Scottish inquiry into the use of contaminated blood products needs wider remit

The inquiry into the use of infected blood products in Scotland, to be chaired by Lord Penrose, must have a wider remit, according to campaigners.

Let’s hope the campaigners and victims are listed to for once ..

The Herald reports :

Scope of inquiry into blood scandal in Scotland ‘must be widened’

MARIANNE TAYLOR February 24 2009

Campaigners said yesterday that patients and their families may never find out why contaminated blood products were given to thousands of haemophiliacs and others unless the scope of a Scottish Government inquiry into the scandal is widened.

A separate inquiry in England yesterday condemned the "procrastination" that led to patients, including hundreds of Scots, becoming infected with HIV and Hepatitis C after receiving infected blood transfusions during the 1970s and 1980s.

The privately funded inquiry, led by Labour peer Lord Archer of Sandwell, described the infection of so many people as a "horrific human tragedy", and concluded that commercial interests had taken precedence over public health concerns.

The findings outlined how the NHS bought "bad blood" products from US suppliers who used what became known as "skid row" donors, such as prison inmates, who were more likely to be HIV positive or have Hepatitis C.

However, some key witnesses, including officials from the Department of Health, were not compelled to give evidence or supply documents as part of the investigation, while the UK Government is under no obligation to act upon its findings.

In light of this, lawyers and patients groups north of the border have questioned its effectiveness and warned that similar limitations placed on the Scottish inquiry announced last year by Health Secretary Nicola Sturgeon could lead to accusations of a cover-up. That inquiry is being led by judge Lord Penrose.

Solicitor-advocate Frank Maguire, of Thompsons Solicitors, which represents the families of the two victims whose deaths from infected NHS blood supplies sparked the Scottish inquiry, said: "Not one single official from the Department of Health agreed to give evidence to the Archer inquiry and that is a glaring omission which undermines the credibility of its findings.

"How can anyone get to the truth without speaking to the officials and ministers who made the key decisions at the time?

"The danger for Scotland is that the Penrose inquiry will find itself in the same position with absolutely no legal powers to force officials or Westminster government ministers to give evidence.

"This is exactly the sort of conduct that leads to talk of a cover-up."

UK-wide, 4670 patients were infected with Hepatitis C and 1243 of those patients were also infected with HIV. More than 2000 of these victims have already died, while others are still receiving treatment for the two life-threatening conditions.

Evidence in Scotland suggests that every haemophiliac over the age of 21, around 365 patients, is likely to have Hepatitis C, while some also have HIV. Some patients who did not know they had the conditions then passed it to their partners, who later died.

Some victims have already received payments of £20,000 from a fund set up by both Holyrood and Westminster, and campaigners have called for more compensation.

However Philip Dolan, chairman of the Scottish Haemophiliacs Forum, said revealing the truth should be the main aim of any inquiry. He said: "We need a full public inquiry that uncovers every detail of this scandal. We also need to hear directly from the health professionals and officials who made the key decisions.

"That is the only way we will ever fully understand what happened, and why."

Spectre of John McCabe returns to haunt increasing numbers of Scots fraudster lawyers

The ghosts of the early 1990s return to haunt Scotland’s legal profession, as the numbers of solicitors charged in connection with mortgage fraud & buy-to-let scams increases … but we have been here before … John McCabe … the one time ‘high flying’ partner of the defunct Scott Moncrieff & Dove Lockhart was engaged in exactly the same frauds nearly twenty years ago …

Funny, the Law Society of Scotland said it could never happen again .. (but it did, and again & again & again and now !– Ed)

Even stranger, the people in charge of the Law Society departments policing the profession during McCabe’s reign of fraud, are still in their same positions today .. Isn’t that a bit like keeping on Sir Fred Goodwin after the RBS had to be bailed out –Ed)

The Edinburgh News relives the glory years of fraud via John McCabe :

John McCabe: Solicitor left banks and building societies reeling

Published Date: 26 February 2009
By Gina Davidson

IT was the multi-million pound white-collar crime which knocked the stuffing out of the starched shirts of Edinburgh's legal profession.

When solicitor John McCabe was arrested at Heathrow after an attempted escape to Uruguay, it was revealed that he had lost almost £7 million through a catalogue of property frauds which left the city's banks and building societies reeling – and law firms the length and breadth of Scotland financially worse off.

McCabe perpetrated Scotland's biggest legal fraud over a period of seven years, becoming increasingly devious – even conning his wife – and damaging the reputation of and trust in his profession.

In a complex network of fraudulent transactions, he obtained, by lies and forgery, increasingly large loans on already mortgaged property, using the cash to expand his property empire and invest in nursing homes. But as property prices fell and interest rates rose in the late 1980s his debts spiralled and McCabe had to borrow more and more money. By November 1989, he was having to find £120,000 a month to keep up interest payments on loans.

Even his own house in the heart of Edinburgh's affluent New Town was not safe from his greed. The original loan on the Northumberland Street house was just £50,000, but in a series of further loans, on which he forged his wife's signature, he obtained a further £250,000.

The frauds only came to light after the Law Society carried out a routine examination of the books at the now dissolved Scott Moncrieff and Dove Lockhart firm, where McCabe was senior partner. In panic, knowing he was about to be found out, he fled to Uruguay after wiring £300,000 to a friend's bank account.

But the friend, sensing trouble, went to the British Consul, who established McCabe was under police investigation. The account was frozen and McCabe's money impounded by police. Destitute, he gave himself up and helped police unravel his web of fraud. The frauds totalled more than £4m and on top of those he had debts of more than £2m.

The whole fraudulent business began in 1983 when, as a 34-year-old, he decided to raise money on his own house. Borrowing almost £20,000 from the Skipton Building Society, he falsely claimed the cash was to be used to carry out "repairs and improvements" – and forged his wife Helen's signature.

For two years he was satisfied with that financial injection, but in 1985 he again borrowed £19,250 for the same purpose – and again forged his wife's signature.

The following year, in October, he forged her signature for a £54,698 mortgage from the Gateway Building Society to buy a house in Blantyre Terrace.

By 1987 he was stepping up his activities, desperate to become a property developer and enter the then-booming business of nursing homes. He applied for three more mortgages from three new building societies: £33,600 from the Halifax for a house in Maxwell Street, £63,826 from the Yorkshire for a house in Leamington Terrace and £40,000 from the Nationwide for the basement of his house in Northumberland Street. For the last two deals he again forged Helen's signature.

Then McCabe really went for it. In 1988 he borrowed a total of £1,005,136 from ten different agencies. This time he only forged his wife's signature once, but variously stated to the building societies and banks that he had only one on-going mortgage, or none at all.

And he was believed. The banks and building societies accepted what he told them, partly because, while he had not recorded the titles of the properties on which he held mortgages, his word, as senior partner in a reputable firm of solicitors, was considered good enough.

By the end of 1988, McCabe had 11 mortgages on eight properties.

Then in 1989 McCabe went back to the Skipton to raise a further £60,000 on his Northumberland Street home and took another £30,000 mortgage with the Newcastle for a property in Easter Road. He also approached the Jedburgh branch of the Bank of Scotland for a £150,000 term loan, supposedly to inject capital into a company called Peter Moffat (Potatoes). He offered four properties as security without mentioning existing mortgages on them.

In the same month he got an overdraft of £390,000 from the Clydesdale Bank to convert the Leamington Terrace properties into a nursing home, pretending again that there were no existing overdrafts, mortgages or loans.

But McCabe's guest houses and nursing homes were not proving the goldmines he expected them to be, and his debts were growing all the time.

In December that year came his biggest deals yet. On the 6th, he obtained a commercial mortgage from the Alliance & Leicester of £534,870, supposedly with a business associate, to buy a property in Eglinton Crescent. Ten days later, he applied for another commercial mortgage from the Newcastle, for the same house, and got £504,000.

But the Newcastle would not agree to allow him to act for them as well as himself due to a potential conflict of interest in the deal, but asked Edinburgh solicitors JC&S Stewart to act for them.

McCabe's wife Helen was a partner in JC&S Stewart and was given the task of handling this mortgage. She failed to record the title, but instead handed the deed and the file to her husband (later the Newcastle successfully sued JC&S Stewart for negligence).

It was obvious that by this stage McCabe was a desperate man who was prepared to throw away his wife's career to save his own skin.

In 1989 alone, McCabe obtained £1,668,870 from two banks and three building societies and was already paying £120,000 a month in interest on loans. Roughly calculated, at the rates then current on property loans, he would have to have debts of around £7m to incur this amount of interest.

The total amount of fraud for which he was eventually tried, however, was £4,075,226. And that includes further phenomenal borrowings in 1990.

By this time, he must have realised the game was up and decided to go out with a bang. In 1990 his borrowings totalled £1,323,000, with eight mortgages taken out: four on one house in Belford Court, two more on the Blantyre Terrace house (making four mortgages on that property altogether), one "remortgage", one for garage premises and one plot of land. Ten agencies were deceived.

