Lawyers Behaving Badly: Firms employing misconduct solicitors still get legal aid
Law firms with solicitors who have been found guilty of professional misconduct are still receiving millions in legal aid, according to a BBC investigation.
It found that 33 solicitors guilty of misconduct such as dishonesty, are working for firms eligible to claim public funds through legal aid cases.
Four solicitors were found to have deliberately misled their clients.
The Law Society of Scotland, which regulates solicitors' conduct, said it was doing its job properly.
The programme - BBC Scotland Investigates: Lawyers Behaving Badly - found one solicitor was convicted of domestic abuse and assault and another who was on the Criminal Legal Aid register despite a conviction for embezzling court fines.
The investigation revealed that 22 solicitors had findings of professional misconduct but remained on the Criminal Legal Assistance Register.
For civil law cases, a total 22 firms which employed solicitors found guilty of professional misconduct remained on the legal aid register.
The list included the firm Robertson and Ross, which was banned from the Criminal Legal Assistance Register by the Scottish Legal Aid Board, for submitting fake travel claims totalling more than £220,000.
Robertson and Ross issued a statement saying 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/employee has any formal finding of dishonesty against them", and said the firm should remain on the Civil Legal Aid Register.
The BBC also discovered that three firms on the Civil Legal Aid Register employed solicitors who had been disciplined for the way they handled legal aid cases.
Combined, the firms received almost £7.5m last year from the £150m Scottish Legal Aid budget.
Professor Julian Webb, from Warwick School of Law, said: "One can always say, and I think the profession's defence on this one is, what we are dealing with is the bad apples, that the system at root is not necessarily a bad one.
"Most solicitors, certainly, I don't think, go into the profession with the intention of being dishonest or defrauding clients."
He added: "Whether the structures are sufficiently robust to capture or catch those bad apples and catch them early enough, I think certainly in the Scottish examples, is a really moot question."
The Scottish Legal Aid Board said they monitored solicitors and acted decisively where they could, such as when the Legal Aid fund was abused or when their code of practice was breached. But it was not their job, they said, to regulate the legal profession.
A spokesman said the cases that involved solicitors convicted of domestic abuse and of embezzling fines did not result in them being struck off the professional register.
He said the Scottish Legal Aid Board did not have the power at that time to remove the solicitors from the register.
"In the cases where a solicitor was convicted for assault and the clerk of court was convicted for embezzlement, the Scottish Solicitors' Disciplinary Tribunal determined in 2001 and 2004 respectively that neither offence was sufficiently serious for either solicitor to be struck off," the spokesman said.
"At that time, as well as the general regulatory powers and functions in relation to solicitors, the Law Society of Scotland alone exercised the statutory power through Section 31 of the Legal Aid (Scotland) Act to exclude a solicitor from undertaking legal aid and representing legal aid clients. They did not exercise this power."
He added: "Solicitors undertaking criminal legal aid must register with us, and we have powers to de-register a solicitor from criminal legal aid work where we have evidence of abuse of the legal aid fund or breaches in our criminal Code of Practice.
"Where appropriate, a report is sent to the procurator fiscal, who makes a determination on whether to prosecute or not. This is not a matter for the board."
The system of regulating solicitors in Scotland falls between the Scottish Legal Complaints Commission, which deals with service complaints, and the Regulation Committee of the Law Society of Scotland, which deals with complaints about conduct.
The Law Society of Scotland has a dual role of representing solicitors and regulating their conduct, which has led to accusations of a lack of robustness.
Carole Ford, the lay convener of the Law Society's regulation committee, said: "The Law Society looks only at conduct issues.
"It is not looking at any other aspect of complaints and the Law Society's system is overseen. The Scottish Legal Complaints Commission has oversight of what the Law Society does. There is absolutely no doubt that the Law Society is doing its job properly."
Andrew Hopper, who is both a solicitor and Queen's Counsel, has worked mostly on cases involving professional regulation and discipline in relation to solicitors for the past 25 years. He said it was "unsettling" to find cases where findings of dishonesty were made but no strike-off followed.
He said: "It's unsettling for the profession as well as the public. If you have a concept that you can have solicitors who have been found to be dishonest continuing in practice, that affects the reputation of the whole profession.
"It is disturbing, it creates a two-grade profession and it is dreadful to my mind for the reputation of the whole profession that this should have been able to occur."
The Scottish Solicitors Discipline Tribunal, which struck off nine solicitors last year, insisted the system was robust.
They told the BBC they were always concerned if a solicitor was found guilty of dishonesty. But they said they would have to assess the extent to which anyone had suffered as a result of that dishonesty before taking a decision to strike off.
BBC Scotland Investigates: Lawyers Behaving Badly is on BBC One Scotland on 15 January at 22:35.