Lawyers Behaving Badly BBC Scotland Investigates

Scotland's legal profession is built on a code of conduct

which demands honesty, trust and personal integrity.

But what happens when things go wrong?

We investigate a system accused of protecting its own...

There is absolutely no doubt that the Law Society

is doing its job properly.

..a system which allows the corrupt to carry on.

If somebody's been dishonest once,

the likelihood is they will be dishonest again.

I go undercover to track down a solicitor who was repeatedly

caught misbehaving yet never struck off.

Tonight, BBC Scotland Investigates - Lawyers Behaving Badly.

It's often been said

Scotland's legal system is the envy of the world,

administered by a profession trusted and valued.

But is that profession failing to bring justice against its own?

I've spent the past few months investigating a process where

lawyers quietly decide on the fate of their own dishonest

or unfit colleagues.

A process which seems to allow corrupt solicitors

to continue in practice, unmonitored and unpunished.

This high-rise block on the outskirts of Paisley

is home and office to a man who was one of Scotland's revered

and respected legal profession.

I say "was", because John Atuahene, the man in there,

is one of the few solicitors in Scotland to have been struck off.

A few years ago, a disciplines tribunal

deemed him to be totally and utterly incompetent

and his name was removed from the solicitors' roll.

The thing is, I know he's running a nice little sideline

in offering his legal services to private clients for money.

Being struck off means you can't call yourself a solicitor

in any shape or form.

Prefixing it with the word "retired" on his LinkedIn page means nothing.

The internet is where Atuahene advertises himself

for both paid and unpaid legal work.

I've arranged a meeting with Mr Atuahene as a journalist

to talk about some of his previous cases.

-Come in.

-Thank you.

'What he doesn't know is that I'll be secretly filming him.'

Atuahene eventually admits to me he was struck off,

but he's got a plan to get round this permanent ban.

He wants to retrain as an immigration advisor

and then use this status to help register

with the Law Society in England.

Remember, John Atuahene was struck off for being hopelessly incompetent.

It makes you wonder the kind of legal advice he'd be giving,

yet he intends to advise the most vulnerable clients.

But at least he seems flexible when it comes to his prices.

Later that day, a member of our production team

visits his office, posing as a domestic abuse victim

with a financially controlling partner.

What he doesn't say is that he won't be there

to enforce that legally binding document, since,

as a struck-off solicitor, he can't legally represent her in court.

Property, divorce, death, neighbourly disputes,

criminal accusations - it's fair to say that at some point

all of us will need a solicitor.

But what happens when things go wrong?

Since 1950, 170 solicitors in Scotland have been struck off

for misdemeanours including theft, dishonesty and money laundering.

That's less than three a year

out of a profession of more than 10,500.

So how does the system of regulating the profession work?

You could think of it like a family tree

with your solicitor at the bottom.

The first port of call for complaints is

the Scottish Legal Complaints Commission.

If it's about service, they deal with it.

But if it's about conduct, it goes here,

to the Law Society of Scotland to investigate.

If they decide it's serious enough,

it goes to the Scottish Solicitors' Discipline Tribunal for prosecution.

Under this system, the Law Society of Scotland is

responsible for both representing and regulating solicitors.

But can this dual role work?

Its regulation committee oversees solicitors' conduct.

The current system is actually pretty good.

It provides a simple,

single point of entry for consumers who have concerns.

It involves solicitors in their own regulation in terms of conduct

and I think every profession should take some responsibility

for their own conduct.

The Law Society's keen to stress it regulates in the public interest,

and half the members of its regulation committee

are lay people - yet what of cases like John Atuahene?

He is an example of good regulation in that he was struck off.

But it shouldn't end there. You feel we should continue to monitor?

Absolutely. The Law Society will pursue where it has the evidence.

So the information I've given you on John Atuahene,

you will take and do what?

Yes, I was not aware he was acting as a solicitor.

He may not be calling himself a solicitor

even if people are paying him for legal services.

-He's calling himself a retired solicitor.

-Hmm.

Well, that is interesting.

The Law Society of Scotland later said no action could be taken

against Mr Atuahene unless evidence existed

that he was describing himself as a practising solicitor

or offering legal services in reserved areas of law.

In a statement, John Atuahene said

there was no misrepresentation whatsoever in stating he had

permanently retired from practice as a solicitor.

He said being struck off did not impair

his ability to give legal advice

and since leaving practice, he has given advice to many people online

and hasn't charged for it.

He said he took no money from the production team member

for the advice he gave her, and has no intention of moving to England

to register with the Law Society there.

The regulatory system has long been criticised as slow and drawn-out.

Atuahene's case took four years, during which he continued to provide

legal advice to unsuspecting clients.

The same has been shown to be true for the rogue solicitor

for whom it can be business as usual.

