Jersey Unreported Judgments

Representation (Civil) - estate of the late Mr A and documentation relating thereto.

[2017]JRC047B

Royal Court

(Samedi)

22 March 2017

Before     :		Sir William Bailhache, Bailiff, and Jurats Grime and Pitman.
Between	Philip Damian James		Representor
And	Law Society of Jersey		First Respondent
And	Philip Cowan Sinel		Second Respondent
And	Luc Argand and Emanuele Argand		Third Respondents

IN THE MATTER OF THE REPRESENTATION OF THE ESTATE OF MR A (DECEASED) AND DOCUMENTATION RELATING THERETO.

The Representor appeared in person.

Advocate S. J. Young for the First Respondent.

Advocate J. S. Dickinson for the Second Respondent.

Advocate A. J. Clarke for the Third Respondents.

judgment

the bailiff:

Introduction

1.        The Representor presented ex parte but with notice to the Second Respondent a representation to the Court on 24^th February, 2017.  The Court directed service upon the Respondents and adjourned the further consideration of the representation until 6^th March at 10am, ordering in addition that the matter should be treated as a cause de brièveté.  On 6^th March, Advocate Young appeared briefly for the First Respondent, but having placed before the Court a letter setting out the position of the First Respondent, sought leave to withdraw from the hearing and remain on call should he be needed, which was granted.  Advocate Clarke on behalf of the Third Respondents indicated that his clients would rest upon the wisdom of the Court.  We have had the assistance both of Advocate James as Representor and Advocate Dickinson on behalf of the Second Respondent and we are grateful to them for the work which they have done at very short notice.  After a short hearing during the morning of 6th March, judgment was reserved on the representation.  This is now the Court's judgment in relation to the matter. 

2.        The underlying issues surround the estate of the late Mr A ("the deceased") who we are told died domiciled abroad in 2010.  By his will executed on 15^th April, 2002, he appointed the Third Respondents as executors of his estate ("the executors").  We are told that the will covered the world-wide estate of the deceased, and by it his estate was to be divided into one eight parts - a three eighths each for his two children Miss B and Mr C respectively and the remaining two equally between the children of Mr C.  On 10^th September, 2013, a certificat d'héritier was issued to the executors. 

3.        We are advised that the executors initially found the assets of the estate to be negligible.  However on further investigation it appears that the Second Respondent may have had dealings with assets of the deceased in his lifetime.  As a result of the information received, the executors wrote to the Second Respondent seeking information concerning the assets of the deceased.  We are told that the executors failed to obtain cooperation from the Second Respondent, and as a result applied for a grant of probate in Jersey which was granted in 2016 to Monsieur Sylvain Michael Bogensberger as their special attorney.  By a representation presented to Court on 26^th May, 2016, the executors applied for orders requiring the Second Respondent to disclose to them information and documents relating to assets owned by the deceased and files opened by the Second Respondent in the name of the deceased or in the name of entities owned or controlled by him. 

4.        The executors' representation is due to be heard before the Royal Court on 10^th April, 2017. 

5.        At one point, Miss B was a party to the executors' representation, but she ceased to be a respondent by order of the Master dated 3^rd October, 2016, and the Second Respondent in these proceedings is now the only respondent to the executors' representation. 

6.        The present proceedings arise out of a desire on the part of Advocate James to clarify the professional obligations which lie upon him and upon Advocate Clarke.  Although Advocate James acts for Miss B, he brings the representation in his own name, because he seeks clarification of his own professional obligations.  The circumstances in which this arises are unusual. 

7.        We are told that in May 2015 Miss B received a slim envelope of copy papers in the post at her home address in Belgium, which appeared to have been sent to her from Jersey by ordinary post.  The package contained a postcard of a Jersey scene with an unsigned hand written note on it "Again, I think you deserve the truth."  The envelope of copy papers has been referred to in the present proceedings as "the Anonymous Package", which nomenclature we adopt.  Advocate James informs us that neither he nor Miss B, as far as he is aware, know the identity of the sender.  In June 2015 Miss B sent a copy of the anonymous package to Advocate James via her Parisian lawyer.  Without waiving privilege, Advocate James informed us that she sought advice about the contents of the Anonymous Package.  Having received that advice she did nothing further with it until December 2016 when she instructed Advocate James to disclose the Anonymous Package to Advocate Clarke in order that it might be used by the executors in the executors' representation if that should be thought appropriate.  As Advocate Clarke was away from the office for the Christmas break, Advocate James did not send the Anonymous Package to him until 3^rd January, 2017.  Advocate Clarke considered the contents, but without forwarding the package to his clients contacted Advocate James raising a concern as to the effect of the Code of Conduct of the Law Society of Jersey, the First Respondent, and the guidance attached to it, which came into effect as of 1^st January, 2017.  As a result the two advocates agreed that Advocate Clarke would return the Anonymous Package to Advocate James, which he did on 4^th January. 