The "improvements" at Northumberland Street reached their peak in June when he again applied to the Skipton for a loan of £118,000 – and got it. A spokesman for the Skipton later said that as long as the client provided proper security, a valuation and proof of income, the loans he had received, totalling £243,000 in seven years, were perfectly acceptable practice.

Eventually realising the game was up, McCabe fled to Uruguay at the end of 1990. But the money he had sent on came back to Scotland – and so did he.

He made a full confession to debts of more than £4m, nearer £5m with interest. He also had personal debts of around £2m. Unsurprisingly when the facts were revealed, there was speculation about gold-plated Jacuzzis and air-conditioned wine cellars, though it appears that the McCabes did not have an ostentatious lifestyle.

What McCabe's case illustrated at the time were the long delays in the recording of title deeds. As long as the properties he mortgaged were not recorded, building societies and banks could not discover that he had already mortgaged them.

McCabe was sentenced in 1991 to ten years in jail after admitting 34 charges of fraud.

Where did all the money go? None of it was ever retrieved and £4m, at least, was said to have gone on business failures and interest payments.

His wife Helen claimed at that time that she had acted under duress from her husband, and knew nothing about his affairs. But she was later found guilty of professional misconduct by the Scottish Solicitors Discipline Tribunal and censured over two cases involving building society loans to her husband.

She was also later evicted from 52 Northumberland Street as their home had been left encumbered by mortgage arrears of more than £660,000.

And because McCabe was declared bankrupt, the Law Society of Scotland's guarantee fund, to which all solicitors have to contribute, had to pay out to meet the claims for compensation by victims of the dishonest lawyer. As a result, every solicitors practice in Scotland that year had to pay £900 to the fund.

Perhaps it was Robert Henderson QC, for McCabe, who summed up the case best when he said his client had been an unqualified success as a lawyer but a complete failure in his efforts to branch out into business.

"He was out of his depth and as he became more and more desperate for money, the frauds multiplied. It was a case of fraud on fraud on fraud," he said.

Ex Law Society boss Douglas Mill lands Glasgow University 80k post – memos not included

After ruining the legal profession’s reputation in Scotland, Douglas Mill is off to Glasgow University to do some more of what he’s good at, whatever that is … and to cap it all, the announcement was made on Friday the 13th. (Yes, Jason IS coming to Glasgow Uni – Ed)

Peter Cherbi’s “A Diary of Injustice in Scotland “ reports :

Former Law Society Chief Douglas Mill who resigned over ‘crooked lawyer’ memo scandal lands £80k Glasgow University legal post

Glasgow University’s Friday the 13th ? Former Law Society Chief Douglas Mill, who made himself famous as the most senior Law Society official who publicly & personally intervened in complaints & claims against crooked lawyers, he himself described as 'valid', has been appointed "Director of Professional Legal Practice of the University of Glasgow's School of Law". The post was announced on Friday 13th February 2009, and pays around £80,000.

More on the scandal which brought down Douglas Mill from his 11 year stint as the Law Society’s Chief Executive, can be read here : Breaking News : Law Society Chief Executive Douglas Mill who lied to Parliament, pursued 'personal vendetta' against critics - to resign

The University of Glasgow has issued a Press Release, but no one was apparently available, or willing to expand on it. However, a source at the University joked yesterday : “We got to hear about it last week on Friday the 13th. I wonder if its going to be anything like the movie ?”. “I heard he will be giving a cradle to Granny’s grave course!”

A former Council member of the Law Society, who spoke on other issues earlier this week, said “The consultation business isn’t doing too good these days, like the rest of us, but I’m sure Douglas will pick up a good salary at Glasgow for doing what he’s best at, and we all know what that is.”

A quick recap on who Douglas Mill actually is :

Douglas Mill used his dead granny to protect crooked lawyers. Mill, known for his 'pugnacious style' famously swore on his "Granny's Grave" during a session of Holyrood's Justice Committee in their consideration of complaints reforming legislation, boasted he had never intervened in claims & complaints against crooked solicitors & legal firms, but ended up being exposed as a liar before Holyrood by Cabinet Secretary John Swinney during a bitter debate which saw the contents of Mill's own memos & efforts to interdict members of the public from access to justice against a series of corrupt legal firms across Scotland.

Holyrood confrontation between Douglas Mill & John Swinney over 'crooked lawyer' memos ended Law Chief’s stint as Chief Exec

Memos of a downfall. Douglas Mill, in his post as the Law Society’s Chief Executive, found himself obsessed with hounding hundreds of members of the public who dared register complaints against crooked legal firms. Mill could not resist the opportunity to personally intervene in client complaints and financial claims made against crooked solicitors and their legal firms and his efforts depicted a concerted policy to ensure members of the public were constantly denied access to justice & legal representation solely to derail cases against legal firms reaching Scotland’s courts.

Mill became so desperate to protect self regulation, he made newspaper suicide jibe. However, Douglas Mill became the legal profession's own worst enemy, as his policies and those of his Law Society colleagues became clearly out of touch with civilised thinking, and in his tenacious battle with consumers & the Scottish Parliament over regulation of the legal profession reforms, became so desperate he famously drafted in an English QC to argue it was a breach of a lawyer's human rights to have someone else other than a lawyer investigate complaints against lawyers, an issue I reported in an earlier article here : Law Society of Scotland & Lord Lester QC challenge new legislation to protect Scottish public against crooked lawyers

Douglas Mill threatened legal action over lawyer's right to regulate themselves. When the 'rights for lawyers to investigate themselves' argument didn't work, Mill then turned his anger towards the Parliament & Government, threatening court action over the Legal Profession & Legal Aid (Scotland) Bill - legislation designed to usher in a new era of independent regulation of Scotland's solicitors. Mill's threats of courtroom attacks on the Government & Parliament brought new lows in public opinion of the Law Society of Scotland, viewed by many clients these days as little more than an organisation bent on protecting the criminal element of Scotland's legal profession.

Douglas Mill hounded victims by blocking their legal aid. Douglas Mill went on to be featured in many more scandal busting media reports, which depicted an operational policy of protection for crooked lawyers at the Law Society of Scotland. Subjects ranged from fiddling client’s legal aid applications to take on the Law Society, to even telling the Financial Services Authority to "take a hike" over scrutiny of the Law Society's Master Policy & Guarantee fund.

Douglas Mill demanded press censorship after attack on Leslie Cumming. Never one to miss an opportunity, Douglas Mill even used the attack against former Law Society Chief Accountant Leslie Cumming, as a chance to blame those who criticised the legal profession for whipping up a feeling of hate, Mill going on to demand the media, critics and clients all be silenced on ‘crooked lawyer’ stories …. however, Mill’s plan backfired when it turned out the mafia style hit against Cumming, which is yet to be resolved after three long years, was organised by some of the crooked lawyers within the profession Mill’s policies had shielded from complaints & investigations.

However, Mill’s time at the top of Scotland’s legal profession came to a bitter end after the video coverage of his confrontation with Cabinet Secretary John Swinney was posted to You Tube, and it became clear to everyone he, the Law Society of Scotland and the Scots legal profession as a whole had no credibility left with the public.

Douglas Mill’s best known gift to the legal profession has been that of crooked Borders lawyer, Andrew Penman, who ended up costing every Scottish solicitor hundreds of pounds a year in complaints levies, and levels of public disrespect which have put lawyers on a par with rapists or sex perverts.

Here’s the announcement from Glasgow University. Judge for yourselves if Scotland might get better law students under Mr Mill’s tuition …

From the University of Glasgow's news release :

School of Law appoints Director of Professional Legal Practice

Former Chief Executive of the Law Society and Glasgow graduate, Douglas Mill has been appointed as the Director of Professional Legal Practice of the University of Glasgow’s School of Law. He will take up his post on 1 March 2009. Douglas, who currently runs his own business consultancy after 11 years at the helm of the Law Society of Scotland and 18 years experience of private practice, will take up the newly created post on 1 March 2009.

Douglas will lead the team that will develop and teach the Diploma in Legal Practice at the University of Glasgow for September 2010. Assuming that the Law Society's proposals for reform of solicitor's education and training are accepted by the members at the May AGM, this will coincide with the start of the new framework for professional legal education under which the new Diploma will be significantly different from the current Diploma. Glasgow will also be offering post-diploma education for trainees in terms of the new framework from September 2011 and CPD. In recent years, Glasgow has run the Diploma jointly with the University of Strathclyde through the medium of Glasgow Graduate School of Law (GGSL). From September 2010, Glasgow will be offering the Diploma independently.

Douglas Mill said: “I am delighted to return to my alma mater to take up the challenge of delivering the University’s ambitious strategic plans for the School of Law. I enjoy working with students and have always been very involved in Legal education. With the Law Society poised to outline a new style of diploma, Glasgow has the opportunity to develop full ‘cradle to grave’ law training which will link into lifetime learning for solicitors in Scotland. Glasgow has always been unimpeachably good as a legal university but it has been ten years since they have run the diploma independently. With the 300th anniversary of the Regius Chair in School of Law coming up in 2013, we aim to establish a centre of excellence for professional legal studies at Glasgow.

