Sunday, July 15, 2007

Scottish Solicitors Discipline Tribunal exposed as lacking independence, impartiality

More From A Diary of Injustice in Scotland

Scottish Solicitors Discipline Tribunal attempts to justify existence as independent regulation approaches

If there was a requirement that all members of juries had to be lawyers, judges, policemen, or their colleagues, appointed by the head of Scotland's Judiciary, would anyone think a fair trial could take place ?

How long, for instance, would it take the likes of Donald Findlay QC to point out one of his clients might not get a fair hearing because the jury was composed of Police Officers ? ... 5 minutes ?

However, this is considered the norm at the Scottish Solicitors Discipline Tribunal, when dealing with complaints & prosecutions against solicitors and there are no cries of lack of impartiality and no claims of lack of a fair hearing from the legal profession itself .. because lawyers prefer to be judged by their own, so they escape punishment of course. This has been the way complaints procedures have been rigged handled by the legal profession for decades.

The Scottish Solicitors Discipline Tribunal describes itself on it's web site as :

"The Scottish Solicitors’ Discipline Tribunal (SSDT) is an independent body which mainly deals with serious disciplinary issues that arise from time to time within the Scottish legal profession."

It then goes on to admit that "The Tribunal is governed by a set of rules (Scottish Solicitors Discipline Tribunal Procedure Rules 2005) which must be approved by the the Lord President of the Court of Session. "

Independent, but organised & approved by the Lord President ... a member of the judiciary, a lawyer, member of the Law Society of Scotland ... how's that for independence ?

In another bash at putting forward the impression of independence, the SSDT goes on to say "The Tribunal normally sits with 3 solicitor members and 2 lay members: solicitor members cannot also be members of the Council of the Law Society (governing body in Scotland); lay members are drawn from all backgrounds and walks of life. All members are appointed by the Lord President of the Court of Session – Scotland’s most senior judge."

Pretty thick stuff from the SSDT to give the public the impression they are independent, but reading of their endeavors over the years, or having experience of the complaints process of the legal profession might lead one to think the Scottish legal profession learned their trade on how to write rules for themselves from the Enabling Act of 1933 in Germany written by the Nazis.

"lay members are drawn from all backgrounds & walks of life" .. and " are appointed by the Lord President of the Court of Session" ... almost makes one squirm, doesn't it ?

This is the current solicitor & lay membership of the Scottish Solicitors Discipline Tribunal

If you want to be a "lay member" in anything to do with self regulation, be it the SSDT, the Law Society of Scotland, ICAS, or any of the other rather infamously corrupt self regulators of the professions, it looks like you have to sit on a few other self regulatory, self pat on the back committees too ... in essence, no brickies or plumbers allowed.

Oh yes - the experience argument ... you have to be an experienced lay member of the public to understand these complicated issues of law and how complaints are dealt with, etc ...

Well, that experience has produced cases such as this : Tribunal ‘had no power’ over lawyer who dealt in drugs showing a rather uneven call for increased powers when other more powerful cases before the SSDT in the past have had little attention.

or this : Council of the Law Society of Scotland v Gordon & Maria Thomson - in the case where the legal profession set up Gordon Thomson on false charges so they could take his business away from him (one of the legal firms I was using at the time a willing participant - Alex Morison & Co who 'cornered Mr Thomson's business on instructions from the Law Society) The powers of the SSDT were viciously used against Mr Thomson in that case - used as a lethal weapon against one of it's own who dissented from the line from Law Society HQ in Drumsheugh Gardens.

or this : Lawyer slammed for lying to client - reporting on an item from one of my cases, where even to this day, the lawyer concerned is still battling with the SSDT over the verdict against him, which Robson successfully challenged .. and the SSDT sit back and do nothing of course, because it ultimately involves myself.

Easy to conclude then from the above, that the Scottish Solicitors Discipline Tribunal need replacing with something much more independent, accountable and transparent - because the SSDT of the past and present is nothing of these things.

What of the SSDT when the new Scottish Legal Complaints Commission comes along ?

Well, it will still exist, much as it currently is, biased, prejudiced, and lacking any accountability, transparency or honesty, unless further reforms come forth from the seemingly unwilling halls of the Scottish Executive Justice Department to do much on the injustice front so far.

Oh yes, I know it's early days of the new Executive .. we keep getting told that .. it's early days ... early days .. will they be saying that in 3 years time ? after a few more threatening 'open letters' from ex judges in the newspapers to the Justice Minister ?

Funny how the Justice Minister takes the time to respond by letter and even in personal articles in the newspapers to ex judges who still want to run the legal system, but can't be bothered to reply to victims of injustice seeking reforms in the obvious public interest

Should the public become more vocal or active in pressing home their cases of injustice and calling for & gaining reforms to the legal system ? Yes, I think we should..

Following story from the Herald newspaper on the SSDT calling for more powers, when it should really be abolished and replaced by something not concocted by the legal profession itself.

