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Jersey Unreported Judgments |
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You are here: BAILII >> Databases >> Jersey Unreported Judgments >> Between v An Advocate [2021] JRC 292 (19 November 2021) URL: http://www.bailii.org/je/cases/UR/2021/2021_292.html Cite as: [2021] JRC 292 |
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Dispute - Re: Disciplinary Committee
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Before : |
R. J. MacRae, Esq., Deputy Bailiff, and Jurats Ramsden and Christensen |
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Between |
The Law Society of Jersey |
Appellant |
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And |
An Advocate |
Respondent |
Advocate I. C. Jones for the Appellant.
Advocate D. S. Steenson for the Respondent.
judgment
the deputy bailiff:
1. On 9th November 2021 we heard and dismissed the appeal of the Law Society in this case. Nonetheless there were various matters of wider significance, particularly bearing in mind that this is only the second appeal from a hearing conducted in front of the Disciplinary Committee, and accordingly we provide a judgment in relation to certain of the issues that arose for our consideration.
2. The facts that gave rise to the complaint against the advocate can be set out quite shortly. Various matters gave rise to a dispute between the advocate and his neighbours. It is not necessary to set out the circumstances of the dispute. Conversations between the advocate's wife and the complainants led her to believe that photographs of her children had been taken. These were relayed to the advocate and he believed them to be true. That the advocate had such a belief and held it honestly was a finding of fact made by the Disciplinary Committee. However, the response of the advocate to this dispute and, in particular, his belief that photographs had been taken, was inappropriate. He sent four letters, three dated 10th August 2020 and one dated 30th August 2020. They were written from his home address but on his law firm's headed notepaper and signed by him as an advocate. He claimed before the Disciplinary Committee that he used the firm's headed notepaper by mistake. This was rejected by the Committee which held that he wrote the letters on headed notepaper intentionally. The Committee rejected the suggestion that this was private correspondence written from one neighbour to another in a personal capacity. The Committee held that the letter was intended to have the "full weight and effect of a legal letter and the recipients must have seen it as exactly that".
3. The letters conveyed serious allegations against the complainants including accusing them of "breach of privacy/data protection". The allegations included "Your actions cannot be seen as anything other than an utter breach of privacy and they also give rise for some very serious data protection issues, as well as child protection issues. As you are aware, I have adolescent daughters and a young son and I am disgusted by your admitted voyeurism. My wife and I do not give you consent to taking photos of our property, garden, children, our guests/workmen ...". The Committee found that by using the term "voyeurism" the advocate was alleging that photographs had been taken for sexual gratification. The advocate demanded that the recipients of his correspondence provide to him copies of all images, videos, audio files, together with confirmation that such images had been destroyed, together with an express undertaking to the effect that they had indeed destroyed the images. He asked for a response by 15th August 2010 and said that if he would be writing to the employers of his two neighbours.
4. The Disciplinary Committee found that the first letter (to the neighbours):
(i) was clearly written by the advocate in his capacity as an advocate;
(ii) made serious allegations against the complainants without further enquiry being made of the complainants as to whether they had such photographs;
(iii) contained threats (which were carried out) regarding contacting the complainants' employers; and
(iv) the allegations in relation to voyeurism, coupled with the continued reference to child protection issues was not only serious but "must be regarded as extremely distressing to anyone who reads it as these are clearly allegations of a sexual nature."
5. On the same day, the advocate wrote in similar terms to the employers of both complainants, summarising the allegations made against their employees and making a data subject request in relation to information that they might hold stored on their systems containing images of his garden, children, wife etc.
6. The final and fourth letter was sent to both complainants on 30th August 2020 following up his letter of 10th August 2020 and repeating the advocate's request for disclosure of images and confirmation that such images have been destroyed and so on. The letter asked for an express undertaking which he drafted for the complainants to provide and went on to allege that a workman at the advocate's home had been approached by one or both of the complainants; the workman felt as though the complainant was questioning his credentials, given his Polish nationality and concluded with the advocate saying "I will not tolerate any sort of intimidation of my workmen or any form of racism towards them". He added "I look forward to the disclosure requested within the time frame stated above and hope that my workmen do not face any more intimidation or racism from either of you".
