Crown Office brought in over mortgage broker’s £24k client theft after Law Society failed to report Glasgow lawyer who 'covered up' for husband

Crown Office received report of Mortgage broker theft. SCOTLAND’s CROWN OFFICE have today received a report of the theft of a client’s £24,000 mortgage deposit by ex-mortgage broker NIGEL MACFARLANE (formerly of mortgage brokers, Ideal Mortgages), details of which were discovered during hearings at the Scottish Solicitors Discipline Tribunal after the Law Society of Scotland investigated complaints against Mr MacFarlane’s wife, solicitor Catriona MacFarlane who had represented the same client and covered up her husband’s theft.

The Crown Office were informed of matters concerning the case, and were drawn to the attention of weekend media coverage in the Sunday Mail newspaper, reporting further on the MacFarlane case and spectacularly breaking the secrecy of the SSDT report which had suspiciously failed to publicly identify Mr Wilson, the client whose funds had been stolen by solicitor Catriona MacFarlane’s husband. The Sunday Mail's report gave the victim a chance to speak publicly about his nightmare at the hands of the MacFarlanes.

Today's report to the Crown Office, which was accompanied by copies of the Scottish Solicitors Discipline Tribunal hearings, stated : “It is in the public interest, and vital for the protection of all consumers that the Crown Office investigate the case for possible prosecution as a deterrent to a further reoccurrence of this incident to consumers, and proceed accordingly.”

You can read my earlier report on the Catriona MacFarlane case, here : Glasgow lawyer who covered up husband's £24k client theft gets slap on the wrist by Law Society tribunal, continues working

Law Society of Scotland failed to report crimes it detected. During my own investigation of the MacFarlane case, it transpired the Law Society of Scotland and the Scottish Solicitors Discipline Tribunal FAILED to inform both Strathclyde Police and the Crown Office that criminal activity had been detected during their investigation of the complaints made against Catriona MacFarlane. You can read my earlier report revealing the failures to inform the authorities, here : Law Society ‘routinely fails to report crime' as Crown Office admits it never received report on Glasgow lawyer theft cover-up investigation

A legal insider today commented that Law Society complaints reports and SSDT findings are routinely screened to prevent identities of clients being made known to the wider public & media, for fear that newspapers would approach those whose complaints had ended up at the Tribunal for possible ‘striking off’ solicitors.

He said : “Its a bit off that in 2010 people cant find out who is making a complaint about a solicitor just because the Law Society and the SSDT don't want journalists knocking on victims doors. People have a right to know which solicitors have done what to clients. I personally do not have a problem with that.”

Solicitors Tribunal revealed solicitor covered up theft but no report was made to Police or the Crown Office. A spokesman for a consumer organisation also commented on the apparent lack of detail in the solicitors tribunal findings, saying : “I feel its about time the Law Society ensured the full details of any criminal activity they come across while conducting an investigation should be handed over to the proper authorities to ensure consumers are fully protected against professionals who the general public are forced to place their trust in to handle their legal & financial affairs.

He continued : "The Law Society frequently inform complainers they cannot investigate criminal allegations but rarely if at all pass on to the Police, the details of those allegations to the proper authorities. Clearly this matter, which amounts to the legal profession turning a blind eye to criminality within its ranks, must be immediately addressed.”

The SSDT could not be contacted for a statement on the actual reasons for their rules of secrecy and the Law Society were today, said to be “angered” & “very concerned” the identity of Catriona MacFarlane’s client had been revealed, which led to the renewed publicity on the case and today’s report to the Crown Office, asking the full weight of the law be applied in this case to protect consumers and act as a deterrent against similar instances.

So, the lesson here is, if you have made a complaint to the Law Society of Scotland, or the Scottish Legal Complaints Commission, or you have a case before the Scottish Solicitors Discipline Tribunal, make sure you contact someone or a journalist like myself who can publish it, because it is very clear the legal profession don't want the public to know what their solicitor has done to other clients. Time to change all that, and ensure the public do get to know who they are trusting as their legal representatives.