The story reports on a vindictive diatribe from members of the SSDT who are using the Angela Baillie case as an example for a call for more powers, to give themselves yet another reason to exist of course and fiddle complaints against the leading lights of the legal profession while castigating those who have already been punished by the law or have resigned their registration as a solicitor ....

Surely this 'call' from the Tribunal for more powers, is a good example on it's own, to get rid of it and bring in a replacement to accompany the now dwindling spirit of independent regulation of the legal profession ...

Tribunal ‘had no power’ over lawyer who dealt in drugs

A solicitors' watchdog has called for a change in the law after it was unable to impose an effective punishment on a lawyer jailed for drug dealing.

Angela Baillie was sentenced to 32 months for smuggling heroin and valium into Barlinnie Prison in Glasgow.

By the time the Law Society referred her case to the Scottish Solicitors' Discipline Tribunal, Baillie had applied successfully to have her name removed from the roll of solicitors.

The tribunal is concerned that it could only censure the former lawyer instead of the maximum penalty of striking her from the register and has called for a change.

It wants a member with proceedings pending to be unable to remove their name so that it can take action.

Baillie, of Birnam Place, Glasgow, was jailed in April last year for delivering a cigarette packet stuffed with heroin and valium worth almost £1600 to a man in Barlinnie.

The case came before the tribunal in December but her name had been removed from the roll two days after she was convicted.

In a written ruling yesterday, the tribunal expressed concern about lacking the power to impose an appropriate punishment. It said: "The offences to which Baillie pled guilty before the High Court strike at the very heart of the obligations of honesty and integrity which are incumbent on every solicitor.

"It is difficult to imagine conduct more calculated to damage the profession in the eyes of the public."

It stated it was "wholly unsatisfactory" that the tribunal could not show the public and other lawyers the "odium" they felt about Baillie's conduct.

The judgment stated: "The tribunal wishes to place on record its concern that it lacks the power to impose upon the respondent a penalty which it would regard as appropriate in the circumstances of this case, but is placed in the position of doing no more than impose an inadequate and ineffective penalty."

The tribunal called on the Law Society to take urgent steps to change the rules on such matters.

Once a name has been removed from the roll, the tribunal is only able to issue a censure or a fine. However if the person has been sentenced to more than two years in prison it is unable to impose a financial penalty, and as Baillie was jailed for 32 months the only option remaining to the frustrated tribunal was censure.

One possibility recommended is that a solicitor should not be allowed to remove their name from the roll when disciplinary action is possible.

At the trial, Judge Lord Kinclaven told Baillie: "Your case, like many others in this court, clearly illustrates the damage and devastation that can be caused by involvement with drugs and the drug trade."

"The quantities of the drugs made it plain they were not for personal use. They were for supply in the prison system generally."

He added: "You were in a position of trust."

Baillie had used the lawyers' consulting room at Barlinnie for the hand-over on October 23, 2005.

The prisoner she met, who cannot be identified for legal reasons, was strip-searched as he left the meeting and the cigarette packet was found.

Here's an earlier article from the Injustice Scotland website on how decisions by the SSDT have been appealed by Michael Robson, whom I referedd to in the Edinburgh Evening News story earlier in the article :

Strangely enough, we didn't hear any calls for more powers for the SSDT over the successful Robson challenge, but then of course, that would be helping me if they actually did do something in this case, so of course, that couldn't be allowed now, could it ...

The Scottish Law Society can make mistakes

Read on for an interesting article from "The Herald" Newspaper, where a solicitor who was struck off by the Law Society of Scotland has had the decision quashed by the Court of Session.

This is a complicated case, and one quite different from a previous case which saw a stitch up of a famous Edinburgh Solicitor - Gordon Thomson & his wife's legal practice, which was becoming too successful for other members of the legal profession.

The case of Robson, however, shows just how belligerent the Law Society has been in its pursuance of anyone who takes on cases against them. However, it should be borne in mind that when someone does take such a case on, they have the same duty to their client which all other solicitors have, and thus, if a case becomes 'too rich' or is difficult to handle, the client has to be told, and not 'led up the garden path', particularly on matters which may involve long histories of multiple failures by the legal profession and its members, or the death of loved ones at the hands of negligent medical practitioners. ....

Quashing victory for Robson
SIMON BAIN ‘The Herald’ November 29 2004

The Court of Session has quashed a decision by the Scottish Solicitors Disciplinary Tribunal to strike off Michael Robson, a principled solicitor who challenged the legal establishment and took on a slate of victims of legal injustice – only to find himself overwhelmed by the demands on his one-man practice.

The opinion of Lords Kirkwood, Maclean and Osborne, that the tribunal's sentence was "excessive", will be noted by those observers of the profess-ion who claim that solicitors seen as "troublesome" by the Law Society of Scotland are unlikely to prosper.

