DISHONEST LAW: Latest annual report of discipline tribunal where lawyers appear in front of themselves - reveals pitiful 31 case workload in the fairy tale land of solicitors’ self regulation

Lawyer vs lawyer tribunal protects bad apples, again. AMID the usual claims of client protection while attempting to polish the bad apples from the rotten - the latest annual report of the Scottish Solicitors Discipline Tribunal (SSDT) – the body charged with ‘prosecuting’ rogue solicitors who rip off their clients – details a dry, if ‘increasingly complex’ series of cases where rogue solicitors are hauled before their own colleagues to face the music.

This year’s thirty eight page report from the lawyer vs lawyer tribunal - covering the period 1 November 2013 to 31 October 2014 and only now published in the second week of March 2015 – details the usual, typically less than honest world of self regulation of the legal profession - where lawyers investigate themselves and then recommend their colleagues appear before themselves for a quick slap on the wrist.

The grand workload of the tribunal for the last year has – unsurprisingly – not seen a busy year, with 31 cases taken to the Tribunal during the 12 months, along with another 11 appeals against decisions of the Law Society of Scotland and other miscellaneous applications. The Tribunal managed to break away from the hustle & bustle, and occasional dodgy deals at parties by making findings of professional misconduct in 24 cases.

And – dishonesty – the habitual daily workout of some in Scotland’s legal profession – made famous by Alistair Cockburn’s performance on the BBC Scotland’s investigation Lawyers Behaving Badly – only merits a single mention in the entire report of a year’s worth of prosecuting dodgy solicitors.

2013-2014 SSDT Annual Report – revealing slaps on the wrist dished out to rogue solicitors. In this year’s SSDT Annual report – and like others before it – there is little to show the legal profession have any regard for client protection. Typically, solicitors receive pittance fines – which are usually made up from hikes in legal fees as soon as they get back to work. Along with fines, the traditional slap on the wrist was handed down on several occasions.

Chairman of the legal profession’s in-house tribunal commented: “Details of the Tribunal’s workload over the past 12 months are set out in this report. The Tribunal has continued to be very busy with cases becoming more complex and taking up more Tribunal time.”

The Tribunal is also dealing with a lot of Complaints which involve Secondary Complainers who have made claims for compensation.

There have again been a large number of cases involving the Council on Mortgage Lenders Handbook. It is hoped that members of the profession take time to read these decisions and be reminded of their obligations in terms of the Handbook.

The Tribunal is receiving an increasing number of Appeals under section 42ZA by Lay Complainers who often have difficulty in framing their Appeal in a structured and relevant way. The Tribunal accordingly has prepared guidance for Lay Complainers to try to assist them with this.”

Going on to comment on the state of the tribunal’s online website – which has suspiciously deleted many findings against rogue Scots lawyers, Chairman Cockburn said: “The Tribunal Findings continue to be put on the Tribunal website which can be accessed at www.ssdt.org.uk The Tribunal experienced technical difficulties with its website during the year owing to the age of the website. A temporary website is now in place and the Tribunal is working towards having a new website in operation in 2015.”

“Tribunal hearings continue to be held in public, normally at The Scotsman Hotel in Edinburgh. The diary part of the Tribunal website details the substantive business scheduled to be heard but not procedural business. In certain cases, business is not put into the diary if the hearing is to be held in private.”

DISHONESTY FACTOR:

An investigation by BBC’s Lawyers Behaving Badly featured the case of John O’Donnell, and went on to reveal the startling differences in how dishonesty in the Scottish legal profession is treated lightly compared to England & Wales – where dishonesty is automatically a striking off offence.

Alistair Cockburn, Chair, Scottish Solicitors Discipline Tribunal. Featured in the investigation was the Scottish Solicitors Discipline Tribunal (SSDT) Chairman’s attitude towards solicitors accused of dishonesty in their representation of clients legal affairs. During the programme, it became clear that dishonesty among lawyers in Scotland is treated less severely, compared to how English regulators treat dishonesty.

