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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Accountants demand powers to handle wills & legal services, offering 'crooked' self regulation and little consumer protection in return

Hot on the heels of the Commercial Attorney's application to represent members of the public in the legal services market, which I reported on late last week, the Institute of Chartered Accountants of Scotland have jumped on the bandwagon and have submitted a similar application to the Scottish Government demanding their ‘Chartered Accountants’ be allowed to handle legal affairs for clients such as wills & probate services.

You can read more about the ICAS application for rights of audience here : ICAS application for rights of audience and other applications made under Sections 25-29 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 here : Rights of Audience

ICAS application demands accountants be allowed to handle wills & probate services while concealing dangerous lack of consumer protection : "ICAS believes that its practising members, by virtue of their qualifications as Chartered Accountants, and of their knowledge and experience of personal and trust affairs, taxation and the compilation of all kinds of financial statements and accounts, gained over years in the provision of professional services to the public, are appropriate persons to be engaged in these services. It further believes that the public would wish to engage its members' services in this respect. ICAS believes it satisfies every aspect of the public interest."

While increased competition in the legal services market is of course welcomed by most consumers but perhaps not solicitors, the fact is that Scottish Accountants lack safeguards to protect clients & consumers when their work becomes poor, or is sufficiently 'crooked' to the extent that client funds disappear, are embezzled, or lost on notorious financial scams created by the accountants which are so complicated they can never be resolved.

Moreover, when a client discovers they have been robbed by their accountant, they often find themselves bullied out of any legal representation they can obtain simply because the accountants firm is too powerful and linked to many local legal firms businesswise, making it 'not in the interest' of anyone to legally represent clients ruined by Chartered Accountants and proceed cases to sue crooked accountants and their regulator for recovery of lost funds.

One area where such financial scams against clients are easy to get away with, relate to wills & probate services of deceased loved ones, where it is almost impossible to recover the many millions of pounds each year stolen by accountants and solicitors from the estates of dead family members, who willed their possessions & assets to their loved ones but more often end up in the back pockets of the accountants and solicitors dealing with their affairs post death.

The following is what ICAS are seeking in terms of 'rights of audience' for Chartered Accountants to handle certain aspects of legal services for clients :

a. petitions to a Sheriff Court for appointment of executor's dative in intestate estate; (and some testate estates); b. applications to a Sheriff Court to resolve informalities in the execution of certain Wills; c. applications to a Sheriff Court to resolve queries regarding the domicile of the deceased; d. applications to the Court of Session where an original will has been lost but there is an extant copy; e. written applications to a Sheriff Court to present the inventory (of the deceased's estate), which is the basis for which confirmation will be granted.

While the work above will be self-egulated by ICAS - that is, accountants will regulate any complaints against accountants carrying out the work, there will be no external safeguards for clients such as a measure of ‘independent’ regulation and oversight by the new Scottish Legal Complaints Commission, who will regulate the same work only if it is carried out by your solicitor.

Here is the example of what happened to me at the hands of a notoriously crooked Borders Accountant, Norman Howitt, now with the JRW Group of accountants which spans the Scottish Borders : A picture is worth a thousand words - Images of fraud reveal corruption & deceit by lawyers & accountants in the Scottish Borders

Despite ICAS claims to the contrary, there were no safeguards for my late father's assets .. Norman Howitt and the solicitor, Andrew Penman, of Stormonth Darling Solicitors, Kelso, simply pulled the estate apart for themselves, and not content with doing that, Norman Howitt then made a grab for the assets of my mother too, insisting she turn over all her money to him for his own control, losing my mother in a malaise of complicated legal documents she lacked any impartial legal consultation to protect from a very wicked attempt to rob her of her money.

You can read more about what happened and how the Scotsman newspaper covered the story of Norman Howitt & Andrew Penman here : Andrew Penman & Norman Howitt : Lawyer & accountant team up to ruin Cherbi executry estate

Indeed, such were the lack of 'safeguards' on Mr Howitt's activity, when it was discovered he had embezzled money from the sale of assets of my late father into his former accountancy firm's accounts (Welch & Co, Hawick), he fabricated claims to the Police to try and put myself and my legal agents off the scent of his trail of embezzlement ... and as you can see from the 'investigation' carried out by the ICAS Chief of Regulation - Dr Tom McMorrow, who is now the ICAS General Council, Howitt's illegitimate use of the Police to conceal his trail of theft and brutality against my family was kept out of the investigation and report for fear of attracting the possibility of criminal charges against Howitt for his actions.

That is of course, but one case where an accountant deliberately and brutally set out to destroy a family solely for the purpose of gathering the money for his own control - that much is certain from the trail of documents which were leaked to me by solicitors running for cover at the extent of the scandal ... however, the trail of documents also show that Mr Howitt employed others to ensure he got his way, even to the extent of seeing they received huge sums of money free of charge just to ensure his own control over my late mother & father's assets ... a terrible situation which has been repeated many times over the years by accountants who have ruined the affairs of deceased clients for their own personal profit.

You may ask, what steps did I take to recover damages from what Mr Howitt did to my family ?

Well I took every step I could, but Mr Howitt and his accountancy firm, and even ICAS themselves, ensured I could not obtain legal representation to do anything about it. All the local legal firms were bullied into not representing me, because Mr Howitt's accountancy firm does business with all of the local solicitors ... and ICAS and the Law Society of Scotland saw to it I could not obtain any other legal agents from anywhere else in Scotland to handle the case, because of course, there were several firms of crooked solicitors also involved with Norman Howitt's mission to destroy my family's assets.

ICAS claim within their application that Chartered Accountants are required to hold Professional Indemnity Insurance to cover any losses arising from negligence or other losses generated by their poor work for clients.