7. The four letters were the subject of separate complaints/charges laid against the advocate by the Law Society. Further, each letter was the subject of seven individual complaints alleging various breaches of Principle 2, Principle 3, Principle 5, Rule 3.5, Rule 3.5(c), Rule 4.2(a), Rule 10.1(b) and Rule 10.1(c) of the Code of Conduct. An extract of the relevant Principles and Rules is attached to this judgment as an addendum.
8. In consequence the Disciplinary Committee had to deal with 28 separate allegations of misconduct arising from the sending of these four letters. The form in which charges are laid against a practitioner by the Law Society is a matter for the Law Society and not this Court. We do not criticise the Law Society delegate for adopting the approach that he did, but we can understand why it is that counsel for the advocate on appeal said that this was a case of "overloading the indictment".
9. Hearings before the Disciplinary Committee are intended to be relatively informal and the process is one that needs to be dealt with reasonably rapidly in the public interest. One of the complaints made by the Law Society on appeal is that the Disciplinary Committee failed to explain in sufficient detail why it was that certain of the complaints had been dismissed without adequate reasons given by the Disciplinary Committee. In our view, in circumstances where the Law Society chooses to charge a practitioner with 28 separate complaints, 12 of which were proved, it is not realistic to expect the Disciplinary Committee to particularise in detail why it was that certain allegations were not found to be proved - perhaps particularly in circumstances where the delegate for the Law Society, prosecuting the case on its behalf, repeatedly told the Committee that this was a "brief and simple" case.
10. The sending of the first letter was found to have breached Principle 2, Principle 5 and Rules 10.1(b) and 10.1(c); the sending of the second letter was found to have breached Principle 2 and Principle 5; the sending of the third letter was found to have breached Principle 2 and Principle 5; and the sending of the fourth letter was found to have breached Principle 2, Principle 5, Rule 10.1(b) and Rule 10.1(c) of the Code of Conduct.
11. There are three issues of wider interest that we need to consider for the purpose of this judgment as follows:
(i) What is the correct test on appeal for an appeal from the Disciplinary Committee to the Royal Court?
(ii) What is the scope and effect of Rule 3.5(c) of the Code of Conduct; and
(iii) Was the Disciplinary Committee, on the evidence which it found, entitled to dismiss the allegations made under Rule 4.2(a) in relation to the first, second and third letters (i.e., the letters dated 10th August 2020)?
12. The starting point is the wording of the statute. Article 24 of The Law Society of Jersey Law 2005 provides:
13. Both parties were agreed that the appeal ought to take the form of a review and not a rehearing but otherwise were not agreed about the approach that the Royal Court should take on such a review. The Law Society took the view that on the facts of this case it would not be necessary or appropriate for the Court to remit the matter to the Disciplinary Committee for a redetermination, although, of course, this view would not be binding on the Court.
14. Article 24 gives no real assistance in respect of the test to be adopted on appeal as Article 24(3) merely says that on hearing the appeal, the Royal Court may "reject or uphold the decision of the disciplinary committee".
15. Under Article 24(4), if the Royal Court rejects the decision of the Disciplinary Committee to dismiss a complaint, then it may deal with the practitioner by applying one of the penalties set out in Article 24(4).
16. Article 24(5) deals with cases where the Royal Court does not disturb the Disciplinary Committee's findings that a complaint is proved but nonetheless wishes to interfere with the sanction. The Court may impose a different sanction if it is "of the opinion that the penalty applied by the committee under Article 23(2) is not appropriate in the circumstances".
17. Interestingly, this appeal gives rise to a scenario not envisaged by Article 24 in that it was a case where the Law Society was successful in pursuing some but not all of its complaints, but on appeal was arguing firstly that the Disciplinary Committee misdirected itself in respect of the law applicable to certain of the complaints and had it correctly directed itself then, bearing in mind the facts that it found, it would have held that additional complaints were proved and that in that scenario (and in any event) the Royal Court should substitute a public reprimand for the public rebuke that was issued in this case; and secondly, the Law Society argued that in any event the penalty imposed by the Disciplinary Committee was not appropriate.