MORTGAGE MAN STOLE MY £24K

Lawyer wife covered up scam

By Russell Findlay Sunday Mail 07 Feb 2010

A STUNNED home-buyer's £24,000 deposit was swiped by a mortgage broker whose lawyer wife then covered it up. Jim Wilson gave the money to Nigel MacFarlane, of Ideal Mortgages, but the adviser stole it and spent it. It then took 19 days for Jim's solicitor Catriona MacFarlane, 49 to tell him that the thief was actually her husband. Despite the deception, MacFarlane was not struck off by the Scottish Solicitors' Discipline Tribunal. Instead she was fined £2,500 for professional misconduct.

Jim, from East Kilbride, said : "She had her knuckles rapped. Yet for almost three weeks, she hid the fact her husband had taken our money."

MacFarlane referred to her husband as "the broker” during the property purchase.

The SSDT found that MacFarlane's delay in revealing the truth deprived her client of independent legal advice.They also ruled that MacFarlane, a solicitor for 27 years, had acted "very irresponsibly" and that her actions were "contrary to the standards of conduct expected".

Suspicious Jim found out the truth when he confronted MacFarlane at her then employers, Glasgow firm Hasties. Jim said : "She put her head in her hands and admitted it. I had to take out an emergency loan."

Nigel MacFarlane visited Jim at his home and vowed to repay the cash, which he did.

Consumer survey reveals most Scots want independent regulation of lawyers, legal services, & introduction of McKenzie Friends in Scottish courts

Which? consumer survey reveals Scots want independent regulation of lawyers. MOST SCOTS feel lawyers & legal services should be INDEPENDENTLY REGULATED, according to a survey carried out by the consumer group Which?, echoing their evidence to Holyrood’s Justice Committee during hearings on the Legal Services Bill, which aims to widen public access to justice by opening up Scotland’s long closed monopolistic legal services market, currently controlled by the Law Society of Scotland and its 10,000 member solicitors & law firms.

The Which? survey (pdf) found that around seven in ten Scots (71%) think that legal services should be regulated independently and around six in ten (59%) think it is important that lay people should make up the majority of a profession’s regulator or disciplinary board.

McKenzie Friends for Scotland also supported by most Scots in Which? survey. An even greater percentage of Scots (85%) of those polled supported the campaign to bring McKenzie Friends to Scotland, where people responding to the survey thought it would be useful if a scheme was introduced in Scotland whereby people that couldn't find or afford a lawyer to represent them in court could have the help and support of a knowledgeable non-lawyer or friend in court (known as a McKenzie Friend) if the judge allows it.

Which? survey found majority support among Scots for independent regulation of legal services & McKenzie Friends facility for Scottish Courts :

Which? principal public affairs officer, Julia Clarke, commenting on the results of their survey said : “We think it’s vitally important that legal services in Scotland are regulated by a fully independent body as we feel this is the only way consumers can have complete trust in the system. However, the Legal Services Bill will deliver great improvements for people using legal services in Scotland, and we also look forward to party litigants having the right to the support of a McKenzie Friend in court.”

The Legal Services Bill which came about after Which? lodged a super-complaint with the Office of Fair Trading (OFT) about legal services in Scotland, arguing that existing regulation of the industry was harming consumers’ interests, will enable Scottish consumers to access legal services from a range of organisations, not just traditional law firms.

Scottish Government reluctantly proposed access to justice reforms. The Scottish Government however, have been very reluctant to reform legal services in Scotland, due it seems to the likes of Justice Secretary Kenny MacAskill’s well known & publicly expressed loyalties to the legal profession and opposition to independent regulation of lawyers. The SNP administration have went onto changed their mind several times over whether to reform legal services in Scotland, and only after the Office of Fair Trading response to the super-complaint, agreeing the reforms proposed by Which? to the Scottish legal services industry would benefit consumers, have the turtle-slow & varying proposals by Justice Secretary Kenny MacAskill become a bill for Holyrood to consider.

A Scottish Government insider said earlier this week the Law Society remained of the view it should regulate legal services in Scotland, and warned that society officials were continuing a behind the scenes campaign to retain its regulatory powers in the face of stiff public opposition.

He said : “There has been voluminous correspondence & meetings with the Law Society over the regulation question. Clearly they want to keep control even though the general public experience with the Law Society handling complaints is mostly negative.”