Professor Tom Mullen, Head of the Law School said: “We aim to make the University of Glasgow’s School of Law one of the top 7 law schools in the UK, and expanding professional legal education is a key part of our strategy for achieving that aim. With his background and experience, Douglas is ideally placed to lead the team that will enhance our provision of professional legal education, and the timing of the appointment is perfect given the Law Society of Scotland’s plans for new quality-based continuous professional development.”.

Scottish Police recommended to US Govt that Lockerbie witnesses be paid £1.5m reward

Recent revelations in the Lockerbie case show that Scottish Police forces recommended the main witnesses in the trial be paid a £1.5million reward …

The Herald reports :

Lockerbie witness ‘put up for reward’

BRIAN DONNELLY February 20 2009

Previously undisclosed documents show that Scottish police recommended to US authorities that both the main witness in the Lockerbie trial and his brother should be paid a reward of up to $3m, or £1.5m.

The documents discussed at the Court of Criminal Appeal in Edinburgh yesterday revealed that Tony Gauci, the Crown's key witness in the case, should receive $2m while his brother - described in papers as having some influence over Tony - should receive $1m.

It was also alleged that police notes suggested at one stage that a Mr Gauci - which one was not specified - could tell people he had had a lottery win.

Tony Gauci's evidence was crucial: the burned remnants of the articles bought at his shop were later found inside a brown hardshell Samsonite suitcase that contained the bomb that blew up over Lockerbie on December 21, 1988, killing 270 people.

Lawyers for Abdelbaset Ali Mohmed al Megrahi, the man convicted of the bombing, this week began a challenge to demand undisclosed material they believe will help free their terminally ill client.

The Crown Office and the Advocate General are opposing disclosure, claiming that in some cases the evidence does not exist.

The Herald revealed last year that the defence team for Megrahi, who is serving 27 years in HMP Greenock for the atrocity, was not told of the reward offer.

Lord Hamilton, the Lord Justice General, Lord Kingarth and Lord Eassie heard yesterday from Megrahi's QC, Maggie Scott, who referred to documents that emerged after the three-year Scottish Criminal Cases Review Commission investigation.

Their investigation, which concluded last year, referred Megrahi for a fresh appeal.

Ms Scott said that new documents revealed Scottish police officers discussed that in 1991 Tony Gauci had "expressed an interest in receiving money".

She said there were indications that there was much more contact between detectives in the inquiry and the witness than had been previously been disclosed.

A record by one officer read that Paul Gauci was also interviewed, and that "it was apparent when speaking to him he has a clear desire to gain financial compensation".

Another document described an Impact Assessment Report which may have been related to the United States' Witness Protection Programme, but Ms Scott said the author was unknown because it had been redacted.

This document was sent to the US Department of Justice along with a document from Scottish police in support of an application for a reward.

Further documentation showed that as early as 1989, an FBI agent had advised a Scottish police officer that $10,000 could be made available in relation to relocation.

A separate paper from a Scottish police officer in April 2002 to the US Department of Justice "outlines the background of the exceptional contribution" made by the Gauci brothers before suggesting the $3m payout.

The FBI is understood to have supported this, although there was no documentation to suggest payments had been made.

Ms Scott said the Crown had said that to the best of its knowledge, Tony Gauci had never asked for or received a payment, and that it added "to the best of the Crown's knowledge neither of the Gauci brothers asked Scottish police officers for a reward or how to claim one".

It is claimed that an officer referred in a diary, or notebook, from February 1991 "to a trip that is to be undertaken by Mr Gauci". Ms Scott said: "It is not clear what this is for, it doesn't make clear the purpose of that trip." She said that although the documentation was also redacted, it appeared there was a suggestion that if questioned Mr Gauci could "claim that the trip was paid for by a lottery win".

Ms Scott said she believed the documents should be allowed to be submitted for the appeal in April.

Ronnie Clancy QC, advocate-depute acting for the Crown, raised legal argument that the disclosures sought should only come after grounds of appeal were established as supporting documents and not to help form the basis of grounds for appeal. Mr Clancy said the Crown had already handed over 8500 documents to the defence since the end of last year. He said there was an "unrequited suspicion" the Crown is holding more documents relatin g to rewards, but this was not the case.

The Crown was also said to have told the defence that the request for disclosure of a high number of documents could be seen as a general investigation into the case overall, which Ms Scott disputed.

Lord Justice Clerk Lord Gill calls for review of solicitor advocates amid regulation failure by Law Society of Scotland

Solicitor-advocates are in the news as Lord Gill, the Lord Justice Clerk calls for a review of the way the Law Society fails to regulate their work …

The Scotsman reports :

Senior judge calls for review of solicitor advocates system

Published Date: 19 February 2009
By EMILY PYKETT

A SENIOR judge in Scotland has called for a review of the system of solicitor advocates representing people in court.

The Lord Justice Clerk, Lord Gill, yesterday heard the appeal of a convicted killer over the conduct of his defence at his trial at the High Court in Glasgow in 1998.

Judges sitting at the Court of Criminal Appeal in Edinburgh rejected Alexander Woodside's appeal. However, Lord Gill branded a decision by one of Woodside's defence team to absent himself from the trial for a day to go to London as part of a Law Society delegation to lobby on legal aid fees as "a dereliction of his duty".

He said Woodside's appeal raised concerns over practice among solicitor advocates in the courts.

Lord Gill said: "This appeal has highlighted problems of rights of audience that seem not to be unique to this case. I think it would be opportune if there were to be a review of the working of the system overall." He added: "I fail to see how any practitioner could be justified in absenting himself from any part of a murder trial except in an emergency."

Woodside, 31, had been defended at his trial by solicitor advocates Gerry Brown and Michael McSherry.

David McGlashan, of Livingstone Brown, instructed Mr Brown, a senior partner with the firm, with Mr McSherry there to assist him.

Lord Gill said he did not believe evidence from Mr McGlashan in which he stated he discussed with Woodside the option of being defended by counsel.

He added: "The reality is that Mr Brown decided at the outset that he would defend the appellant, with Mr McGlashan in the role of his instructing solicitor. No other option was put to the appellant."

The judge said the appeal highlighted a further problem arising from a solicitor advocate being able to accept instructions from his own firm.

Lord Gill also said the current rules "provide no safeguard to protect the accused in such a case being defended by an inexperienced solicitor advocate whose reach exceeds his grasp".

However, the Lord Justice Clerk said this did not amount to a miscarriage of justice.

Lord McCluskey, a former High Court judge, was one of those who argued against the plans for a system of solicitor advocates almost 20 years ago.

Last night he told The Scotsman: "I have helped with the training of people and I am reasonably sure the solicitor advocates who act on behalf of people in courts are competent.

"The system has endured for 20 years; it has structural weaknesses – the principal of which is advocates are under jurisdiction of the dean – but there is no equivalent governing the general behaviour of solicitor advocates.

"But on the whole, I would have said that they have done a perfectly competent job."

However, after the appeal court ruling, Richard Keen, QC, the dean of the Faculty of Advocates, said: "I welcome the idea that the problems outlined by the Lord Justice Clerk should be the subject of a review. The particular problem of solicitors not clearly advising clients as to the availability of counsel is a long-standing one and suggestions that they should not have to do so are extremely worrying."

The right to appear in the High Court was extended to solicitors under 1990 law reform legislation, where previously the work was only carried out by advocates from the Scottish Bar.

Scotland’s property management Factors ‘a bit crooked’ but OFT allows continued self regulation as consumers suffer

Property management in Scotland seems to have the same problems as most other professions & industries .. its a bit crooked .. and there are plenty of crooked agents around unfortunately.

The OFT however, feels for now, the industry can still self regulate .. a bad decision …

The Herald reports :

Factor market ‘not working well’ … but it can still police itself

GERRY BRAIDEN February 12 2009

Scotland's property management industry will be allowed to police itself even though "the market is not working well for consumers", the Office of Fair Trading has recommended.

Factors will only face the threat of a statutory scheme which could see them barred from operating if self-regulation fails, the OFT added.

Following a six-month landmark investigation into the factoring sector the OFT is also recommending the development of an advice and mediation service by the Scottish Government, which will be available to both owners and managing agents to help overcome the legal complexities in disputes and prevent the breakdown of arrangements.

Last month it unveiled its findings, which showed that almost half of flat owners believe their factors are not effective in getting things done, while one-third rated their service as poor value for money.

But while the recommendations published today have been welcomed by the industry housing campaigners have been left bitterly disappointed.

One leading figure has branded the recommendations "a shambles" and accused the OFT of telling the public "to trust dodgy companies to regulate themselves".

Prominent housing lawyer Mike Dailly, who has worked on a parliamentary bill to tighten the factoring industry, said: "This shows that our regulators, who let us down with the banking meltdown, are letting us down again.