The Current proceedings

8.        The current representation arises therefore because Advocate James has been instructed by his client to send the Anonymous Package to Advocate Clarke for use if he thinks fit in the executors' representation, but, as a result of the concerns raised over the Code of Conduct, neither advocate is now clear as to what he is permitted to do, respectively, with the documents.  As a result, the Representor applies to this Court. 

9.        Miss B is aware that her Jersey advocate has taken these proceedings personally in the Royal Court to ascertain his obligations as a matter of professional conduct.  On 9^th February her Parisian lawyer informed Advocate James that she had decided to send the Anonymous Package to the executors, the Third Respondents in these proceedings, directly.  It appears that she did so on or about 9^th February, 2017.  It appears that Advocate Clarke has asked his clients, the Third Respondents, not to send the Anonymous Package to him.  If he were to receive it, the same issue would arise for him as now troubles Advocate James.  Although his clients are resting upon the wisdom of the Court in the present proceedings, Advocate Clarke personally no doubt has watched the proceedings with interest. 

10.      The Second Respondent, Advocate Sinel, asserts that the Anonymous Package contains copy papers which belong to him.  He has said robustly that the papers have been stolen, and should be returned to him.  No one else is entitled to them and the Court should not give any relief to Advocate James on the representation because in doing so it would in effect be condoning a crime.  That was the thrust of his submission when he attended before the Royal Court personally on 24^th February.  In the hearing on 6^th March, Advocate Dickinson pursued a slightly different line. 

11.      His submission was based on the proposition that the documents which were disclosed in the Anonymous Package were clearly communications between the Second Respondent and Mr C, and were therefore privileged.  As to the ownership of those documents, some might belong to Mr C and some might belong to the Second Respondent.  It did not matter because the privilege was of itself sacrosanct, a fundamental human right protected by Article 8 of the European Convention on Human Rights.  He submitted that the Court should order that both the Representor and the executors should send their copies of the Anonymous Package to the Viscount until such time as the Order of Justice issued by the Second Respondent in relation to the documents had been disposed of by the Court.  We consider that given that the Order of Justice contains no application for interim relief and that no notice of this particular application has been given either to the Representor or the executors and it was an application unsupported by affidavit, this was a step we were not prepared to take at this time.  It clearly does not prevent such an application being made on notice in the usual way at a future date and the Court will deal with it then on its merits if it is to be made. 

12.      Advocate Dickinson also submitted that we should not make any order which might result in one of the parties to the executors' representation being required to change his advocate.  We will turn to that submission in more detail later.  He submitted that the Court should exercise its discretion against disclosure of the relevant documents to Advocate Clarke because the nature of legal professional privilege trumped any other public interest.  Reliance was placed in particular on the case of R v Derby Magistrate's Court ex p. B [1995] UK HL 18.  He went on to submit that in any event this was an application by the Representor for declaratory relief which ought not be granted because the Representor was not personally a party to any substantive proceedings, because no substantive rights would be declared in the current proceedings, and because the same objections lay against his client Miss B as well.  Accordingly there was no need to exercise any declaratory jurisdiction.  He further submitted that a member of the Jersey Law Society should not put himself in the position of receiving documents in the way in which these documents had come to the Representor - it was apparent they did not come to him through normal or proper channels. 

13.      There is one further procedural matter we should mention briefly.  By an Order of Justice issued on 1^st March, 2017, the Second Respondent as plaintiff has brought proceedings against Miss B, the Representor, Advocate Clarke, the Third Respondents, the attorney of the executors, the French lawyer of Miss B and the Law Society of Jersey.  The relief sought in those proceedings is an injunction restraining each defendant from distributing or communicating the existence or content of the "privileged documents" to any third party together with other relief.  The expression "privileged documents" is defined in the Order of Justice, albeit on the face of it more widely than is necessary or appropriate seeing that it appears to include not only the current representation and the Representor's affidavit but also some correspondence between Advocate James and others including the Chief Executive Officer of the Jersey Law Society.  Be all that as it may, the parties to the Second Representor's Order of Justice are not the same as the parties before us at present, and it follows that we can note the existence of the Order of Justice, but we make no orders in relation to it. 