The Usher Hall - one of Edinburgh's most famous landmarks,

made possible by a very generous donation

back in the 1890s from the Usher family,

who had a huge whisky fortune.

It took them 16 years to decide where to put it.

Stuart Usher is a descendant.

But today, instead of living the decadent lifestyle

of his forebears, he's selling the Usher heritage to tourists.

It's not to secure his family's place in history -

it's because he needs the cash.

We were a very wealthy family in Scotland,

high society and all this type of thing.

We had estates in the Borders, near Edinburgh, in the Highlands,

up in Caithness, all over the place.

And I, um...

Well, we lost everything.

Stuart Usher's story begins in 1999.

He alleged his family's trust fund had been mismanaged,

leaving him with little.

Setting out to try and prove professional negligence,

he hired the services of one Thomas Hugh Murray.

He assured me that he would carry out about four or five,

four or five major tasks within a matter of weeks,

but for that he would need £3,500

as an advance to get him going on it.

Legally, that payment has to be put into a separate client account

which a solicitor can't draw on until he's done the work.

But Murray immediately transferred the cash into his firm's account.

Stuart Usher didn't know this.

As time wore on, he felt Murray

did little of the work he'd paid him for.

In essence, he never did the job that I'd given the £3,500 to do.

What did you then decide to do?

I got rid of him, and then reported him to the Law Society.

As Stuart Usher's case began

to make its way through the complaints process,

Murray was already dealing with his next client.

In 2000, Neil McKechnie hired Murray to represent him

in a divorce and employment case,

which he believed could be worth tens of thousands of pounds.

-Neil?

-Hi.

-I'm Sam from the BBC.

-Hi. Pleased to meet you.

-Nice to meet you. How you doing?

'He said he was an employment specialist.'

He also said he was proficient in matrimonial situations as well,

so he said he could handle both things no problem.

I trusted him.

A year into the case, something strange happened.

He said I was no longer to go to his office,

that he'd moved office, but not to worry about it

because everything was going to be exactly the same, nothing would change.

The office change was because Murray was now bankrupt.

That meant he was automatically suspended as a solicitor,

a fact he failed to tell Neil McKechnie,

as well as a German client Murray was also representing.

Time passed and Neil began to find it impossible

to get in touch with Murray.

Eventually, in 2004, he called the Law Society in a panic

and said he couldn't get in contact with his solicitor.

Whilst he was working for you, he was suspended?

-Yes.

-And you didn't know this?

I had no idea that he was a suspended lawyer

but was continuing, you know, to handle both of my cases.

Now, I'll show you, there's a bust of Andrew Usher in here.

Several years after first complaining,

Usher's case against Murray finally arrived

at the Scottish Solicitors' Discipline Tribunal.

The tribunal found Murray had eventually done work worth £3,500,

but it also found him guilty of professional misconduct.

The tribunal's damning report stated he was guilty of deception,

dishonesty and had misled his client.

A second case against Murray relating to the German client found the same.

And in Neil McKechnie's case, Murray was found guilty

of inadequate professional service

and ordered to pay back £3,000 of fees

and £1,000 compensation.

Despite all this, Murray was never struck off.

We've invited three leading experts in legal ethics and regulation

to look at some of our cases.

All are based in England, where the regulation of solicitors

lies with an independent body linked to, but not within, the Law Society.

What would they think of Mr Murray?

Two express findings of dishonesty within the same year.

An obvious strike-off.

Exactly. This is really at a very high level of seriousness.

Even allowing for the fact he wasn't struck off on the first offence,

one would have expected him most definitely to have been struck off.

The seriously strange result in this case,

which I would go so far as to say is bizarre,

is that despite a sequence of separate findings of dishonesty,

the tribunal's penalty is a censure,

that is to say a reprimand, a slap on the wrist,

with some restrictions on his practising certificate.

So I think we're agreed here.

-Extraordinary!

-Three factors - client, deception, money -

usually involves striking off.

Self-regulation used to be the norm in England and Wales,

but a number of high-profile cases

saw a move from this closed-shop approach

to a more independent system

the Government hoped would restore public faith.

This is the man charged with ensuring it works.

The nature of the role we undertake is that we're independent.

We regulate in the public interest

and not in the interest of solicitors.

It's about confidence, you know, transparency for the public

and the public knowing that they have a regulator

who is solely interested in them.

The SRA told me that dishonesty was the line not to be crossed.

If a tribunal failed to strike off in these cases,

the SRA would take action.

We've had cases recently where the tribunal has found dishonesty

but not struck a solicitor off, and we will appeal those.

We have appealed those to the High Court and had them overturned.

So it appears, under the new regime in England,

Murray would have been struck off. In Scotland he wasn't.

How much of that failure

to drive Murray and others like him out of the profession

lies within the Law Society's desire to investigate its own?