You can read an earlier report I wrote on the Law Society’s attempt to remain as regulator of Scotland’s legal services market, here : Consumers & Govt insiders brand Law Society ‘too crooked’ to regulate ‘Tesco Law’ expansion of legal services in Scotland

Law Society ‘very bitter’ at losing control over pace of McKenzie Friend debate. A legal insider at the Law Society of Scotland itself said this morning that officials were “very angry” over the pace of the McKenzie Friend issue, which is rumoured to have taken the Law Society by surprise in just how fast the matter has progressed from a petition under consideration at the Scottish Parliament to actual case law where the first use of a McKenzie Friend in a Civil Court action in Scotland was allowed by Lord Woolman during November 2009.

He said : “Personally I view McKenzie Friends as a good thing for Scotland and I welcome the results of the survey by Which? which show most people are in favour of the practice.”

The source also revealed there has been heated discussion at the Law Society’s Edinburgh Headquarters over the McKenzie Friend issue, with senior figures left “very bitter” at losing control over the progress of the McKenzie Friends petition, some apparently fuming with Parliament for “letting this one slip through the net”, effectively smashing the Society’s grip over rights of audience in Scotland.

The legal insider continued : “You might not be surprised at just how far the Law Society have went to prevent the McKenzie Friends issue from entering the public domain and use in the court. I understand several MSPs were privately sounded out by society officials, intent on negatively influencing any wider support at Holyrood for a McKenzie Friend law but it seems the speed of the debate, the Court of Session decision, and publicity over the lack of McKenzie Friends in Scotland has overtaken the society’s blocking tactics this time.”

You can read more about the Law Society of Scotland’s opposition to McKenzie Friends in Scotland, here : 'Control Freaks' at Law Society say “No” to McKenzie Friends as Holyrood submission signals resistance to Lord Gill's civil justice review

You can read my earlier coverage of the Legal Services Bill, here : Legal Services Bill (Scotland) : The story so far

On the matter of McKenzie Friends for Scotland, you can read my earlier coverage here : McKenzie Friends for Scotland : The story so far

Independent regulation of solicitors and the wider legal services market is as I and many others have been saying for years, a must, if consumers are to have the full protection we deserve in Scotland’s legal services market.

At the end of the day, legal services is a business, as lawyers are in it to make money, not simply to uphold the values of justice.

If consumers are to have confidence, and trust in that business, it must be independently regulated by the formation of a body with no ties whatsoever to the legal profession, or sympathetic self regulators who have their own interests in continuing the quagmire of ‘crooked’ self regulation which the Law Society of Scotland have practiced for years, directly against the consumers best interests.

Consumer protection ‘a low priority’ as Law Society demand Legal Complaints Commission’s ‘crooked lawyer’ complaints levy be reduced

Law Society disputes law complaints body’s budget. THE LAW SOCIETY OF SCOTLAND is demanding a reduction in the annual ‘Penman levy' complaints levy imposed all solicitors currently set by the Scottish Legal Complaints Commission at £275 for solicitors with three or more years experience, this despite the fact the levy has already been reduced once by the ‘less-than-independent' SLCC, who are proposing a freeze on complaints levy payments for the coming year.

The complaints levy is used to fund the operation of the SLCC which was created in 2007 to ‘independently’ investigate complaints against ‘crooked lawyers’ and clean up the high levels of closed shop complaints whitewashes which, remarkably continue to occur during Law Society investigations into client complaints against their own members.

Chief Executive Lorna Jack : Law Society’s replacement for Douglas Mill. Lorna Jack, Chief Executive of the Society contended the SLCC were handling lower levels of complaints due to lawyers facing financial hardship during the downturn. Ms Jack said : “The SLCC’s budget should reflect what is happening more widely in the economy, particularly given the financial difficulties solicitors have faced during the recession, and reflect the level of complaints the SLCC is currently handling, and expected to handle in the forthcoming year. At a time when solicitors are having to make tough decisions about their businesses and the Society has reduced the cost of the practicing certificate by £100, it is vital that the SLCC offers value for money.”

Ms Jack went onto attack the Legal Complaints Commission further, claiming it had plenty reserves to reduce levies on impoverished lawyers (who will pass on the levy charge to clients anyway, and then probably double or treble it according to the usual accepted practices of fleecing clients).