The documents

14.      It is clear both from the submissions made by the Second Respondent on 24^th February and those of Advocate Dickinson on 6^th March that there is considerable sensitivity about the documents forming part of the Anonymous Package.  It would appear that at least some and maybe all of the relevant documents in question are in the papers before this Court, but we think that given that the dates on those documents appear all to relate to a date after the date of death of the deceased, then at least prima facie they are not documents to which the executors could claim to be entitled.  The documents may or may not have some relevance to the proceedings which the executors have launched against the Second Respondent.  It is not clear on their face that they do, but it is certainly not impossible. 

15.      At this point, however, we think it is right to emphasise a feature of the current proceedings.  We have heard no oral evidence.  We have had the benefit of an affidavit from each of the Representor and the Second Respondent although neither has been cross-examined on his deposition.  Although we have the pleadings in relation to the executors' representation, we are not the trial court for those proceedings.  We make no findings of fact.  The conclusions which we have reached and which are set out in this judgment assume the accuracy of the facts which are put before us by the Representor, with this qualification, namely that a proper inference from those facts might well be supportive of the Second Respondent's view that the documents in question are his and have been stolen.  Nonetheless there are other possibilities which in theory could arise which would lead to a conclusion that albeit the documents arrived anonymously with Miss B, there was nothing untoward in their doing so.  Unlikely as it would seem, it is possible that the documents in question were copied to her with Mr C's knowledge and approval and it is certainly not clear that if he had chosen to pursue that course, there would have been anything wrong in principle in his doing so because he would seem to have at least an equal claim to ownership of the documents as has the Second Respondent.  Similarly if he chose to disclose them, he would be choosing to abandon any legal professional privilege which he otherwise could claim - and of course the Second Respondent could not claim that privilege because the privilege belongs to the client and not the lawyer. 

16.      We make these points because in holding against Advocate Dickinson in relation to his application referred to at paragraph 11 above, we make it plain that we make no decision relevant to the matters raised by the Second Respondent's Order of Justice which presumably has recently been served or shortly will be served on the parties to it.  On the contrary, we are only concerned with the conduct issues raised by the Representor in the light of the Code of Conduct issued by the First Respondent, which issues clearly could have relevance also to Advocate Clarke, acting for the executors. 

17.      It is because this judgment has such a limited ambit that we reject the submission of Advocate Dickinson that the Court ought not to give any declaratory relief, the submission to which we now turn in detail. 

Declaratory relief

18.      The Representor claims "a declaration that, having regard to the Code of Conduct and as a matter of professional conduct, it would be right and proper and no misconduct for the Representor to resend to Advocate Clarke the 3rd January letter and the Anonymous Package so that, subject to a successful application by Advocate Sinel to restrain such use in the executors' representation, the executors may use the Anonymous Package in those proceedings."

19.      Advocate Dickinson submits that the Court should not grant declaratory relief and relies in particular on three local cases.  The first is Craven v Island Development Committee [1970] JJ 1425.  The background facts were that the Island Development Committee of the day had refused an application submitted by the plaintiff for building on a piece of land at Mont à la Brune.  The plaintiff lodged an appeal against that decision pursuant to Article 21 of the Island Planning (Jersey) Law 1964, but he did not pursue that appeal. Instead he issued proceedings by way of an Order of Justice in which he claimed a declaration that he was possessed of a valid permission to build 25 houses on the original site.  The first point taken by the defendant committee was that the Court had no power to give declaratory judgments, and the Royal Court rejected that submission saying:

"No authority whatsoever was cited for that proposition and we reject it. We have no doubt that the Court has power to give declaratory judgments in appropriate circumstances. What circumstances are appropriate it is unnecessary for us to say, other than that in this case the circumstances are appropriate.  The plaintiff claims a right which is disputed by the defendant and the issue is a practical and not a theoretical one. It is an original remedy and not a supervisory one which the plaintiff seeks, and it is our view that it has always been possible to seek such a remedy by way of Order of Justice."

20.      The Court in that case did in fact grant the declaration sought but Advocate Dickinson contended that it was necessary to show that the issue which arose was practical and not theoretical, and there was no such issue in the present case.  We do not accept the latter submission.  The position appears to be that Advocate James has received instructions from his client, which he would normally follow, but to do so in the present case might give him a practical problem in relation to the Code of Conduct.  Accordingly it seems to us that his application is not based on any theoretical issue, but on a very practical one. 

