Jersey Unreported Judgments

Disciplinary - re: appeal against sanctions - reasons for decision.

[2022]JRC037

Royal Court

(Samedi)

4 July 2022

Before     :		Sir Timothy Le Cocq, Bailiff, and Jurats Blampied and Austin-Vautier
Between	Advocate B		Appellants
	C
And	Law Society of Jersey		Respondent

Advocate P. D. James for Advocate B.

Advocate O. A. Blakeley for C

Advocate I. C. Jones for the Law Society of Jersey.

judgment

the bailiff:

1.        These are the reasons for our decision on an appeal by Advocate B and C against sanctions imposed by the Disciplinary Committee of the Law Society of Jersey (Disciplinary Committee) in connection with admitted breaches of the Law Society of Jersey Code of Conduct 2017 ("the Code of Conduct").  The Disciplinary Committee imposed a public reprimand in the case of Advocate B and a public reprimand and fine in the case of C.  We quashed those penalties and imposed instead a private rebuke for both Advocate B and C.  At that time we said that we would give our reasons on a later occasion. 

The approach on appeal

2.        Complaints against members of the Law Society are dealt with in the Law Society of Jersey Law 2005 ("the Law").  Once a complaint has been referred to the Disciplinary Committee by the President of the Law Society, Article 23 of the Law applies.  It is in the following terms:

"23.    Determination of complaint by a disciplinary committee

(1)       The disciplinary committee shall, at the conclusion of the complaint proceedings, determine the matter -

(a)       by dismissing the complaint;

(b)       if the committee is satisfied that the complaint is proved -

(i)         and is satisfied that it can be dealt with by applying of the penalties specified in paragraph (2), by so dealing with it,

(ii)        but is not satisfied that any of the penalties specified in paragraph (2) are aequate, by referring it to the Attorney General; or

(c)       by referring the complaint to the Attorney General without making a finding.

(2)       For the purposes of paragraph (1)(b)(i), the disciplinary committee may in respect of the practitioner or legal services body, as the case may be -

(a)       issue a private rebuke or a public reprimand;

(b)       impose a fine of up to £10,000; or

(c )      impose a fine of up to £10,000 and issue a public reprimand."

3.        Appeals against the decision of the Disciplinary Committee are to this Court.  Those appeals are dealt with in Article 24 of the Law which so far as is relevant is in the following terms:

"24.    Appeals against decision of a disciplinary committee

(1)       The following persons shall have a right of appeal to the Royal Court under this Law -

(a)       ...................

(b)       the practitioner or legal services body, against a decision of a disciplinary committee that the complaint is proved or in respect of a penalty applied under Article 23(2).

(2)       .....................

(3)       On hearing the appeal, the Royal Court may -

(a)       reject or uphold the decision of the disciplinary committee; or

(b)       remit the matter to the disciplinary committee for re-determination, and

Make such order as to the costs of the proceedings before the Royal Court as it thinks fit."

(4)       If the Royal Court rejects the disciplinary committee's decision to dismiss a complaint because the Court is satisfied that the complaint is  proved, it may deal with the practitioner or legal services body as the case may be, by applying one of the following penalties -

(a)       by issuing a private rebuke or a public reprimand;

(b)       by imposing a fine of any amount;

(c)       by imposing a fine of any amount and issuing a public reprimand;

(d)       by suspending the practitioner from practice as an advocate or solicitor for a specified period not exceeding 12 months;

(e)       by suspending the legal services body from operating as such for a specified period not exceeding 12 months;

(f)        by ordering that the practitioner's name be removed from the roll of advocates or solicitors, as the case may be; or

(g)       by ordering that the legal services body be removed from the register of legal services bodies (if any).

(5)       If the Royal Court upholds the disciplinary committee's finding that the complaint is proved but the Court is of the opinion that the penalty applied by the committee under Article 23(2) is not appropriate in the circumstances, the Court may under paragraph (4), apply such penalty as it considers appropriate."

The nature of the appeal and the role of the Court

4.        Submissions were made to us concerning the nature of the appeal and functions of the constituent elements of the Court.

5.        We do not set out these arguments at length.  In our view, the position is clear.  The Disciplinary Committee is a statutory creation with the powers and duties set out under the Law as referred to above.  It is designed to take first responsibility for dealing with disciplinary matters and the role of the Court, subject to the observations that we make below, is to review the decision of the Disciplinary Committee.  It is not anticipated in the Law, nor to the Court does it seem appropriate, that we should embark on a hearing de novo. 

6.        Further, we do not see any reason to depart from the position set out in Article 15 of the Royal Court (Jersey) Law 1948, that provides that the Bailiff shall be the sole judge of Law and shall deal with costs, and that the Jurats be the sole judges of fact and the determiner of sentence, fine or other sanction. 

The test on appeal

7.        Submissions were also made to us as to the test that we should apply in determining an appeal under Article 24 of the Law.  This appeal does not call on us to fully decide that question as we are not here dealing with an appeal against the finding of the Disciplinary Committee that a complaint has been proved, but rather with regard to penalty, which pre-supposes of course, that the complaint had been proved.  