"Does anyone really believe bad factors are going to start being nice if we ask them nicely? The OFT's conclusions are utterly incompatible with their finding that two-thirds of people who complained about their factor remained dissatisfied with them. That remarkable statistic blows any idea of voluntary self-regulation out of the water."

A particularly Scottish industry, factors manage common shared property such as roofs, staircases and gardens within tenements and other residential properties with a shared commonplace.

Around 135,000 Scottish households rely on property management companies.

The OFT's study also looked at land maintenance companies which maintain open spaces, typically on new housing developments.

It found that while the majority of people were happy with their property manager, around one in five said they were not.

Two-thirds of consumers who had made a complaint about their management firm were dissatisfied with the way their complaint was handled, while many people do not understand their complex legal rights and are unsure about the standard of service they should expect.

It also found there was limited scope for redress when things go wrong, and as owners rarely switch their property manager there is little evidence of active competition between factoring firms to attract business.

Key recommendations include an "early implementation of a Scottish Government promoted self-regulatory scheme, with an independent complaints redress mechanism, to ensure better accountability of property managers for their standards".

The OFT's recommendations have now been submitted to the Scottish Government which has agreed to respond within 90 days.

John Fingleton, OFT chief executive, said: "This is a market that is not working well for many homeowners in Scotland.

"People often have little or no understanding about their rights, households rarely switch factors, suppliers do not seem to be actively competing with each other and the options for consumers when things go wrong are very limited.

"The OFT's recommendations for change should be to the benefit of many Scottish consumers."

The OFT insisted that failure to recommend statutory powers, which many had hoped would include a registration scheme which could see companies struck off because of poor practices and operators required to prove they were "fit and proper", was not a "cop out" as the issue was more complex.

It also said it expected agencies north of the border to keep it up to speed with how any code was progressing while insisting it still had the "stick" of regulation in reserve should that fail.

Glasgow MSP Patricia Ferguson, the architect of the factors bill introduced to Scottish Parliament requiring property management companies to be registered, was scathing about the recommendations.

She said:"All the evidence shows that the majority of people who complain about their factor are unhappy with the outcome, the OFT offers them nothing. I will press on with my Bill and I hope that within the next year we will, finally, have a remedy on the statute book that will actually help people."

Consumer Focus Scotland, which in its previous guise as the Scottish Consumer Council, prompted the investigation, said factors were "drinking in the last chance saloon".

Jennifer Wallace, senior policy advocate at CFS, said: "The patience of consumers is wearing thin. If the industry does not develop self-regulation including an independent complaint system then we will, with the support of the OFT, move to external regulation of the market."

Property Managers Association Scotland Limited welcomed the recommendations, saying it already had a code of practice and supported the Scottish Government's intention to introduce accreditation of property managers in Scotland.

A spokesman said: "PMAS recognises that a simple system of dispute resolution would be advantageous to managers and clients. PMAS had proposed such a mechanism in its evidence on the Reform of the Law of the Tenement but the Scottish Government disregarded this suggestion when the Tenements (Scotland) Act was passed and left disputes to be resolved in the Sheriff Courts."

A Scottish Government spokesman said: "The property management services available to Scottish homeowners have been a matter of concern to the Scottish Government over recent years and we welcome this independent study by the OFT.

"Plans are already under way to develop an industry-led accreditation scheme for property managers. It will build on the OFT's evidence and recommendations and will include an independent complaints redress mechanism. We will consider the most effective way of ensuring advice and mediation services are available where they are needed."

Legal Aid Board turns down libel applications as LPLA Act puts legal aid out of reach to most claimants

The right to claim legal aid is being challenged by a lawyer who feels the directions laid down in the Legal Profession & Legal Aid (Scotland) Act 2007, put legal aid out of reach of many claimants.

No prizes for guessing how it will turn out …

The Scotsman reports :

Directions to nowhere

Published Date: 09 February 2009
By John Forsyth

SCOTS legal professionals have traditionally taken a pride, perverse some say, in Scots law's approach to libel and defamation.

The £200,000 in damages awarded to Tommy Sheridan in August 2006 stood out in many respects. It was the highest sum ever awarded to a pursuer. The case was argued, unusually, in front of a jury. And it has led not only to an appeal against the award by the News of the World, but also to criminal charges of perjury against Mr Sheridan and his wife, Gail.

Even at £200,000 the award was small beer compared with the millions that have in the past been paid out to defamed and aggrieved celebrities in England. Scots law has never supported the notion of punitive damages. Furthermore, it regarded injury to reputation in similar terms to the loss of an arm or a leg because of another's negligence or malice – deserving of compensation but not jurisprudential hysteria.

The overriding aim of most pursuers is always restoration of their damaged reputation by vindication in court or through a publicised settlement, rather than pursuit of a cash award. However, even that modest ambition is available only to those with the means to fund an action. Costs can run well into six figures and the risk of failure carries the prospect of paying the defender's legal costs as well. It is a gamble too far for all but the wealthiest or well-supported.

Until two years ago it was absolutely clear that legal aid would not be provided to allow the less well-off to pursue litigation, no matter how badly defamed and damaged they may have been.

For a brief moment it seemed like the door had been opened by The Legal Aid Profession and Legal Aid (Scotland) Act 2007. Section 14(1C) permits the granting of legal aid in cases involving defamation and verbal injury. All the usual tests require to be satisfied, but an additional hurdle was introduced for the pursuer to clear. The case would have to satisfy "such criteria as may be set out by the Scottish ministers in directions given to the board".

Specifically, a pursuer has to prove a) there is a significant wider public interest in the resolution of the case, or the case is of overwhelming importance to the person; and b) there is something exceptional about the person or the case such that without legal aid it would be practically impossible for the person to bring or defend the proceedings, and this would lead to unfairness.

The directions then go on to raise the hurdle to the level of a high-jump bar. It says the board "must be satisfied that the degree of exceptionality is the same as, or is approximately the same as, in the facts found in the case of Steel and Morris v United Kingdom."

Steel and Morris is the famous McLibel case in which two activists were sued in England by the McDonalds organisation following their criticisms of the nutritional value of the hamburger chain's menu and also the effects of its business practice on the environment. The case unfolded over years and spanned 313 court days in which Steel and Morris were forced to represent themselves. It was the longest trial in English legal history and the inequality between the parties led to a review of the legal aid regulations in England and Wales.

The Legal Aid Profession and Legal Aid (Scotland) Act 2007 replicated the changes in Scotland. However, the reform appears to be a legal aid optical illusion. The door looks open, but it is actually closed.

The Scottish Legal Aid Board confirms it has received three applications for legal aid in support of defamation actions since the new regulations came into force. All three have been turned down.

One of them involves a man called Danny Wilson who is attempting to sue the City of Edinburgh Council. Mr Wilson now lives in Wales, but was resident in Edinburgh between 1991 and 1998.

In 2004 he and his partner were commencing a course of IVF treatment at Shrewsbury Hospital, but on one visit were advised that they were no longer to be treated. The clinic had received a letter from Edinburgh city council social work department advising (among other falsehoods) that Mr Wilson was a convicted murderer and had served the prison element of a life sentence. That was entirely untrue.

The council later acknowledged that the information contained in the letter was incorrect and unsubstantiated.

Mr Wilson felt his reputation had been damaged in the eyes of those who had seen the letter and who had declined therefore to continue with the IVF treatment. He and his partner incurred financial loss in securing – successfully – treatment elsewhere.

His lawyer, Cameron Fyfe, of Ross Harper, lodged an application for legal aid to support an action for defamation. The application was rejected. Mr Fyfe appealed. The appeal was dismissed, although the sheriff principal observed that he found the hurdles placed in the way of a successful application "extraordinary".

Last December Mr Fyfe lodged a further application for legal aid, this time to fund an action against the Scottish Government itself on the basis that the directions appended to the Legal Aid Profession and Legal Aid (Scotland) Act 2007 effectively put legal aid beyond reach and therefore unlawfully breach Article 6 (1) of the European Convention of Human Rights. Article 6(1) sets out the right to a fair and public hearing in the determination of any civil rights or obligations or of any criminal charges.

Mr Fyfe says: "The directions imposed by the government effectively make it impossible for Mr Wilson to pursue his action. Bizarrely, under the directions I doubt if even Steel and Morris would get legal aid, even though their case is supposed to be the benchmark."

A decision on the application is expected in March.

Arbitration may not make the grade in Scotland as legal profession touts for business

While some feel the proposals on arbitration by the Scottish Government may make a difference in disputes, many within the legal profession warn that problems may arise later on which require court action that could have settled the case in the first place … not !

Lets give arbitration a chance .. but who among the professions will actually abide by such arbitration when the experience has always been to deny everything ….

Why new bill will make it easier for warring parties to shake on it

John Campbell

Published Date: 09 February 2009

ARBITRATION in Scotland has a long and honourable history. Going back as far as the mediaeval Scottish Parliament, the notion that men of business should submit their disagreements to "amicable arbitration", rather than troubling the courts, was respectable and well established, at home and abroad.