Ms Jack continued : “The SLCC’s proposed budget would indicate that they have more than sufficient funding to reduce the financial burden on solicitors and still run the operation effectively. It is particularly frustrating that, when the SLCC was planning its 2009/10 budget, the Society maintained that the levy on solicitors was too high and would lead to excessive reserves. Having now seen the proposed budget, (including reserves to cover 6 months operational costs) it seems we were justified in our view and we will continue to press for a reduced levy on our members this year.”

£275 a year for crooked lawyers to stay out of jail ? Come on Lorna, where else does someone get such a cosy deal ? It’s hardly worth complaining about when the Law Society does so much to protect the profession against consumer complaints …

SLCC Chair Jane Irvine. Commenting on the Law Society’s call to reduce the levy, rather than simply freeze it, Jane Irvine, Chair of the Scottish Legal Complaints Commission said : “The budget consultation process is currently ongoing and it would therefore be inappropriate to respond to comments made in a press release from one of the professional bodies. We expect to receive formal responses from all the professional bodies following discussions with their representatives. The formal responses will be published on the SLCC website.”

Well, now that is a change, we wont need to do Freedom of Information requests to see what the Law Society of Scotland said in their responses … so lets hope for a bout of arm twisting and bullying well worthy of Scotland’s governing body of solicitors which as never once placed consumer protection above the interests of its solicitor membership.

SLCC Budget freeze takes account of downturn for lawyers, not downturn for Scotland. While the Law Society sticks to its chosen path of confrontation on this year’s complaints levy, Jane Irvine explained the Commission’s way of thinking for their 2010/11 budget. Ms Irvine said : "The Board is keen that levies collected from the legal profession do not change dramatically from year to year. Taking this and the economic downturn into account, we have decided to use SLCC reserves to stabilise the levy fee at a time when there is a reduction in the number of practising legal professionals, which of course, means fewer levies to be collected by the professional bodies."

She added: "The general levy for the next financial year will remain the same with additional categories being added to bring In-house Conveyancing and Executry Practitioners inline with In-house Solicitors and to also include members of the Association of Commercial Attorneys."

SLCC Board members “We’re in the money, we’re in the money”. In January of each year, the SLCC consults with the professional bodies and their members on our budget for the next financial year. This is in accordance with the Legal Profession and Legal Aid (Scotland) Act 2007. The levy is gathered by the professional bodies (but not always paid on time) ; the Law Society of Scotland, Faculty of Advocates and the Association of Commercial Attorneys (the levy for Conveyancing & Executry Practitioners is collected by the Law Society of Scotland).

Your can read the letters to the professional bodies and the proposed budget for 2010-2011 here (PDF 4.39MB).

Jane Irvine continued: "Similarly, whilst our previous budget doubled the levy we apply when complaints are upheld, this will not increase in our next financial year. What we have done, however, is to give ourselves more discretion when and how we charge the complaints levy with the maximum set at the relevant levy banding.”

"The SLCC proposed budget for 2010 to 2011 is £2,839,336 and although our budget calculations need to factor in running costs of up to six months, our under-spend has enabled the overall budget to be reduced by over £145,000."

To understand why the ‘Penman Levy’ complaints levy exists, read this : How Law Society's 'cancelled' prosecution of Borders solicitor Andrew Penman ignited moves to reform regulation of Scotland’s crooked lawyers

To find out where some of this money goes, a couple of my previous articles make illuminating reading : Calls to scrap 'complaints laundering' Scottish Legal Complaints Commission as expensive anti-consumer quango revealed as talking shop for lawyers & Expenses secrecy scandal as Scottish Legal Complaints Commission seeks ban on information requests to protect lawyers 'mental health & safety'

Justice Secretary Kenny MacAskill wrote off £2 million of taxpayers money as start up costs of new crooked lawyers regulator. So, no increase in the complaints levy for lawyers, but no thought either of paying back the two million pounds plus of Scottish taxpayers money pumped into the SLCC by the Scottish Government which Justice Secretary Kenny MacAskill wrote off as ‘start up costs’, which you can read more about here : MacAskill silent on taxpayers £2million 'write off' to lawyers quango as Complaints boss reveals Law Society defaulted on levies.

