5. Standards and values and Discipline Flashcards
Standards - Overvew - What is the summary overview for standards to be maintained by a member or a firm?
(A) Honesty and integrity
01 honesty and integrity at all times - Principle.3: members must, at all times, act with:
(a) honesty
(b) integrity
02 high standards & act with honesty, propriety, integrity and professionalism - GP.7: members must, at all times, adopt:
(a) high standards
(b) act with honesty, propriety, integrity and professionalism
(c) treat others as they would like to be treated, being civil and courteous
03 Cases:
(a) Not abusive or threaten client: Bâtonnier v Sinel 2005 - Sinel swore and threatened client for non-payment of bills
(b) NED lawyer conflict of interest despite thought best interests - Re Advocate Olsen 2003: conflict of interest for Olsen (as NED) to act for company and his firm to send planned advice letter to company:
lawyer (as NED) guilty of professional misconduct despite actions:
- not motivated by financial considerations, and
- believed in interests of company and its minority shareholders.
(c) Not informing fees and settlement litigation - AG v Begg 2014 - not informing client fees level incurred and possibility of settlement, despite not motivated by financial self-interest - bring profession in repute
(B) Duty to co-operate with Law Society - R.12.1: all members must:
01 Reasonable requests for information:
(a) co-operate with Law Society by
(b) responding to proper and reasonable requests for information in an
(c) open, honest and timely manner;
02 changes to information:
(a) promptly notify Law Society of any
(b) changes to relevant information about member, firm or employees;
03 not deceive or mislead: the Law Society;
04 report convictions: to Law Society, other than minor traffic offence;
presumably consideration given to disciplinary proceedings against lawyer
05 report regulator disciplinary sanction: to Law Society any disciplinary sanction (including private rebuke or censure) imposed by another regulator
06 engage in disciplinary matters: engage with Law Society in relation to matters of disciplinary nature and co-operate with reasonable requests or directions and in the conduct of disciplinary proceedings;
07 notify firm financial difficulties:
(a) promptly notify Law Society where firm is in
(b) financial difficulties or
(c) unable to meet financial obligations (not negligible risk); and
08 internal process/reporting - professional integrity: subject to the completion of:
(a) internal process or reporting, within his/her firm, in respect of such matters,
(b) advise Law Society where they have good reason to doubt the
(c) professional integrity, or fitness to practise, of member or legally qualified employee, without prejudice to any
(d) restrictions on disclosure provided by statute.
(C) Independence
01 Duty to act with independence in interests of justice - R.3.1 duty to the court to act with:
(a) independence in interests of justice
(b) overrides inconsistent obligations they may have (other than under criminal law and confidentiality
02 Act independently not compromised - R.3.1(e): ensure their ability to act independently is not compromised
Takilla Limited - Pl unsuccessfully sought removal of 1 D’s advocate on ground that friend of partners in other D firm, to be called as witnesses and would be cross-examined
03 Honesty, integrity and independence - R.4
R.4.1 - members must not do anything which could reasonably be seen by public to undermine their honesty, integrity and independence
(D) Practice Framework
01 Member (i.e. qualified) before practicing practising advocate/solicitor - R.11.1 - not practise Jersey law as advocate or solicitor, unless member of Law Society
02 Only practice in partnership with other members (i.e. qualified) - R.11.2 only practise Jersey law in partnership (including LLP), with another member
03 Jersey office practice by LLP or legal services body - R.11.3 must practice from Jersey office by only Jersey LLP or legal services body recognised by Committee of Law Society
04 Not involved in other professions, occupations or business adverse on reputation or prejudicial to administration of justice - R.11.4 member/firm not carry on:
(a) other profession, occupation or business might reflect
(b) adversely on reputation of Jersey legal profession, or which might be
(c) prejudicial to administration of justice in Jersey
(E) Referrals/fee sharing - Rule 9
01 Only sharing fees with members/partners (former/dependents) or staff bonus scheme - R.9.1 only share legal practice fees/profits:
(a) with other members/partners (or former partners or their dependants), or
(b) staff bonus scheme
unless with Committee approval
02 No client third party referral fees, unless foreign law firm and 1/3 fees - R.9.2 Members/employees must not make (or agree to make) payments to:
(a) third party for client referral
(b) except for agency arrangements with foreign law firm
(c) payment not exceed 1/3 of fee for matter
unless with Committee approval
(F) Continuous professional development
01 High standards - GP.7: Members must:
(a) adopt high standards and
(b) act with honesty, propriety, integrity and professionalism at all times.