8.        Article 24(5) states in plain terms that the Court is to review the appropriateness of the penalty in the light of all the circumstances.  In our view, whilst it was argued that the circumstances include the fact that it is an appeal, and therefore it is a high threshold to pass, the ordinary use of the language is that the word "circumstances" refers to the "circumstances of the case".  It is for this Court to review the sanction imposed as to whether or not it is appropriate.  That is not a simple substitution by the Court of its own view of what it would have done had it been sitting at the Disciplinary Tribunal, but is rather an assessment as to whether in the light of all of the circumstances including those which relate to seriousness, harm, culpability, aggravation and mitigation, the sanction imposed by the Disciplinary Committee could be considered to be appropriate.  If the Court takes the view that if it could not be considered as appropriate in the light of all the relevant circumstances, then it is the Court's obligation to substitute the penalty for one it believes to be appropriate. 

9.        We derive an additional element of support for this approach because of the historic nature of the Royal Court's exercise of disciplinary control over practitioners which predates the Law.  This is expressly preserved in Article 32 of the Law under the heading "Inherent jurisdiction of Royal Court" which is in the following terms:

"Nothing in this Law limits the inherent jurisdiction of the Royal Court to exercise disciplinary control over practitioners."

10.      We are aware that, after the hearing of the appeal in this case but before the issuing of these reasons, the Royal Court heard another appeal and gave judgment in the case of the Law Society of Jersey v an Advocate [2021] JRC 292 ("the November Judgment").  In its judgment in that case the Court made certain statements relating to the nature of such an appeal.  In particular, at paragraph 19 et seq it referred to the decision of Popplewell J in Fuglers and Berens v Solicitors Regulatory Authority [2014] EWHC1 79 (Admin).  In that Judgment Popplewell J referred to the appeals against sanction imposed by the Solicitors Disciplinary Tribunal and derived from it the principles that, on any such appeal, the Court should only interfere if there is an error of Law, or a failure to take account of relevant evidence, or a failure to provide proper reasons.  He states that:

(i)        the Disciplinary Tribunal, as an experienced body of solicitors, is best placed to weigh the seriousness of professional misconduct and the effect which their findings and sanctions will have in promoting and maintaining the standards to be observed by individual members and;

(ii)       the Court must pay considerable respect to the sentencing decisions of the Tribunal and, in the absence of legal error will not interfere.  He describes the tests as a "high hurdle". 

11.      Whilst the Royal Court did not in the November Judgment adopt all of the principles set out, the learned Deputy Bailiff nonetheless went on to conclude that the Royal Court should only interfere where the Disciplinary Committee has:

(i)        Made an error of Law; or

(ii)       Reached a decision on the facts which on the evidence before it is plainly wrong.

12.      On the matter of the approach to an appeal against penalty, at paragraph 25^th of the November Judgment, the Royal Court said:

"25.   As to approach of the Court on appeal, we note that the Court may substitute its own opinion if it concludes that the penalty imposed by the Committee is "not appropriate in the circumstances".  In our view the use of the term "appropriate" requires the Court on appeal to form its own judgment of the appropriateness of the penalty imposed. This seems to us to be a natural consequence of the role of the Court in setting the penalty that should apply to breaches of the Code of Conduct. Naturally the Court will accord due consideration to the views of the Committee but must, that notwithstanding, form its own view of what is appropriate. There will be in any case a range of penalties which may be appropriate and accordingly the Court in most cases will not interfere with the penalty imposed by the Committee unless, in the exercise of its own judgment, it forms the view that the penalty imposed was outside of the appropriate range."

But then, in paragraph 27 of the November Judgment, the Court goes on to suggest that:

"27.   The Royal Court's power to substitute a different penalty under Article 24(5) only arises in circumstances where the Court "upholds the Disciplinary Committee's finding that the complaint had proved".  However, in this case, there is no challenge by the advocate to the findings made by the Disciplinary Committee.  Nonetheless, bearing in mind the general power of the Royal Court under Article 24(3) to reject or uphold the decision of the Disciplinary Committee, we take the view that we do have the power however, either under Article 24 or Article 32 - which preserves the Court's inherent jurisdiction - to, if appropriate, set aside the penalty imposed by the Disciplinary Committee and impose another penalty if, as we have said, we are satisfied that the penalty imposed was unreasonable in all the circumstances."

13.      With respect to this part of the November Judgment we do not think the apparent conflation of the term "unreasonable" with "outside an appropriate range" is helpful.  Nor is that the approach required in the Law.  We do not think that the Court is required, on the clear wording of the Law as we have set out above, to determine that the penalty imposed by the Disciplinary Committee is unreasonable or outside a range before it can interfere.  The Royal Court has to form its own view as to what is appropriate in any particular case and that is the penalty that it should apply.  That seems to us to be a lower test.

14.      More generally, we do not know whether or not the Court handing down the November Judgment necessarily had the benefit of full argument on the point and, in particular, the distinctions that may be made between the disciplinary process for members of the legal profession in Jersey and England and Wales nor on the position of oversight, preserved in statute as set out above, that the Royal Court has historically had and continues to have, over members of the profession.  Had those matters been fully ventilated it may have been that the Royal Court might have considered a broader basis of appeal to that which applies in England and Wales and, whilst this does not fall to be decided in this case, we take the provisional view that such an approach might have merit.  We accordingly view the matter of the test for an appeal against a finding of culpability to be open and to be addressed on a subsequent occasion.  In making these observations we do not in any sense cast doubt on the outcome of that case, we simply reserve a full determination of the appropriate test for subsequent argument.

