had done a judge in in Edinburgh, having jumped out some bushes at him. I can recall him telling me the guy from the BMW paid him £10,000 to do the job and told him to give the guy a good working over." Mr Wells told the court he had been approached by the police at a site he was working on in Edinburgh in 2009. Asked if he had told them the truth, Wells replied: "As I remember it at the time." He added: "I was taking a lot of drugs at the time. I was taking a lot of sleeping tablets ... it is hard to remember it all clearly now."

The court heard that during the assault, Mr Cumming grasped the balaclava worn by the attacker in an attempt to pull it off while further DNA evidence was recovered from the Barbour jacket Mr Cumming was wearing at the time of the attack. Additional DNA material was taken from Mr Cumming before doctors treated his wounds, and the DNA was linked back to Graham in tests.

Forensic scientist Amanda Pirie, 39, told the High Court last Friday it had been a "full" match which was "as good as it gets" and left a one in a billion chance that it belonged to someone else. She added that another match had been made with DNA found on the jacket Mr Cumming was wearing when he was attacked. She said: "In our opinion the scientific findings from examination of the jacket and the left hand swabs are consistent with Robert Graham having assaulted Leslie Cumming as alleged."

At the conclusion of the trial today, John Logue, Area Procurator Fiscal for Lothian & Borders, said: “In 2006 Robert Graham targeted and tried to kill Leslie Cumming because he was paid to do so. Today, almost six years later, he has been found guilty of this vicious and cowardly attack after being extradited from Australia.”

Mr Logue continued : “He was brought to justice by the perseverance and diligence of officers in Lothian and Borders Police who tracked him down, assisted by Interpol and authorities in New Zealand and Australia. I hope that today’s successful prosecution will secure the confidence of the Scottish public that those who try to evade justice will be pursued and brought before the courts.”

Leslie Cumming, former Law Society of Scotland’s Chief Accountant. At the end of the trial, Mr Cumming commented : "The police perseverance and professionalism and the Crown Office input have been vital in securing the result. It's important to me that I got that closure and I just want to thank the members of the team who were involved in this complicated case for their efforts on my behalf. The actual event was horrific and bloody and having to explain to the court in such detail as we could recall at this time was traumatic for my wife and me. I hope now the trial is complete and the result is known that this nightmare has ended for us and we can get back to normal life."

Commenting after the majority verdict convicted Robert Graham of the attack on Mr Cumming, the Solicitor General for Scotland, Lesley Thomson QC, said : "He uses the name Robert Leiper Graham in this country and Paul Francis McGhee in New Zealand. The Crown is not in a position to say he is either of these people at this stage." Ms Thomson also said when Graham left New Zealand in 1999 there was an outstanding warrant out for him and that a notice had been served on him in a move to deport him from Britain.

Detective Chief Inspector Keith Hardie, of Lothian and Borders Police, said: "We welcome today's verdict which sends out a clear message that Lothian and Borders will quite literally pursue people to the other side of the world to bring them to court. He is a devious character, who has lived a lie for most of his adult life, and there were major concerns he would do his best to continue to evade justice."

However, the multi million pound investigation carried out by Lothian & Borders Police and the subsequent conviction of Robert Graham this week leaves more questions than answers over why the attack occurred in 2006, who allegedly paid Graham to carry our the attack and why Law Society of Scotland officials and a media outlet were so keen to pin the blame for the attack on critics & campaigners in a year where the Scottish Parliament had begun a major investigation into the Law Society of Scotland and its notoriously prejudiced closed shop handling of the regulation of crooked lawyers.

Over the years, insiders have claimed the Police have a good idea of exactly who ordered the attack on Mr Cumming, some even linking up the incident to other well reported frauds in Scotland which involved millions of pounds, well known crooked solicitors and a banker. However Lothian & Borders Police have said nothing officially on any of these claims.

