Law Society ‘routinely fails to report crime' as Crown Office admits it never received report on Glasgow lawyer theft cover-up investigation

Law Society of Scotland failed to tell Crown Office of theft evidence. CROWN OFFICE OFFICIALS have admitted the Law Society of Scotland and the Scottish Solicitors Discipline Tribunal failed to inform them, and the Police, of alleged criminal activity after solicitor Catriona Macfarlane, based at Glasgow law firm Hasties, was found guilty by the Scottish Solicitors Discipline Tribunal (SSDT) in early November 2009 of covering up a £24,000 client theft by her own husband, a mortgage broker.

Solicitors Tribunal found solicitor guilty of covering up a theft, but didn’t tell Police or Crown Office. To-date, no criminal charges have been brought in this case, and many are now questioning why there has been no Police investigation over the highly detailed findings published by the Law Society and the Scottish Solicitors Discipline Tribunal (SSDT), which stated that Catriona Macfarlane’s actions had left her client in a vulnerable position and left them exposed to an unacceptable risk after it had been revealed she covered up her own husband's theft of £24,150 from a client who had approached Mrs Macfarlane to act for him in a house purchase deal.

You can read my earlier report on this case, here : Glasgow lawyer who covered up husband's £24k client theft gets slap on the wrist by Law Society tribunal, continues working and the SSDT’s verdict availabe for download in pdf, here: Law Society v Catriona Margaret Macfarlane

Crown Office were reluctant to release statement on lack of prosecution. Initially the Crown Office delayed responding to media enquiries, and then put off giving any statement on the affair after Crown Office officials delayed media reaction by re-categorising any enquiries as Freedom of Information requests, which can take up to 20 days or more to generate a reply. The Crown Office only issued a statement on the affair after Scotland’s FOI Commissioner Kevin Dunion had been informed of the misuse of FOI legislation to delay a COPFS statement on a potential criminal investigation.

A spokesman for the Crown Office was eventually forced to admit : “I can confirm that we have not received a criminal report in connection with either Nigel MacFarlane or Catriona MacFarlane in relation to the incident.”

Law Complaints Chief Philip Yelland did not report investigation’s theft details to Police. This stark admission by the Crown Office that it had not been alerted to the case has raised growing questions over why the Law Society of Scotland and the Scottish Solicitors Discipline Tribunal did not contact the Police & Crown Office over the events which had been revealed in their own investigation, and has left many questioning why the Law Society’s Director of Regulation, Mr Philip Yelland, notorious for being involved in many ‘controversial’ Law Society complaints investigations also did nothing, despite his own public claims that solicitors engaging in such activity have been struck off in the past … although not always reported to the Police as they should have been …

Law Society’s Director of Regulation Philip Yelland claimed lawyers are struck off for bad conduct but evidence shows otherwise.

A senior legal insider today alleged the Crown Office was reluctant to prosecute members of the legal profession for criminal activity, and went onto accuse the Law Society of Scotland of routinely covering up criminal activity of its members it had detected in the course of investigating complaints against solicitors.

He said : “The Law Society of Scotland have to look at nearly 5000 complaints a year against solicitors and a good percentage of those relate to theft of a client’s funds, misappropriation of titles, fraud, and other activities which fall into the realms of criminal law. Not once however, do the Law Society turn over any details of criminal activity they uncover during the course of their investigations to the Police or the Crown Office, or even the Scottish Legal Aid Board, so effectively we have the body responsible for regulating solicitors in Scotland failing to pass on evidence of criminal actions to the proper authorities for a criminal investigation.”

He continued : “I would also have to question whether the new Scottish Legal Complaints Commission has, after one year of operation, passed on the details of any possible criminal activity on the part of solicitors it has detected, to the Police or Crown Office ?”

After enquiries made today, a source close to the SLCC confirmed that no cases had been passed by the SLCC onto the Police as of yet – which is odd, considering some of the kinds of allegations and evidence I have been reading in complaints cases presented to the SLCC for investigations.

A spokeswoman for one of Scotland’s consumer organisations today called on the Police & Crown Office to be more pro-active in detecting criminal activity carried out by members of Scotland’s legal profession.