Indemnity Insurance claims we have all heard before which turn out to be useless : “Practising Scottish Chartered Accountants are required to hold PII cover and the amount is calculated by reference to their fee income (currently, the requirement is to hold two and a half times gross fee income). That level of cover would, in our submission, be insufficient to provide the necessary level of assurance. The precise level of cover is in the gift of the Institute and it would prescribe a minimum level for the firm, calculated by reference to estate values being administered by the member, and impose the further obligation of top-up cover for large estates. Member firms are already required to have "run-off" cover in place for two years post-trading.”

Well as it happens, when clients who have been ruined by crooked accountants ask for details of the indemnity insurance cover, they are kept in the dark, and ICAS themselves wont even disclose it, as I found myself when trying to pursue Mr Howitt for the huge financial harm he did my family - so this insurance cover which accountants hold to cover clients who lose out financially, is simply a pack of lies, a corrupt policy of protection for crooked accountants, similar to the same Professional Indemnity Insurance arrangements which have allowed so many crooked lawyers to escape without paying their ruined victims a penny.

I have reported on the woes of indemnity insurance regarding the legal profession here : Lawyers negligence insurance branded corrupt, anti-consumer as evidence reveals only one per cent of clients get chance of payout

Trust me – the same applies to the negligence & indemnity insurance ‘carried’ by Scottish accountants .. it is a little more than a scheme to protect the guilty from poor ruined clients … also many of the same insurers who insure solicitors, insure accountants …

It comes down to this - As you can see from the ICAS application, Scottish accountants want the power to 'Norman Howitt' your money & assets after your death by raising an application to the Scottish Government for permission to handle your wills and other related legal business which currently, they cant do.

Would you want what you own, what you have, what your family has worked for to be “Norman Howitted” away in a despicable series of events your family could possibly never recover from while trying to cope with your death ?

From my experience, I say that allowing the ICAS application is too dangerous and not in the public interest at this time.

There are inadequate regulatory safeguards over accountants who are still self regulated by their own colleagues, there is a severe lack of consumer protection offered against poor service (despite claims to the contrary) and to be honest, although I am loathed to say it, you are better taking your will and any such related legal business to a solicitor (or a qualified individual who is independently regulated), now that there is at least the Scottish Legal Complaints Commission to carry out ‘independent oversight’ of what is going on.

My advice to you all : Keep your will and any legal affairs away from your accountant .. because you or your family will certainly regret the suffering and intense problems they will cause your family in years to come after your death when or if they typically decide to fleece your assets & estate as seems to be so common these days

Don’t believe the claims of ICAS, which is nothing more than a self regulating body which has no wish to compensate for the harm its members cause others.

Solicitor Andrew Penman of Stormonth Darling Solicitors Kelso & Accountant Norman Howitt – The Scotsman reports 1994 - 2001

How a solicitor and an accountant from the Scottish Borders ruined my family and how the Law Society covered it up. As many of this blog are now well aware, the Scotsman newspaper and other media outlets wrote many reports on developments in my case against crooked lawyer Andrew Penman of Stormonth Darling Solicitors, Kelso and crooked accountant Norman Howitt of the JRW Group in the Scottish Borders, the two so called 'professionals' who swindled the estate of my late father and got away with it due to self regulation of solicitors and accountants in Scotland.

Mr Howitt was the Executor, and Mr Penman was his legal agent - and when a crooked Executor and crooked lawyer team up, there's not much hope for honesty ... and Mr Howitt, not content with ruining the legal & financial affairs of my late father, did the same to my mother, insisting she pass all her assets to him for reasons of wanting to keep all the money for himself.

Some have been asking to understand a little more of my case against Drew Penman & Norman Howitt, so in light of a recent story in Scotland on Sunday passed to me by a Scotsman journalist I had completely forgot about (the one where I was going to take legal action against the then Scottish Legal Services Ombudsman, Mr Garry S Watson, who was just as terrible at his job as the Law Society of Scotland are at handing complaints against crooked lawyers, here in today's article, are the reprints of the Scotsman & Scotland on Sunday reports on my case, and campaign to bring independent regulation of lawyers in Scotland.I trus tthey are of use to some readers who suffer the same problems in dealings with the legal profession.

I get so many similar stories from people all over Scotland, of how lawyers and executors have ruined the estates of their relatives, it almost looks like some kind of macabre sport played out by lawyers to increase their profits, all the while knowing the Law Society of Scotland will let them off the hook if anyone dare complain against their actions. The way to stop these kinds of things happening in the future, is of course, to take all regulatory & disciplinary function away from the legal profession and ensure transparent, accountable and honest complaints investigations & consideration of client complaints ... but we will have to wait and see if the SNP actually achieve this through the new Scottish Legal Complaints Commission, which itself is already encountering problems even before it begins operation sometime in late 2008 ...

It should be noted this article is an update from the previous article featuring the Scotsman reports due to graphical and code changes on this blog.

Andrew Penman of Stormonth Darling Solicitors, Kelso & Norman Howitt, accountant, now with the JRW Group, Galashiels. - The Scotsman & Scotland on Sunday articles 1994 – 2001 :

Son threatens to walk away from inheritance

By William Chisholm The Scotsman 18 October 1994

A 20-year old man from Jedburgh speaks of disinheriting himself after battling almost five years for a share of his father's £300,000 estate.

Peter Cherbi, 20, from Jedburgh, says the years since his father Gino died in January 1990, have been a living nightmare which shows no signs of ending.

He has lodged an official complaint with the Law Society of Scotland seeking an inquiry into the alleged failure of administrators to settle his late father's affairs. In his letter to the Law Society, Mr Cherbi names the accountant Norman Howitt of John Welch & Co, the estate's executor, and the solicitor Andrew Penman of Kelso law firm P & J Stormonth Darling, legal adviser to Mr Howitt.