What with the recession and public services needing the money more than crooked lawyers, surely the SLCC should be handing back those millions which would be better spent on hospitals & health rather than letting the legal profession get away with receiving yet another gigantic bung from the taxpayer.

Proposed levy charges for 2010/2011 are:

Solicitors with 3 plus years experience £275
Conveyancing or Executry Practitioners
with 3 plus years experience £275
Advocates £223
Solicitors within first 3 years of practice £138
Conveyancing or Executry Practitioners
within 3 plus years of practice £138
In-house solicitors £91
In-house Conveyancing or Executry
Practitioners £91
Commercial Attorneys £91

Complaints levies are charges made against legal practitioners when a complaint is upheld. The proposed complaints levies for 2010/2011 are:

Mediation levy £0
No complaint upheld £0
Complaint accepted - First Settlement up to £500
Complaint accepted - Second and
Further Settlements up to £700
Formal Determination - First up to £800
Formal Determination - Second up to £1,200
Formal Determination - Third
and Further Determinations up to £2,000

My previous reports on the Scottish Legal Complaints Commission can be read here Scottish Legal Complaints Commission : The story so far, and it should be noted the SLCC’s first annual report is yet to be published, dates floating around at the moment suggest March 2010, and we can also expect the final report of the Scottish Legal Services Ombudsman, a position which the SLCC’s current Chair, Jane Irvine held prior to the Commission taking over the SLSO’s functions.

However, what we wont be seeing is a parade of clients or consumers who the SLCC have protected by addressing & resolving complaints & complicated cases of fraud involving solicitors ripping off the general public, because apparently, there are no major honours of resolving significant client complaints to speak of. Wonder why ? just read my earlier reports on the SLCC to find out.

Guidance on Freedom of Information requests issued after case involving legal services provider ‘damages’ FOI legislation on documents disclosure

Scotland’s Information Commissioner, Kevin Dunion. GUIDANCE on the validity of FREEDOM OF INFORMATION REQUESTS has been issued by Scotland’s Information Commissioner, Kevin Dunion, after the Scottish Government began using a recent judgement in Scotland’s Court of Session involving a challenge by two Scottish Councils to the Information Commissioner’s powers, to label FOI requests received by Government departments as “invalid”, thus denying access to information. The judgement, handed down by Lord Reed in Scotland’s Court of Session last year, effectively narrowed the meaning of the term “information” and defined who or what exactly is an “applicant” under Scotland’s Freedom of Information legislation.

The case in question, which has to some extent lessened the power of FOI legislation in Scotland, concerned the well known Glasgow Law firm, MacRoberts (the law firm who were involved in the censoring of Scotland Against Crooked Lawyers website on behalf of the Scottish Court Service) sent in multiple FOI requests on behalf of their [at the time] undisclosed clients Millar & Bryce to Glasgow City Council and Dundee City Council, seeking copies of statutory notices served under various building and planning legislation since 17 February 2005.

Glasgow City Council failed to reply to MacRoberts within 20 days concerning their original FOI requests, then failed to respond to MacRoberts request for a review. In the case of Dundee City Council, they refused MacRoberts FOI requests under section 33(1) of FOISA on the basis that it would substantially prejudice its commercial interests.

Lord Reed – Ruled against FOI Commissioner. In both cases, MacRoberts appealed to Scotland’s Information Commissioner, Kevin Dunion, who ruled the information should be disclosed in both cases, however, both Councils appealed Mr Dunion’s decision, which was duly overturned by Lord Reed in the Court of Session on 30 September 2009. Lord Reed’s opinion, which is highly critical of Mr Dunion’s decisions in connection with MacRoberts requests, stating the Commissioner errd in law (several times) can be viewed here : Dundee City Council & Glasgow City Council v Scottish Information Commissioner

It should be noted that MacRoberts clients, Millar & Bryce are a service provider to the legal profession, and describe themselves on their website as being “the largest of the private search firms in Scotland, supplying legal services to over 1000 firms of Lawyers, Accountants, Banks and other organisations, providing the legal profession with a modern and user-friendly web engine, storing data to minimise administration and keep track of your search requests.”