She said : “It is worthwhile noting in the case of solicitor Catriona Macfarlane the Scottish Solicitors Discipline Tribunal were fairly exact in their findings and the level of detail, but it appears the Police and the Crown Office, who must have been aware of what had been reported by the Law Society and the SSDT, and the reports in the media, still did nothing.”

She continued : “Just as much as the Law Society of Scotland and the SSDT have a duty to protect consumers from solicitors who damage their clients, there is a duty on the Crown to detect and prosecute any criminal activity on the part of a solicitor to protect the general public. Why therefore has no action been taken by the Crown Office on this case where, according to the SSDT’s findings it seems a theft had been committed and covered up by a solicitor who is still able to practice.”

Justice Secretary Kenny MacAskill – tight lipped & soft on crimes committed by solicitors. From cases reported to me in the past involving criminal actions reported to or detected by the Law Society during the course of their investigations, it is clear to me the Law Society has a policy of not reporting criminal activity by solicitors to the Police or the Crown Office, and there is ample evidence to suggest the Crown Office itself has no wish to prosecute lawyers for criminal actions in Scotland, as I revealed in an earlier article I wrote here : Justice Secretary 'hush hush' on criminal records of lawyers as Crown Office claims its too costly to keep details on legal profession's crooks

Just to back that up once again, a client I know who reported his own solicitor to the Law Society of Scotland over fee irregularities and the misuse of his property titles claimed he had also tried to report the matter to the Police in his area but was told they did not want to become involved as the PF would probably do nothing.

He said : “I complained to the Law Society about my solicitor sending me demands for work he had not done and also refusing to hand over my title deeds until I paid his bill. The Law Society looked at the complaint and my solicitor then claimed the bill was an error but we then found out he had used my house titles to get himself a loan at the bank.”

He continued : “I called the Police in and they said it was a civil matter and wanted the Law Society to clear it up but the Law Society did nothing other than wipe the false bill, the lawyer got away with what he did at the bank and it took me nearly a year to get my title deeds back. He should have been charged and sent to jail along with all those at the Law Society who covered it up.”

The Crown Office were challenged today on the Macfarlane case, and asked if they have any intention of directing the Police to conduct enquiries with a view to bringing charges against the individuals concerned. So far, no comment has been received from the Crown Office.

Lord Emslie defeats legal challenge over pleural plaques as Insurers ‘big name’ legal team fail to overturn Holyrood’s Asbestos compensation law

Insurers legal team was headed by Richard Keen QC, Dean of the Faculty of Advocates. Some good news to start 2010 as Scottish judge Lord Emslie yesterday threw out the Insurance companies legal challenge against the Damages (Asbestos-related Conditions) (Scotland) Act, which was voted through by MSPs in 2009 after Law Lords in England & Wales ruled against compensating people who had developed ‘pleural plaques’, as a result of exposure to asbestos.

Avira, AXA Insurance, Zurich and the infamous Royal Sun Alliance (who also insure all Scottish solicitors via the Master Policy) were represented by the Dean of Faculty himself, Richard Keen, and Scots law firm Brodies LLP, but the big name legal team proved the big failure most people hoped for.

In a 150-page judgment issued at the Court of Session, which can be read online here : OPINION OF LORD EMSLIE in the petition of AXA GENERAL INSURANCE LIMITED and OTHERS Petitioners; for Judicial Review of the Damages (Asbestos-related Conditions) (Scotland) Act 2009, Lord Emslie stated: "Not surprisingly, individuals diagnosed with pleural plaques are liable to become alarmed and anxious for the future, and this may severely reduce their enjoyment and quality of life. The diagnosis confirms significant asbestos exposure in the past, of which they may or may not previously have been aware; it underlines the much higher risk which they now face, many hundreds of times greater than for members of the population at large, of contracting lung cancer, mesothelioma or asbestosis; and in some cases it may bring to mind the suffering and perhaps death of friends, colleagues and relatives from these serious asbestos-related diseases.”