21.      The second case upon which Advocate Dickinson relied was Rahman Showlag v Mansour and another [1994] JLR 269.  In that case the plaintiff claimed a declaration that the first defendant was liable to account to him for money which had been transferred to the first defendant and/or second defendant by a third party.  No Jersey court had made any findings of fact on the ownership of the money, but the English High Court had found in the plaintiff's favour after a contested hearing and the Judicial Committee of the Privy Council, in relation to parallel Jersey proceedings, had found that that question was now res judicata.  The Royal Court held that it was proper to grant a declaration albeit the power to do so should always be exercised with caution and only where necessary to do justice between the parties.  Bailhache, Bailiff, said at page 8, line 25:-

"The jurisdiction of this court to make declaratory judgments has not yet been statutorily or judicially defined.  Without fuller argument, it would not be right for us to attempt that task on this occasion. It is sufficient to state that the jurisdiction should be exercised with caution, but without hesitation where necessary to do justice between the parties. In our judgment, this is a proper case in which to exercise our power to grant declaratory relief."

22.      In In the matter of the curatorship of X [2002] JLR 259 the Court had to consider whether it had jurisdiction to make a declaratory judgment as to whether a second codicil reflected the wishes of an interdict and whether the interdict lacked testamentary capacity at a time prior to the interdict's death.  Birt, Deputy Bailiff, said this:-

"17. A great merit of the action of declarator in Scotland is said to be its elasticity; the scope of its availability is potentially very wide. In particular, the Scottish Courts do not appear to have become involved in technical considerations of whether a right is future or hypothetical.  They have adopted a much broader approach.  That approach is conveniently summarised by Lord Clyde as follows (op.cit. [Zamir & Wolf, the declaratory judgment, 2nd ed] para.8.06, at 272):-

"It has been observed that it is the function of the courts to decide only live, practical questions and that they have no concern with hypothetical, premature or academic questions, nor do they exist to advise litigants as to the policy which they should adopt in the ordering of their affairs. 'The Courts are neither a debating club nor an advisory bureau.'  Hypothetical questions will not be entertained. The action 'cannot be used for the mere purpose of declaring legal propositions when no practical question or dispute lies beneath'. It is a matter of the circumstances of each particular case whether there is or is not a live practical question. There must be a sufficient degree of reality and immediacy before a declarator will be granted.  If the declarator will have a practical bearing upon the resolution of an actual dispute it will be competent. It is sufficient for the competency of a declarator that there be an actual consequence either pecuniary or in facto praestando.  This need not be an immediate practicality; a real possibility of the critical eventuality emerging may be sufficient."

18. We think that the broad and flexible approach summarised above is preferable to the more structured and technical approach which appears to hold sway in England, which is based partly upon historical considerations which have no application in Jersey. The principles of Scottish law described above offer a sensible and convenient approach to the question of when the court should agree to give declaratory relief and we hold that they represent the correct approach under Jersey law..."

23.      In our view, the present dilemma for Advocate James, and possibly for Advocate Clarke, is very much a live practical question.  Advocate James has instructions and does not know whether it would be right or wrong to act as instructed.  That is sufficiently real and immediate a difficulty to engage the Court's initial interest.  When it turns out that the cause of the underlying difficulty is the Code of Conduct issued by the Representor's own professional body, there is a further good reason for engaging the Court's jurisdiction; and, at the end of the day, the Representor is an officer of this Court and it would be surprising indeed if the Court were metaphorically to sit back with arms folded and unhelpfully refuse to give guidance in respect of a problem of this kind.  The Court considers that Advocate James acted reasonably in coming to Court to seek directions in the circumstances which exist, namely the lack of clarity in respect of the Code of Conduct. 

The Code of Conduct

24.      Until 31^st December, 2016, the provisions in relation to the use of an opponent's document, as set out in the Code of Conduct (the "previous Code") issued by the First Respondent were these:-

"Use of opponent's document

(1)       A member shall not himself obtain or seek to obtain a document or knowledge of the contents of a document belonging to another party otherwise than by means of the normal and proper channels for obtaining such documents or such knowledge.

(2)       Where during the course of legal proceedings whether before, during or after a trial or hearing a member for one party receives as part of or in the course of his or her instructions, a document which appears to be a document belonging to another party (or a copy thereof) and to be privileged from discovery or otherwise to be one which ought not to be in the possession of such member, client or instructing solicitors, then before such member makes any use of such document:

(a)   The member shall make appropriate enquiries of his or her client or instructing solicitors in order to ascertain the circumstances in which the document was obtained; and

(b)   Unless satisfied that the document has been properly obtained in the ordinary course of events, the member should inform his or her opponent of such member's intention to use the document and of the circumstances (so far as known) in which the document has been obtained.

(3)       In the event of objection by the opponent to the use of such document, the matter shall be referred to the Court for it to determine what use, if any, may be made thereof.