Mr Cherbi has received demands for council tax and inheritance tax on the estate, even though he has yet to inherit.

None beneficiaries named in his father's will who were to receive legacies ranging from ｣500 to ｣2000 have not been paid, according to Peter Cherbi. They include relatives in Italy and France and neighbours in Jedburgh.

Gino Andrew Cherbi came to Scotland from his native Tuscany as a boy in the 1920's. He became a successful businessman in the Borders with a restaurant and shop in Jedburgh. He invested shrewdly in shares and also owned race horses and greyhounds.

At the time of his death at the age of 72, he had a wide ranging portfolio of shares, unit trusts and bank accounts as well as property. He was also the proud owner of a classic 1950s Sunbeam Alpine Mark 3 motor car. In 1990 a Kelso garage valued the car at ｣4000. According to Peter Cherbi, it was sold in 1993 for £1,200, although he had received a higher offer.

A document drawn up in1990 showed the estate to be worth £257,211 exclusive of Italian assets. The family had expected administration to take two years.

Mr Cherbi last night said he was so disillusioned he was prepared to give up his inheritance.

"The process has caused me so much emotional strain and expense that I feel like walking away", said Mr Cherbi.

"I have been a victim of my late father's will rather than a beneficiary"

The case is being brought to the attention of local MP Archy Kirkwood, who is a lawyer.

"It would appear legal regulations which allowed this kind of thing to happen must be flawed and should be scrutinised nationally to stop others suffering the same fate as myself", said Cherbi.

"I would be interested to hear from others who have undergone a similar experience"

He is also contemplating court proceedings against the executry for compensation.

Mr Howitt claimed Mr Cherbi's affairs had been extremely complicated. he did not wish to respond to Mr Cherbi's allegations through a newspaper, but would deal with them if they were put to him by Mr Cherbi's solicitor.

Mr Howitt said "I am aware of some of the difficulties but I don't believe Mr Cherbi should have taken his complaint to the press".

Mr Cherbi countered "We have been trying to get facts from the executry for a year via my own solicitor. It was precisely because of the inaction of the trustees that I decided to bring my concerns into the public domain"

Mr Penman said "Some of the issues Mr Cherbi has raised with you have been dealt with. some others are new allegations and comments" Mr Cherbi should have raised his concerns through his lawyer or wth the executry, he said.

"If at that point he is not satisfied with our responses, then it would be appropriate for him to take further steps", said Mr Penman. "It would be inappropriate to discuss the details. Those discussions should be a matter between Mr Cherbi and ourselves"

Inquiry call over bungling lawyer

Executry dispute - Son queries why Law Society reversed decision to prosecute lawyer

William Chisholm The Scotsman 11 October 1996

The son of a Borders businessman wants a report which investigated allegations of misconduct by a solicitor handling his father's estate to be re-opened.

Peter Cherbi has sent the report to Scottish Secretary Michael Forsyth, with a demand for further action. He wants Mr Forsyth to force the Law Society to reopen the report to allow a prosecution of the lawyer, Andrew Penman, by the Scottish Solicitors Discipline Tribunal.

The Law Society investigation concluded that Mr Penman, of the Kelso law firm of P & J Stormonth Darling, should be prosecuted by the tribunal for the "appalling" way he handled the executry of Gino Cherbi, a Jedburgh businessman whose estate was valued at £300,000, after his death in 1990, aged 73.

But the decision to prosecute Mr Penman has been shelved in favour of a reprimand.

Now Mr Cherbi's son, Peter claims the society's about-face cannot be justified given the findings of the investigation, including  "an apparent attempt to mislead the Royal Bank of Scotland, and failure to collect estate assets".

When The Scotsman spoke to Mr Penman, he said the complaint against him had been thoroughly investigated by the Law Society and that was an end to the matter. In general, he could not make comments because of confidentiality.

The law Society report outlined lengthy and unexplained delays and a repeated failure by Mr Penman to respond to correspondence. It also alleged a complete lack of proper management in the handling and progressing of the executry.

There had been a "bungled and unsuccessful attempt to put the files in order".

Peter Cherbi was to have been the main beneficiary from his late father's estate. Others named in the will were to receive legacies ranging from £500 to £2000. But Mr Cherbi has been told there are no funds left in the estate.

A document showed the estate to be worth £257,211 exclusive of Italian finds. The overseas assets included an account with the Banco di Roma containing some £26,000 which was not collected by the executry. The Society report states that Mr Penman apparently attempted to mislead the Royal Bank on this matter.

The committee of the Law Society which first considered the report in June this year expressed grave concern at the way the executry had been handled. Members agreed that Mr Penman's actions were so serious and reprehensible as to amount to professional misconduct and recommended prosecution by the Scottish Solicitors Discipline Tribunal.

But the decision was changed after Mr Penman submitted written representations to the society. He claimed the executry had been complex although he accepted matters could and should have been dealt with more expeditiously.

Mr Penman also apologised to the complainer (Mr Cherbi) and to the Law Society.

Mr Cherbi said Mr Penman's pleadings "contradicted the society's own findings", adding that the Cherbi estate had suffered substantial financial loss.

WHen the Law Society committee reconsidered the matter, it was decided a reprimand and a compensation award of £1000 to the estate would be more appropriate.

P & J Stormonth Darling were instructed to limit their fee for work done from the date of death until October 1994 when Mr Penman ceased dealing with the file, to £3000 plus VAT.