Sam Poling asks: The Scottish Solicitors’ Discipline Tribunal hears all serious conduct cases against solicitors. Last year they struck off nine of them. But is this robust enough?

Alistair Cockburn Chairman, Scottish solicitors discipline tribunal replies: It is robust in the sense that it doesn’t just give convictions on the basis that somebody’s brought before us charged by the Law Society.  We are mindful, particularly when reminded of the lay members, of a duty to the public.

One is always concerned when there is deception but you can have a situation where solicitors simply lose their place. They make false representations in order to improve their client’s position, not necessarily their own. And you would take that into account in deciding what the penalty was but there’s no suggestion that such conduct wasn’t deemed to be professional as conduct. 

Sam Poling: So there are levels of dishonesty which sit comfortably with you, satisfactorily with you?

Alistair Cockburn: No it’s not a question of saying sitting comfortably with me.  I’ve told you…

Sam Poling: OK that you would accept?

Alistair Cockburn: No I’d be concerned on any occasion that a solicitor was guilty of any form of dishonesty.  One has to assess the extent to which anyone suffered in consequence of that dishonesty.  You have to take into consideration the likelihood of re-offending and then take a decision.  But you make it sound as if it’s commonplace.  It isn’t.  Normally dishonesty will result in striking-off.

English QC’s agree ‘dishonesty’ is a striking off offence. The SSDT Chairman’s comments on dishonesty compared starkly with the comments of the English QC’s - who said dishonesty was undoubtedly a striking off offence.

Andrew Hopper QC: “I cant get my head round borrowing in this context. Somebody explain to me how you can borrow something without anyone knowing about it. That’s just taking.”

Andrew Boon Professor of Law, City University, London: “They actually say in the judgement they would have struck him off but the client hadn't complained.”

Andrew Hopper QC “We’re dealing with a case of dishonesty and that affects the reputation of the profession. I would have expected this to result in striking off.”

Andrew Boon, Professor of Law: “The critical thing is the risk factor. If somebody has been dishonest once the likelihood is that they are going to be dishonest again unless they’re stopped.”

As Sam Poling went on to report: “but he [O’Donnell] wasn't stopped. The tribunal simply restricted his license so that he had to work under the supervision of another solicitor.”

LEGAL WORLD’S TRIBUNAL WHERE LAWYERS APPEAR IN FRONT OF THEMSELVES:

Just how complex are the rules around prosecutions of solicitors for ripping off their clients?

Notes from the SSDT report reveal the hurdles put in place by the legal profession to protect their own …

In cases of professional misconduct the Tribunal will receive a Complaint from the Law Society fiscal which will then be served upon the Respondent. The Respondent has three weeks in which to lodge answers (although extension of time for lodging answers requests are often received and are sometimes granted provided there is a valid reason). The matter will then be set down, either for a procedural hearing, a preliminary hearing or a substantive hearing. Procedural hearings are used to clarify whether or not there are any preliminary issues and identify whether evidence is going to be required. Preliminary hearings are set down where there are preliminary points which have to be decided before the Complaint can proceed to a substantive hearing. These usually take place by way of a debate. At a substantive hearing the Tribunal will either proceed to make a finding of professional misconduct, find the Respondent not guilty of professional misconduct or remit the matter to the Law Society under section 53ZA on the basis that the Tribunal considers the Respondent's conduct may amount to unsatisfactory professional conduct.

If there is a Secondary Complainer involved in the Complaint they only become a party to the proceedings after a finding of professional misconduct is made. Prior to any finding of professional misconduct, Secondary Complainers have no direct input into the Tribunal process. If a finding of professional misconduct is made and if the Secondary Complainer has requested compensation, it will be up to the Secondary Complainer to provide the Tribunal with the necessary evidence. The Tribunal will then decide whether or not it is appropriate to make an award of compensation in favour of the Secondary Complainer. There can be cost implications for the Secondary Complainer if additional Tribunal time is required to deal with their claim and an award is not made in their favour.