The Approach to Penalty

15.      The approach to the assessment of penalty has also been the subject of submission before us. 

16.      However, the November Judgment dealt with this fully and, at paragraph 41, the Court set out a substantial extract from Fuglers and Berens (above) which we do not repeat at length at this judgment.  In that judgment, which incorporates the well-known case of Bolton v The Law Society [1994] 1WLR 512, the Court identified three stages to an approach which should be adopted in determining sanction.  The first stage is to assess the seriousness of the misconduct, the second stage is to keep in mind the purpose for sanctions that are imposed by such tribunal, and the third stage is to choose the sanction which most appropriately fulfils that purpose for the seriousness of the conduct in question.  The Judgment goes on to emphasise in considering seriousness, the most important factors will be the culpability for the misconduct in question, the harm caused by the misconduct to be measured not wholly, or even primarily by financial loss caused to any individual but also the impact of the misconduct upon the standing and reputation of the profession as a whole.  It is also stated that seriousness may lie in the risk of harm to which the misconduct gives rise whether or not that risk eventuates. 

17.      We agree with this approach and we also agree with the emphasis on the reputation of the legal profession and the confidence of members of the public in the trustworthiness of members of that profession.

18.      We pause, in this instance, to reflect on the fact that there is no suggestion in this case that either Advocate B or C behaved in an untrustworthy manner, if by that it is to be suggested that they behaved in a manner that was dishonest or which demonstrated a want of personal or professional integrity. 

The Facts of the Case

19.      The facts of this case, which we largely take from Advocate B's skeleton argument and which we believe to be unchallenged are as follows:-

(i)        The complaint arises out of events which took place in 2017 and 2018 when Advocate B was an employee of Law Firm Z, as Advocate B still is now.  The Complainants are Mr and Mrs A.  D, an experienced legal assistant at Law Firm Z, usually looked after their legal needs.  Advocate B and D and they supported each other on their respective cases generally.

(ii)       The fee earners at the firm including Advocate B and D were formally supervised by the equity partners in Law Firm Z.  Advocate B was D's line manager and, although not an equity partner, Advocate B ended up as de facto supervisor of D in this matter.  The formal supervisor on this matter was an equity partner and Advocate E, in his capacity as the senior partner of Law Firm Z, was specifically consulted in relation to the conflict which was identified by Advocate B and D and which has ultimately given rise to the present disciplinary proceedings against Advocate B and C.  Neither the equity partner concerned or the senior partner were before the Disciplinary Committee. 

(iii)      D had previously acted for Mr and Mrs A and they instructed D to act for them in relation to the transfer of their home to Mrs A's son, Mr X ("the Transfer"). C, an equity partner in Law Firm Z, was acting for Mr X in relation to the Transfer.  A conflict therefore existed at the level of the firm. 

(iv)      D had two meetings with Mr and Mrs A about the Transfer, neither of which was attended by Advocate B because Mr and Mrs A were not Advocate B's clients.

(v)       The first meeting took place on 7^th December 2017.  Following that meeting, on the advice of Advocate B who expressed the clear view that Law Firm Z was conflicted, D consulted the senior partner who told D that D could continue to act for Mr and Mrs A but should send them an engagement letter and have them sign it.  D duly did this on 15^th December 2017 and Mr and Mrs A signed it.  The senior partner also told D that they should send a second letter which expressly referred to the conflict and asked Mr and Mrs A to let D know if they did not want to proceed with D acting for them in circumstances where C was acting for X.   D did this also on 15^th December 2017. 

(vi)      D told Advocate B that they were permitted to act for Mr and Mrs A following D's discussion with the senior partner, and Advocate B did not consider the conflict further.  Advocate B accepts that Advocate B made a mistake in failing to do so. 

(vii)     Mr X had attended the first part of the first meeting on 7^th December 2017.  He had been disruptive and there were clear signs that he was pressuring his mother and stepfather to agree to the Transfer.  After Mr X had left the meeting, Mr and Mrs A expressed concern to D about the Transfer and D provided clear advice that, contrary to what they had been told by Mr X, the proposed agreement that Mr X suggested they enter into did not protect their interests and they were exposed to very serious risks and disadvantages by the Transfer.  Mr and Mrs A were told that those risks included:

(a)       they would lose the right to remain in their property if they went ahead with the Transfer and their only recourse if things went wrong would be to sue X at their own expense;

(b)       the value of the property would still be counted in any assessment of their means for the purpose of any future care they might require, meaning they would have the disadvantage in that context of being deemed to own that property without any of the benefit of ownership;

(c)       if X were to marry, his wife could gain rights in the property - including on any divorce; and

(d)       Mr and Mrs A would lose all control over the property D recorded at the end of her attendance note that Mr and Mrs A "will need to speak to Mr X - not happy to proceed on current basis".

(viii)    After the first meeting, Mr and Mrs A indicated to D that they had changed their minds and wanted to proceed with the Transfer.  D told Advocate B this.  Advocate B advised D to draft a letter of advice to Mr and Mrs A setting out in detail the reasons why they should not proceed with the Transfer.  D duly did this in a letter dated 20^th December 2017 ("the Letter").