The Law Society investigates conduct complaints

and takes them to the tribunal.

They do not make the decisions.

And therein lies the problem. The Law Society investigates the cases.

Yes, it does.

So this is solicitors marking their own homework?

This is the police policing the police.

And all of those decisions are taken by committees,

which are 50% non-solicitors.

But the Law Society is investigating.

The Scottish Legal Complaints Commission has oversight of what the Law Society does.

There is absolutely no doubt the Law Society is doing its job properly.

But what happens when the dishonest solicitor remains

and we are the ones paying their fees through legal aid?

High profile criminal cases like these

can mean big business for law firms,

whose bills are picked up by the public in the form of legal aid.

Last year, the legal aid bill for Scotland was £150 million.

I decided to cross-reference the name of each and every solicitor

on the Criminal Legal Aid Register with the tribunal's database.

I discovered 22 had been found guilty of professional misconduct,

yet still claim access to public funds.

Last year the firms they work for

made a total of £5.7 million from criminal legal aid.

Four solicitors were guilty of misleading their clients,

one convicted of domestic abuse and assault.

Another, a former clerk of a court, was censured after being

convicted of embezzling fines.

All of them on the Criminal Legal Aid Register, giving them

access to public funds.

And all of them represented by the Law Society.

The Law Society of Scotland is not

responsible for the Criminal Legal Aid Register.

The Legal Aid Board decides who is on their register

and who they are using to deal with legal aid.

I cannot comment on what you tell me...

Are you shocked by what I've told you?

I would be shocked if it were the case that these people had done

things which made them ineligible to be on the Legal Aid Register.

Oh, I'm sorry, a former clerk of a court

convicted for embezzling fines, come on.

I-I...

You don't see that that should be

a barrier to being on a Criminal Legal Aid Register?

You would need to raise that with the Legal Aid...

I'm asking your opinion, you're the Law Society which represents Scotland's solicitors.

-My opinion would be that if that were the case...

-It is the case.

..then I would be very, very surprised by it.

We decided to carry out the same exercise with the Civil Legal Aid Register.

We found 22 firms employing solicitors who've been

found guilty of professional misconduct.

Between these firms last year,

they netted almost £1.7 million in public funds.

Three firms employed solicitors who had been

disciplined for the way they handled legal aid cases.

Now, astonishingly, the Civil Register includes

the company of Robertson and Ross -

a firm removed from the Criminal Legal Aid Register

for submitting fake travel claims.

Despite this, last year,

the company made more than £160,000 in civil legal aid.

In a statement, Robertson and Ross said it was an ex-employee

who claimed fake travel expenses and the full amount was repaid.

They said "neither the firm or any current member or employee has

"any formal finding of dishonesty against them

"and the firm should remain on the Civil Legal Aid Register."

The Scottish Legal Aid Board - or SLAB - told us

they didn't regulate the legal profession, but did monitor

solicitors and act decisively where they could,

such as when the legal aid fund was abused

or when their code of practice was breached.

They removed Robertson and Ross from the Criminal Legal Aid Register.

However, they said powers to exclude firms from civil legal aid were with

the Law Society of Scotland until 2011 when they transferred to SLAB.

At the heart of almost all the cases which

come in front of a discipline tribunal is an unhappy client.

We discovered that over the past four years,

the Scottish Legal Complaints Commission has accepted

just over 2,000 complaints from clients.

Just 17% were resolved by mediation or investigation.

And only 9% were upheld.

And of those complaints passed to the Law Society of Scotland,

last year more than half resulted in no action.

Numerous complaints were made against this man,

John Gerard O'Donnell, a solicitor of more than 30 years.

Over the last five years, he's been suspended from practice twice,

been bankrupt and repeatedly had negligence claims

made against him by unhappy clients.

At no point did the system deem him

serious enough a problem to strike him off.

We asked our panel to look at the way O'Donnell was dealt with

in an early SSDT case, which related

to his borrowing £60,000 of clients' money without consent.

I can't get my head round borrowing in this context.

Now, can somebody explain to me

how you can borrow something without anybody knowing about it?

That's just taking.

They actually say in the judgment they would have struck him off,

but the clients hadn't complained...

We're dealing with a case of dishonesty

and that affects the reputation of the profession.

I would have expected this to result in...in striking-off.

The critical thing here is the risk factor.

If somebody's been dishonest once,

the likelihood is they will be dishonest again,

unless they are stopped.

But he wasn't stopped.

The tribunal simply restricted his licence

so that he had to work under the supervision of another solicitor.

Here he is turning up at the court of session in Edinburgh to

answer the most recent allegations, claims that he adopted the identity

of that supervising solicitor as a way of getting round the suspension.

If these current allegations against John Gerard O'Donnell

are proven in court, our panel's view is this would be very serious.