Peter Cherbi told The Scotsman "I am shocked at the findings of the Law Society investigation which has uncovered many disturbing facts about the way my late father's estate was handled. I will not be allowing this matter to rest"

The Law Society advised Mr Cherbi not to instigate civil action while their investigation was in progress. He said the completion of the inquiry meant he was now in a position to sue for full recovery of the estate although the society report had been promised 15 months ago.

Mr Cherbi has also asked Mr Forsyth to instruct the Law Society to reopen the files so that prosecution can be taken before the solicitors tribunal.

Following the finding of professional misconduct he has also registered a complaint against Norman Howitt, an accountant with John J Welch & Co, Galashiels, who acted as executor of his father's estate.

In his submission to the Institute of Chartered Accountants of Scotland, Mr Cherbi alleges a lack of control by Mr Howitt over the activities of Mr Penman which resulted in financial loss to the estate.

A Law Society spokeswoman said the complaint had been dealt with and Mr Cherbi had exercised his right to refer the matter to Scotland legal services ombudsman to whom the file had now been sent.

Mr Penman said the Law Society papers with the committee's deliberations showed that a press statement from Mr Cherbi contained many untruths and half-truths. "I would consider that the press release if published as it stands would be defamatory of me" he said.

Law Society may face Euro court over 'whitewash'

Son hits out at decision on father's estate

William Chisholm  The Scotsman 9 September 1997

The Law Society of Scotland has been accused of overseeing a "whitewash" after rejecting an ombudsman's request for it to reopen a case against a Borders solicitor.

The original investigation by the society into the way Andrew Penman, of Kelso law firm P & J Stormonth Darling, dealt with the £300,000 estate of businessman Gino Cherbi, of Jedburgh, concluded that the solicitor's "appalling" handling of the matter warranted prosecution before a tribunal.

The investigation found "an apparent attempt to mislead the Royal Bank of Scotland and failure to collect estate assets".

The society initially recommended that M Penman be prosecuted for professional misconduct. However, the punishment was reduced to a reprimand after representations on Mr Penman's behalf.

The society gave no explanation for departing from the original intention to prosecute.

Specific difficulties relating to Mr Penman's private life and working life were outlined to the Law Society's committee, according to a senior official.

However, Mr Cherbi's son, Peter, who has been involved in seven years of legal wrangling over the estate since his father's death in 1990, refused to accept the society's decision and took the case to the legal services ombudsman, Garry Watson.

In a report which criticises the society's handling of Mr Cherbi's complaint, Mr Watson writes; "The ombudsman does not accept that the solicitor's livelihood was a factor which should have influenced the Law Society's procedures. In his view, that is a factor for the Law Society in it's capacity as a professional body representing its members, but not a factor in relation to its statutory duty to investigate complaints".

Mr Watson concludes; "it is most important that there is transparency of decision making within committees and that reporters and committees provide their reasons for arriving at decisions.

"It is unclear why the committee changed its view with regard to  prosecution after having heard personal representations from the solicitor's council member. It is recommended that the complainer and the ombudsman are advised of these reasons"

The ombudsman also asks the Law Society to reopen the case against Mr Penman so that the question of loss to Mr Cherbi could be fully addressed. Mr Watson goes on to express concern about the serious delays by the society in finalising its report into the complaint.

Philip Yelland, the Law Society's deputy secretary, has now told Mr Watson that the detail of the representations made to the committee will have to remain confidential.

His statement to the ombudsman adds; "But I can assure both you and the complainer that the representations made in relation to those matters were sufficient to persuade the committee, made up of both qualified and lawyer members, that the more appropriate disposal was by way of a reprimand"

He says reopening the case to take account of the question of loss is not competent in terms of current legislation and so the ombudsman's recommendations cannot be acted upon.

However, the Law Society has accepted the criticisms levelled at it by Mr Watson in relation to the delays and has sent Mr Cherbi a cheque for £250.

Mr Cherbi yesterday attacked the "shabby treatment" he has received from the Law Society and claimed that the ombudsman appeared to be powerless when the society closed ranks to protect its own. He described the £250 "pay-off" as an insult.

"I feel I owe it to my father's memory not to let this matter drop and have instruced my solicitor to apply for judicial review so that Mr Penman can be prosecuted" Mr Cherbi said. "If necessary this issue will be taken to the European Court".

He added; "I was extremely concerned to learn the Law Society received more than 1000 complaints each year about the conduct of solicitors. I sincerely hope other dissatisfied clients get better treatment if they find it necessary to approach the society because I find myself the victim of a whitewash".

Mr Cherbi claimed the inadequacies in the arrangements for investigating complaints against solicitors had led to additional expense. There was a legacy of debts and outstanding inheritance tax thanks to the delays in winding up Gino Cherbi's affairs, he said.

Mr Yelland said yesterday ; " In terms of the ombudsman's act as it now stands we have a duty to respond to his recommendations. We have fulfilled that duty. If Mr Cherbi wishes to pursue matters by way of judicial review then that is entirely up to him.

A separate complaint by Mr Cherbi against Norman Howitt, an accountant with John J Welch & Co, Galashiels, who acted as executor of his father's estate, is the subject of an inquiry by the Institute of Chartered Accountants of Scotland.

Plea to Dewar for inquiry on Law Society role in wrangle.

William Chisholm  The Scotsman 2 December 1997

A MAN who lost much of his inheritance because of a solicitor's incompetence is to challenge a decision not to allow him access to key documents drawn up by the Law Society of Scotland in the course of an eight year legal wrangle.

Peter Cherbi, from Jedburgh, has asked the Scottish Secretary, Donald Dewar, for an independent investigation into the circumstances surrounding the handling of the £300,000 estate of his late father, Gino Cherbi, a Borders businessman.