(ix)      The Letter was in our view unequivocal and uncompromising in its terms.  It sets out the clear advice to Mr and Mrs A that they should not enter into the Transfer.  The Letter includes under the heading "my advice" the following:

"The transfer of the property out of your joint names into the sole names of [ Mr X ] has significant consequences and carry serious risk to your future security.  I am therefore very concerned to ensure that you do not undertake this decision lightly and nor do you feel in any way pressured to proceed." 

There then follows an analysis of particular difficulties that may arise and reference to the agreement which it was proposed that Mr X's son would enter into with Mr and Mrs A.  The letter in that respect says this:

"The Agreement does not protect you from any of the issues I have outlined above.  The agreement simply provides you with a right to sue X for damages (i.e. financial compensation) if he fails to comply with any of the terms of the Agreement.  In order to enforce the Agreement you would need to initiate proceedings in Court and your own cost." 

Under the heading "Conclusion" the Letter states:

"It remains my advice that you should not proceed in transferring the property to X.  Whilst I appreciate your desire to have X close at hand especially as you both have health issues during the past year, I am extremely concerned that you are risking your home and financial security by proceeding with the current proposals.  As discussed, there may be alternate ways of achieving the same aim....."

There then follows some suggestions for alternate ways of achieving the aims of Mrs and Mrs A and toward the end of the Letter the author says this:

"I would implore you to fully consider and investigate all possible alternatives and to fully consider my advice before proceeding further."

Although the Letter was signed by D the final sentence had been added by Advocate B who had reviewed the letter in advance and commented on it.  At the end of the Letter there is a box which could be signed by the Complainants saying that they confirmed that they have read and fully understood the contents of the advice and nonetheless desired to proceed with the Transfer. 

(x)       Notwithstanding the Letter, Mr and Mrs A indicated that they still wished to proceed with the Transfer.  Advocate B recommended that D invite Mr and Mrs A to attend a second meeting to allow D to go through the Letter line by line to ensure that they fully understood it.  Mr and Mrs A would be invited to sign the advice to confirm they understood it.  

(xi)      D duly did so at a meeting on 9^th January 2018.  Mr and Mrs A were however, not persuaded to abandon the Transfer.  Rather, D's records in an attendance note, that Mr and Mrs A told D that "they are now happy to proceed and feel confident that X will look after them" and D also recorded that "it was clear today that Mr and Mrs A were happy and had made peace with the decision".  Mr and Mrs A signed the Letter as stated above.

(xii)     The Transfer was then entered into in January 2018.  It appears that the relationship between Mr and Mrs A and X subsequently soured dramatically and Mr and Mrs A regret entering into the Transfer.  The problems appear to have started as early as July 2018, when Mrs A telephoned to speak to D and left a message that "you were right, it has all gone wrong the girlfriend has moved in and taken over" and asked for D's advice as to what they could do.

The complaints against Advocate B and C

20.      The Law Society laid the following complaints against Advocate B and C:

Advocate B

(i)        Between June 2017 and February 2018, Advocate B failed to act in the best interests of Mr and Mrs A, contrary to Rule 5.1 of the Code of Conduct, in that Advocate B should have advised them to seek legal advice from an independent firm, as C, also of Law Firm Z, was acting for Mr X on the other side of a proposed transaction with Advocate B's clients, Mr and Mrs A.

(ii)       Between June 2017 and February 2018, Advocate B continued to act for Mr and Mrs A contrary to Rule 6.1 of the Code of Conduct when it was and/or should have been apparent that a conflict of interest arose or might arise by virtue of C, acting for Mr X on the other side of a proposed transaction with Advocate B's clients, Mr and Mrs A. 

(iii)      Between June 2017 and February 2018, Advocate B failed to obtain the informed written consent of Mr and Mrs A and Mr X (collectively, the "parties"), contrary to rule 6.3 of the Law Society Code of Conduct 2017, consenting to Advocate B and C, both of Law Firm Z, both acting in relation to the proposed transaction between the parties.

(iv)      Between June 2017 and February 2018, Advocate B failed to write to Mr and Mrs A and to Mr X contrary to rule 6.4 of the Law Society Code of Conduct 2017, explaining that, "in the event of an issue of conflict of interest arising that cannot be managed by the member or firm, or where one of the clients is concerned that the member or firm is not acting in their best interests, then a member or firm will be obliged to cease acting for one or all of the clients in relation to the transaction and to set out the member or firm's policy in those circumstances in relation to fees already billed and work as yet unbilled".

(v)       Between June 2017 and February 2018, Advocate B failed to obtain confirmation in writing from Mr and Mrs A and from Mr X, contrary to rule 6.4 of the Code of Conduct, that they understood that, "in the event of an issue of a conflict of interest arising that cannot be managed by the member of the firm, or were one of the clients is concerned that the member or firm is not acting in their best interests, then a member or firm will be obliged to cease acting for one or all of the clients in relation to the transaction and to set out the member or firm's policy in those circumstances in relation to fees already billed and work as yet unbilled" (sic).

C

(vi)      Between June 2017 and February 2018, C failed to obtain the informed written consent of Mr and Mrs A and from Mr X (collectively, the "parties"), contrary to rule 6.3 of the Law Society code of conduct 2017, consenting to C and Advocate B, both of Law Firm Z, both acting in relation to the proposed transaction between the parties.