The answer to the attack may well lie in Leslie Cumming's role with the Law Society of Scotland, where as its Deputy Chief Executive and Chief Accountant, Mr Cumming was in charge of teams of inspectors who audit the financial accounts of law firms to ensure compliance with the Law Society’s rules (rules to keep accounts, not rules to rip off clients as much as possible and undetected). Mr Cumming was also involved in disciplinary cases, of which there are many, many resulting in no criminal convictions where, for example a solicitor might make off with half a million pounds from a deceased’s client will, and get away with it, and be allowed to carry on working.

It is also noteworthy Mr Cumming in his role as Deputy Chief Executive played number two to the also now former Chief Executive Douglas Mill, who resigned in disgrace after a scandal involving the fiddling of Master Policy insurance claims against crooked lawyers which was exposed by the now Cabinet Secretary for Finance, John Swinney during a meeting of the Justice 2 Committee later the same year Cumming was attacked. The video footage of Mr Swinney’s exposure of Douglas Mill & the Law Society’s Master Policy fraudulent insurance fiddle scheme, can be viewed online HERE.

The conviction of Graham for the assault on Mr Cumming also closes the book on the Law Society’s attempt to fit-up critics & campaigners for the 2006 incident, where it was reported, senior Law Society officials had even provided statements to Police urging them to ‘collar’ persons the Law Society ‘did not get along with’.

Law Society of Scotland officials used Police, newspapers in attempt to link their critics to attack on Chief Accountant Leslie Cumming The Law Society of Scotland has of course, declined to explain why its senior officials gave private briefings to newspaper journalists just after the attack on Mr Cumming in late January of 2006, urging the publication of stories which were intended to pin the blame for the assault on Mr Cumming on critics & law reform campaigners who were seeking an end to self regulation of the legal profession (Cash laundering link to law chief stabbing, 29 January 2006, Scotland on Sunday). However, journalists at the time identified those at the Law Society who were involved in the private briefings & telephone calls to newspapers. Strangely, not one Law Society official was identified in the Scotland on Sunday story despite the highly charged accusations levelled against critics & law reform campaigners published in the paper.

A spokesperson for the Law Society of Scotland said of Mr Cumming : "He was a dedicated and popular member of staff and the attack was a great shock to his former colleagues. Leslie was determined not to let the attack stop him from living life to the full and he has done that in so many ways."

Like his former Boss, Douglas Mill who has a consultancy business, Leslie Cumming now runs his own consultancy business, Leslie Cumming Consultancy Services.

The trial of Robert Graham at the High Court in Edinburgh commenced on 7 November 2011 and last for 9 days. It was prosecuted by the Solicitor General for Scotland, Lesley Thomson QC, who was the Procurator Fiscal in the abandoned Fatal Accident Inquiry into the death of a young girl who was massively overdosed with radiation, the Crown Office made the usual claims “lessons will be learned”.

Mr Logue’s claims that those who try to evade justice will be pursued & brought before the courts apparently do not apply to lawyers who swindle millions of pounds from the legal aid budget each year in multiple frauds, as revealed by Diary of Injustice in an earlier report here : FOURTEEN lawyers accused of multi-million pound legal aid fraud escape justice as Scotland’s Crown Office fail to prosecute all cases in 5 years

In a double slap to Mr Logue’s contentions of what happens to those who evade justice, one of the FOURTEEN alleged legal aid fraudster lawyers who escaped prosecution by the Crown Office, was/is married to one of Mr Logue’s own Procurator Fiscal colleagues, reported here : Admissible Evidence ? Crown Office Prosecutor married to lawyer accused of legal aid fraud, both still working, Legal Aid Board ‘convinced of guilt’

Another of the fraudsters, who defrauded the Scottish Legal Aid Board of TWO MILLION POUNDS & committed suicide before being charged, was married to a Police Officer in training at Tulliallan Police College, who was, according to Scottish Government sources, due to pass out the same day her husband jumped in front of a train, reported here : Justice Secretary’s discredited defence for Crown Office in 14 legal aid fraud scandals as links between accused lawyers & Scots crime agencies emerge