Barred solicitor found in breach of interdict against practice

A solicitor who had been interdicted from holding himself out as entitled to practise has been found to have acted in breach of the court order against him.

"All options remain open", Lord Stewart in the Court of Session said, on continuing the case against John O'Donnell to consider the appropriate penalty.

Formerly in practice as John G O'Donnell & Co in Glasgow, Mr O'Donnell undertook to give up practice following disciplinary proceedings in 2008, and was restricted to practising as an assistant employed by an approved solicitor for a period of five years. No such approval was ever sought, but in 2009 the Law Society of Scotland obtained interim interdict against him from holding himself out as entitled to practise as a solicitor, pretending to be a solicitor, or using any description which implied that he was qualified to act as a solicitor. Proceedings alleging breaches of the interdict were begun in 2012 and eventually resulted in a proof before Lord Stewart.

The judge said that during the period of the alleged breaches Mr O’Donnell "did transact legal work while working in some capacity, without Law Society approval, for, or with, or from the premises of, Colin Davidson, solicitor, a sole practitioner trading as Davidson Fraser & Co", from two offices in Glasgow. Mr Davidson (since deceased) operated out of one office and Mr O’Donnell worked at the other, in Clarkston Road.

From evidence led, Lord Stewart was satisfied that at various times Mr O'Donnell had held himself out as or pretended to be a solicitor by impersonating Mr Davidson, in person and by signing documents using Mr Davidson's or the firm's name. He had also impliedly held himself out as or pretended to be a solicitor, by providing services that solicitors normally provide while allowing third parties to have the impression that he was a qualified solicitor.

"In describing himself as a 'lawyer', in providing or purporting to provide legal services normally undertaken by solicitors and in knowingly allowing [individuals] to continue to understand that he, John O’Donnell, was a solicitor and as such qualified to undertake work within the exclusive competence of qualified solicitors, John Gerard O’Donnell was 'holding himself out as entitled by law to practise as a solicitor and pretending to be a solicitor'", in breach of the interdict, the judge said.

On one occasion he had allowed an advocate to appear on the assumption that he was authorised to act for the client by Mr O’Donnell in the capacity of instructing solicitor.

It was not however established that he had provided services within the exclusive competence of solicitors and thereby impliedly held himself out as or pretended to be a solicitor.

While the Society submitted that the proper disposal was a sentence of imprisonment, the court was also told that "there is some ambiguity as to whether breach of interdict is subject to the provisions of the Contempt of Court Act 1981", and asked to be addressed on all circumstances, including psychiatric reports, relevant to the appropriate diposal and mitigation.

Click here to view the opinion.

Click here for a supplementary opinion in which, among other preliminary matters, Lord Stewart rejected a motion that the Society should be held in contempt of court for having commented prejudicially about Mr O'Donnell in advance of the proof, in the television programme "Lawyers Behaving Badly".