(vii)     Between June 2017 and February 2018, C failed to write to Mr and Mrs A and Mr X, contrary to rule 6.4 of the Law Society Code of Conduct 2017, explaining that, "in the event of an issue of conflict arising that cannot be managed by the member or firm, or one of the client is concerned that the member or firm is not acting in their best interests, and a member or firm will be obliged to cease acting for one or all of the clients in relation to the transaction and to set out the member or firm's policy in those circumstances in relation to fees already billed and work as yet unbilled" (sic).

(viii)    Between June 2017 and February 2018, C failed to obtain confirmation in writing from Mr and Mrs A and from Mr X, contrary to rule 6.4 of the Law Society Code of Conduct 2017, that they understood that, "in the event of an issue of the conflict of interest arising that cannot be managed by the member or firm, or where one of the client is  concerned that the member or firm is not acting in their best interests, then a member or firm will be obliged to cease acting for one or all of the clients in relation to the transaction and to set out the member or firm's policy in those circumstances in relation to fees already billed and work as yet unbilled" (sic).

21.      Advocate B and C accepted that each of the complaints were made out. 

Code of Conduct

22.      Rule 5.1 of the Code of Conduct is in the following terms:

"5.1    A member's duty to act in the best interests of each client (P.4), to provide a proper standard of service to each client (P.6) and to keep the affairs of each client confidential (R.2.1) includes the following obligations:

Members must:

a)        promote fearlessly, and by all proper and lawful means, the client's best interests;

b)        do so without regard to their own interests or to any consequences to them;

c)        do so without regard to the consequences to any other person (whether to their professional client, employer or any other person);

d)        not permit their professional client, firm or any other person to limit their discretion as to how the interests of the client can best be served; and

e)        protect the confidentiality of each client's affairs, in accordance with R.2.1, subject to the exceptions there set out."

23.      Rule 6 of the Code of Conduct so far as is relevant is in the following terms:

"Conflicts of interest

6.1      Duty not to act

Except in the limited circumstances dealt with in R.6.3, a member or their firm must not act if there is a conflict of interests or a significant risk of a conflict.

6.2      Acting in the same or related matter(s)

There is, for example, a conflict of interests if a member or their firm owes separate duties to act in the best interests of two or more clients in relation to the same or related matters, and those duties conflict, or there is a significant risk that those duties may conflict.  A related matter will always include any other matter which involves the same asset or liability or transaction.

6.3      Exceptions to duty not to act

A member or their firm may act, in non-contentious matters, for more than one client whose interests conflict in the manner but only with the informed written consent of all clients.  Similarly, a member of their firm may act, in such a matter, for a client whose interests materially conflict with those of another client (but the other client is not party to the matter) with the informed written consent of both clients.

....................

6.4      Requirement to obtain additional informed written consent

Where one or more parties to a transaction is a private individual, prior to acting in the circumstances outlined in R.6.3, a member or firm must write to the clients, in terms that make it clear, and the clients must confirm in writing that they have understood that, in the event of an issue of a conflict of interest arising that cannot be managed by the member or firm, or where one of the clients is concerned that the member or firm is not acting in their best interests, then the member or firm will be obliged to cease acting for one or all of the clients in relation to the transaction and to set out the member or firm's policy in those circumstances in relation to fees already billed and work as yet unbilled."

The material parts of the Disciplinary Committee's Judgment

24.      The Judgment of the Disciplinary Committee ("the Judgment") is detailed and clear and, subject to the observations made below, sets out the facts in a clear and comprehensive manner. 

25.      In the rehearsal of the facts in the Judgment however, there does not appear to be any reference to the second meeting between D and Mr and Mrs A and the fact that Mr and Mrs A signed the Letter indicating that they understood the advice that they had been given, and wanted to proceed with the transfer notwithstanding the advice contained in it.  These, in our judgment, are significant matters. 

26.      In the Judgment the Disciplinary Committee made reference to the importance of the duties imposed in the relevant parts of the Code of Conduct with which observations we can only agree.  The Code of Conduct is there for a reason and it requires on the part of members of the legal profession strict adherence to it.  That is, in this case however, accepted by Advocate B and C who have pleaded guilty to breaches. 

27.      Paragraph 6.3.5 et seq of the Judgment is in the following terms:

"6.3.5   In this case it is admitted that each practitioner failed to obtain the informed written consent of all clients.  Nevertheless, and in admitted breach of this part of the Code, these practitioners continued to act for their respective clients, thereby facilitating the completion of a transaction between the clients, in circumstances where each practitioner was in plain breach of this basic duty not to act.

6.3.6   This rule is simple.  It is also very important.  It exists for a reason.  It exists to protect the interests of clients. It also exists to protect practitioners from accusations of failure to act in the best interests of their clients.

6.3.7   When an important rule is breached it means that clients and practitioners are exposed to the foreseeable consequences of failing to observe this important and basic rule.

6.3.8   Breach of the rule in the instant case has led to apparent serious hardship for one set of clients and the possibility of uncertainty for the other; and has resulted in disciplinary action and sanctions against two practitioners with unblemished professional records.  These outcomes have arisen because of the breach of a simple and basic rule of professional duty whose observance would have been easy to achieve.  These outcomes illustrate why observance with the rule is so important; and correspondingly why a breach of it must be treated seriously.  These outcomes are precisely the sorts of outcomes that the proper application and operation of this basic rule are intended to avoid.."