Lord Emslie concluded : “There is clearly room for differences of opinion as to whether the Parliament was right to legislate in the way it did, and it remains to be seen whether the 2009 Act will prove to have adverse legal or political consequences in years to come. But for all of the foregoing reasons I am unable to accept that the petitioners' complaints, either individually or collectively, come anywhere near the standard of "irrationality" which would be necessary in order to invalidate a primary Act of the Scottish Parliament. Whether that standard is, on comparative lines, to be derived from the Nottinghamshire and Hammersmith decisions in the House of Lords (as suggested in chapter IV of this opinion), or simply from traditional concepts of Wednesbury unreasonableness as judicially explained, is to my mind immaterial for present purposes. The petitioners plainly fail on either approach, and their common law challenge to the 2009 Act is therefore rejected.

I have previously reported on the Insurers legal challenge, where initially, they hoped the threat alone of a legal challenge against the Scottish Government’s proposed Asbestos Damages Bill would have been enough to scupper its success : Insurance firms with links to Scottish Government threaten legal challenge against Holyrood on asbestos claims reforms.

However, after the Bill was passed by the Scottish Parliament and became law, the threat became a legal challenge, which I reported on earlier, here : 'Money must come before life' as insurers & lawyers launch legal challenge against Scotland's asbestos compensation law

Let us remind ourselves again just how low some people in the legal profession will go to argue against a person’s health & wellbeing, where indeed, pleural plaques from asbestos exposure are most certainly NOT good for you, despite some lawyers feeling they are (presumably because their big moneyed insurance clients said so).

Dr Pamela Abernethy (lawyer, Simpson & Marwick WS, Edinburgh) - Asbestos related Pleural Plaques 'are good'

and the rest of that shocking episode here :

For further coverage, the Herald newspaper as always, excellently reports Lord Emslie’s commendable ruling :

Insurance giants defeated over asbestos damages law

heraldscotland staff

Insurance firms have lost a legal bid to overturn a new law which allows victims of an asbestos-related condition to claim damages.

Some of the biggest names in the insurance industry had challenged the law which came into force in Scotland last June.

But Court of Session judge Lord Emslie rejected their legal challenge.

His written ruling concluded: "There is clearly room for differences of opinion as to whether the Parliament was right to legislate in the way it did, and it remains to be seen whether the 2009 Act will prove to have adverse legal or political consequences in years to come."

But the judge said he does not accept that the insurers' complaints come anywhere near the standard of "irrationality" needed to invalidate an Act of the Scottish Parliament.

The legal battle centred on a condition known as “pleural plaques”, which are changes in the layers of tissue which lie between the lungs.

The changes can be caused by past exposure to asbestos but have no symptoms or ill-effects and are not considered a disease in their own right.

The new law in Scotland was intended to reverse the effect of a landmark House of Lords ruling that people with pleural plaques could not seek compensation.

But insurers opposed the move, and the action to overturn the new law was raised by Axa, Norwich Union, Royal & Sun Alliance and Zurich Insurance.

When the legislation was going through Holyrood insurers argued that the new law ignored medical opinion and underestimated the cost of potential claims.

At the start of the court battle in May last year they argued the new law broke the essential legal principle of “proof of damage” and resulted from an “unreasonable, irrational and arbitrary” exercise by legislators.

The insurance companies argued that the law breaks European Convention on Human Rights provisions on property rights and unreasonable legal interference, that it will benefit a small group of people who had suffered no legal harm and that it will cost insurers hundreds of millions of pounds, or more, by retrospectively changing insurance contracts.

But their challenge was contested by Scottish ministers and by some people with pleural plaques.

They argued the insurers’ challenge was wrong in law, and that it did not fall within the permitted grounds of challenge to Holyrood legislation set out in the Scotland Act.

They also argued that it was the place of insurers to launch the challenge, as the damages claims would actually be brought against negligent former employers and the insurers would be affected only indirectly.

In his ruling Lord Emslie upheld two of the insurers’ legal arguments: on whether they had a close enough connection to mount a legal challenge, and on whether to challenge an Act of the Scottish Parliament on common law grounds of “irrationality” is valid.

But he still rejected the overall challenge.

Labour MSPs welcomed the ruling.

Member for North East Scotland Richard Baker said: “This is the right judgment and reflects the fact that this move by insurance companies to overturn the will of the Scottish Parliament was both unfounded and unjust.