(c) treat others as they would like to be treated (e.g. civil and courteous)
02 Knowledge and experience - GP.8: Members must ensure
(a) sufficient knowledge and
(b) experience or
(c) access to requisite knowledge and experience
for provision of appropriate legal advice in all matters engaged
03 Informed about legal developments
(a) interests of lawyer and client
(b) informed about legal developments and
(c) excellent level of current awareness
(d) Henry Gow:
Facts:
(a) In Manchester County Court, Mr Gow relied on case law overturned or disapproved by Supreme Court
BSB disciplinary tribunal held:
(A) work below standard expected of reasonably competent barrister
(B) reprimanded and fined £300
04 Continuing professional development - Rule 7.7
(a) annual 15 hrs mandatory CPD requirement for practising lawyers
(b) file CPD return by 31 January
(c) produce records on request
(G) Disciplinary procedures and complaints
01 Complaints, investigation and disciplinary action: Jersey Law Society of Jersey
(a) takes seriously complaints against members
(b) investigates fully, and
(c) takes appropriate disciplinary action if performance is below standards
02 Not obstruct complaints - Rule 12.4: members must not:
(a) Prevent/hinder reporting: hinder or prevent person reporting conduct to Law Society
(b) Preclude investigation: take action or enter agreement attempting to preclude investigation into misconduct complaint by Law Soc (see G.12.13)
(c) Incentive to withdraw: offer incentive to complainant to withdraw complaint
(d) Victimise person: for reporting conduct to Law Society
(e) Issue/threaten defamation proceedings (unless malice): issue or threaten defamation proceedings pending complaint being resolved, unless malice properly alleged
03 No agreement preventing investigation - Guidance 12.13:
(a) No agreement with client or 3P affect Law Soc right to:
1. investigate misconduct, or
2. consider complaints
(b) breach to attempt to make agreement - R.12.4
(c) Examples:
1. Agreement: accept client instructions with agreement preventing investigation of conduct of member or firm’s employee
2. Non-reporting bribe - member: improperly offering or making payment for not reporting misconduct;
3. Non-reporting bribe - fellow member: improperly demanding or accepting payment for not reporting misconduct of fellow member
4. Harass/Pressure: harassing or improper pressure on complainant or potential complainant
04 Good client care - G.1.14: prevention better than cure
(a) clear engagement: client and member have clear mutual understanding of:
1. work to be undertaken (including limitations as to scope)
2. timescales, and
3. level of service
4. reports (appropriate or required)
5. progress reports (frequency)
(b) minimise risk:
1. misunderstanding
2. complaints or
3. claims
4. increased costs
(c) poor communication: major source of complaints
05 Client’s right to complain: important public protection - inform client:
(a) What? - about right to complain: informed about:
1. know about right, and
2. how to complain
(b) When? dealing with complaint: client confident complaint dealt with:
1. promptly
2. fairly, and
3. effectively
(c) Who? to complaint to: told to whom complaint addressed
(d) Complaint handling procedure: dispute provisions Rule 1.6: inform
1. written complaints procedure, and
2. handle complaints promptly, fairly and according to procedure
3. told at outset how to complain
4. advise right to complain if indicate dissatisfied with service or conduct of member or employee
(e) Right to refer to Law Soc: inform client of right to refer matter to Law Soc if complaint not resolved satisfactorily through firm’s complaints procedures
(H) Disciplinary procedure
01 Action following complaint - Art 21
(a) Professional misconduct compliant
1. made to Law Soc
2. in writing
(b) Time bar:
1. after 12 months from last event
2. unless justified exceptional circumstances: President satisfied
(c) President’s actions
1. conduct investigation to establish prima facie case
2. dismiss complaint: if satisfied:
i. no prima facie case
ii. vexatious, frivolous or trivial complaint
and inform complainant and AG
-
prima facie case - prepare written statement of complaint:
i. set out details of misconduct
ii. additional information from investigation
iii. send to practitioner or firm - form disciplinary committee
- refer complaint to committee
- appoint case delegate to present complaint: ordinary member - costs met by Law Soc funds
- send copy statement to AG