The demand for an inquiry into the role of the law society and the Scottish legal services ombudsman, Garry Watson, was made yesterday after Mr Cherbi heard that Mr Watson was closing the file on the case.

Mr Cherbi alleges that the society conspired to prevent prosecution of the solicitor who dealt with his father's affairs.

Mr Cherbi also plans to raise a court action against the society to force its officials to release crucial reports int he case.

Written submissions lodged on behalf of a lawyer, Andrew Penman, persuaded the society's complaints committee to abandon plans to refer his "appalling" handling of the executry to the Scottish Solicitors Discipline Tribunal.

Instead, the committee decided that a reprimand and a compensation award of £1000 to the estate would be a more appropriate penalty, despite grave concerns about Mr Penman's professional misconduct.

After the decision, Mr Cherbi took his complaint to Mr Watson, who carried out a separate inquiry into the society's handling of the case.

The ombudsman concluded "It is most important that there is transparency of decision making within committees and that reporters and committees provide their reasons for arriving at decisions".

Mr Watson said the complainer and the ombudsman should be advised why the complaints committee had changed its mind on prosecuting Mr Penman.

His report also disclosed that a society memorandum contained concerned that a solicitor who represented Mr Penman before the committee had made reference to Peter Cherbi's character and that such references had been considered "unfair".

But now Mr Watson has told Mr Cherbi he has received the written representations made on Mr Penman's behalf on the basis that they remain confidential to the ombudsman's office.

Mr Watson adds "However, I can assure you that these representations solely relate to the solicitor himself; they do not contain any comments with regard to yourself."

Mr Cherbi said yesterday "The Law Society must have tremendous pulling power when they can get the legal services ombudsman to alter his stance.

"They are only interested in protecting their own members. I am not even able to see the evidence presented to the committee on Mr Penman's behalf yet he had access to all of my submissions".

In Mr Cherbi's opinion, Mr Watson was a 'puppet of the law society'. In a letter seeking Mr Dewar's intervention, Mr Cherbi states "I am the victim of a very sleazy cover-up by the law society to protect a very bad solicitor who has already been found guilty of misconduct".

He said he had no intention of giving up the fight to recover his father's estate in full.

Mr Cherbi is to seek judicial review of the law society's alleged mishandling of his complaint.

The society has sent him a cheque for £250 to compensate him for long delays in processing the case, a payment Mr Cherbi describes as an insult.

The Scotsman asked Mr Watson to comment after his decision to close the file in the Cherbi case.

In a written response, he said "I am not in a position to make any public comment on a matter, which, in accordance with my remit, is private between myself and complainer".

Philip Yelland, the law society's deputy secretary, said "Mr Cherbi appears to be expressing concern about the ombudsman's position and it would be inappropriate for us to say anything if he wishes to take further action.

When Mr Cherbi, senior, died aged 73 in 1990, he left stocks and shares, property, and other assets valued at more than £250,000.

There were also overseas assets including an account with the Banco di Roma, containing an estimated £26,000. which was not collected by the executry. The estate has yet to be settled.

A separate complaint by Mr Cherbi  against an accountant who acted as executor of the estate is the subject of a separate inquiry by the Institute of Chartered Accountants of Scotland.

Jury still out on law in the dock

Does the Law Society act in the public's best interest over legal malpractice , asks Jenny Booth   2 March 1998

Like small children utterly dependent on their parents, most of us trust our legal advisers implicitly to protect us from life's little Dickensians - financial ruin, for example - at some of the most important stages in our existence.

We do not expect, having purchased our dream home, to find that planning permission has been granted for a new motorway to run through the garden. And we would be more than a little upset to discover that a trust find set up to look after our elderly and ailing parents had actually furnished our solicitor's holiday apartment in Spain.

So, who doo you turn to when you believe your solicitor has made a mess of your affairs ?

This may be hard to stomach, but at the moment, the first thing to do is to contact another lawyer, or, to be more precise, the Law Society of Scotland, which acts both as the professional body for lawyers and as the first port of call for members of the public with complaints about their lawyers.

Self regulation has been in place at the society for years, and while few would claim it is perfect, the Law Society says it is working well. It believes that lawyers have enough pride in their profession to want to clamp down hard on colleagues who break the rules.

But there are those who do not agree.

A recently formed Scottish organisation called Injured By The Law claims that when it comes to a clash between a member of the public and one of its own members, the Law Society is failing to deliver justice

Peter Paton, the chairman of the pressure group says ; "There are many cases of professional misconduct by solicitors that have been inadequately dealt with by the Law Society of Scotland.The system isn't working. It has inbuilt bias towards their own members. The legal profession has proved beyond a doubt that the Law Society, a self regulatory body, can't regulate its own members. There is no clear redress for victims of incompetent solicitors"

Paton says over 1000 complaints were registered by the society in 1997. "It is clear that they don't have the will to discipline their own members, and when they do, the disciplinary procedure is dismal. Because of this, we feel that this function should be replaced by an independent law commission"

Among the members of the group, one of the newest and angriest is Peter Cherbi, a man who lost his interitance because the winding up of the estate of his late father, Gino Cherbi, was bungled by his solicitor, Andrew Penman, of P & J Stormonth Darling in Kelso.

When Cherbi senior died in 1990, he left stocks and shares, property, a car and other assets including an account in the Banco di Roma, worth nearly £300,000. The Borders businessman's will included a few legacies to friends and relatives, and after liabilities were met, the residue of the estate was to go to his son, Peter.

But by the time Penman had finished handling the estate, Cherbi was told there was nothing left to inherit.

The preliminary report by the Law Society complaints committee accused Penman of "appalling" mismanagement and recommended Penman should be reported to the Scottish Solicitors Discipline Tribunal. which has the power to strike solicitors off.