28.      It is clear that paragraph 6.3.8 does not amount to a finding that the breaches of the rules led to serious hardship in the manner referred to in that paragraph.  Indeed, it would be difficult in our judgment for the Disciplinary Committee to have reached such a conclusion in the light of the facts as we understand them.  In the light of those facts there is no clear causative link between the breach of rules set out in the Code of Conduct and the hardship caused to Mr and Mrs A simply because it is difficult to imagine stronger advice being given to them not to proceed with the Transfer and any other outcome that would have followed even were they to have instructed an alternative legal adviser.

29.      Under the heading "Analysis" in the Judgment the following appears:

"8.1   We have already explained why we consider this Rule relating to conflicts of interest to be important and, correspondingly, why in our view a breach of the Rule is serious.  In this case the breach of the Rule has resulted in apparent hardship for Mr and Mrs A.  We were informed that they are contemplating taking legal proceedings against X in order to recover their interest in the property which they transferred to him for what they claim to be no obvious benefit.  If that is right, then it follows that X faces uncertainty and the discomfort of litigation in respect of a potential challenge to his ownership of a property which he must have believed had been lawfully transferred to him.  We make no comment upon the merits of the position of either party.  Such matters will be resolved in one direction or another at some point in the future. But it is right to observe that the mere fact that there is the possibility of litigation springing from the transfer of this property between these family members is in itself sufficient to illustrate the mischief caused by failing to comply with Rule 6 of the Code.

8.2   We received lengthy submissions about the difficulty faced by [Advocate B] as a relatively junior employee of [Law Firm Z], who [Advocate B] was merely supervising [D], how [Advocate B] relied on the erroneous advice which [Advocate B] asserts was given by the Senior Partner of the firm, and how [Advocate B] helped to draft the letter of advice to Mr and Mrs A dated 20th December 2017 which urged them in powerful terms not to proceed with the transaction.  For these purposes we accept all of [Advocate B's] submissions as to the circumstances [Advocate B] faced.  While we have considerable sympathy with the position in which [Advocate B] found [themselves], we come back to the starting point that [Advocate B] had independent duty to comply with the Code.  All it would have taken was for [Advocate B] to remind [themselves] of the plain language of Rule 6 to satisfy [themselves] that the steps that [Advocate B] took, no doubt in good faith and with the very best intentions were inadequate to comply with the Code.

8.3   It was argued before us that if [Advocate B] had complied with the duty not to act for Mr and Mrs X in the absence of informed written consent by sending them to another law firm for truly independent advice, then it is likely that such independent advice would have been the same and the Mr and Mrs A would nevertheless have completed the transfer of the property.  We do not accept that argument for the simple reason that we will never know what would have happened had the Code been properly complied with.  It is entirely possible that a succession of independent lawyers, seeing the apparently manifest prejudicial effect of the transfer would have refused to accept instructions.  Had such independent lawyers seen a glimpse of the discomfort displayed by Mr and Mrs A during the meeting of 7th December 2017 when Mr X had eventually been persuaded to leave the room, then it is highly likely that more robust steps would have taken better to protect the interests of Mr and Mrs A.  But the Committee accepts that this is speculation and forms no part of its decision or rationale behind the sanctions that have been imposed."

30.      We observe that again there is a reference in paragraph 8.1 to "apparent hardship".  This again is not a finding that the hardship suffered by Mr and Mrs A did flow from the breach of the Code of Conduct. 

31.      Paragraph 8.3, for us gives rise to some difficulties.  In that paragraph the Disciplinary Committee accepts that it would never know what had happened had the Code been properly complied with.  The Disciplinary Committee then speculates that there might have been a succession of independent lawyers who would have refused to accept instructions, and that more robust steps would have been taken better to protect the interests from Mr and Mrs A.  We do not see on the facts as we understand them that this is realistic.  The only basis upon which a lawyer (or a succession of lawyers) could reasonably refuse to act on the instructions of a client to reach a lawful purpose was on the basis that the lawyer was concerned that the client lacked capacity.  That issue does not arise in this case.  The more likely outcome, in our judgment, on the basis of the evidence as we understand it, is that Mr and Mrs A would have proceeded with the Transfer no matter who they had subsequently instructed.  The Disciplinary Committee does not suggest what other "more robust steps" could have been taken given that the Letter had already "implored" Mr and Mrs A not to enter into the Transfer.  Notwithstanding the Disciplinary Committee's comment that this "speculation" did not form part of its decision the Disciplinary Committee, concluded that a public reprimand was the appropriate sanction.  The Disciplinary Committee did not make a finding that Advocate B and C's failings had caused the difficulties that Mr and Mrs A now face, and did not consider whether or not those failings might well not have caused those difficulties.

32.      This, to us is important.  It appears to us from the Judgment that the Disciplinary Committee proceeded to consider penalty against the background that Mr and Mrs A had suffered significant detriment as a result of the breach of the Code of Conduct.  There was indeed a breach of the Code of Conduct, that much has been admitted, but it is not clear to us that the unfortunate outcomes for Mr and Mrs A were, in reality, a consequence of the breaches of the Code of Conduct.  In fact that it appears to us that it is more likely than not that they were not.  In any event we do not think that on the evidence, it was open to the Disciplinary Committee to proceed on the basis that the breaches of the Code of Conduct caused hardship to Mr and Mrs A and it does not appear to us that the Judgment contains recognition of the fact that it could not proceed on that basis.