(4)       Subject to the foregoing sub-rules and to the provisions of this rule 23, a member is under a duty, unless the Court otherwise orders, to make all and such use of such document as would be in his or her client's interests."

25.      The present proceedings are not disciplinary proceedings.  There is a process to be followed under the Law Society of Jersey Law 2005 and under the rules made pursuant to that law.  The question of whether the Representor has or has not breached rule 23 of the previous Code is not before us and we express no opinion on it.  We mention rule 23 only to help us in construing the current provisions. 

26.      The starting point for the Code of Conduct generally is bye-law 38 of the Law Society of Jersey Bye-Laws 2007 which is in these terms:-

"Code of Conduct

(1)       An ordinary member must observe the Code of Conduct in the conduct of his or her professional practice.

(2)       A breach of the Code is professional misconduct."

27.      The present Code of Conduct was adopted by the Law Society of Jersey at an Extraordinary General Meeting held on 7^th November, 2016.  It became effective from 1^st January, 2017, and replaced all previous versions.  The terms and provisions of previous versions apply in relation to any act or omission which occurred during the period of time during which that version of the Code of Conduct was in force.  We are considering in this application what the Representor and possibly Advocate Clarke are bound to do in relation to the Anonymous Package in respect of the period after 1^st January, 2017. 

28.      Rule 2 of the Code of Conduct provides as follows:-

"Confidentiality

R.2.1 Duty of Confidentiality

Members must keep the affairs of clients, former clients and potential clients (where any information of a confidential nature has been provided) confidential except where a firm is compelled or permitted by law to disclose the information, the firm has a public duty to disclose it, it is necessary in the firm's own interest to disclose or where the client, former client or potential client has agreed or given informed written consent to the information being disclosed.

R2.2 Duty of Disclosure

Members must disclose to a client whether the client is one or more persons, for whom they or their firm are acting on a matter, all information of which the member or the employee is aware which is material to that client's matter regardless of the source of the information, subject to:

(a)       the duty of the confidentiality in R.2.1, which always overrides the duty to disclose (and R.6.6 applies); and

(b)      the following where the duty does not apply:

(i)            where such disclosure is prohibited by law or regulation;

(ii)           where the information in question is received under a duty of confidentiality, including mistaken disclosure, or receipt where it is agreed with the client that no duty to disclose arises or a different standard of disclosure applies; where the member or employee reasonably believes that serious physical, mental or financial injury will be caused to any person if the information is disclosed to a client;  where the information in question relates to state security or intelligence; or

(iii)          ..."

29.      Rule 14.3 provides:-

"The Principles and Rules in this Code of Conduct are mandatory and binding on members. While the guidance notes in the Code of Conduct are not binding on members, a disciplinary committee will have regard to the guidance when considering whether a breach of the Code of Conduct has occurred."

30.      The structure of the Code of Conduct is revealed by the contents page - there is an introduction, which sets out when and how the Code of Conduct was adopted, the contents page setting out what the Code contains, namely a Glossary of Terms (which does not define "guidance"), interpretation provisions, the principles, the rules, guidance to the principles, guidance to the rules and then annex 1 and annex 2.  The interpretation provision provides that the annexes form part of the Code.  One assumes that as the annexes are at the end of the publication that demonstrates that the guidance which appears earlier in the publication also forms part of the Code.  Indeed the provisions of rule 14 which make it plain that the guidance notes are "in the Code of Conduct" also enable one to reach that conclusion. 

31.      The relevant guidance provides as follows:-

"G.2.20 If, during the course of a matter, a member receives information or documents from either a client or a third party, which clearly appear to have been (a) disclosed inadvertently or (b) obtained improperly, the member must return such information or documents to the rightful owner without use being made of the information or documents.

G.2.21 Where it is not clearly apparent that the information or document (or documents) has been mistakenly disclosed, but it appears that this may be the case, the member must inform his or her opponent or their intention to use the document and the circumstances (so far as are known) in which the information or document has been obtained. If the opponent objects to the use of such information or documents, reference to the Court may be necessary.

G.2.22 Where there is a conflict between the duty of confidentiality and the duty of disclosure, it will normally be necessary to stop acting or to refuse instructions. This reflects the fiduciary duty of loyalty which exists at common or customary law."

The submissions

32.      Advocate James emphasised that he brought this representation in his private capacity and sought guidance from the Court as to his professional obligations.  He had no personal interest in the outcome and indeed, he said candidly that he did not care which way the judgment went.  Nonetheless he thought it was his duty to help the Court as far as he could and he thought that the correct conclusion was that he was obliged to pass the documents to Advocate Clarke.  He said that the hearing did not concern the admissibility within the executors' proceedings of the documents comprising the Anonymous Package.  That question of admissibility would be for the Court in the executors' proceedings to deal with. 