Since the 1707 Union, parliament has rarely seen fit to regulate this process in Scotland, apart from the introduction of a form of appeal to the court in 1972.

The Chartered Institute of Arbitrators (CIArb) welcomes enthusiastically the Scottish Government's commitment to the reform of this area of law by its introduction of the Arbitration (Scotland) Bill 2009.

In The Scotsman last week, Fergus Ewing, the community safety minister, outlined the many benefits of this proposed legislation. The CIArb and most practitioners have long held the view that Scots arbitration law had become a sad mixture of antiquated case law and piecemeal statute – incomplete, unworkable and often difficult to find.

Scottish arbitration has fallen out of step with modern practice around the world. This bill, drafted by officials in the Justice Department, in consultation with CIArb and others, puts Scotland at the cutting edge of this process in the modern world. It will make access to arbitration in Scotland much easier, not just for large businesses but, importantly, for individuals and SMEs.

In today's harsh economic climate, many small businesses painfully write off debts and disputes because they believe they cannot risk or afford to go to court. This bill will lift some of that pressure.

In parallel with the new bill, CIArb will prepare a set of accessible short-form arbitration rules that will be of immediate use to small and medium-sized businesses and to consumers, offering significant potential for rapid, low-cost dispute resolution in a binding form.

Arbitration under the bill will give users a potentially much less expensive, quicker and more accessible route to civil justice. For example, arbitrators with relevant expertise arbitrate certain travel, house-building, telecoms and motor trade disputes quickly and efficiently.

In practice this could mean dispute resolution becoming a more user-friendly process: for example in a hypothetical case concerning a dispute over a house extension, the arbitration could easily be held in a shirtsleeve environment around the kitchen table of the house, a far cry from the wigs and gowns of a courtroom.

The bill will radically improve the arbitration process at all levels, through the introduction of a clear and transparent structure, firmly based in relevant, modern legislation. When it becomes law, it could save millions by reducing legal expenses and cutting the pressure on our overstretched court system.

Importantly, the bill has been carefully drafted with an eye to the market for international arbitration (estimated to be worth about £250 million a year in London alone).

It not only incorporates the best ideas from around the world, but also builds upon Scotland's worldwide reputation as a centre of judicial and legal excellence.

The CIArb, with approximately 12,000 members in more than 100 legal jurisdictions, is uniquely positioned to help develop the bill and to make it work when the Scottish Parliament enacts it.

In addition, I believe that, in time, this legislation will enable Scotland to develop a dispute resolution centre that will attract international and domestic cases.

My colleagues and I consider this bill to be a landmark piece of legislation, very important in our economic history. I am delighted that the Government has found parliamentary time to introduce such an important measure, and that it has attracted such strong cross party support.

In his article, the minister has set CIArb, and other relevant professional bodies a challenge: to realise the full potential of this bill for the benefit of the people, the business and the economy of Scotland.

That is a challenge that we welcome and gladly accept. Properly managed, the bill should make arbitration the dispute resolution process of choice at all levels.

• John Campbell QC, is president of the Chartered Institute of Arbitrators.

Sheriff tells mother she 'acted like Robert Mugabe' as demands grow for Judiciary to be held to account

Sheriff Richard Davidson finds himself at the centre of a controversy over his comments to a mother fighting a child access dispute.

The Scotsman reports :

Race-row sheriff's remarks to woman sparks demand for changes

Published Date: 09 February 2009

By SHÂN ROSS AND MICHAEL HOWIE

A SHERIFF has accused a mixed-race mother fighting a child-access dispute of behaving like the Zimbabwean president, Robert Mugabe, and "inciting anarchy", prompting demands for Scotland's judiciary to be held to account.

Sheriff Richard Davidson's comments, directed at Tina Monem, have come under fire from race campaigners, who are demanding an investigation.

The sheriff, who has found himself at the centre of controversy over previous comments, told Ms Monem, 26, whose father is from Bangladesh, that if she did not accept his ruling, she could "go to Zimbabwe".

She had repeatedly refused to comply with a court decision allowing her former partner to have access to his child with an adult relative present.

In court papers Sheriff Davidson stressed the importance of upholding "the rule of law".

"If you want an illustration of what happens when the rule of law is undermined by government, you need look no further than what is currently going on in Zimbabwe, where the president, who is scarcely still entitled to be so described, has by brute force and threats of violence completely undermined the democratic process," he wrote.

"You may find the analogy with Robert Mugabe to be distressing and uncomfortable, but if I let you away with continuing to defy the order of the court, then someone else will defy the order of the court citing you as a precedent and, before long, we will have anarchy."

He went on: "If you want to live subject to an anarchic dictatorship, then you can go to Zimbabwe. I will not allow anarchy to rule here."

Ms Monem claims she was acting in the best interests of her child after previous visits to her father had left the girl distressed. She said she wanted access to take place in a contact centre with staff present.

Ms Monem, from Carnoustie, Angus, told The Scotsman she was "deeply humiliated" by the Dundee-based sheriff's remarks. "I feel horribly upset at being prejudiced against and about being compared to Robert Mugabe. I'm not going out killing people like Mugabe, yet the sheriff thought it perfectly all right to have both our names in the same sentence.

"I was bullied at school because of being mixed race. My mother even made me wear more clothes to stop me going any darker."

Ms Monem, a deputy scheme manager at Bield Housing Association in Dundee, added: "I've studied and gone to college and I've got a job, but comments like that bring back all the bad memories."

Sheriff Davidson's remarks have ignited a debate over the extent to which members of Scotland's judiciary should be held to account for their comments.

The principle of independence within the judiciary means sheriffs and judges are protected from political influence and remain generally free from censure by ministers.

Instead, misconduct matters are usually less formally dealt with by the sheriff principal, with more serious complaints being passed to the Lord President.

The system has led to accusations that sheriffs are "above the law" and largely untouchable – a view reinforced by the fact that only two sheriffs have ever been forced from their posts.

Last year, MSPs approved a more formal tribunal system for disciplining sheriffs and justices – but the legislation is not expected to be enacted until 2010 at the earliest.

Concern has been compounded by the news this weekend that a Scottish judge locked up an alleged rape victim who had tried to flee from a court after breaking down while giving evidence.

Roger Craik, a sheriff acting as a temporary judge, ordered the woman be arrested and detained overnight after she tried to leave the High Court in Edinburgh while under cross examination.

Last night, Robina Qureshi, director of Positive Action in Housing, said: "Sheriff Davidson seems to be taking liberties with the powers invested in him and should be investigated.

"His comments in a case concerning child contact should have been confined to the question of child contact.

"With power comes responsibility and from the comments quoted to me, Sheriff Davidson seems to be in danger of behaving like the very dictator he criticised."

John Scott, a leading human rights lawyer, said the case highlighted the need to have closer scrutiny of Scotland's judiciary. "The vast majority of sheriffs on most occasions behave entirely appropriately and don't say anything stupid," he said.

"There is a serious responsibility on them, given their position and their unusual degree of job security.

We shouldn't have a situation where people simply have to put up with any behaviour a judge or sheriff feels they want to engage in."

Mr Scott said there had been a perception among members of the judiciary that they were "untouchable". He went on: "There is more judicial training now, but if somebody wants to make a name for themselves or has prejudiced views, it is easy enough for them to become a sheriff. We need to do something about that."

He said it should be made easier to remove a sheriff from office "as a last resort".

Responding directly to Sheriff Davidson's remarks, he said: "This was an exceptionally stupid thing for the sheriff to do. Very few people deserve to be compared to Robert Mugabe, except perhaps someone like Stalin.

"Hundreds of people go through the courts who are more flagrantly defying court rulings than this woman and none of them deserve this comparison either.

"I would also stress that where there has been a racially aggravated crime, the perception of the victim is a vital consideration. This seems to have been disregarded in this case."

Sheriff Davidson, 58, a former solicitor who was appointed to the Dundee bench in 1993, has hit the headlines on a number of occasions. His most recent gaffe was last November he was criticised by Justice for Victims for sentencing John Barrie Hendry, a serial shoplifter to three months instead of four as a "special award" to mark his 50th conviction.

Bill Aitken, the Scottish Tories' justice spokesman, said: "People do have to follow the orders of the court and Sheriff Davidson may well have had a point.

"He does, however, have a rare line in hyperbole, which I do not think was appropriate in this case. A wise judge says very little and I think he could have got his point across in a more measured manner."

Members of the local legal fraternity said there was a certain amount of "unease" over the sheriff's outspoken comments and sentencing.

One solicitor, who did not want to be named, said: "He is a modern sheriff who is aware of the impact his words will have. But courting the media is a double-edged sword and you have to take the consequences when you overstep the mark. The problem is that his words reflect on all of us and bring into disrepute the decorum of the court."

Another solicitor said: "He has two sides to his character. He is no fool, and you have to put up a decent argument in court. Some of us are unhappy at his decisions – he is definitely on the harsher side of sentencing and he is always very tough on people in the civil courts who do not follow the court's orders.