“Most importantly this is good news for all those in Scotland who have had to suffer the trauma of being told they have pleural plaques and will now be able to pursue damages as they were previously able to do so.”

Asbestos campaigners welcomed the ruling.

Their lawyers called on the insurance industry to accept defeat and pay up.

Solicitor-advocate Frank Maguire said: “This judgment states categorically that the Scottish Parliament was perfectly within its rights to pass this law and that is tremendous news for pleural plaques sufferers.

“We have almost 1,000 pleural plaques cases which have been in limbo while the insurance industry pursued this ill-fated legal action.

“I now call on them to stop obstructing justice and not to try and put any more barriers in the way of victims seeking compensation.”

Mr Maguire said many insurance companies not involved in the court battle, as well as the Ministry of Defence and British Shipbuilders, had been holding back on settling pleural plaques cases.

“They also should now meet their obligations and pay up,” he said.

“The Westminster Government should now enact similar legislation for the rest of the UK.”

Harold McCluskey, chairman of Clydebank Action On Asbestos, said: “This is great news for the victims of pleural plaques.

“It is absolute rubbish to say that pleural plaques doesn’t affect victims. It’s as dangerous as any other asbestos-related disease.

“Most sufferers have some form of breathlessness but the biggest strain is the worry of developing into fatal conditions like mesothelioma which happens with frightening regularity.”

Former shipyard worker Dan O’Malley, 71, from Paisley, said: “I’m delighted the judge has ruled that the Scottish Parliament was right to pass this law.

“I was diagnosed with pleural plaques after suffering breathlessness and a persistent cough. I had all sorts of x-rays and finally a CT scan before pleural plaques was confirmed.

“Now it preys on my mind all the time especially since a very close friend of mine who had pleural plaques died of mesothelioma last year.”

Legal Services Bill : Consumer Focus & UNITE union differ over access to justice proposals as ‘Tesco Law’ comes under the Holyrood microscope

Consumer Focus Scotland gave evidence on proposed legal reforms. Continuing my reporting of the Legal Services Bill (dubbed by some as ‘Tesco Law’) which aims to widen Scots access to justice and yet again tackle the thorny question of regulating Scotland’s legal services marketplace, currently under the grip of the Law Society of Scotland, officials from Consumer Focus Scotland and the trade union, UNITE, attended the Scottish Parliament’s Justice Committee hearings earlier this week to be questioned on the Scottish Government’s proposals to tinker with the flawed, monopolised legal services market we have all been forced to use in Scotland for far too long.

Attending this evidence session was Sarah O'Neill, head of policy for Consumer Focus Scotland, and Fiona Farmer, a regional industrial officer for the Unite trade union, Scottish region.

Consumer Focus Scotland & UNITE officials attend Holyrood on Legal Services Bill :

Pt 2 Pt 3

Pt 4 Pt 5

Fiona Farmer of Unite , in response to opening questions from the Justice Committee on what evidence is there that the Legal Services (Scotland) Bill is necessary and that the establishment of alternative business structures will benefit users of legal services in Scotland, said : “We have concerns about the marketisation of legal services under the bill, which we have outlined in our written evidence. We are not opposed to change, but we are concerned that opening up the market will result in inequality in the justice that is available to the public and to our members in Scotland. When the national health service in England was opened up to privatisation, we saw evidence of the most lucrative parts of the service being creamed off and the less attractive parts being left, which has caused problems in the sections concerned. There could also be conflicts of interest should the bill go ahead in its present form.”

After a question from Bill Aitken, the Justice Committee Convener on what could go wrong with the proposals contained in the Legal Services Bill, Fiona Farmer replied : “If we consider the privatisation of the NHS in England, the lucrative and attractive sections have been hived off, including children's services, acute services and surgery. Other services, such as care for the elderly and mental health services, are being left and are suffering financially as a result. The same detriments could apply in legal services here if the bill were to proceed. Certain sorts of claims and areas of justice would be snapped up, whereas services in other areas would become very costly. It would become much more expensive for our members to access justice, and we do not believe that access”

Sarah O'Neill, Head of Policy for Consumer Focus Scotland then entered the debate, giving the Justice Committee little doubt that CFS’s opinion was that the consumer interest was best served by opening up Scotland’s monopolistic legal services marketplace to competition.