33.      He analysed the previous Code of Conduct in this way - it set out what a member should or should not do.  He emphasised that under the previous Code, a member was under a positive obligation (under paragraph (4) referred to at paragraph 24 above) to use the document obtained in his client's best interests, subject always to an order of the Court as to what use should be made of it in circumstances covered by paragraph (2) of those provisions.  This was said to be consistent with the Court of Appeal's decision in Re an advocate [1978] JJ 193, which Advocate James considered remained a statement of good law.  That case emphasised that there was a distinction between those cases where the document in question came to the lawyer from his own client, and those other cases where it fell directly into the lawyer's hands.  In the latter case, the obligation was not to read the document or, if read in part, to stop reading as soon as it became apparent that the document had been provided by mistake; and then return it without copying it to the other party. 

34.      Advocate James considered that when the present Code of Conduct was adopted, there was no intention to alter the fundamental provisions which had previously existed and in particular, the fundamental principle that lawyers should act in the best interests of their clients remained unaltered. 

35.      Advocate James submitted that there was nothing in the present Code of Conduct which went against the old rule.  The only provision which might point in that direction was to be found in guidance G.2.20, but that had to be read in the light of the fact that by Rule 14.3 of the present Code, it is only the principles and rules which are mandatory and binding on members, and the guidance notes are not.  Advocate James referred these matters to the Law Society by his letter of 12^th January, 2017.  However, Advocate James considered the detailed response from the Society to be unhelpful as to what his duties were, and for that reason he has brought the present representation.  

36.      The letter to the Court from the Law Society set out its position in this way.  The Society referred the Court to Rule 14 which is set out above in this judgment.  The Society expressed the view that where guidance is followed, it is unlikely that any breach of the Code will have occurred.  In the present case, the guidance to which reference has been made is guidance in relation to Rule 2 which deals with the duty of confidentiality of members to their clients, former clients and potential clients, and the duty of disclosure by members of their knowledge to their clients.  Rule 2.2 sub-paragraph (b) sets out circumstances where the obligation to disclose to the client all information of which the member is aware does not apply, which includes (R2.2(b)(ii)) the situation where information is received under a duty of confidentiality including mistaken disclosure, and other circumstances which are inapplicable for present purposes.  The Society's view is that Rule 2 is inapplicable where the material comes into a member's possession by reason of disclosure of that material by the member's own client unless the information has been received from the client in circumstances where the documents had been disclosed inadvertently or obtained improperly, when a member was obliged to return the information to the rightful owner without use being made of the information or documents. 

37.      The Society contended that where the source of documents or information is unclear then the best course of action is for a member to make an application to the Court for the Court to determine whether or not that information or the documents may be used and if a member made such an application, he or she would have discharged the responsibility to act appropriately under the relevant Rule and principle.  

38.      The submissions made by Advocate Dickinson on behalf of Advocate Sinel are set out at paragraphs 11 and 12 above. 

Decision

39.      We are not surprised that Advocate James has brought this representation.  On the face of it, the guidance forms part of the Code of Conduct (see paragraph 30 above), and bye-law 38 provides that a breach of the Code is professional misconduct.  On the other hand, Rule 14.3 of the Code provides that the guidance notes are not binding.  Indeed the concept of issuing guidance suggests that the principles and the rules are intended to be the operative instructions to the profession and while it is impossible to come up with every circumstance in which those principles and/or rules might be engaged, the guidance notes are intended to be helpful in the construction of those principles and rules. 

40.      In our judgment, notwithstanding the structure of the Code and the provisions of bye-law 38, the proper construction of the Code of Conduct is that it is only a breach of the principles and/or the rules which amount to professional misconduct.  The guidance which has been issued is in our judgment intended to explain the principles and/or the rules as the case may be, and the guidance is not intended to provide a stand-alone set of provisions which create a new list of professional obligations. 

41.      Accordingly, guidance G.2.20 - G.2.22 reflect guidance in relation to Rule 2 and should not be seen as creating stand-alone obligations.  That being so, the duty of disclosure in Rule 2.2 applies, subject to the exemptions in Rule 2.2(b).  In those circumstances no obligation to return the documents to the rightful owner as described in G.2.20 is engaged. 