"But despite being basically down-to-earth, he is also a flamboyant character and can't seem to stop bursting into colour every so often."

Ms Monem wrote to the Lord Advocate last month complaining about the sheriff's remarks, which were drafted last April but have only now come to light. However, the reply from the Scottish Government's legal system division said it did not regard the remarks about Mr Mugabe as being an expression of racial discrimination.

The letter added that the Sheriff Principal of Tayside, Central and Fife would be made aware of the matter.

Removal from office will be more transparent under new rules

UNDER the Sheriff Courts (Scotland) Act 1971, a sheriff can be removed from office if found to be "unfit … by reason of inability, neglect of duty or misbehaviour".

However, current disciplinary procedures for less serious behaviour are the responsibility of the sheriff principal.

The Lord President of the Court of Session and the Lord Justice Clerk may, of their own accord or on behalf of the minister, undertake jointly an investigation into the fitness for office of any member of the judiciary. They may report in writing to the First Minister, either that they are:

A, fit for office, or

B, unfit for office.

They shall in either case include in their report a statement of their reasons for so reporting. But concerns have been raised over a number of issues of "transparency", including the fact that there was a lack of formal recording of complaints about sheriffs.

The Judiciary and Courts (Scotland) Act 2008 intends to address such matters. The legislation creates a more formal disciplinary procedure in a bid to make the judiciary more transparent.

It includes powers to create a Judicial Complaints Reviewer, who would oversee the investigations process, and a tribunal to investigate whether a sheriff or judge is unfit to hold the office. No judge has ever been removed from office in Scotland. Only two sheriffs have been forced from their post.

Ewan Stewart served as a sheriff at Wick for 30 years until 1992, when he was removed "by reason of inability". Peter Thompson was disciplined after campaigning for a vote on home rule in the 1970s.

Outspoken lawman no stranger to stirring up controversy

SHERIFF Richard Davidson has come to public attention several times in the past for his comments.

Here are some of his more memorable pronouncements.

• Last November, he sentenced serial shoplifter John Barrie Hendry, 36, to three months in jail instead of four because it was his 50th conviction.

He told Hendry: "As it's your 50th conviction for dishonesty, I suppose it merits a special award of some sort. So I'll make it three months' jail instead of the four I had intended to give you."

He was criticised by Victims for Justice and politicians, Richard Baker, MSP, Labour justice minister and Bill Aitken, Tory Justice Minister.

• In March 2004, Margaret Christie, 51, said she felt humiliated and accused the sheriff of being "sexist" after he told her she did not have enough cleavage to fill her wedding dress.

Ms Christie was asked to model the dress in court after refusing to wear it on her wedding day.

In a written judgment, the sheriff said: "Unfortunately, she did not have the necessary basic ingredients for having voluptuousness."

• In August 2002, Sheriff Davidson took the highly unusual step of issuing a public apology from the bench after remarking during a court case that the typical Dundonian male was "vicious rather than stupid".

The remarks were made during a case in which a 27-year-old Dundee man threatened to send a sexually explicit videotape of an ex-girlfriend to her former employers.

The city's lord provost complained and questions were asked about the sheriff's fitness to preside over cases involving male defendants from the city.

• In 1997, the sheriff told a social workers' conference that children of drug addicts should be put up for adoption.

SHÂN ROSS

Lawyer bungles house sale in Banff, ruins client of £90k

Property sales in Scotland are just as problematic as any other service the legal profession offers these days .. it seem to be just a question of time as to when the client finds out they have been fleeced …

The Sunday Mail reports on one such property sale which like many others went horrendously wrong :

Bungling lawyer leaves 80-year-old homeless and £90k Poorer

Feb 8 2009 Additional Reporting By Marion Scott

A DISABLED 80-year-old and her OAP daughter have been left homeless and £90,000 out of pocket after a property sale went wrong.

Inge Hopkinson and Mary Smith, 62, were turfed on to the street in the dark by sheriff officers in one of the most shocking cases I've come across.

The pair blame their lawyer Edward Acton - who unknown to them did not have a practising certificate - and the buyer Alexander "Zander" Currie, a debt and loan adviser.

After her house was repossessed by the Kensington mortgage firm, Mary called me in.

She said: "We were thrown out into the night with nothing but the clothes on our backs."

The Sunday Mail captured the shocking moment when they were forced to leave their house as a workman changed the locks. Mary's problems began after she split from husband John and appointed Acton to deal with the £340,000 sale of Burngrains Farm in Alvah, near Banff. But Acton was already in hot water with the Scottish Solicitors' Discipline Tribunal.

He was fined £850 in July 2006 for conflict of interest and delaying the purchase of a property.

In May 2007 he was fined £2000 for failing to reply to a solicitor or the Law Society in relation to a title defect involving two properties.

In April last year he was fined £3000 for not replying to letters from his client or the Law Society after being appointed to deal with an estate and a house sale.

Currie offered Mary the full £340,000 asking price but said he only had £247,000 and would get a loan on the property to pay her the rest once it was officially his.

Mary agreed to the sale.

She said: "Acton transferred the title to the house before any IOU was drawn up. He told me everything would be sorted within three weeks."

But Currie did not come up with the balance.

Mary said: "He had the cheek to suggest I owed him rent and tried to sell the place from under us."

Currie then defaulted on his mortgage, resulting in Mary and Inge being evicted from their home over his debt.

When I collared Acton, he admitted: "I ceased to be a solicitor two or three years ago."

He blamed Mary for her own misfortune and said: "The buyer persuaded her to allow him to pay so much and said, 'If you can transfer the title to me, I can get my first loan in and everything will be OK'.

"The very least we could do was to get him to sign an undertaking in regard to payment of the balance. She was a very trusting person but I think she probably feels different about it now."

When I tracked Currie down, he said: "I just wasn't able to conclude the deal because money wasn't available to me. It's been impossible to get bridging loans.

"I told the Smiths it would take three to six months to complete the transaction."

Mary has taken her case against Acton to the Law Society of Scotland who told me: "It is a breach of the Solicitors (Scotland) Act 1980 for someone to hold themselves out as a solicitor when they are not."

Sunday Mail lawyer David McKie said: "No solicitor worth his salt would conclude missives and transfer title on a property without full payment of the asking price."

Law graduates hit by recession as legal profession dumps partners & staff

Tough times in Scotland’s legal sector has seen the shine taken off graduates expectations to enter the marketplace and make a killing …

The Scotsman reports :

When recession sours the joy of graduation

Collette Paterson

Published Date: 09 February 2009

AN IMAGE is lasting, and can be powerful, can't it?

The image of perfection that is Audrey Hepburn in Breakfast at Tiffany's, or the existential horror of Edvard Munch's The Scream.
There is a positive and uplifting feeling associated with yet another familiar image – that of joyous graduates tossing mortarboards into the heavens, smiling as they contemplate a brave new world.

You may have a nostalgic twinkle in your eye, but the mood is lowered when thoughts turn to the graduates of 2008 and 2009.

In these challenging times, the completion of the honours year is not a liberating rite of passage; instead, the prospect of graduating looms heavily over thousands of students. On the front cover of this newspaper, an image of rows of graduands swathed in gowns was contrasted with a headline that warned of a slump in graduate jobs.

The effects of what was, in its infancy, a credit crunch, firstly seeped into, before proceeding to sink many businesses in previously prosperous sectors – banking, surveying, lawyering. At the Law Society, we must consider the impact of this, not only for our members, but also for students and trainees.

We are quizzed by diploma students and trainees as to why there are no sanctions on firms that withdraw offers of traineeships or make trainees redundant.

I'm in no doubt as to the sanctity of the traineeship offer. But in a recession, a numbers game begins, and law firms are thinking like any other business in order to remain profitable and afloat.

Yes, there are fewer traineeships on offer and we are dealing with students and trainees who have become casualties of that, but in a wider sense other news is reaching us daily: firms re-structuring, and closing down offices.

The society must always balance its dual function of regulating and representing the profession. When it comes to the relationship with the next generation of solicitors, the perception is that the membership function splits once more: how can we reconcile the need to represent our members with a moral obligation to represent those whom the profession's sustainability depends on?

There is the suggestion that pastoral care is just not enough in such challenging times, yet the society cannot give legal advice when students, trainees and training organisations find themselves at a crossroads in their relationship.

But there is a role for the society and, as this goes to press, we are writing a new policy statement based on legal advice the society has sought in relation to the matter. The statement should be read in its entirety, but essentially our position is that normal contract law applies to offers of traineeships made, and the nature of the training contract itself means it cannot be terminated. So, we encourage everyone in this situation to consider options carefully.

If solutions cannot be found, they should read our policy statement, and if they wish, seek independent legal advice on their position.

This begs the question, what are these solutions? Crucially, this is about alerting the profession to what we suspect are little-known, flexible options for traineeships.

Over the next few weeks, we will speak to the profession and encourage some lateral thinking such as sending trainees on secondment to a client, sharing trainees with another firm, reducing hours to part-time or reviewing salaries on an interim basis. Firms are already applying creative thinking across other areas of the business as they respond to the recession.

