Jersey Unreported Judgments

Striking out - Reasons for granting the application by the Attorney General

[2019]JRC171

Royal Court

(Samedi)

6 September 2019

M. Temple Q.C., Solicitor General appeared for the Crown.

Advocate E. L. Burns for the Respondent.

judgment

the COMMISSIONER:

1.        The Respondent, Kevin Manning, is a solicitor (écrivain) of the Royal Court.  On 12^th December, 2018, he was sentenced to a total of 3½ years imprisonment in respect of twenty counts of fraudulent conversion, one count of fraudulent conversion by a trustee and one count of failing to comply with the requirements of the Money Laundering (Jersey) Order 2008.  The Attorney General now applies for an order that the Respondent is removed from the roll of solicitors of the Royal Court.  The application is brought pursuant to the inherent jurisdiction of the Court, which is expressly preserved by Article 32 of the Law Society of Jersey Law 2005. 

2.        At the end of the hearing on 31^st July 2019 the Court granted the Attorney General's application.  We now give our reasons. 

Background to the offending

3.        The Respondent has been a sole practitioner as an écrivain since 1993.  His practice consisted largely of conveyancing and non-contentious matters.  In particular, he managed a number of estates and curatorships.  Each curatorship had a client account specific to the particular curatorship. 

4.        It appears that his record and account keeping was poor and as a result there came a time when his client account was deficient.  He was unable to meet payments due from the client account on behalf of various clients.  As a result he resorted to taking money from specific curatorship accounts, which he controlled, in order to meet the shortfall on general client account or other specific client accounts.  He pleaded guilty to twenty one such payments between 2008 and 2010.  Twenty of these were from specific curatorship accounts and one was from a specific client account of a trust of which he was trustee. 

5.        According to the Crown, the total amount involved came to £94,189 but the defence submitted before the Superior Number that the overall deficit was some £65,000.  The Superior Number did not resolve this difference as it was agreed that the outcome would not affect the level of sentence.  For the purposes of the present application, we were willing to proceed on the basis of a figure of £65,000 because it makes no difference to our decision whether the amount involved was £65,000 or £94,000.  The Respondent also pleaded guilty to one count of failing to keep accurate client records over a 6 year period in breach of the Money Laundering (Jersey) Order 2008, which amounted to an offence under Article 37 of the Proceeds of Crime (Jersey) Law 2008. 

6.        The matter was investigated by the Law Society and on 18^th December, 2014, he was suspended by the Royal Court from practice and the Viscount was charged with taking possession of all the bank accounts relating to his practice.  He was eventually charged in 2017. 

7.        On 23^rd May, 2019, the Royal Court made a compensation order pursuant to the Criminal Justice (Compensation Orders) (Jersey) Law 1994.  The Respondent's only realisable asset was a pension fund worth £19,273.58.  The Law Society has compensated the victims in full and the compensation order was to the effect that the Respondent pay the Law Society the £19,273.58 as part recompense for the £96,524.83 paid out by the Law Society to victims. 

8.        That is the background to the current application.

Applicable principles 

9.        In AG -v- Michel [2012] (1) JLR 415, the Court said this in relation to dishonest conduct by advocates or solicitors of the Royal Court:-

"11. The Attorney General was unable to refer us to any previous case where the Court has had to consider dishonest conduct on the part of an officer of this Court. The Court has not therefore previously expounded its approach. However, we see no reason to take a different approach from that which exists in England and Wales and which is conveniently summarised in the judgment of Sir Thomas Bingham MR in Bolton v Law Society [1994] 1WLR 512 at 518:-

"Any solicitor who is shown to have discharged his professional duties with anything less than complete integrity, probity and trustworthiness must expect severe sanctions to be imposed upon him by the Solicitor's Disciplinary Tribunal. Lapses from the required high standard may, of course, take different forms and be of varying degrees. The most serious involves proven dishonesty, whether or not leading to criminal proceedings and criminal penalties. In such cases the Tribunal has almost invariably, no matter how strong the mitigation advanced for the solicitor, ordered that he be struck off the Roll of Solicitors. Only infrequently, particularly in recent years, has it been willing to order the restoration to the Roll of a solicitor against whom serious dishonesty had been established, even after a passage of years, and even where the solicitor had made every effort to re-establish himself and redeem his reputation. ...