In relation to section 42ZA Appeals the Tribunal receives the Appeal either from the solicitor, or from a Lay Complainer. Lay Complainers when making an Appeal under section 42ZA often have difficulty in focusing their Appeal and setting out clearly and succinctly what their grounds of Appeal are. The Appeal should identify any error of fact or law made by the Law Society. The Appeal will be served on the Law Society and the Solicitor/ Lay Complainer and three weeks are allowed for the lodging of answers. Again there may be circumstances when an extension of time for lodging answers is given.

The Tribunal cannot give Lay Complainers advice with regard to the making of their Appeals. The Tribunal however does understand that it is difficult for Lay Complainers to deal with the formal Tribunal process and guidance notes have been made available on the Tribunal's website. If Lay Complainers are unable to put their Appeal in the proper form, despite having been given warning in terms of Tribunal rule 23 and being given the opportunity to amend, the Appeal may be struck out as being manifestly unfounded. Procedural hearings are usually held for section 42ZA Appeals so that it can be clarified whether or not the matter is to proceed by way of submissions or whether the facts are in dispute. Sometimes there are three parties to 42ZA Appeals being the Appellant, the Law Society and the solicitor/Lay Complainer, in whose favour the Law Society previously made a Determination.

COMPLAINTS FLICK: Law Society of Scotland & ‘independent’ Scottish Legal Complaints Commission team up to produce video on how to complain about a rogue lawyer

Legal regulators SLCC and Law Society launch complaints process video. IN A MOVE seen as an attempt to combat publicity about poor regulation of the legal profession and few if any prosecutions of dodgy lawyers ripping off their clients, the Law Society of Scotland and the ‘independent’ Scottish Legal Complaints Commission (SLCC) have teamed up to produce a public video explaining the process for making a complaint about a solicitor in Scotland.

However, people who have actual experience of the solicitor complaints process as administer by the Law Society & SLCC have criticised the video as bearing little comparison with reality to how clients of rogue lawyers are treated after making a complaint.

The ‘help’ video, which begins with a claim that most people are happy with their solicitors and have no reason to question services provided, or demands for sky high legal fees without any real evidence of work, can be viewed on the SLCC’s website here: SLCC and Law Society of Scotland joint video on the complaints process or on the Vimeo hosting website directly here: Making a complaint about a solicitor

The video on how to complain about a rogue solicitor appears along with another video clip - Scottish Legal Complaints Commission - Mediation video, also produced by the SLCC which claims to document the process of mediation. However, some users of the mediation service have referred to their mediation experiences as less than satisfactory, and little more than a delaying tactic used by law firms who attempt to escape complaints investigations.

One client involved in a bitter five year struggle with the Law Society described the video as “an attempt to limit a person’s expectation of justice.” He went on to say the video “looks like it has been made by crooks to save crooks”.

The ‘how to’ complain video comes on the heels of revelations that solicitor Clive Franks, a senior partner of Edinburgh based Franks Macdam Brown and a key member of the Law Society of Scotland’s infamous Complaints Committee regime, committed suicide on November 10, 2014.

It has since been revealed in the media the Law Society of Scotland were investigating Clive Franks over fraud allegations relating to client funds. Mr Franks was involved in defending a controversial case involving a challenge to the will of building tycoon Alfred Stewart. It was revealed in the Sunday Mail newspaper Franks was a trustee of a will which was changed at the last minute to cut out members of the family of the deceased.

Law Society Complaints Committees – of which Franks was a key player, form a key role in protecting corrupt lawyers from complaints lodged by members of the public and it is likely the Complaints Committees were consulted in some way on the video productions.

Making a complaint about a solicitor - Scottish Legal Complaints Commission

 

Mediation - Scottish Legal Complaints Commission

 

Commenting on the video, Matthew Vickers, the current Chief Executive of the SLCC said: “Having dealt with legal complaints over the past six years, we appreciate that the current process is complex and can be a difficult one for clients to understand.   I welcome this video – which we have made in partnership with the Law Society of Scotland – as a valuable tool to inform the public about how the legal complaints process works, and the stages within it.”