Sarah O’Neill said : “Consumer Focus Scotland and our predecessor body, the Scottish Consumer Council, have long argued that there is a need to open up competition in the market for legal services in Scotland, and that we should consider new ways to deliver those services—subject to adequate consumer protections being put in place. We believe that lifting the existing restrictions through implementing the bill will bring consumers a number of advantages, including an increased choice of services, reduced prices, greater convenience and more consumer-focused services. Most important, we see potential in the bill to increase access to justice for consumers.”

“We have been concerned that much of the debate on the bill so far has focused on the benefits to big legal firms, external ownership by businesses and issues to do with legal markets where there is already healthy competition, such as conveyancing. We view the bill, together with other proposed reforms such as those in Lord Gill's recent civil courts review, as important for achieving modern, consumer-focused legal services in Scotland.”

Ms O’Neill continued : “The bill has the potential to lead to the development of entirely new structures in the voluntary, charity and advice sectors, not just in private practice and in services provided by solicitors and accountants, which we have been hearing about. Charitable and advice organisations should have flexibility in how they address unmet legal need, both in geographical areas and in areas of legal work where there is insufficient provision of legal services. In 2006, the legal markets research working group found that there are clear gaps in provision in areas of social welfare law such as debt, housing, employment and immigration. We would like to see the market opened up so that citizens advice bureaux, which we know want to have these powers, and other charities, can employ solicitors to work directly in those areas.”

As the debate rolled on, it became clear that while Consumer Focus Scotland supports opening up Scotland’s legal services market, there are gaps in the Scottish Government’s proposals to effectively regulate what might very well end up as the same regulatory mess caused by the inadequate powers created in the Legal Profession & Legal Aid (Scotland) Act 2007, which has seen over a year of complaints disgrace at the beleaguered Scottish Legal Complaints Commission, simply due to the sole fact that fully independent regulation over the legal profession was never enacted in the 2007 LPLA Act. Now, in 2010 with the Legal Services Bill, we are faced with the legal establishment, and other self regulators basically spinning the same tune, demanding to keep the powers of regulation for themselves, effectively shutting out the consumer once again, and unsurprisingly the Scottish Government are apparently happy to pander to those wishes of the professions once more.

The Trade Union UNITE on the other hand, have severe reservations about the Legal Services Bill, and take the opposite view to Consumer Focus Scotland saying that "The provisions of the Legal Services Bill will create an open-door for third parties with only profit on their agenda to influence, shape and dominate our justice system” and they do have a point, considering the many flaws of the Legal Services Bill as it currently stands, flaws which reflect back on the Scottish Government who produced the legislation, formerly called the “Legal Profession Bill” but renamed when the Law Society turned against it.

A spokeswoman for Consumer Focus Scotland replied to queries saying : “As we made clear in our response to the Scottish Government consultation ‘Wider Choice and Better Protection: a consultation paper on the regulation of legal services in Scotland’, we support the liberalisation of the legal services market in Scotland, subject to the necessary consumer protections being put in place. We believe that this will result in more consumer-friendly, high quality legal services in Scotland.”

Gilbert M Anderson, a solicitor with Glasgow law firm AndersonsLLP, rounded up the evidence session, claiming : "The public interest demands legal services should only be provided by a strong and genuinely independent legal profession which is thoroughly trained and disciplined in the practice of law."

Mr Anderson’s written submission to the Parliament on the Legal Services Bill can be read here : Gilbert M Anderson written submission (pdf)

Well, Mr Anderson, with respect, it is the Law Society of Scotland’s lack of enforcement of discipline, standards, and regulation which is constantly causing all these, admittedly half hearted attempts by Government to reform legal services in Scotland.

Perhaps if you clean up the Law Society, and hand over regulation and representing client’s interests to a fully independent authority, your claims might have more substance than the evidence of a distinct lack of access to justice in Scotland at present demonstrates fairly well. If it is so important to you the legal profession should be independent (as it is as important to me), then it should also be as important to you that protecting the public interest should also be independent, as the Law Society has never been willing, or able to do both as we both well know.