It is important that there should be full understanding of the reasons why the tribunal makes orders which might otherwise seem harsh. There is, in some of these orders, a punitive element: a penalty may be visited on a solicitor who has fallen below the standards required of his profession in order to punish him for what he has done and to deter any other solicitor tempted to behave in the same way. Those are traditional objects of punishment. But often the order is not punitive in intention. Particularly is this so where a criminal penalty has been imposed and satisfied. The solicitor has paid his debt to society. There is no need, and it would be unjust, to punish him again. In most cases the order of the tribunal will be primarily directed to one or other or both of two other purposes. One is to be sure that the offender does not have the opportunity to repeat the offence. This purpose is achieved for a limited period by an order of suspension; plainly it is hoped that experience of suspension will make the offender meticulous in his future compliance with the required standards. The purpose is achieved for a longer period, and quite possibly indefinitely, by an order of striking off. The second purpose is the most fundamental of all: to maintain the reputation of the solicitors' profession as one in which every member, of whatever standing, may be trusted to the ends of the earth. To maintain this reputation and sustain public confidence in the integrity of the profession it is often necessary that those guilty of serious lapses are not only expelled but denied re-admission. If a member of the public sells his house, very often his largest asset, and entrusts the proceeds to his solicitor pending reinvestment in another house, he is ordinarily entitled to expect that the solicitor will be a person whose trustworthiness is not, and never has been, seriously in question. Otherwise, the whole profession, and the public as a whole, is injured. A profession's most valuable asset is its collective reputation and the confidence which that inspires." 

12.      Although Bingham MR's comments referred to solicitors, he had made it clear earlier in the judgment that the requirement of integrity, probity and complete trustworthiness applied equally to barristers. In our judgment these principles are equally applicable to advocates and écrivains of the Royal Court...." [Emphasis added]

10.      This Court has since reaffirmed on more than one occasion that the approach set out in Bolton -v- Law Society [1994] 1 WLR 512 at 518 is applicable in this jurisdiction; see AG -v- Begg [2012] (2)] JLR 342, AG -v- James [2013] JRC 085.

Decision

11.      The Respondent did not oppose the Attorney General's application and indeed instructed Advocate Burns not to address us in mitigation.  However, he did provide a written statement to the Court which we have considered.  We note that he has no previous convictions, that the root cause of his offending was that he allowed his client accounts to fall into deficit negligently rather than dishonestly and that thereafter, although he dishonestly took money from the curatorship and trust accounts, the monies were used to pay for obligations of other clients rather than being paid into his own pocket.  In effect, he used the money which he took to keep his practice going so that he could continue to practise as a lawyer. 

12.      In our judgment, there can be no alternative to striking off the Respondent from the roll of solicitors.  We repeat and emphasise the following part of the passage cited above from the judgment of Bingham MR in Bolton:-

"Any solicitor who is shown to have discharged his professional duties with anything less than complete integrity, probity and trustworthiness must expect severe sanctions to be imposed upon him by the Solicitors Disciplinary Tribunal.  Lapses from the required high standard may, of course, take different forms and be of varying degrees.  The most serious involves proven dishonesty, whether or not leading to criminal proceedings and criminal penalties.  In such cases the Tribunal has almost invariably, no matter how strong the mitigation advanced for the solicitor, ordered that he be struck off the Roll of Solicitors...."  

13.      In this case, the Respondent on numerous occasions fraudulently converted money from client accounts.  That money was being held by him specifically for the curatorships or the trust in question.  The fact that he used the money to pay for obligations of other clients rather than for his own personal expenditure is beside the point.  Members of the public are entitled to expect that monies placed with members of the legal profession on client account are entirely safe and that the lawyer can be trusted completely to use the monies only for the purposes for which they are held.  If a lawyer steals or fraudulently converts money which is held for a client, there can only be one outcome, namely that he or she be struck off.  Such an approach on the part of the Court is required for the purpose referred to by Bingham MR in Bolton, namely that there should be amongst members of the public a well-founded confidence that any lawyer whom they instruct will be a person of unquestionable integrity, probity and trustworthiness. 

14.      For these reasons we granted the Attorney General's application and removed the Respondent from the roll of solicitors.

Authorities

Money Laundering (Jersey) Order 2008. 

Law Society of Jersey Law 2005. 

Proceeds of Crime (Jersey) Law 2008. 

Criminal Justice (Compensation Orders) (Jersey) Law 1994. 

AG -v- Michel [2012] (1) JLR 415. 

Bolton -v- Law Society [1994] 1 WLR 512. 

AG -v- Begg [2012] (2)] JLR 342. 

AG -v- James [2013] JRC 085.