Carole Ford, convener of the Law Society of Scotland’s Regulatory Committee, welcomed the video: “The vast majority of people are very happy with the service they receive from their solicitor, but it’s important that those who are not satisfied know that they have somewhere to go, and that there are processes in place that can help resolve any issues.  The Law Society has worked closely with the SLCC on this joint venture and I think we have successfully produced a valuable tool that could go a long way to helping the public understand the complaints process from start to finish.”

Susan McPhee, Citizens Advice Scotland’s Head of Policy and Communications added: “We welcome this video from the Law Society of Scotland and the Scottish Legal Complaints Commission.  Consumers in Scotland need clear routes to resolve issues they have with solicitors – and these routes need to be easily understood by consumers.  This video provides a gateway for consumers to find out what they need to do, and what their solicitors are obliged to do if there is a disagreement.  I hope it is used by consumers to ensure rights are respected and protected.”

MEDIA EXPOSE LAWYERS BEHAVING BADLY:

Legal insiders say the SLCC & Law Society decided to make the video clip in response to increasing media coverage of dodgy solicitors and the public’s reaction to constant legal rip offs and poor regulation which came into focus with the BBC’s Lawyers Behaving Badly programme - which featured reports on poor regulation of Scotland’s legal profession, along with a host of crooked lawyers still going about their business.

Alistair Cockburn, Chair, Scottish Solicitors Discipline Tribunal. Of note in the programme was the Scottish Solicitors Discipline Tribunal (SSDT) Chairman’s attitude towards solicitors accused of dishonesty in their representation of clients legal affairs. During the programme, it became clear that dishonesty among lawyers in Scotland is treated less severely, compared to how English regulators treat dishonesty.

English QCs speaking on the programme were unequivocal that dishonesty is a striking off offence south of the border, while the appearance through the years in Scotland has been Scots lawyers are simply given a slap on the wrist, or a merit badge for dishonesty by their colleagues in the regulation game.

Sam Poling asks: The Scottish Solicitors’ Discipline Tribunal hears all serious conduct cases against solicitors. Last year they struck off nine of them. But is this robust enough?

Alistair Cockburn Chairman, Scottish solicitors discipline tribunal replies: It is robust in the sense that it doesn’t just give convictions on the basis that somebody’s brought before us charged by the Law Society.  We are mindful, particularly when reminded of the lay members, of a duty to the public.

One is always concerned when there is deception but you can have a situation where solicitors simply lose their place. They make false representations in order to improve their client’s position, not necessarily their own. And you would take that into account in deciding what the penalty was but there’s no suggestion that such conduct wasn’t deemed to be professional as conduct. 

Sam Poling: So there are levels of dishonesty which sit comfortably with you, satisfactorily with you?

Alistair Cockburn: No it’s not a question of saying sitting comfortably with me.  I’ve told you…

Sam Poling: OK that you would accept?

Alistair Cockburn: No I’d be concerned on any occasion that a solicitor was guilty of any form of dishonesty.  One has to assess the extent to which anyone suffered in consequence of that dishonesty.  You have to take into consideration the likelihood of re-offending and then take a decision.  But you make it sound as if it’s commonplace.  It isn’t.  Normally dishonesty will result in striking-off.

English QC’s agree ‘dishonesty’ is a striking off offence no matter what. The SSDT Chairman’s comments on dishonesty astounded viewers, and compared starkly with the comments of the English QC’s who said dishonesty was undoubtedly a striking off offence.

Andrew Hopper QC: “I cant get my head round borrowing in this context. Somebody explain to me how you can borrow something without anyone knowing about it. That’s just taking.”

Andrew Boon Professor of Law, City University, London: “They actually say in the judgement they would have struck him off but the client hadn't complained.”

Andrew Hopper QC “We’re dealing with a case of dishonesty and that affects the reputation of the profession. I would have expected this to result in striking off.”