The society has been building up its support and advice for firms and individuals from a business toolkit to a directory of business consultants. Simple solutions yes, but potentially winning ones.

Graduates across all sectors are entering a volatile job market, but we must always think of our profession's reputation. A snapshot taken now of a sector affected by a global economic downturn, should not become the lasting image of the Scottish legal profession.

It is very clear, in order to survive, some firms analysing their businesses have made some hard decisions that may affect the next generation – but it does not always have to be all or nothing.

• Collette Paterson is the deputy director (education and training) at the Law Society of Scotland.

Fraud claims against lawyers soar as Dean of Faculty spills the beans on mortgage fiddles in Scotland

Coming straight from the horses mouth, so to speak, the Dean of the Faculty of Advocates, Richard Keen QC, has let it be known that claims to the Master Policy and Guarantee Fund are rocketing over mortgage & buy-to-let frauds, where many Scots legal firms have seemingly faked securities for clients in order to obtain mortgages from banks ..

Some legal firms and solicitors seem to have faked up the paperwork for their own property deals too (we heard that – Ed)

Peter Cherbi’s “A Diary of Injustice in Scotland” reports more on the matter :

Dean of faculty hints at rising fraud claims against solicitors as 'Penman Levy' bites hard into Scots law firms

Richard Keen QC. Richard Keen QC, the Dean of the Faculty of Advocates, has admitted there will be a sharp rise in claims against solicitors, with both the Master Policy & Guarantee Fund being heavily affected as many of the dubious buy-to-let schemes, involving solicitors apparently faking up securities for clients, begin to be discovered.

Richard Keen QC said in “The Firm” article which you can read here : Reasons to be cheerful : “Are there any prospects for growth in the present environment? I would predict that over the next 12 months we are almost certainly going to see a substantial increase in the identification of loan fraud related to buy to let projects. I would not be at all surprised if this came to dominate claims on the Master Policy and the Guarantee Fund.”

Law Society will face many claims against crooked lawyers. Prospects for growth, as the Dean himself indicates, seem to be a huge jump in fraud claims against the legal profession, with the Master Policy & Guarantee Fund both being put to the test as many banks and financial instructions discover that many ‘buy-to-let’ schemes have frankly, been nothing short of bare faced fraud, on the part of many clients and solicitors, hungry for fat profits on highly dubious deals, backed by faked up securities many of the Banks failed to accurately confirm supported the transactions taking place.

You can read more about the buy to let fraud here : Buy-to-let fraud hits thousands

Buy-to-let fraud has hit the property market and the legal profession many times before, and many will remember how some clients of the defunct law firm Scott Moncrieff & Dove Lockhart (known for their jailed solicitor partner John McCabe where £4 million disappeared), were apparently also engaged with some of the solicitors in ‘buy-to-let’ fraud schemes, in which several Scottish banks lost a great deal of money.

Lessons to be learned – The ‘Penman Levy’ ends up costing Scots lawyers & legal firms dear. The growth in ‘buy to let fraud’ & claims against crooked lawyers is not the only growth area in the legal system these days .. as solicitors in Scotland must also now fork out a huge annual complaints levy, dubbed by some senior lawyers as the "Penman Levy", in reference to the multitude of 'crooked lawyer' scandals reported in the media after my own personal battle with the legal profession, which involved the Law Society's determination to defy prosecution in the case of crooked Borders lawyer Andrew Penman.

You can read more about the Scotsman’s reporting of the Andrew Penman case, here : Andrew Penman of Stormonth Darling Solicitors, Kelso -The Scotsman stories

However, while each Scottish solicitor was forced this year to pay an average of £400 each to fund the “Penman Levy" to run the Scottish Legal Complaints Commission, amounting to a whopping £2.4 million, it seems some solicitors have decided to recoup their ‘Penman Levy’ costs by fiddling their fee demands to clients, as many Scots are about to find out, if they are expecting a bill from their lawyer.

In a recent survey of 20 contacts throughout Scotland who have received demands from their solicitors for payment of fees, every single bill was found to be well far of the 'cost estimate' originally provided by the solicitor to the particular client, and it is also worth noting that in each case, where timescales for a resolution to the client's problem had been given, not one single case out of the 20 clients concerned, had progressed to a solution.

In one case, involving a boundary dispute with a neighbour, the client, of a famous Edinburgh legal firm, was told in 2005, it would cost in the region of £2,000 to study the papers, seek Counsel's opinion, and bring the case to court.

However, last week the client received a demand for an additional second Counsel's opinion, which came to £2,105.55 pounds alone, which the client was not informed had even been given in 2008. When the client asked to see the actual opinion, his request was refused, with a letter arriving two days later demanding full payment of the £2,105.55 otherwise immediate steps would be taken to recover the funds.

After a little checking by the client, directly with the Advocate, it has been discovered the QC who was supposed to have given Counsel's opinion on the boundary dispute, had never actually undertaken the work, nor even given the first Counsel's opinion the solicitor had charged his client £1520, during 2007.

Obviously in this case, a significant fraud has taken place against the client, by one of Edinburgh's 'most respected legal firms', and this particular case will no doubt generate another complaint against a 'crooked lawyer' to add to the thousands of complaints filed each year by clients against their solicitors in Scotland.

SLCC wont investigate cases before late 2008. However the ‘do-nothing’ Scottish Legal Complaints Commission will not even investigate this complaint or any matter arising from the case, as the SLCC conveniently decided it would not examine any complaints connected with legal work instructed prior to 1st October 2008, when the Commission began operation.

Studying the raft of solicitors bills recently sent out to clients, there does appear to be an increasing trend by Scots legal firms, desperate for any income they can get, to provide false accounts to clients, for cases which partners have taken on but have never seriously pursued as per agreements reached with clients to represent their legal interests.

The only advice I can offer for now is : If you have currently engaged a solicitor in any way whatsoever, you must carefully scrutinise your solicitors fee demands and bills, because the likelihood is, their fee demands are inaccurate and unjustified.

In another case, a family who were due to receive property as part of their deceased father's estate in the Scottish Borders, were forced to wait three years, before being told there was no assets left in the estate and they must put in money to pay a whopping £5,300 bill for legal services, undertaken by a notorious firm of solicitors based in the Scottish Borders.

In yet another instance, a client was recently sent a bill for £3,520 by a Glasgow law firm, despite the fact he actually settled the case with his neighbour over a land dispute in 2007. The recent fee demand was accompanied by a 7 day threat of court action if no payment was received, apparently being sent on the basis "the account had been misfiled and never sent out" - this despite the fact the client retained his fee payments and took his client file from his solicitor's office in 2007 after settling the case, and settling all fees due which totalled £1,477 at the time.

Many of the other cases brought to my attention of inflated accounts & demands from solicitors involve case work such as, land purchases or sales gone wrong, divorces, custody cases, boundary disputes, failures in executry work, false QC's opinions, backdated or allegedly misfiled accounts, fictitious work undertaken on cases which have no hope of reaching a settlement.

A paralegal I know who recently was sacked along with several other staff from her struggling legal firm, described the client billing situation in the Scots legal profession as "fraudulent at best", and went on to claim "at the moment its pandemonium in many legal firms I know of, where friends and paralegals I know personally have been asked to type up bills for clients which they know themselves are fictitious as the work has never been done".

"I remember a few weeks ago there was a client telephoned to speak to the senior partner over the size of his bill and the fact it was nearly £6,000 over the estimate initially provided. The senior partner told me he didn't want to speak to the client under any circumstances, and I was to call the Police if the client made any hint he would not pay or insulted any members of staff on the telephone".

"I know for a fact that client's case is a mess and twice the solicitor took the matter into court just to have the case adjourned so he could get more fees out of the client for doing nothing”

“The case, which involved a neighbour who had built on their land, has left the client with a property they cant sell. Probably the mess will be left for someone else to clean up if they can get another solicitor to look at it which I honestly don't think will happen after the mess my former employers made of their case."

So the lesson for anyone of you who has received or is about to receive a bill from their solicitor, is to check it out thoroughly, because the chances are, there is a lot of false work added to that account, which you either never authorised, or were never told would be required.

I suppose the other lesson, perhaps this time for solicitors is – speak out against the bad apples in the profession, because in the long run it will be a lot cheaper for you, generate much more respect, and probably bring in business & clients who for now, doubt your honesty and ability as a profession to regulate yourselves.

Oh, by the way, (I have to ask) how do solicitors really feel about having to pay out £400 a year to fund the SLCC, simply because the Law Society decided to fiddle the case against Andrew Penman, the Scotsman’s reporting of which brought about many hundreds more scandals involving crooked lawyers reported in the Scottish media to this day ?

Read on for some more examples of sleazy solicitors from Scotland’s legal profession (from the Scotsman) :

Sleazy side of legal profession

""We must ensure those with the highest standards are protected from the dishonest few" - leslie cumming

By GINA DAVIDSON

AS Leslie Cumming lay bleeding outside his Murrayfield home, the victim of a frenzied stabbing, his cool legal brain was probably already clicking into gear.