Investigate complaint - Art 21A
02 Investigation of complaint - Art 21A
(a) Investigative powers: President (or appointed person investigating) require practitioner, firm or employee:
1. production of documents in custody or control:
i. require production/delivery
ii. retain documents until end of investigation and proceedings
2. conduct interviews with:
i. complainant
ii. practitioner or firm
iii. any other person could assist with investigation
3. subject to privilege/self-incrimination:
i. legal professional privilege
ii. rule against self-incrimination
(b) Non-compliance: fail to comply without lawful excuse, offence liable to fine
03 Disciplinary committee formed - Art 20: on receipt of complaint:
(a) Establish disciplinary committee: LawSoc President establishes committee unless satisfied complaint either:
1. unrelated to professional misconduct, or
2. frivolous, vexatious or trivial
(b) Composition - Art 20: comprises:
1. 2 lay members on disciplinary panel (7-15 lay & 7-10 ordinary members), and
2. 1 LawSoc member on panel (in private practice at least 10 yrs’ standing)
3. chaired by 1 lay member
(c) Recommenations:
1. Chair should be LawSoc member - In matter of MM and Advocate v Disciplinary Committee of Law Society and Y 2010 - criticised chair requirement, preferable LawSoc member, law amendment proposed, but none made to date
2. LawSoc appoint Legal Adviser - In matter of MM 2011 - alternative suggestion, committee access to legal advice, if necessary LawSoc appoint legal adviser
04 Hearing procedure
(a) sits in private
(b) persons present:
1. delegate
2. practitioner/firm
3. complainant may be present
4. AG, Bâtonnier (for advocate) or President of Chambre des Ecrivains (solicitor)
(c) present case:
1. right for delegate and practioner/firm to:
i. heard
ii. call evidence, and
iii. cross-examine witnesses
2. right for AG, Bâtonnier or Ecrivains President to be heard
(d) standard of proof: balance of probabilities - In matter of MM 2010
(e) duty to co-operate promptly, openly and fully in investigation: duty of advocate’s/ecrivain - Re An Advocate (2003) and Bâtonnier v Sinel 2005
(f) committee powers: in relation to proceedings:
1. give directions
2. refer to mediation, unlikely if serious case
3. refer to AG
(g) Decision: committee can:
- dismiss complaint, or
-
find professional misconduct proved and administer:
i. private rebuke or public reprimand
ii. fine up to £10,000
ii. fine and public reprimand - make no finding and refer matter to AG
05 Appeal to RC - Art 24
(a) persons with right of appeal:
1. President or AG
2. practitioner or firm
(b) appeal against:
1. decision of disciplinary committee
2. penalty
(c) time barred after 1 month (or longer if RC allow)
(d) decision
1. reject decision of disciplinary committee
2. uphold decision
3. remit matter for re-determination
4. make costs orders as it thinks fit:
i. rule costs follow event does not apply
ii. just and equitable
iii. crt weigh up
- financial burden on successful practitioner if not made in his favour
- need to support Law Soc bringing proceedings in public interest
iv. costs usually not awarded against Law Soc: exception:
* Costs against Law Soc* - In matter of MM and An Advocate v Disciplinary Committee and Y 2011 fundamentally flawed proceedings due to very significant failures of Law Soc’s duty
(e) RC penalties: important Crt’s assessment of gravity of misconduct
1. private rebuke or public reprimand
2. fine (any amount)
3. fine and public reprimand
4. suspend practitioner from practice not more than 12 mths
5. suspend firm operating not more than 12 mths
6. remove practitioner’s name from roll
7. removed firm’s name from register of legal firms/bodies
i. fine - AG v Begg 2012 - fined £25,000 - important factor in determining Crt’s assessment of gravity of misconduct - £25,000 plus costs - breach high technical standards
ii. suspended - AG v James 2013 - suspension 2 months, following conviction for supply of Class B drug)
iii. struck off - AG v Michel 2012 struck off after conviction for attempting to pervert course of justice
06 further appeal to CofA: for
(a) practitioner or firm
(b) AG - Art 25 right to refer where:
i. President not accept it
ii. disciplinary committee referred it to him, or
iii. in case of non-member lawyers, as partie publique
07 RC inherent jurisdiction - Art 24: to exercise disciplinary control over practitioners
08
Standards - Honesty and integrity - How must an advocate act at all times?