Andrew Boon, Professor of Law: “The critical thing is the risk factor. If somebody has been dishonest once the likelihood is that they are going to be dishonest again unless they’re stopped.”

As Sam Poling went on to report: “but he [O’Donnell] wasn't stopped. The tribunal simply restricted his license so that he had to work under the supervision of another solicitor.”

This article has been updated with new information, and comments from individuals currently involved in complaints investigations being conducted by the Scottish Legal Complaints Commission & the Law Society of Scotland.

If you are making a complaint about a solicitor and feel you are being treated unfairly by the SLCC & Law Society of Scotland, please consider publicising your difficulties, to help protect your own interests and others. You can contact us at scottishlawreporters@gmail.com. Any material provided will be treated as confidential and will not be published without your consent.

DISHONESTY TRIBUNAL: 35 cases of dodgy lawyers with a mere 9 struck off & 26 slaps on the wrist is a “busy year” claims Scottish Solicitors Discipline Tribunal

Dishonesty among lawyers is tolerated more in Scotland. A SCOTTISH TRIBUNAL tasked with judging corrupt lawyers and applying sanctions from a slap on the wrist to a striking off, is generally viewed as an old pals act back slapping exercise which tolerates dishonesty among the Scottish legal profession much more than it’s English counterpart, say critics & clients who have endured lengthy and in many cases almost pointless hearings of the Scottish Solicitors Discipline Tribunal (SSDT).

The SSDT, who claimed in a recent legal profession internal media story that they had been through a “very busy” year to 31 October 2013, revealed the tribunal heard a less than stellar 35 cases compared to 26 for the previous year. The Tribunal claimed it had a "significant increase in business" in its hearings, which now also include appeals by lay complainers against decisions of the Law Society of Scotland not to make a finding of unsatisfactory professional conduct.

However, out of the 35 cases which actually made it to the tribunal through the usual maze of self protecting self regulation where lawyers regulate themselves, a paltry NINE cases resulted in solicitors being struck off, with the remaining solicitors receiving slaps on the wrist, broken down as three suspended from practice, two had a restriction placed on their practising certificate, four were fined and censured and a further six were censured.

And, while the SSDT claims to take its duties to deal with the worst elements of dodgy lawyers seriously, it has been reported by the legal profession’s internal media that in only two of the cases brought before the tribunal in the past year, undisclosed amounts of compensation were ordered by the tribunal to be paid.

A summary of the cases heard before the tribunal in it’s “busy year” claimed that: “In all, nine cases involved failure to complete conveyancing procedures in a proper manner (with or without other failures), and the same number saw a failure to comply with the accounts rules. Eight cases involved misleading the Law Society of Scotland or other parties, and seven a failure to reply to the Society or others. There were numerous other findings of misconduct including five of dishonesty.”

As of today, the 2013 annual report has yet to be published on the tribunal website, which is well known for its lack of information and more often than not publishing of judgements months after they have occurred – a move viewed by many in the media as an attempt to hide the true scale of dishonesty and dodgy lawyers from the public’s attention.

DISHONESTY IS THEIR GAME: The Scottish way of dealing with dishonest lawyers often gives a slap on the wrist whereas solicitors found guilty of dishonesty stand a greater chance of being struck off in the rest of the UK:

Dishonesty in Scots solicitors more common than lawyers would have us believe. SCOTTISH solicitors “make false representations in order to improve their client’s position, not necessarily their own”. This was a claim made by solicitor Alistair Cockburn, Chairman of the Scottish Solicitors Discipline Tribunal (SSDT) in response to key questions raised by BBC Journalist Sam Poling in a recent investigative programme Lawyers Behaving Badly which is no longer available for public viewing.

The claims made by the tribunal Chief led to startling revelations over how the lawyer led discipline tribunal which is charged with making findings against members of Scotland’s legal profession deals with allegations & evidence of dishonesty against rogue solicitors.