While his body fought to stem the flow of blood from a dozen wounds, his mind was whirring through the possibilities of who would have wanted to attack him. It wasn't long before the top law official was able, from his hospital bed, to give Lothian and Borders Police a rundown of lawyers he is and has investigated for suspected money laundering.

Now, two lawyers are to be interviewed by detectives in connection with the attack on the 62-year-old, while police also sift through all the Law Society files that are the work of months of painstaking investigation by chief accountant Cumming and his 12-strong team.

Yet while the attack on Cumming saw the reality of violent crime intrude into his highly regulated world of balance sheets and law books, it has also focused the public interest on corrupt lawyers. Ever since he was appointed chief accountant of the Law Society of Scotland back in 1984, Cumming has taken it upon himself to weed out rogue or "bent" lawyers throughout the country.

Back in the early 1990s, he ensured the Law Society took a hard-line stance against crooked lawyers who embezzled clients' money, changing the five-year inspection of firms' books to two years. The move came after lawyer John McCabe, who had worked for Edinburgh firm Scott Moncrieff & Dove Lockhart, was jailed for ten years for defrauding his clients out of more than £4 million.

More than two years ago the Law Society - which represents more than 8000 lawyers - along with the National Criminal Intelligence Service held a series of seminars aimed at raising awareness about the ways criminals might try to exchange stolen for clean money.

That was when the Proceeds of Crime Act became law, making it illegal for professionals to handle criminals' money without asking questions. As a further safety measure, he also oversaw the introduction of regulations which mean every firm must submit a financial certificate every six months to the Law Society, providing financial information about the firm and confirming compliance with accountancy rules.

Such scrutiny was bound to make him some enemies. Yet Cumming has always maintained that solicitors in Scotland are in the majority honest, with just a few spoiling the reputation of the profession. He has said: "Our system relies on the near 100 per cent honesty of the profession which is what we find time after time.

"It is our duty to the profession and their clients to ensure that those who maintain the highest standards and their clients are protected from the actions of the few who act dishonestly."

Sources in the legal profession claim there are currently 19 lawyers on petition charges - which means they've committed an offence which could mean a minimum sentence of more than five years in jail - although a spokesman for the Crown Office says they have no way of confirming the number as they don't list occupations.

Legal sources also suggest that, despite the Proceeds of Crime Act which could see lawyers face up to 14 years in prison for turning a blind eye to money laundering, there are still those who believe the rewards are worth the risk.

"It all depends on how well your practice is doing, that seems to be the excuse when people are struck off," says one Edinburgh lawyer. "That if business isn't going so well, and they have clients who have money to 'invest' in property, then it becomes an option. But lawyers know the risks. If a client comes in with £100,000 in cash and says he wants to buy something, be it property or shares, bells should be ringing.

"If a lawyer doesn't do the necessary checks, ask the necessary questions and then gets found out to be dealing with dirty money, then they go to jail, it's as simple as that. Most would think it isn't worth the risk, but there will always be those who are blinded by the cash."

Another adds: "The change in the law has been onerous for solicitors. It means that when a new client comes through the door we have to ask for passports, driving licences, utility bills . . . it's a bureaucratic nightmare.

"If there's any reason to suspect the client of trying to pass off stolen money you have to report them to NCIS in England. The solicitors are being asked to police clients rather than the police, and if we get it wrong we go to jail."

Another city solicitor says: "Embezzling has been seen as a way out of trouble for some lawyers in the past, but these days firms' books are gone through with a fine-tooth comb every two years. The accountants at the Law Society know exactly what to look for, so there's no hiding any dodgy practices."

However, despite all the checks and balances, one case which slipped Cumming's net for a decade, until just two years ago, was that of former solicitor John Kennedy Forster. A partner at Stranraer-based solicitors Ferguson & Forster, MacFie & Alexander, he admitted 35 charges of embezzling £667,000 from his clients to pay for school fees, his large home with outdoor swimming pool and foreign holidays.

His sentencing was deferred several times at the High Court in Edinburgh, to allow for compensation proceedings to be resolved and for a report to be submitted by forensic accountants. Finally though on March 18, 2004, he was jailed for six and a half years.

According to Cumming, the case took so long because it "involved a uniquely complex system with the evidence well hidden".

He added: "But as with all cases, once the cracks appeared layer after layer of the fraud was exposed and produced the evidence which we needed and which the Crown then used.

"Most successful frauds involve several strands and depend on a position of particular power or influence. The hardest to uncover are those where there's an element of complicity. It's a constant challenge and each time we find a scheme we ensure that all our inspection teams know about the mechanisms and how it worked so that they can recognise the signs in the future."

Police sources here in Edinburgh believe there are few, if any, corrupt lawyers working in the Capital, and that the Law Society's checks are currently adequate for preventing illegal financial activities, although they admit there will be those who don't get caught quickly enough.

One says: "I've seen a few dodgy lawyers in my time, but not on the financial front.

"There's more organised crime in Glasgow than Edinburgh but then the property market here is much more expensive and so that maybe proves the attraction. But I do think that there's only a few corrupt lawyers in Scotland - although they can be damaging to the whole of the profession."

But perhaps the most telling thing about crime among Scotland's lawyers is that claims on the Law Society's Guarantee Fund - a fund which compensates clients who have suffered loss as a result of a solicitor's dishonesty, and which is paid into by partners in law firms - have steadily fallen under Cumming's tenure.

Each partner pays around £200 a year into the fund, which is in excess of £1 million. For the year 2003-2004, the last year for which figures are available, the total paid out was £187,000, whereas when the fund was first established in the early 1990s, the compensation payouts were as high as £1.35m.

LOWERING THE BAR: CROOKS WHO MAKE UP LAW'S LIST OF SHAME

1991: Edinburgh lawyer John McCabe was jailed for ten years after admitting 34 charges of fraud totalling more than £4 million. He conned banks and building societies into handing over loans of up to £500,000 and ploughed the money into disastrous business ventures. He fled to South America, leaving a taped confession, but returned within a few days and was arrested at Heathrow Airport.

1996: A five-year sentence was handed to David Hoey, a lawyer from Leven, after he was found guilty at the High Court in Edinburgh of stealing more than £500,000 from elderly clients. He had already been struck off when the offence came to light.

1996: After a probe into his firm's financial affairs, Donald Pirie was struck off. A police investigation found that the Cowdenbeath-based lawyer, who lived in East Linton, had embezzled £63,000 from clients, including £40,000 from his parents. He was jailed for five and a half years.

1997: Stephen Crilley pocketed £45,000 in fees due to his firm because he believed he was underpaid. He was a partner with Grant & Wyllie until resigning in 1996 and was struck off the following year. He avoided going to prison by repaying the money.

1997: Pat Elliot was jailed for 18 months after she was found guilty of stealing £60,000 that was destined for two charities from a client's will. Elliot, of Crown Terrace, Glasgow, was also struck off.

1998: Alexandra MacRae, a lawyer who underwent a sex-change operation and was previously known as Steven Raw, admitted to embezzling more than £16,000 from a client's account in order to pay her Dundee firm's debts. She was struck off before later being sentenced to 15 months. However, she appeared in court again in 2001 and was sentenced to three years for embezzling almost £100,000 from an elderly client while she had worked as a lawyer.

2000: William Stevens of Saughtonhall Drive was jailed for four years at the High Court in Edinburgh for embezzling cash from elderly clients to pay for school fees. He was also struck off, although had resigned as a partner with firm Bennett and Robertson in 1997.

2001: Alistair Liddle prompted a police hunt in 1997 after vanishing, leaving his family in Forres, just as the Law Society was to investigate his firm. He was struck off in 1999 and traced to Cornwall in 2001, where he admitted embezzling £17,875 from a client's account. He was jailed for a year.

2001: Solictor Bruce Gordon of Piersfield Terrace in Edinburgh was struck off after being found guilty of professional misconduct for embezzling £55,000 from a dead man's estate. He was jailed for a year.

2003: Alastair Hall, a former partner of A&R Robertson and Black in Blairgowrie, was jailed for 11 years after stealing £500,000 from clients. He admitted five charges of embezzlement, two of fraud and a bankruptcy offence.

2004:Edinburgh lawyer Ricky McAnulty was jailed after admitting embezzling almost £20,000 from the accounts of five clients. He was struck off and sentenced to 18 months in Saughton.

2004: Douglas Criggie, who owned Cumberland Street firm Criggie & Co, was charged with embezzling £50,000 from clients. But his firm was sequestrated after it was discovered he had unpaid loans and bills totalling £300,000 and he went bankrupt. He was struck off by the Law Society in May 2004 and the Crown Office is still considering prosecution.

2005: Glasgow lawyer Calum Blyth was jailed for two years after being found guilty of embezzling £108,000 from his clients and obtaining a further £27,000 by fraud while working for Blyth Solicitors between 1996 and 1999