18. We referred to certain case law from England and Wales which was of some assistance to us. The assistance was limited as the statutory framework is different. Section 49 of the Solicitors Act 1974 deals with the equivalent appeals and provides:
19. Clearly the words of the English statute do not indicate what test should be applied by the High Court. The test has been developed by case law and our attention was drawn to the various decisions, including the decision of Popplewell J in Fuglers and Berens -v- Solicitors Regulatory Authority [2014] EWHC 179 (Admin). In that case under the title "The Law" Popplewell J said:
20. We comment on these paragraphs as follows. First, we can see the force of the argument that the circumstances in which this Court should interfere with the decision of the Disciplinary Committee should be limited. Both parties, including counsel for the Law Society, accepted that the test for interfering with the decision below should be a "high hurdle". However, as regards paragraph 13(2) of the judgment in Fuglers, although it may be the case in England and Wales that the Solicitors Disciplinary Tribunal is "best placed to weigh the seriousness of professional misconduct", such considerations have no place in Jersey.
21. The Royal Court has a long history of considering and determining such matters and historically has been the principal tribunal for dealing with allegations of misconduct made against members of the legal profession. The Royal Court continues to have a substantial role in relation to such matters. However, the purpose of the statutory creation of the Disciplinary Committee, and the powers given to that Committee under Article 23 of the Law was in our view to ensure that complaints within the jurisdiction of the Committee would be finally resolved by the Committee, which would have the advantage of hearing evidence from the complainant and the practitioner. Accordingly, the Court should only interfere with a finding as to liability, i.e., as to whether or not a complaint is proved or disproved, in limited circumstances. We think that it is appropriate to adopt the principles pursuant to which the Court of Appeal interferes with a decision of the Royal Court after a trial. Accordingly, this 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.
22. In the recent case of Financial Technology Ventures -v- ETFS Capital Limited and Tuckwell [2021] JCA 176, the Court of Appeal said at paragraph 37:
23. We adopt this approach.
24. As to the Royal Court's power to interfere with the sanction imposed, the position is slightly different. The power to interfere with a sanction is, as set out above, contained within Article 24(4) and (5). If the Court rejects a Disciplinary Committee decision to dismiss a complaint, then the Court on appeal may deal with the practitioner afresh in respect of sanction. On the facts of this case, where 12 charges were proved but 16 were not proved, the position is different.
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.
26. A point of construction arises as to whether or not the Court in the circumstances of this appeal has a power to interfere with the sanction imposed in any event. Under Article 25(4) the Royal Court may impose its own sanction if it overturns the Disciplinary Committee's decision to dismiss a complaint. That ultimately, as explained below, did not occur in this case.
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.
28. In respect of all four letters, the Law Society laid a complaint that the correspondence breached Rule 3.5(c). Rule 3 is entitled "Duty to the Court". Rule 3.5 is titled "Not abusing their role as an advocate". The relevant provision is
29. The Disciplinary Committee in dismissing these particular complaints said:
30. On appeal, the Law Society argue firstly that in view of the Committee's other findings, the advocate certainly had made a serious allegation against any person (which we accept) but also that the Disciplinary Committee was wrong to find that Rule 3.5(c) applied to conduct in court only.
31. We note from the transcript of the hearing that the Law Society delegate said that "In many ways the thrust of Rule 3.5 is or has in mind for the most part, when an advocate is on his or her hind legs, and in court and discharging their duties to the court ... but the one point that seems to be an exception outside of that general focus is, the idea or the principle that one should not make an allegation, against anybody else, unless you have reasonable grounds for making that allegation".
32. We were initially attracted by this argument but having paid close regard to the terms of Rule 3.5, and particular to the fact that Rule 3.5(c) speaks of making a serious allegation against any person or suggesting that a person is guilty of a crime with which their client is charged, we were satisfied that the terms of Rule 3.5 are directed to the conduct of an advocate in Court. That was reinforced by the terms of Rule 3.5(c)(iii) which speaks of naming a third party in open court. Accordingly, the charge was not made out on the facts of this case.