But the complaints committee changed its mind after reading confidential representations from Penman. and hearing in private from Penmans's solicitor.

The solicitor's identity was routinely kept confidential. but was later revealed to be a Law Society council member, James Ness, of the firm of solicitors, Austins, in Dalbeattie.

Cherbi says he was later told that at the committee hearing, Ness had questioned his character, and said Penman did not deserve to lose his career over such a man.

Eventually the committee decided instead merely to reprimand Penman, and it awarded the estate what Cherbi thought was a derisory £1000 compensation. This is the statutory top limit that the Law Society can award for the anxiety and distress caused by an incompetent solicitor. If a complainer wants compensation for his loss, he must sue for negligence through the courts.

Cherbi complained to the independent Scottish legal services ombudsman, Garry Watson, who investigated the handling of the case. Watson reported that it was unfair that Ness had been able to make a personal plea to the committee while Cherbi was not invited to be present. This practice has now been reformed by the law Society at the ombudsman's request, and neither side in a dispute can now make final representations in person.

Watson wrote : "it is most important that there is transparency of decision making within committees and that reporters and committees provide reasons for arriving at decisions".

His report recommended that the Law Society reopen the case, but the Law Society declined.

Cherbi wrote to the Scottish Secretary asking for an independent investigation but was advised to take legal moves to have his case reconsidered. He is preparing to apply for the Law Society's decision to be judicially reviewed. "I'm not going to let the matter rest" says Cherbi. "I feel the Law Society has presided over a whitewash. I have struggled to seek answers on my case, but have got nowhere"

While I have mostly been treated with courtesy, which I have reflected in my dealings with the Society,, I have been aware of an undercurrent of inappropriate remarks at senior level against me, as well as a tendency to keep information secret that would otherwise contradict previous Society rulings." "I have been approached by many others who have suffered similar injustices with the Law Society"

But while there is undoubtedly still a phalanx of people like Cherbi, who seem to have very good reason to feel aggrieved, there is some evidence that the problems of the early and mid-nineties may be becoming a thing of the past.

In general policy as well as individual cases, the legal services ombudsman has been very critical of the Law Society's procedures for some years.

When Watson took over as ombudsman, his first report for 1994, refers to "unjustifiable delay at each stage of the Law Society investigation". In his 1995 report he said there were a number of "rogue investigations" which were " a discredit to the Society".

But some of the most glaring problems had been cleared up by 1996 ; "I am pleased to report that gross delay and rogue investigations with confusion and lack of control have been largely eliminated. Delays and errors continue to arise ... but they are of a different and manageable order of magnitude.

Law Society accused of closing ranks as claim fails

William Chisholm The Scotsman 5 June 1998

An unprecedented attempt to force the Law Society of Scotland to prosecute a solicitor for professional misconduct will continue, even though an application for legal aid has been rejected.

Peter Cherbi from Jedburgh, claims that his late father's £300,000 estate has been ruined and rendered worthless becuse of the way a Borders lawyer, Andrew Penman, handled the affairs of Gino Cherbi who died in 1990.

A Law Society investigation found that the solicitor, a partner in the law form P & J Stormonth Darling, should be prosecuted before a disciplinary tribunal because of the serious nature of the case.

But the decision was later overturned in favour of a reprimand after representations were made on Mr Penman's behalf.

Mr Cherbi, who is calling for " more than a slap on the wrist" then took the case to Garry Watson, the legal services ombudsman.

He criticised the society's handling of the complaint and said it was unclear why its committee had changed its view about prosecution. Mr Watson asked for the case to be re-opened so that the question of loss to Mr Cherbi could be fully addressed.

But the society decided that course of action was not competent in terms of the law, which emant the ombudsman's recommendation could not be acted upon. Instead, Mr Cherbi received a cheque for £250 to compensate him for delays in processing the inquiry.

Mr Cherbi revealed yesterday that Henry Mcleish, the Scottish Home Affairs Minsiter, had twice advised him to seek independent legal advice about any further action he might wish to take.

"The advice I received was to apply for a judicial review, challenging the Law Society's refusal to prosecute Mr Penman", said Mr Cherbi"  "Its been impossible to get justice via the society which simply closed ranks to defend its own. Now the Scottish Legal Aid Board seems to be holding justice to ransom, by refusing my legitimate application for legal aid"

The board told Mr Cherbi that his request had been turned down becuase it was not satisfied the application showed he had a probably cause of action.

He believes the board's decision may have been influenced by a letter from Douglas Mill, the secretary of the society. Although no formal objection to Mr Cherbi's application was taken, Mr Mill felt it proper to draw certain issues to the attention of SLAB.

Mr Mill wrote "Mr Cherbi is clearly a person with an interest to complain and was entitled to make his complaint. It is for the Law Society in terms of the relevant legislation, to determine firstly whether the complaint can be upheld and then determine the appropriate penalty. The complainer does not have a part to play in determining penalty"

Mr Cherbi claims the society is keen to head off any judicial interference in its procedures. If his case were to succeed, it would set a precedent in Scots law. He would also be seeking costs.

In a statement to the legal aid board, Mr Cherbi said the interference of Mr Penman's representative at a complaints committee hearing was unfair.

He had not been given access to the evidence and was not allowed to appeal before the committee "commuted the solicitors sentence"

Mr Cherbi's action has the backing of Injured By The law, an organisation which seeks to help individuals who believe they have been denied legal justice. Ray Keddie, it's director said "I am extremely concerned by the actions and conduct of the Scottish Legal Aid Board in denying civil legal aid to Peter Cherbi"

He also criticised the Scottish Office for its "ambiguous advice" in recommending action that required people to apply for legal aid. He claimed it was then rejected on concocted grounds to maintain the status quo of the society and protect positions within the profession.