42.      This conclusion makes sense in the context of a practical consideration of the rights of the client and the lawyer, demonstrated indeed by the instant case.  Advocate James' client is not before us and we cannot in the present proceedings make an order against her, because she has not had the opportunity to be heard.  The Anonymous Package having fallen into her possession, she was entitled to refer it to her lawyer to seek advice upon it - see In re an Advocate [1978] Jersey Judgments 193 where at page 209 the Court of Appeal said this:-

"In the light of the authorities and such rulings, it is clear in our judgment that the appellant committed no misconduct in reading the papers or in using the proofs to assist his cross-examination.  His client obtained the papers fortuitously, his client had read the papers, his client was therefore entitled to give secondary evidence of their contents and to use them in cross-examination unless restrained by injunction. He was also entitled to seek the appellant's advice both as to entitlement to use them and as to the value or otherwise of their contents.  It offends against common sense to suppose that the ethics and standards of the profession demand that the appellant's proper course should be to have to say to his clients "in so far as the contents are admissible you are entitled to use them unless restrained but I am not allowed to look at them.  Accordingly I cannot tell you whether they contain relevant material and even if they do, I cannot use it on your behalf.

In the particular circumstances, the most that can have been required of the appellant was that he should inform his opponent in time to enable him to take action and this he did. We must not, however, be taken as saying that the duty to warn is an absolute duty in all circumstances.  The Bar Council draft ruling expresses the duty without qualification but it is impossible to envisage all conceivable circumstances which might arise and it is possible that there might be very special circumstances where there would be no duty to warn.  However, such circumstances would, in our judgment, be very rare."

43.      It is of interest that the Court of Appeal made it plain that in exonerating the advocate in that case, it did so only because the documents had fallen into his client's hands and not into his own, his client had already read them, and he gave his opponent early notice.  The Court of Appeal went on at page 210 to say this:-

"Nothing that we have said should be taken as casting the slightest doubt upon an advocate's duty to observe the strictest standards of integrity and honesty towards his colleagues and their clients or upon his duty to the Court.  If for example the envelope had fallen directly into the appellant's hands [the advocate's hands] and he had known to whom it rightly belonged, it would then have been most reprehensible for him to open it and read its contents, just as it would be reprehensible for him to read or attempt to read any of his opponents papers which happened to be within reading range while he was in court."

44.      As the Court of Appeal said later in its judgment, in all cases where an advocate comes into possession of documents belonging to or intended for his opponent, it is likely that there may be the fullest investigation of all the circumstances to determine the propriety or otherwise of the advocate's conduct, a conclusion on which would always depend on the precise details of what happened.  In the present case, Advocate James has come into possession of documents which appear to belong either to Mr C or to Advocate Sinel, but he has done so through his own client.  Whether the duty of confidentiality towards his own client is engaged or not and whether Advocate James ought to have informed Advocate Sinel of his possession of these documents at an earlier stage is outside the remit of the present application.  We are only concerned with the construction of the present Code of Conduct, and as to what should take place next. 

45.      Because the present Code does not in terms inhibit Advocate James from sending the documents to Advocate Clarke as he has been instructed, it is arguable that there is no reason why he should not do so.  A good test of that question might be what the obligation is on the part of Advocate Clarke were he to receive them.  Of course he could have received them directly from Advocate James' client Miss B or indeed from the executors.  Until there is an order of this Court to the contrary, there is nothing preventing her or the executors from so forwarding the documents.  It would not be a disciplinary offence for Advocate Clarke to receive them because he might need to advise his client upon them. 

46.      What next then?  We take first the position of Miss B.  She is not party to this application, which concerns professional standards, and we make no orders today in respect of her.  She is a defendant to the proceedings which Advocate Sinel has started and is entitled to take advice in relation thereto.  In that respect she apparently has the Anonymous Package in her possession and can show it to her lawyer to obtain such advice.  Until further order of a competent court, that remains the position for her.  We note that, in considering the professional obligations of Advocate James, we should not overlook that if called to give evidence in the executors' proceedings, Miss B could give evidence as to the contents of the Anonymous Package unless restrained.  

47.      The executors appear to us to be in the same position.  Albeit they are party to this application, they are not Jersey lawyers.  They are defendants to Advocate Sinel's Order of Justice and are entitled to take advice in relation thereto.  They can show the Anonymous Package to their lawyer for the purposes of taking such advice.  They and Advocate Clarke will wish to consider, for the purposes of ensuring that Advocate Clarke is not professionally embarrassed in the executors' representation whether they should take advice from someone other than him, although that is not to say such professional embarrassment would necessarily arise if they do not.  It is a matter at this stage for them and Advocate Clarke.  In the light of the comments which follow, they may wish to consider providing an appropriate undertaking to Advocate Sinel which would avoid the necessity of interlocutory applications in respect of his Order of Justice before the hearing of the executors' representation in April, and indeed might bring a close to those proceedings altogether. 

