Jersey Unreported Judgments

2002/151

ROYAL COURT

(Samedi Division)

14^th August 2002 

In the matter of a complaint against an Advocate of the Royal Court.

The Representation of the Bâtonnier.

Judgment following a complaint as to professional conduct.

The Bâtonnier.

Advocate A.J.N. Dessain for the First Party Convened.

The Solicitor General on behalf of the Attorney General

judgment

the bailiff:

1.        The Court sat in camera this morning to hear submissions on a representation by the Bâtonnier in relation to the conduct of an Advocate of the Royal Court.  We sat in camera because we were and are sitting in a disciplinary capacity and the practice, certainly in recent years, has been to sit in camera on such occasions.  For reasons that will appear from this judgment, we think that it is in the public interest that this decision should, however, be delivered in open Court.

2.        This is, therefore, a representation referring to the Court certain conduct of an Advocate of the Royal Court (to whom we shall refer as "the Advocate").  The Advocate has admitted, through his counsel, that the conduct in question was unbecoming to an Advocate of the Royal Court and the only question for the Court is, therefore, the appropriate sanction to be applied.

3.        The facts are straight forward.  The Advocate is a partner in the firm of V and Co.  A long standing client of V and Co., to whom we shall refer as 'the client', had applied for development permission to convert a shed on his property into residential accommodation.  In accordance with the usual practice the application was advertised and the Advocate, who owns an adjoining property, wished, as was his right, to object.  In preparing his letter of objection to the Planning Department, the Advocate accessed the computer records of V and Co in relation to the client's file.  He obtained information from the client's file which he then used for his own private purposes in composing a letter objecting to the proposed application. 

4.        In due course, a copy of the letter of objection came into the hands of the client, who suspected from its contents that information from his personal file at V and Co had been used.  The Advocate immediately admitted what he had done and offered an apology to the client.  The apology was not accepted and the client wrote a letter of complaint which, in turn, led to this representation by the Bâtonnier.

5.        Mr Dessain, who appeared for the Advocate, frankly and very properly conceded that this was conduct unbecoming to an Advocate.  He submitted, however, that there were seven important points in mitigation;

(i)        The Advocate had admitted his wrong doing from the beginning.

(ii)       He had an offered an apology to the client, even though the apology had not been accepted. 

(iii)      He had expressed his extreme regret.

(iv)      The Advocate had used information from the client's file that was already in the public domain, or could have been obtained from the Planning Department on request.

(v)       The Advocate's intention was to use only such information.  He was pressed for time and had used the information in the client's file, as a shortcut, rather than going to the Planning Department.

(vi)      No damage had in fact been done to the client because the application, which was rejected, would have been rejected irrespective of the letter of objection.

(vii)     The Bâtonnier had been prepared, if the client had accepted to the apology, to deal with the matter privately by a written caution.

6.        In his submissions to us, the Bâtonnier agreed that he would have proceeded in that way, but nonetheless he contended that this was a serious breach of the Advocate's duty.  The client's confidential information was sacrosanct.  We agree that this is a serious matter and, for reasons that will appear, we think that a representation to this Court by the Bâtonnier was the only appropriate course of action. 

7.        The duty of confidence which underpins a lawyer's relationship with his client is a very important aspect of the professional relationship.  Any client is entitled to feel sure that information about his private affairs that he gives to his lawyer in confidence will not be used for purposes other than his own interests.  There are, of course, statutory exceptions but they are not relevant here. 

8.        In this case the client had paid substantial fees to V and Co for legal advice in relation to an earlier application to the Planning and Environment Committee.  The client was entitled to think that information on his file at V and Co would not be used to his detriment by a partner of the firm in his own interests.  He had maintained his trust in the confidentiality of his file, notwithstanding his knowledge that the Advocate was a neighbour who had objected to a previous application.  That trust was broken when the Advocate gained access to the client's file.

9.        Mr Dessain emphasised the fact that the information used by the Advocate was already in the public domain.  We do not regard this factor as being of major significance.  We do not know whether other information was obtained and not used, but, in any event, the important consideration is that the Advocate obtained improper access to the client's file and used information from it for his own private purposes.

10.      We have taken full account of all the mitigating factors ably put before us by Mr Dessain.  We have given weight to the Bâtonnier's statement that the record of the Advocate is, so far as he is concerned, unblemished and that no other complaints about his professional conduct have been made. 

11.      Against that, we have to balance the importance of maintaining public confidence in the legal profession.  That public confidence will not be maintained if the Court does not punish a gross breach of professional duty, as this was, appropriately.  The Court expects members of the legal profession to observe the highest standards of integrity in their relations with their clients.  The decision of the Court, which is unanimous, is that the Advocate should, with immediate effect, be suspended from acting as an Advocate of the Royal Court for a period of two months.     

Authorities

Re Rosedale (JW) Investments, Ltd (1995) JLR 123.

Re Durell (1891) 10 CR 493.

In re an Advocate (1978) JJ 193.

In re Sinel (2000) JLR 18.