That goes beyond professional culpability. This is deceit.

You're not comfortable with this situation?

Ah, well, would anybody be?

This case is not closed. The Law Society is pursuing Mr O'Donnell

and they are pursuing him according to the rules and regulations

that relate to solicitors who have broken the rules in some way, but

it is not a closed case and he is not allowed to practise at present.

Are you happy with the level of robustness of the SSDT

in the case of John O'Donnell?

I would say on reflection, no.

I think, what he'd done in the past,

possibly it should have been more than just

a restriction on his practice.

But that's me in hindsight looking at it with nothing like

the level of detail that the disciplinary tribunal did.

The Scottish Solicitors' Discipline Tribunal

hears all serious conduct cases against solicitors.

Last year, they struck off nine of them.

But is this robust enough?

It is robust in the sense that it doesn't just

give convictions on the basis

that somebody's brought before us charged by the Law Society.

We are mindful, particularly when reminded by the lay members,

of the duty to the public.

One is always concerned when there is deception,

but you can have a situation where solicitors simply lose the place.

They make false representations in order to improve

their client's position, not necessarily their own.

And you would take that into account in deciding what the penalty was.

But there's no suggestion that such conduct

wasn't deemed to be professional misconduct.

So there are levels of dishonesty which sit comfortably with you,

satisfactorily with you?

No, there's no question of saying sitting comfortably with me.

-I've told you...

-OK, that you would accept?

No, I'd be concerned on any occasion that a solicitor

was guilty of any form of dishonesty.

One has to assess the extent to which anyone suffered

in consequence of that dishonesty.

You have to take into consideration the likelihood of re-offending

and then take a decision.

But you make it sound as if it's commonplace - it isn't.

Normally, dishonesty will result in striking off.

Remember Thomas Hugh Murray?

The solicitor who was bankrupt

and found guilty twice of professional misconduct?

It's clear that, despite the lapse of time,

his former clients remain aggrieved.

Neil McKechnie wants his due compensation,

and Stuart Usher still feels Murray failed to do a proper job

for the £3,500 he paid him.

I still haven't given up on my £3,500.

I want that 3,000, plus interest.

He owes me fees of 6,000 or thereabouts,

plus £1,000 compensation.

I want it back.

The Tribunal decided not to strike him off,

and Murray decided not to pay Neil McKechnie the fees

and compensation he was awarded, despite being ordered to.

Instead, he returned to a home abroad.

Behind me is the province of Lucca,

and it sits right at the bottom of the beautiful hills of Tuscany.

Now, in one of those hills is a 400-year-old farmhouse

and for the last few years, it's been home

to one certain Scottish solicitor.

Borgo a Mozzano is the area where Thomas Murray

has been living and working, thus making recovery of compensation

difficult for Neil McKechnie.

Tom, as he now calls himself, is working as an estate agent.

It wasn't that hard to track him down.

I'm meeting him as a potential client.

He tells me he's used to selling properties to Brits,

and has special legal expertise.

Tom's estate agency licence in Italy

means he's the one who will draw up some of the legal paperwork.

So, a solicitor the Scottish regulation system

deemed to be dishonest,

found guilty of deception and misleading clients,

is going to be doing some of the legal work

for my £500,000 house purchase.

A man whom, in the opinion of our panel of experts,

should have been struck off.

As Murray drove me back to my car for the last time,

he left me with these comforting words.

Thomas Murray is doing nothing illegal

in his new life as an estate agent,

but he's left behind a number of dissatisfied clients,

one of whom is still waiting to be paid the fees

and compensation he was awarded.

His punishments are, as I've said already,

the decision of the Discipline Tribunal,

which is not part of the Law Society.

The Law Society has pursued this gentleman whenever the evidence

has been there and the Tribunal has taken decisions to deal with him.

Is Mr Murray the kind of person you want within the profession?

Well, I would imagine not.

I don't think the Law Society of Scotland could be expected

to deal with estate agents in Italy.

I really think that is beyond the compass.

But one would expect the Law Society to deal with Thomas Murray.

The Law Society of Scotland later told us

the case against Thomas Hugh Murray remains open due to his failure

to pay the fees and compensation, as ordered by the tribunal.

We've since discovered the Law Society intends to submit

a new complaint concerning Mr Murray to the SSDT.

Mr Murray declined to give a comment to this programme.

However, through his solicitor, he pointed out that he'd gained

a decree against Neil McKechnie for £150,000, which remained unpaid.

It's struck me again and again throughout this investigation

how the client - the person who seeks legal services,

possibly at the most vulnerable point in their life -

is the one who so often feels let down by the regulation system.

So, until we have a system of regulation

which is seen to be policing the dishonest,

can the client ever feel confident

that true justice is being delivered?