Injured By The Law was also calling into question the conduct and motives of mr Mill in his letter to the legal aid board and SLAB's acceptance of the contents. Mr Keddie said ;" The contents are highly unusual and irregular to procedure"

But Fiona Shaw, SLAB's spokeswoman said it was the statutory right of any opponent in a civil case to object to an application for legal aid. She added "We have treated the society's letter in the same way as any other correspondence we receive."

She confirmed that Mr Cherbi's solicitor had asked the board to review the application for legal aid,, and that review was now under way.

In a statement, the society said Mr Mill's letter to SLAB was not irregular in its terms, nor was it an attempt to stall the course of justice.

"Mr Cherbi is entitled to seek judicial review if he wishes to do so. If he does, the society will defend it" . There was no question of the process of judicial review being a dangerous precedent. It was an ordinary legal process and the society had been involved in judicial review proceedings before.

"Any suggestion that in some way the society is interfering with the process of justice is wholly unfounded", the statement concluded.

Independent watchdog for lawyers proposed

Law Society of Scotland's internal system flawed, says Scottish Consumer Council

Camillo Fracassini - Consumer Affairs Correspondent  8 January 1999

Complaints against solicitors in Scotland should be investigated by an independent watchdog because self regulation is not working, the Scottish Consumer Council will say today.

The recommendation is part of a highly critical SCC report into the way complaints about solicitors are handled by the lawyers professional body, the Law Society of Scotland.

According to a survey made as part of the study, 40% of those who had used the Law Society of Scotland's complaint's procedure thought their complaint had not been handled fairly.

The Law Society, the solicitors professional body, is also responsible for investigating complaints.

In the stufy, 415 people were interviewed by the SCC. Even looking at those whose complaints against their solicitors were upheld, shows that a third felt they had been unfairly dealt with.

The report is also highly critical of solicitors.

Of clients who complaint to their lawyers, 16% said they were completely ignored and only 2% were told they could refer the matter to the Law Society.

More than a fifth of solicitors refused to investigate complaints and 40% of people were ignored, "fobbed off", told to change lawyers, or advised not to complain to the Law Society.

According to the survey, two fifths of complaints took between six months and two years to resolve and 17% took more than two years.

One complainant said "The whole experience was very disappointing. The Law Society was totally in favour of the lawyer. Dealing with the society was like talking to a wall"

Derdrie Hutton, the SCC Chairman, suggested "If consumers are to be confident that the procedures are entirely fair, we believe the research suggests that the way forward should be to establish an independent body to deal with complaints about solicitors in Scotland.

The SCC wants the Scottish parliament to review the Law Society's complaints procedure, with a vew to establishing an independent complaints body.

Solicitors should be made to give clients a letter of engagement, setting out how long the work will take, how much it will cost, and advising how to complain if they are not happy with the service, it said.

The SCC added that all solicitors practices should also set up complaints procedures and appoint a specific solicitor to deal with complaints.

Martin Evans, the SCC director, said many people felt the system was biased in favour of solicitors : "They do not appear to trust the self regulatory process and do not trust the Law Society to look after the interests of consumers rather than its members. The lack of credibility of the current system doesn't serve consumers or the legal profession well".

Mr Evans added solicitors were not handling criticism positively : "Solicitors, as a profession, seem to feel threatened by complaints, rather than see them as something which can help them improve the service they provide."

Last night, Philip Dry, the president of the Law Society of Scotland, questioned the validity of the limited SCC survey and insisted self-regulation was still the best policy.

He said; "I continue to believe that a the society is best able to deal with client complaints which it does without cost to the public - and that any system used should be open to public scrutiny and constantly adapted and improved to meet the needs of clients of Scottish solicitors.

"The society does not agree with the recommendations made to the Scottish parliament to set up an independent complaints handling body. The recommendation is not supported by the survey results nor is the suggestion that the current system is fatally flawed".

Mr Dry said the Law Society had significantly improved its complaints procedure since the SCC first recommended the establishment of an independent complaints watchdog in 1986.

In November, it named 11 new lay members to its complaints committee in a bid to tackle the perceived bias.

Between 1994 and 1997 the number of complaints that ended successfully in mediation or conciliation increased by 79% while the number f complaints only rose by 4%.

Gary Watson, the Scottish legal services ombudsman said he remained opposed to an independent body "While I endorse a number of the recommendations made in the report but I would disagree with the principle recommendation for the establishment of an independent complaints body.

"My firm view is that as long as the Law Society is committed to improving the way in which it handles complaints then that is the best way forward for members of the public"

However, Peter Cherbi is still seeking redress more than two years after the Law Society of Scotland overturned its original decision to prosecute a solicitor he claimed was guilty of professional misconduct.

Mr Cherbi, from Jedburgh believes his father's £300,000 estate was effectively made worthless by the lawyers handling of his affairs.

While a Law Society investigation found that the solicitor should be prosecuted before a tribunal because of the serious nature of the case, the decision was overturned in favour of a reprimand after representations on the lawyer's behalf.

Mr Cherbi, who plans to sue the Law Society said "The Law Society of Scotland's complaints procedure is completely biased. There is absolutely no right of appeal for complainants and the ombudsman has no statutory powers - he an only make recommendations which may be refused by the society.

"There must be an independent regulatory for the legal profession with absolutely no ties to solicitors"

Law watchdog faces threat of court fight.

Client prepares to sue after allegation that ombudsman compromised independence.

By Peter Laing Scotland on Sunday August 8 1999

THE government-appointed watchdog charged with overseeing the complaints process against solicitors in Scotland is himself facing legal action.

Scottish Legal Services Ombudsman Garry Watson has been accused of failing to handle properly a complaint against the Law Society of Scotland, the professional body which represents solicitors.

