Scots legal regulator refuses to name corrupt lawyers. DECISIONS relating to investigations by the Scottish Legal Complaints Commission (SLCC) on complaints about corrupt solicitors - are to be published for the first time in Scotland later this month.
However, lawyers who regularly swindle their clients and taxpayers can breathe a sigh of relief - as the SLCC confirmed it will not publish the names of corrupt lawyers or their law firms in any ‘anonymised’ decisions to be published every few months on the legal regulator’s website.
The move by the pro-lawyer SLCC to publish censored details of legal complaints in Scotland - comes several years after the Legal Ombudsman equivalent in England & Wales began to publish Public interest cases & case summaries and Ombudsman decision data identifying the number of decisions against named law firms in the rest of the UK.
This imbalance leaves consumers of legal services in Scotland at a disadvantage - as Scots are not able to find out complaints histories of their solicitors or law firms, while consumers in England & Wales are able to make a more informed decision on which solicitor to use.
In a statement released to the media, the Scottish Legal Complaints Commission claimed it cannot identify corrupt or crooked lawyers - due to sections of the Legal Profession and Legal Aid (Scotland) Act 2007 - inserted at the behest of the legal profession – which prohibit anyone from the SLCC identifying a rogue solicitor or law firm.
David Buchanan-Cook, head of oversight at the SLCC, explained: "While we hope that this will also demonstrate better accountability and the transparency of our complaint handling process, we also needed to balance that transparency with our duty to protect the confidentiality of complainers and practitioners. Unlike our counterparts south of the border, our legislation prevents us from 'naming and shaming' individual solicitors or firms without their express permission unless the complaint is unusual and it is in the public interest to publish. Very few, if any, inadequate service complaints meet those criteria.
"For these reasons, we have chosen to publish anonymous complaint information in the form of very short case studies and have, as far as possible, removed any identifying features. As such, the complaint information is only a brief summary of the information made available to the Determination Committee. In making decisions, consideration will have been given to specific facts and circumstances which, again for reasons of confidentiality, cannot be provided publicly.
"We hope, however, that the published information is sufficient to provide general guidance to the profession and that it will help promote best practice in the provision of legal services."
Coinciding with the new service, the SLCC is launching a quarterly ‘Law Society’ style newsletter specifically aimed at providing practical and topical support for client relations managers.
The newsletter – seen as a move to bring the SLCC back into self regulation fold after years of claiming ‘independence’ - will contain regular best practice features, guest articles, prior notice of future CPD events and will provide comment on some of the trends and features emerging from the previous quarter’s published decisions.
It is worth noting the latest window dressing developments at the Scottish Legal Complaints Commission come after coverage in the mass media of several high profile cases involving corrupt lawyers dodging criminal prosecution for fraud and provision of dishonest legal services which often result in substantial and unrecoverable financial losses to clients.
A BBC Scotland investigation Lawyers Behaving Badly – exposed serious flaws in the world of solicitors self regulation where lawyers investigate their own.
And, a recent investigation of the Scottish Legal Complaints Commission revealed the Law Society controlled quango is staffed mainly by families, friends & associates of solicitors, reported here: 'Independent' Scots legal watchdog consists of solicitors’ husbands, wives, sons, daughters, cousins, friends, & employers.
Previous media investigations, reports and coverage of issues relating to the SLCC can be found here: Scottish Legal Complaints Commission - A history of pro-lawyer regulation.
LAWYERS BEHAVING BADLY:
An investigation by BBC’s Lawyers Behaving Badly featured among others, the case of John O’Donnell – a serial rogue solicitor who has featured in numerous media reports.
The programme - aired in January 2014 to much consternation of the Law Society, certain parts of the legal profession and elderly aggrieved legal hacks – revealed staggering differences in how dishonesty is tolerated in the Scottish legal profession in comparison to cases in 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.”
