'Lost' news report shows Legal Services Ombudsman 'compromised' independence on orders of Law Society

A story reported by Scotland on Sunday from August 1999 resurfaces to show that Garry S Watson, the then Scottish Legal Services Ombudsman, compromised the independence of his office by withholding information from a client whom had previously been told by Mr Watson should expect disclosure & 'transparency' in his case.

Peter Cherbi, was told by Mr Watson in a report on how the Law Society of Scotland poorly investigated & handled the now famous 'Cherbi executry complaint' against Borders solicitor Andrew Penman of Stormonth Darling Solicitors, Kelso, "It is most important that there is transparency of decision-making within committees." , but after receiving 'written submissions' upon strict orders from the Law Society of non disclosure to Mr Cherbi, Mr Watson changed his mind and refused to proceed further.

Referring to the Scotland on Sunday story directly :

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

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

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

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

The submissions, apparently made on behalf of Mr Penman by his representative before the Law Society Complaints Committee, Mr James Ness, the then Competence Committee Convener, were claimed to report 'personal circumstances' of Mr Penman only, but a source told Scottish Law Reporter today the submissions made by Mr Ness on behalf of Mr Penman both verbally and in writing went much further, attacking Mr Cherbi as an individual and claiming Mr Penman through his long legal career 'did not deserve to lose out' to a complaint filed by Mr Cherbi.

The 'personal circumstances' of a lawyer such as Mr Penman who was widely condemned in a Law Society report and initial decision to prosecute before the SSDT, should not have changed the outcome of the Complaints Committee's verdict into the complaint before them, and while Mr Watson in his report recommended such practice be stopped, it continues in varying forms to this day.

Informed sources have indicated the apparent compromising of Mr Watson's office by the Law Society, where orders were given not to disclose information to a client, and to effectively close a case which was recommended for reopening, has occurred in more than just one case, only it appears members of the public who had complained to the Scottish Legal Services Ombudsman have either not been told or simply had not realised what occurred.

Mr Cherbi, Scotland on Sunday reported, attempted to take legal action against Mr Watson for his apparent change of position due to instructions received from the Law Society, but was later reported to have been obstructed to a significant degree by the Law Society itsself, as to avoid any legal challenge surfacing against Mr Watson's office, which would have significantly damaged the Legal Services Ombudsman's role & credibility.

Mr Watson was a noted supporter of self regulation of the legal profession during his tenure as Scottish Legal Services Ombudsman, expressing his desire that lawyers retain the right to regulate complaints against themselves on many occasions ... although subsequent holders of Mr Watson's post have changed their mind, notably Linda Costelloe Baker, who roudnly condemned self regulation of the legal profession by the Law Society of Scotland before the Scottish Parliamnet on several occasions.

Garry Watson, after leaving the post of Scottish Legal Services Ombudsman, became the 'temporary' Standards Adviser to the Scottish Parliament in 2000, until the role was shortly designated a permanent position. He is now with Places for People, among other things, who report his 'profile' here

Scotland on Sunday reports :

Law watchdog faces threat of court fight.

Client prepares to sue after allegation that ombudsman compromised independence.

By Peter Laing Scotland on Sunday August 8 1999

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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