Peter Cherbi says he intends to sue Watson claiming the ombudsman "took instructions" from the Law Society on what information to release about his case, and, therefore, compromised his independence.

Cherbi, from Jedburgh, says Watson's handling of the case may have harmed his chances of ever recovering a £300,000 inheritance from an incompetent solicitor.

Cherbi has instructed his solicitor to begin legal proceedings against Watson, who could receive a write seeking damages within the next few weeks. It is believed to be the first time anyone has attempted to sue an ombudsman.

Complaints against solicitors are investigated by the Law Society under a controversial system of self-regulation. Anyone who is unhappy with the decision of the Law Society can then ask for an investigation by the ombudsman, who has the power to make recommendations to the society.

But the ombudsman is currently flooded with complex cases, and last month had to apologise for delays of up to a year in handling them.

Cherbi's case started in 1990 when his 73-year-old father died, leaving behind an estate valued at around ｣300,000.

Four years later he realised the estate, which was handled by local lawyer Andrew Penman, was almost worthless. Cherbi believes the money was lost through avoidable interest payments, fees and the mishandled selling of shares and investments.

Cherbi complained about Penman to the Law Society, who originally planned to prosecute him at a Scottish Solicitors Discipline Tribunal.

But after written submissions regarding Penman were received, they decided instead on a reprimand and ordered him to pay ｣1000 compensation to Cherbi's estate. Angry at the Law Society's decision, Cherbi complained to the ombudsman in May 1997.

Watson investigated and concluded : "It is most important that there is transparency of decision-making within committees." Watson added he and Cherbi should be told why the Law Society decided not to prosecute Penman.

But un June 1997, Watson informed Cherbi that the Law Society had sent him the written submissions relating to Penman on the basis they remained confidential, and that the case was closed.

For the past two years, Watson and Cherbi have exchanged increasingly acrimonious letters on the subject.

Cherbi said : "In my opinion, by accepting the submissions about Penman on the basis that he would not divulge their contents, he has effectively been told what to do by the Law Society.

"As ombudsman he should be telling the Law Society what to do. I believe he has compromised the independence of his office.

"In my opinion, by not handling my case correctly, and refusing to pass on important information, he has made it more difficult to recover any of the inheritance I lost. For that reason, I have instructed my solicitor to begin proceedings for compensation"

Watson has refused to comment on the case. But in a letter he sent to Cherbi in February last year, he explained why the representations regarding Penman were not passed on.

He wrote "I ascertained that they [the representations] related entirely to the personal circumstances of the solicitor and had nothing to do with yourself. I can certainly see no reason why there should be a need for me to pass on information when it did not relate to, and was not relevant to, yourself. To suggest my actions compromise the independence of my office is patently absurd."

Watson, who was prepared to talk to Scotland on Sunday on general terms, added : "I deny any suggestion that my office is influenced by the Law Society.It is totally independent."

Watson said a new member of staff had been taken on to help bring down the time taken to deal with cases. he hopes to bring the average delay down from a year to two-four months.

The Scottish Consumer Council, in a report released earlier this year, revealed problems with the ombudsman, including that 85% of people whose complaints were not upheld by the ombudsman did not receive a satisfactory explanation.

Legal Profession in the Dock over complaints about self regulation

Peter Laing 18 February 2001 Scotland on Sunday

The power of lawyers to discipline corrupt or incompetent colleagues is to be investigated by the Scottish Parliament amid growing concern at the perceived failure of self-regulation in the legal profession.

The parliament's Justice Committee is to launch an inquiry after numerous complaints about the failure of solicitors to keep their own house in order.

Members of the public, some of whom have lost thousands of pounds as a result of legal blunders, claim the regulatory system simply allows solicitors to watch each other's backs. The result, they say is long delays in hearing complaints and paltry punishments when cases are upheld.

The Law Society of Scotland, the body which represents solicitors and investigates complaints against them, rejects the claims and will argue that it should keep its powers of self regulation.

Alisdair Morgan MSP, Chairman of the Justice Committee, said an investigation was "high up our agenda" and there was a strong possibility it would start within months.

Peter Cherbi is typical of the determined band of legal victims who feel solicitors should be stripped of their powers of self regulation. He claims a lawyer's error robbed him of a £300,000 inheritance. Ten Years on, he has been offered £15,000 compensation, but faces legal costs of at least £22,000.

Cherbi, from Jedburgh expected to inherit his father's estate when he died. aged 73, in 1990. Four years later, he realised the estate, which had been handled by local lawyer Andrew Penman, was worthless. Cherbi believes the money was lost through avoidable interest payments, fees and mishandled selling of shares & investments.

He complained to the Law Society, which originally planned to prosecute Penman. After written sumbissions, it decided on a reprimand and ordered him to pay compensation worth £1000.

Cherbi then complained about the Law Society to its watchdog, the Scottish Legal Services Ombudsman. But that has ended in acrimony and a possible legal action against the ombudsman.

A separate action for compensation against Penman resulted in an offer of £15,000 from his solicitors. Cherbi said "That is no use because I have legal costs for fighting my case of £22,000 and the estate is £43,000 in debt.. I am delighted that self-regulation is finally to be looked at. It's a liars' charter written by liars for liars. They sit on each other's committees and they are obsessed with protecting each other. "There has to be independent regulation with public participation. The victim must be able to get a fair hearing"

Phil Gallie, Tory Justice spokesman and a member of the Committee said "I have had a number of people coming to me with cases, four or five in the last six months. Some of these cases have been outstanding for several years"

A spokesman for the Law Society said there had been a 18% drop in complaints between 1999 and 2000, down from 1,338 to 1094