33.      The Disciplinary Committee in the Judgment expressed considerable sympathy for the position of Advocate B and in our view identified other appropriate mitigations available to both Advocate B and C before deciding on their penalty. 

The Appellant's contentions

34.      In Advocate B's skeleton argument significant time was devoted to the correct approach on appeal and the test that the Court should apply.  

35.      In essence, however, Advocate B's arguments in connection with the penalties themselves are on the basis that the Disciplinary Committee is wrong to find that Advocate B's conduct had caused apparent hardship to Mr and Mrs A and the possibility of uncertainty for X.  Reference is made to the paragraphs of the Judgment to which we have made reference above and also to the documentation that was before the Disciplinary Committee and was before us, such as D's attendance notes in relation to the first meeting, the Letter, the signature of Mr and Mrs A on the Letter, the attendance note relating to the second meeting from which, it is argued, that it is clear that Mr and Mrs A would have proceeded with the Transfer and therefore suffer the negative consequences irrespective of the breach of the Code of Conduct. 

36.      It is pointed out that Mr X's behaviour gave rise to warning signs but that these were acted on promptly and thoroughly by D under the guidance of Advocate B. 

37.      It is argued that it is simply not credible to suggest that stronger advice would have been provided by a different practitioner, and it is difficult to identify how D's advice, both in meeting and in the letter, could have been in stronger terms. 

38.      It is further argued that the Disciplinary Committee erred in that it had made an apparent actual finding that Advocate B caused the hardship to Mr and Mrs A and uncertainty to Mr X but did not realistically consider or make any determination of the alternative possibility - namely that on the evidence it is likely that Advocate B's breach of the Code of Conduct did neither of those things.  Advocate B argues that it is wrong for the Disciplinary Committee to approach the basis on it was "entirely possible" that a different outcome would have taken place had other lawyers been instructed and, it is argued, that the correct approach would have been for the Disciplinary Committee to identify what on the balance of probabilities, was the probable outcome.  The speculation that the Disciplinary Committee engaged in identifying the possibility of a succession of lawyers refusing to act was, so it is argued, nothing more than speculation and the other speculations of the Disciplinary Committee were against the weight of the evidence and were improbable outcomes.

39.      C, in his skeleton argument addresses again the approach to an appeal but makes the simple point that although harm is a relevant factor in terms of both harm to the legal profession and to the client in question, when considering harm suffered by clients it must be shown that they had been caused by the misconduct of the legal practitioner and, in this case, by C. 

40.      C further argues that it is clear from the Judgment, and the paragraph to which we have made reference above, that the Disciplinary Committee, notwithstanding the use of the word "apparent", proceeded on the basis that C (and Advocate B) had caused the harm to the clients by their breach of the Code of Conduct.  Furthermore, from C's perspective, any harm to Mr and Mrs A was irrelevant to his position as he was acting for Mr X.  Mr X has made no complaint against C.  C points out that the conflict operated at law firm level and not at the practitioner level.  In other words there was a conflict between members of the same firm in acting for parties that they did but not the individuals concerned.  The Disciplinary Committee erred so it is argued, in not separating the harm caused to Mr X to whom C owed duties and in respect of which no complaint was raised, and those to Mr and Mrs A.  C had no dealings with Mr and Mrs A at all.

The Respondent's Contentions

41.      The Respondent's contentions dealt largely with the approach by the Court on an appeal and not, in its skeleton argument, to a great extent on the matters raised by the Appellants.

Conclusion

42.      We start from the position that we are dealing with admitted breaches of Rules set out in the Code of Conduct which are important and to be upheld.  They are rules designed to protect clients from receiving anything other than a fully independent legal service of the highest professional standard and it is incumbent upon every member of the profession to ensure that those rules and indeed all of the rules of the Code of Conduct are observed and complied with scrupulously. 

43.      Both Advocate B and C failed to conform to the appropriate rules set out in the Code of Conduct and they have both quite properly admitted that failure before the Disciplinary Committee. 

44.      Advocate B was not a partner in the firm and was under the technical supervision of partners who were not before the Disciplinary Committee.  Similarly, the senior partner in the firm was consulted and indicated that it was acceptable to proceed and in the case of Advocate B, given the then level of Advocate B's experience and position within the firm, we have every sympathy with the fact that Advocate B would have considered the matter to have been properly resolved by referring to the senior partner and being guided by him in that regard. 

45.      Furthermore we are satisfied that Advocate B was motivated at all times by a concern for Mr and Mrs A and for their wellbeing and whilst technically made the wrong decision in not refusing to act, in all other respects, Advocate B gave the appropriate advice to and in the supervision of D, and Mrs and Mrs A received that advice and understood it.  As we have already indicated we do not think that Mr and Mrs A could have been advised in more unequivocal terms.  The Letter was entirely clear and we think it is important that Mr and Mrs A attended a meeting after they had C received the Letter, were taken through it, and signed indicating that they understood it.  We do not think that there is sufficient evidence to find, on a balance of probability, that their position would have been improved had the rules in the Code of Conduct been complied with in their case.  It appears to us that the Disciplinary Committee paid undue regard to the consequences to Mr and Mrs A of the Transfer without considering, or having due regard to the probability that in any event Mr and Mrs A would have proceeded.  They had been afforded a number of opportunities to change their instructions but if anything, their resolve to proceed with the Transfer had firmed over a period.  It is seldom that a Letter of advice contains words imploring a client not to enter into a transaction - it could not in our view have been stronger. 