Insisting the discipline tribunal was ‘robust’ and had a duty to the public, the Chair of the SSDT went on to justify his position, stating “One has to assess the extent to which anyone suffered in consequence of that dishonesty.  You have to take into consideration the likelihood of re-offending and then take a decision.” Mr Cockburn went onto claim dishonesty is not commonplace and would result in solicitors being struck off. The SSDT Chair told the BBC journalist: “Normally dishonesty will result in striking-off.”

In comparison to the light way in which the Scottish tribunal appears to treat dishonesty among legal colleagues in all its various shades, English legal experts who studied the judgements of the Scottish Solicitors Discipline Tribunal condemned the way dishonest lawyers are more often than not let off the hook in Scotland.

Speaking on a case where a well known Scottish solicitor accused many times before of dishonesty was at it again, English QC Andrew Hopper said on national television: “We’re dealing with a case of dishonesty and that affects the reputation of the profession. I would have expected this to result in striking off.”

Andrew Boon, Professor of Law added : “The critical thing is the risk factor. If somebody has been dishonest once the likelihood is that they are going to be dishonest again unless they’re stopped.”

Almost all complaints against solicitors indicate at at one stage or another, the solicitor was dishonest to their client, either by making a false representation to them as to the progress of their case, or making false representations to cover their own positions.

Very few complaints made by clients against Scottish solicitors which involve serious allegations of dishonesty have ever resulted in solicitors being struck off by the Scottish Solicitors Discipline Tribunal, and an ongoing media investigation into judges undeclared earnings from top Scots law firms has turned up links between serving members of Scotland’s judiciary, law firms, and solicitors who have frequently been accused of dishonesty yet never struck off.

The Dishonesty Factor: Scottish solicitors accused of dishonesty ‘less likely to be struck off’ than dishonest lawyers who face tougher regulation in England & Wales

Contrary to profession’s view, evidence from clients suggests dishonesty in Scots solicitors is rewarded, not punished. SCOTTISH solicitors “make false representations in order to improve their client’s position, not necessarily their own”. This was a claim made by solicitor Alistair Cockburn, Chairman of the Scottish Solicitors Discipline Tribunal (SSDT) in response to key questions raised by BBC Journalist Sam Poling in the recent investigative programme Lawyers Behaving Badly.

The claims made by the tribunal Chief led to startling revelations over how the lawyer led discipline tribunal which is charged with making findings against members of Scotland’s legal profession deals with allegations & evidence of dishonesty against rogue solicitors.

Insisting the discipline tribunal was ‘robust’ and had a duty to the public, the Chair of the SSDT went on to justify his position, stating “One has to assess the extent to which anyone suffered in consequence of that dishonesty.  You have to take into consideration the likelihood of re-offending and then take a decision.” Mr Cockburn went onto claim dishonesty is not commonplace and would result in solicitors being struck off. The SSDT Chair told the BBC journalist: “Normally dishonesty will result in striking-off.”

However, many clients who make complaints about dishonest solicitors will be surprised at the SSDT Chair’s claim, given the fact most complaints involving dishonesty encounter resistance on the part of the legal profession's self regulatory bodies such as the Law Society of Scotland and Scottish Legal Complaints Commission (SLCC).

 Solicitors sometimes make false representations – SSDT Chair Alistair Cockburn speaking to the BBC.

Sam Poling asks: The Scottish Solicitors’ Discipline Tribunal hears all serious conduct cases against solicitors. Last year they struck off nine of them. But is this robust enough?

Alistair Cockburn Chairman, Scottish solicitors discipline tribunal replies: It is robust in the sense that it doesn’t just give convictions on the basis that somebody’s brought before us charged by the Law Society.  We are mindful, particularly when reminded of the lay members, of a duty to the public.

One is always concerned when there is deception but you can have a situation where solicitors simply lose their place. They make false representations in order to improve their client’s position, not necessarily their own. And you would take that into account in deciding what the penalty was but there’s no suggestion that such conduct wasn’t deemed to be professional as conduct. 

Sam Poling: So there are levels of dishonesty which sit comfortably with you, satisfactorily with you?