48.      That is not to say that the Anonymous Package should necessarily be admitted in the executors' proceedings.  Advocate Sinel has quite understandably taken out an Order of Justice seeking to restrain the use of the Anonymous Package even if the ambit of the definitions in that Order of Justice might need to be revisited.  Advocate Sinel will no doubt wish to consider whether he should not issue a summons for an immediate injunction restraining the use of the documents.  The parties to his Order of Justice are not the same as the parties in the executors' proceedings, and it would seem therefore that such a summons would be outwith the scope of the executors' proceedings, but as the defendants include the executors and Advocate Clarke, on the face of it, the effect of obtaining an order, if it is obtained, would be similar to obtaining an order on inadmissibility within the scope of those executors' proceedings.  At all events that is a matter for Advocate Sinel.  The furthest we feel we should go in the present proceedings is to indicate that it is on the face of it difficult to identify a valid reason why Miss B should have been sent documents which do not belong to her; on the face of it they must have been obtained improperly, and it would be unsurprising if a court were to determine that in those circumstances they ought not to be used.  Of course the same outcome could be achieved by agreeing appropriate undertakings, and if those were agreed between the parties to the executors' proceedings, and their lawyers, it might be that a formal application in relation to the Order of Justice no longer proved to be necessary.  At all events, that is a matter for the relevant parties to consider and we take it no further in this judgment which is limited to the Code of Conduct and the guidance. 

49.      We turn next to Advocate James.  Whatever the conduct of his client, who in the absence of any evidence to the contrary we assume today to have acted entirely properly, the standards required of a Jersey Advocate are high. 

50.      The circumstances in which the Anonymous Package came into the hands of his client are unusual and prompt further enquiry.  An examination of the documents themselves shows firstly that unless they were legitimately sent to Miss B by someone entitled to do so, they cannot be said to belong to her, and secondly that they are documents over which her brother Mr C can claim legal privilege.  We are not satisfied that the documents necessarily belong to Advocate Sinel, although they may do so, but on the face of it, they must belong either to him or to Mr C.  Sent to him by his client, Advocate James is entitled to keep them for the purpose of giving her advice.  Given that Advocate Sinel has commenced proceedings against both him and his client, Advocate James can hold the documents pending further order or agreement in those proceedings. 

51.      Advocate James tells us he is instructed to send the Anonymous Package to the executors' advocate.  In circumstances where the executors have the documents themselves and can send them to their own advocate if they wish, the instructions add little to the litigation in which the executors are involved.  However that is not the basis of our decision. 

52.      In our judgment, when a Jersey advocate or solicitor - in either case an officer of this Court - receives documentation from any source other than his or her client which, on its face, he or she ought not to have because either it has been received by mistake or clearly belongs to someone else or is privileged, it is his or her duty not to read it, not to deploy it in any litigation on behalf of the client and to return it to the person entitled to it.  Where the documentation is received from the client, the Jersey advocate or solicitor can advise the client upon it but should not deploy the documentation in any litigation without leave of the Court following an application with full disclosure of all relevant circumstances.  Whether to grant such leave would be a matter of discretion for the trial court, probably the Judge sitting without Jurats.  In the present case, there is no adequate basis upon which it could be said, on the evidence currently available - and that position may theoretically change - that Miss B is entitled to assert ownership of the Anonymous Package.  That being so, Advocate James should not transmit the documents to Advocate Clarke even though he has been instructed to do so.  To permit him to do so would circumvent the obligations which on the facts of this case the Court, having regard to the apparent ownership of the documents, privilege, the Code of Conduct and the guidance, imposes on him. 

53.      We add that we recognise this decision goes further than was contemplated by the Court of Appeal in Re an Advocate.  We have not been addressed on developments in England and Wales since that case, which might have been helpful but we note in Jersey that the Law Society guidance on the present Code goes further than that case.  We also recognise that there may be circumstances where, depending on the evidence given or possibly the stance of a member of the Law Society in a particular piece of litigation, it might be appropriate for the Court in its discretion to permit the deployment of illegally obtained documents.  Such discussions will, it seems to us, always turn on their particular facts. 

54.      Order accordingly. 

Authorities

R v Derby Magistrate's Court ex p. B [1995] UK HL 18.

Craven v Island Development Committee [1970] JJ 1425.

Island Planning (Jersey) Law 1964.

Rahman Showlag v Mansour and another [1994] JLR 269.

In the matter of the curatorship of X [2002] JLR 259.

Law Society of Jersey Law 2005.

Law Society of Jersey Bye-Laws 2007.

Re an advocate [1978] JJ 193.