You can read the submissions from Consumer Focus Scotland here : Consumer Focus Scotland on Legal Services Bill (pdf) and the submission from UNITE trade union, here : UNITE Trade Union on Legal Services Bill (pdf)

The full report of the latest evidence session on the Legal Services Bill, including the contributions from Consumer Focus Scotland and UNITE can be viewed here : meeting is here : Justice Committee Tuesday 5 January 2010 Legal Services Bill Stage 1

All written submissions on the Legal Services Bill can be found here : Legal Services Bill written submissions

You can read my own submission on the Legal Services Bill, which deals mainly with regulation HERE (pdf)

All things considered, I do not feel the public interest and indeed consumer protection is being put first in the current set of proposals in the Legal Services Bill. What we are looking at is yet another regulatory mess created to appease the professions and industry, instead of prioritising those (us) who will have to pay to use these services.

Surely a little consumer protection would go a long way to giving us better standards and wider choice of legal services in Scotland, Mr MacAskill ? why the hold up on something so simple ?

Consumers will have little protection from accountants working in Scottish legal services market as ICAS promotes more closed shop self regulation

Institute of Chartered Accountants of Scotland gave evidence on Legal Services Bill. TUESDAY of this week saw officials from the Institute of Chartered Accountants of Scotland appearing before the Scottish Parliament’s Justice Committee to make pleas for Scottish accountants to become more involved in the expanded legal services market, promised by the Scottish Government’s Legal Services Bill, currently receiving a rocky ride from MSPs.

In response to opening questions from Justice Committee Convener Bill Aitken on how ICAS's regulated non-member model, which the notoriously closed shop accountants regulator claims could be applied to the legal profession at a cost that would be lower than that of the current proposals by the Scottish Government & Law Society of Scotland, ICAS Executive Director of Regulation & Compliance Vivienne Muir laughably claimed her institute‘s approach to regulation had worked well for the accountancy profession, but as we all know, has not worked very well for clients of accountants.

Vivienne Muir said : “ICAS operates a fairly comprehensive regulatory approach for its members. Our chartered accountant firms comprise non-members as well as chartered accountants. In order to bring those non-members into the regulatory structure, they can become regulated non-members—there are contractual arrangements under which non-members come to the regulatory fore.”

“The advantage is that when we go out to a firm we can monitor the whole firm, as opposed to looking just at our members. We are therefore bringing non-members into the regulatory framework. It is a simple way of doing things and means that we can go out and assess the firm for quality and competence. The method has worked well for the accountancy profession.”

ICAS goes to Holyrood but fails to impress on accountants legal services roles :

You can find out more about the Legal Services Bill HERE and the full written report of the 5th January 2010 meeting is here : Legal Services Bill 5th January 2010 Official Report

In reality, the Institute of Chartered Accountants of Scotland have as much a closed shop, protective, ‘crooked’ self regulatory set up as the Law Society of Scotland, and are well known to protect their own members from complaints even when accountants have carried out criminal acts. Among little known facts regarding ICAS is that senior Law Society of Scotland members sit on its governing body, something I’ve covered in an earlier article worth reading here : Fears over corrupt self regulation as accountants regulator draft in ex Law Society President and solicitor as Public Interest members

More of my previous articles on the Institute of Chartered Accountants of Scotland can be read here : Institute of Chartered Accountants of Scotland - not a trustworthy regulator or role model by any means and if you don't want your legal services to be ‘Norman Howitted’ I’d suggest you read THIS and make sure your accountant is as far away from your legal affairs as possible.

It is evident the ICAS role model for regulation, as presented to the Scottish Parliament, works no better than the Law Society of Scotland’s closed shop routine for complaints against solicitors, demonstrating yet again that only fully independent regulation will serve the interests of Scotland’s consumers when it comes to a reformed legal services marketplace.

However since the Legal Services Bill as it currently stands has no provision for fully independent regulation of legal services in Scotland (principally because the professions don't want it, and actually fear it), we as consumers cant expect much to change in terms of the public’s access to justice, instead rather this bill now appears to be more about the professions' increased access to money and the continued right to control who in Scotland has access to justice and who does not.