46.      With regard to C, C did not have any direct involvement with Mr and Mrs A and he simply acted on the instructions of Mr X. 

47.      Both Advocate B and C have an unblemished professional records and we see no prospect at all that Advocate B will likely fall into the same error again. 

48.      We can identify no aggravating features in this matter.  Neither Advocate B nor C proceeded with other than integrity and it is clear that Advocate B and C could not have been motivated by financial considerations and indeed Advocate B did all in her power through D to dissuade Mr and Mrs A from proceeding with their transaction.

49.      It was accordingly entirely unclear to us that the consequences on the Complainants in this case came about as a result of any failings on the part of the practitioners.  In our view it was more likely than not that even had a letter been created which dealt with the conflict of interest Mr and Mrs A would have signed it given that they signed a letter which advised them in the strongest possible terms not to enter into the transaction.  They were determined to enter into that transaction and accordingly would have done what was necessary to have that happen.  It is perhaps of note, without in the slightest way diminishing the strain that Mr and Mrs A are under and the disadvantage to which they had been put by the Transfer, that when they addressed the Disciplinary Committee, they said that they had received no advice at all from Law Firm Z which clearly on the written record was simply not the case.  The cause of the injury was the entering into the Transfer by Mr and Mrs A against the express advice of their legal advisers and not the fact that Advocate B and C worked for the same firm. 

50.      We do not in any way minimise the importance of the Rules in the Code of Conduct that have been breached in this case nor the seriousness of the breaches.  We, however, must look at the culpability and the effect on the public at large and indeed on the actual actions taken by or failings of the practitioners concerned in this case.  In our view, whilst the breaches should not have happened and the practitioners in question should have been more mindful of the requirements that the Code of Conduct places upon them, these were errors borne out of a genuine desire to give effect to the lawful wishes of long standing clients.  The clients were, is as apparent from above, warned extensively and offered the opportunity to reverse their instructions and, as we have said it seems to us unlikely that had they gone to separate legal advisers they would have changed their settled course.  

51.      We do not think that the Disciplinary Committee took sufficient account of the attempts that the legal advisers made to provide their clients the opportunity to reconsider their instructions or the force of Letter which was sent advising them of the potential difficulties and consequences with that course.  

52.      We have, of course, in our consideration paid regard to the important feature of the harm that any breach of the Code of Conduct does to the reputation of the profession and to the confidence that members of the public may have in the profession.  This judgment will be published in anonymised form and therefore the approach of the Court in this matter will be a matter of public record.  This is not a matter of protecting members of the public from the depredations of unscrupulous legal advisers or anything of the sort.  It is the consideration of the appropriate sanctions to be applied in this particular case with regard to these particular legal advisers. 

53.      There is considerable mitigation available and, indeed, the Disciplinary Panel made reference to much if not all of it.  However, for the reasons that we have set out above, we cannot consider that the penalties imposed by the Disciplinary Committee were appropriate in this case and accordingly we replaced the public reprimands of both Advocate B and C with private rebukes and set aside the fine against C.   

54.      As we have said this judgment will in due course be published although it will be anonymised.  We note that in connection with the November Judgment there was some criticism in the media of a failure to publish the name of the Advocate in question.  In that case the Advocate had been given a private rebuke and the Law Society had sought to increase that sentence to a public reprimand.  The Royal Court disagreed and the sanction of private rebuke was maintained. 

55.      The private rebuke is the lowest penalty that can be applied in disciplinary proceedings.  It is, nonetheless, a penalty that is provided for expressly in the Law and clearly it is anticipated on some occasions that it is the sanction that will be appropriate and should be applied.  It would, in those circumstances, seem very strange notwithstanding the imposition of a private rebuke, were the identity of the legal adviser concerned to be released and published in the judgment.  That would, in effect, render meaningless the private nature of the rebuke which is designed to provide a very clear professional warning to the legal adviser who has breached the Code of Conduct but not in such a manner should be brought to the attention of the public.  Accordingly there is absolutely no logical reason why the identity of a lawyer who has received the sanction of the private rebuke should be disclosed.  That would convert every private rebuke into a public reprimand which could not have been the intention of the Law.

56.      Sometimes the public interest will lead to the revealing of the name of the lawyer involved.  Sometimes, as in this case, it will not.  The public can be assured, however, that the Court has considered the matter seriously and carefully and has made the determination that it thinks is correct. 

57.      For these reasons we overturned the decision of the Disciplinary Committee and imposed different penalties as set out in paragraph 1 hereof.

Authorities

Law Society of Jersey (Disciplinary Committee).

Law Society of Jersey Code of Conduct 2017.

Law Society of Jersey Law 2005.

Royal Court (Jersey) Law 1948.

Law Society of Jersey v an Advocate [2021] JRC 292

Fuglers and Berens v Solicitors Regulatory Authority [2014] EWHC1 79 (Admin).

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