Alistair Cockburn: No it’s not a question of saying sitting comfortably with me.  I’ve told you…

Sam Poling: OK that you would accept?

Alistair Cockburn: No I’d be concerned on any occasion that a solicitor was guilty of any form of dishonesty.  One has to assess the extent to which anyone suffered in consequence of that dishonesty.  You have to take into consideration the likelihood of re-offending and then take a decision.  But you make it sound as if it’s commonplace.  It isn’t.  Normally dishonesty will result in striking-off.

The position on dishonesty taken by the SSDT boss appears to conflict with that found by many clients who are forced into the unenviable position of having to complain about their solicitor.

After months of waiting on results from regulators run principally by lawyers, most clients who file complaints against their solicitors will be all too aware that regulators often refuse to even look at claims of dishonesty due to the fact a proven case of dishonesty against a solicitor may entitle clients to claim compensation from the Scottish Solicitors Guarantee Fund, and raise potential legal action in Scottish courts.

More often than not, solicitors who are dishonest to their clients, and solicitors who regularly make dishonest representations – even before judges in a court of law, will not be struck off simply because regulators will ensure such cases never appear before the tribunal or see the light of day in a complaints decision found against a fellow solicitor by his colleagues in the profession’s own self regulator.

Unsurprisingly, the Scottish tribunal’s view of claims of dishonesty by solicitors – a common theme in almost all complaints made by members of the public or clients against the legal profession in Scotland, contrasts sharply with the opinions of legal experts in the rest of the UK who insist dishonesty is a striking off offence.

The BBC asked a panel of three legal experts from England & Wales for their opinion on the case of John G O’Donnell and how he was dealt with by the discipline tribunal which related to a case where O’Donnell was accused of borrowing £60K of clients money without consent. The panel easily concluded solicitors accused of dishonesty should be struck off as there was a risk to the reputation of the legal profession and the risk of reoffending was too great.

Dishonesty in the legal profession: Risk factors mean it is a striking off offence – English legal experts.

Andrew Hopper QC said: “I cant get my head round borrowing in this context. Somebody explain to me how you can borrow something without anyone knowing about it. That’s just taking.”

Andrew Boon Professor of Law, City university, London said : “They actually say in the judgement they would have struck him off but the client hadn't complained.”

Andrew Hopper QC “We’re dealing with a case of dishonesty and that affects the reputation of the profession. I would have expected this to result in striking off.”

Andrew Boon, Professor of Law: “The critical thing is the risk factor. If somebody has been dishonest once the likelihood is that they are going to be dishonest again unless they’re stopped.”

As Sam Poling went on to report: “but he [O’Donnell] wasn't stopped. The tribunal simply restricted his license so that he had to work under the supervision of another solicitor.”

In Scotland every year and for well over two decades, there are and have been thousands of enquiries and complaints to the Scottish Legal Complaints Commission (SLCC) and the Law Society of Scotland.

Almost all complaints against solicitors indicate at at one stage or another, the solicitor was dishonest to their client, either by making a false representation to them as to the progress of their case, or making false representations to cover their own positions.

More often than not, as in the case of Borders solicitor Andrew Penman, who a Law Society reporter found in 1994 had deliberately deceived a bank, had attempted to put files in order with an implication of dishonesty while doing so, hardly any complaint against a Scottish solicitor which documents dishonesty on a grand scale, has ever resulted in a striking off.

Mr Penman, who still works as a solicitor at Stormonth Darling solicitors in Kelso, was never struck off, and the Law Society along with its most senior staff set out to ensure any legal action against Mr Penman would never make it to court, the case and its history reported in detail HERE.

Contrary to the Law Society’s claims during the 1990’s, the Penman case was not a blip. Evidence from hundreds of complaints since the 90’s show is more common than not for the dishonesty of a solicitor to be rewarded in the Scottish legal profession with a continuing practicing certificate, just as in the O’Donnell case and hundreds, potentially thousands of others, rather than result in a striking off.