33. Rule 4 is titled "Honesty, integrity and independence". Rule 4.2 provides:
34. As to the reference to P.3, that is a duty couched in the following terms:
35. In relation to the first letter, the allegation that the advocate had breached Rule 4.2(a) was dismissed; in relation to the second and third letters, the allegation that the advocate had breached Principle 3 and Rule 4.2(a) was dismissed; and finally, in relation to the fourth letter, the allegation that the advocate had breached Principle 3 was dismissed.
36. The Disciplinary Committee's reasons for the decisions made in respect of Principle 3 and Rule 4.2(a) are as follows. In relation to Rule 4.2(a) the Committee said of the first letter "The Committee does not find that the advocate was in breach of Rule 4.2(a) in relation to this letter in that we have not reached a conclusion that the advocate has acted dishonestly as the evidence suggested to the Committee that he did have an honest belief that what he was saying was correct. Consequently, we conclude that he did not knowingly or recklessly mislead".
37. It is argued that, notwithstanding the Committee's finding that the advocate was acting honestly, the Committee ought to have directed itself that it could have found this charge proved on the footing that the advocate, although acting honestly, may have recklessly misled or attempted to mislead the complainants or their employers. We do not think there is any real merit in this point. Furthermore, it is not possible to determine, bearing in mind the Committee's other findings of fact whether the Committee, had it directed itself as it is contended that it should, would have found the particular allegations contrary to Rule 4.2(a) proved.
38. As to P.3, the Committee said of the second letter "The Committee did not conclude the advocate was in breach of Principle 3 in relation to this letter ... because the Committee was of the opinion that the advocate had an honest belief in what he was saying was true and was therefore not acting dishonestly..." Similar findings were made in relation to the other letters where allegations were made contrary to Rule 4.2(a) or Principle 3.
39. The point made on appeal by the Law Society is the finding that the advocate had an honest belief in what he was saying is no answer a charge under Principle 3 which requires members to act with "honesty and integrity". Unless a member is acting with honesty and integrity, then the charge should be found to be proved. It is said that the finding that the advocate was acting honestly is insufficient and the Law Society argues that honesty and integrity are separate concepts. This is correct, and the English Court of Appeal has held that "integrity" and "honesty" are separate and distinct concepts - Wingate -v- Solicitors Regulatory Authority [2018] EWCA Civ 366. The Law Society observes that honesty and integrity are not synonymous, and it was not necessary for the Law Society to prove the advocate had been dishonest in order to prove a breach of Principle 3, as members of the Law Society have to act at all times with honesty and integrity.
40. As a matter of logic, it is argued that it is possible to act honestly but without integrity. It is said that the other findings made by the Committee as to the breaches of Principle 2, Principle 5 and Rule 10 are consistent with the advocate exhibiting an absence of integrity in his dealings with the recipients of the correspondence. Although these points are well made and might have been the subject of specific consideration by the Committee it is, again, not possible to say that having regard to the other findings made by the Committee that they would, if they had applied their mind directly to the question of "integrity" as well as "honesty" under Principle 3 have found the charge(s) proved. Accordingly, the various appeals against the decision of the Committee to dismiss certain of charges are dismissed.
41. The Law Society also challenged the sanction imposed and drew our attention to caselaw which in our view is helpful in identifying the purpose of sanctions in disciplinary cases. We refer to and adopt the following paragraphs from the decision in Fuglers and Berens -v- Solicitors Regulatory Authority which contains an extract from the well-known decision in Bolton -v- The Law Society [1994] 1 WLR 512:
42. The Committee, when considering the sanction to impose, was principally, or at least very substantially, concerned to give weight to matters of personal mitigation connected to the advocate and his family which we cannot set out in this judgment owing to the nature of that mitigation. However, even though that mitigation was plainly a matter that the Committee was entitled to take into account, the most important purpose of imposing disciplinary sanctions is to maintain public confidence in the legal community. This purpose is at least as important in this jurisdiction as it is in England and Wales. We have no doubt that had we been considering this matter then we would have imposed a public reprimand and not the private rebuke that was imposed by the Disciplinary Committee. We informed the advocate of this fact at the end of the oral hearing and he apologised to us for his conduct.
43. However, we do not regard the sanction imposed by the Committee in this case, namely a private rebuke, as being outside the range of appropriate penalties. It was a sanction that was reasonably available to the Committee in the circumstances, and accordingly we declined to interfere with it.