Robson, 52, was a successful lawyer who set up on his own in 1998, and quickly became a "last resort" for clients whose complaints against solicitors had been turned away by other practices, and rejected by the Law Society of Scotland.
In 1999, he publicly challenged the Law Society's master insurance policy, now under investigation by the Office of Fair Trading, and criticised its complaints procedure.

Robson said the Law Society had "set up an insurance system which protects solicitors at the expense of their clients", while its complaints procedure was "the profession judging its members". Petitioning the Court of Session for a judicial review of one case involving misconduct by lawyers, Robson said then that the review "strikes at the fundamentals of the legal profession".

Less than three years later, his practice was closed down, and Robson struck off and sequestrated, following zealous policing of his business by the Law Society on behalf of demanding clients, some of whose cases the society itself had dismissed.
Robson had been a solicitor for 25 years with an exemplary record when he was reported in 2001 by the Law Society of Scotland to the Scottish Solicitors Disciplinary Tribunal for failing to answer letters.

In January 2002 the tribunal fined him £5000 for profess-ional misconduct and said he could no longer practice alone. The tribunal, a body with legal and lay members, ruled that Robson could work for another firm – but only with the approval of the Law Society. Although two firms immediately offered him an unsolicited position, the Law Society refused to approve his appointment, pushing the father of four into a financial crisis, on top of mounting health problems.

In June 2002 the Law Society reported him a second time to the tribunal, citing his failure to answer further letters dating from the previous year – though by this time Robson had already been forced to shut the firm and make his three staff redundant. Robson pleaded for an 11th-hour adjournment, as on the day he was unable to attend and plead mitigation, but the tribunal refused.

The hearing went ahead on October 8, 2002 and Robson was struck off. The following day, he was sequestrated. He was subsequently diagnosed with a sleeping disorder.

In their judgment, their Lordships state: "We have taken into account the fact that there had been no complaint of profess-ional misconduct when the petitioner had been a partner in two law firms, and that neither of the complaints which had been made involved any element of dishonesty. The professional misconduct of which he was found guilty was undoubtedly serious, but we also have to consider the financial position in which the petitioner found himself as a result of not being able to be employed as a solicitor under supervision after March 2002 because (the Law Society) would not approve the firm which had been prepared to employ him."

The decision to strike Robson off had been excessive, "particularly having regard to the financial consequences of (the Law Society's) decision in May 2002 to defer considerat-ion of the application to employ the petitioner as an assistant".

Robson commented: "These (clients) were people whom the Law Society had failed to look after. Then they put the boot in, when you are trying to deal with a very complex situation. It is a bit rich. They dredged up everything under the sun, for instance they persuaded one person to make a complaint of misconduct against me. I had been a solicitor for 25 years and had avoided complaints like the plague."

In 2001 Robson took on a case brought by two bankrupted developers against the Clydesdale Bank. As an investigation by The Herald revealed, Graeme Duffy and Richard Crocket were only sequestrated as a result of the disastrous employment by the bank of Euan Wallace, a well-known Glasgow surveyor who was shortly to be struck off for life for serious professional misconduct.

Three years later, there is independent evidence that Duffy and Crocket's property assets in March 2000 comfortably outweighed the sum for which they were sequestrated by the bank, which therefore acted wrongly. The developers had at the time just launched a £3m damages action against the Clydesdale over Wallace's conduct. But since the demise of Robsons WS, no law firm has been prepared to take their case to the House of Lords, though Robson subsequently reported the bank and its solicitors for prosecution on the grounds that a false claim for bankruptcy had been lodged.

Such daunting cases, however, took their toll on Robsons WS, and on the health of its founder, who now works as a part-time tennis coach. The judges quashed the decision to strike him off, and have substituted a five-year restriction which allows him to work for "such employer as may be approved by the Council of the Law Society of Scotland".

The petition to the Court of Session also argued that the tribunal was "not independent and impartial within the meaning of Article 6(1) of the European Convention of Human Rights", partly because the Law Society both brought complaints to the tribunal and appointed its members. The petition noted that "the Lord President did not have power to appoint any solicitor member who had not first been recommended" (by the society), and suggested that a tribunal member's "prospects of reappointment would be improved" if he consistently upheld complaints.

It further pointed to the Law Society's own submission to the Scottish Parliament in June 2002 which suggested that the Judicial Appointments Board might nominate tribunal members.

The Law Society's response to the court was that this was simply one of a number of "suggestions as to how the tribunal could be improved". The judges concluded that because "solicitor members must be knowledgeable and experienced and the actual appointments are made by the Lord President", the appointment procedure did not detract from the independence and impartiality of the tribunal.

Their lordships dismissed all other objections to the procedure.

Their decision to amend the sentence on Robson was, moreover, reached "with some hesitation".

In an immediate response to the ruling, the Law Society played down the judges' ruling that Robson should not have been struck off. Reporting on the case, its in-house journal gave priority instead to the fact that the Scottish Solicitors' Discipline Tribunal was found to satisfy the "independent and impartial tribunal" requirement of the European Convention.

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