Scottish Government were eager to deploy court obstacles against FOI requests. A typical Scottish Government FOI response example of recent weeks reads : “As you may be aware, the recent Court of Session judgment - Glasgow City Council and Dundee City Council v Scottish Information Commissioner [2009] CSIH 73 (issued on 30 September 2009) - clarified that the Freedom of Information (Scotland) Act 2002 (FOISA) gives a right to information, not documents, and that information requests must identify precisely the information sought. A request is not valid if it does not, in accordance with section 8(1)(c) of FOISA, describe the information requested. As your request is a general request for copies of minutes or meeting notes and does not clearly identify the particular information you are looking for, in line with the Court of Session decision, we do not consider it to be a valid request. Accordingly, we are not obliged to respond to it. However, if you wish to rephrase your request to clearly describe the specific information, rather than documents, you are looking for we would be able to consider your request and respond in accordance with FOISA. If you need any further advice and assistance to rephrase your request, please contact **.”

To deal with such responses handed out by the Scottish Government to FOI requests here follows the Information Commissioner’s Guidance, which should be read by anyone intending to make Freedom of Information requests from now on, in Scotland.

Requests for documents, or copies of documents

* The Freedom of Information (Scotland) Act 2002 (FOISA) provides a right of access to information and not a right of access to copies of specific documents.

* Authorities should not automatically refuse requests for copies of documents, as long as it is reasonably clear from the request that it is the information recorded in the document that the applicant wants.

* Requesting a document (e.g. a report, a minute or a contract) is a commonplace way to describe information. Where it is reasonably clear that a request is for the information contained in a document, the authority should respond to the request as one properly made under FOISA.

* If a request is for a document, but it is not reasonably clear what information is being requested, the authority should contact the applicant to seek clarification.

Requests on behalf of other people

* There is nothing to stop someone making a request on behalf of another person.

* An information request must contain the name of the applicant. Requests on behalf of someone else must name the third party (the 'true applicant').

* Authorities must advise and assist applicants to make requests. If a request is made on behalf of an unnamed person, the authority should provide reasonable advice and assistance to the applicant to explain what needs to be done in order for a valid request to be made.

If an authority rejects a request as being 'invalid', it is important that the authority advises the applicant of the right to request a review and, if still dissatisfied, to make an application to the Commissioner for a decision.

Authorities are urged to read the Commissioner's detailed guidance, which can be downloaded below, and review their procedures in the light of it. In the event that an authority has determined any requests invalid on either ground following the Court of Session Opinion, the Commissioner advises the authority to review those requests and satisfy itself that it has complied with its responsibilities under the legislation, including advice about the right to request a review.

Contact the Information Commissioner’s Office you have any enquiries on this guidance, or any other aspect of freedom of information law, by email on enquiries@itspublicknowledge.info or call 01334 464610.

Download the full Guidance on validity of requests following Court of Session Opinion (Pdf - 119Kb)

An important excerpt from the full guidance document states :

If you want to see information which is held in the form of documents, you should try to make your information request as clear and precise as possible so that the public authority can identify and locate the information you want.

You are not entitled to be given copies of specific documents under FOISA but this does not mean that any requests you make for documents or copies of documents are automatically invalid. Indeed, you may need to refer to documents in describing the information you want. However, to reduce the possibility of any doubt, your request may be dealt with more quickly if you ask for the information contained in the documents rather than for the documents or records themselves.

So, instead of writing: “Please let me have copies of correspondence between the Council and Company A …” you could write: “Please let me have the information contained in the correspondence between the Council and Company A …” & Instead of writing: “I would like the contract between the Health Board and Company X…” you could write: “I would like the information contained in the contract between the Health Board and Company X …”

Happy FOI’ing, everyone … and remember, keep maintaining the pressure for organisations currently exempt from Freedom of Information legislation, such as the Law Society of Scotland, to be made FOI compliant, even if they have to be dragged, kicking & screaming into the compliance with the public interest, and the public’s right to know.

You can read more about the campaign to make the Law Society of Scotland FOI compliant HERE, paying particular attention to the Scottish Government’s apparent wish to fight any idea of making Scotland’s self regulator of solicitors more transparent & accountable under FOI legislation, here : Scottish Ministers 'will fight' disclosure of secret legal advice ordering Law Society immunity from Freedom of Information laws