01 honesty and integrity at all times - Principle.3: Members must, at all times, act with:
(a) honesty
(b) integrity
02 high standards & act with honesty, propriety, integrity and professionalism - GP.7: members must, at all times, adopt:
(a) high standards
(b) act with honesty, propriety, integrity and professionalism
(c) treat others as they would like to be treated, being civil and courteous
03 Cases:
(a) Not abusive or threaten client: Bâtonnier v Sinel 2005 - Sinel swore and threatened client for non-payment of bills
(b) NED lawyer conflict of interest despite thought best interests - Re Advocate Olsen 2003: conflict of interest for Olsen (as NED) to act for company and his firm to send planned advice letter to company:
lawyer (as NED) guilty of professional misconduct despite actions:
- not motivated by financial considerations, and
- believed in interests of company and its minority shareholders.
(c) Not informing fees and settlement litigation - AG v Begg 2014 - not informing client fees level incurred and possibility of settlement, despite not motivated by financial self-interest - bring profession in repute
Full text:
Law Society Codes of Conduct 2017 Ed
Principles
P.3
Members must, at all times, act with honesty and integrity.
Guidance to principles
GP.7
Members must adopt high standards and act with honesty, propriety, integrity and professionalism at all times. They should treat others as they would like to be treated, e.g. by being civil and courteous.
Standards - Law Society - How must an advocate deal with and report to the Law Society?
Duty to co-operate with the Law Society - R.12.1: all members must:
01 Reasonable requests for information:
(a) co-operate with Law Society by
(b) responding to proper and reasonable requests for information in an
(c) open, honest and timely manner;
02 changes to information:
(a) promptly notify Law Society of any
(b) c_hanges to relevant information_ about member, firm or employees;
03 not deceive or mislead: the Law Society;
04 report convictions: to Law Society, other than minor traffic offence;
presumably consideration given to disciplinary proceedings against lawyer
05 report regulator disciplinary sanction: to Law Society any disciplinary sanction (including private rebuke or censure) imposed by another regulator
06 engage in disciplinary matters: engage with the Law Society in relation to any matters of a disciplinary nature and co-operate with any reasonable requests or directions and in the conduct of disciplinary proceedings;
07 notify firm financial difficulties:
(a) promptly notify Law Society where firm is in
(b) financial difficulties or at not negligible risk of being
(c) unable to meet financial obligations; and
08 internal process/reporting - professional integrity: subject to the completion of:
(a) internal process or reporting, within his/her firm, in respect of such matters,
(b) advise Law Society where they have good reason to doubt the
(c) professional integrity, or fitness to practise, of member or legally qualified employee, without prejudice to any
(d) restrictions on disclosure provided by statute.
Full text:
R.12 Conduct, rights and obligations of practice
R.12.1 - Duty to co-operate with the Law Society
All members must:
a) co-operate with the Law Society by responding to proper and reasonable requests for information in an open, honest and timely manner;
b) promptly notify the Law Society of any changes to relevant information about the member, the firm or employees;
c) not deceive or mislead the Law Society;
d) report to the Law Society if convicted of any offence, other than a minor traffic offence;
e) report to the Law Society any disciplinary sanction (including private rebuke or censure) imposed by another regulator (in Jersey or elsewhere);
f) engage with the Law Society in relation to any matters of a disciplinary nature and co-operate with any reasonable requests or directions and in the conduct of disciplinary proceedings;
g) promptly notify the Law Society where their firm is in financial difficulties or at a not negligible risk of being unable to meet its financial obligations; and
h) subject to the completion of any internal process or reporting, within his/her firm, in respect of such matters, advise the Law Society where they have good reason to doubt the professional integrity, or fitness to practise, of a member or legally qualified employee of their firm, without prejudice to any restrictions on disclosure provided by statute.
Standards - Independence - How must an advocate act to maintain independence?
01 Duty to act with independence in interests of justice - R.3.1 duty to the court to act with:
(a) independence in interests of justice
(b) overrides any inconsistent obligations they may have (other than under criminal law and confidentiality
02 Act independently not compromised - R.3.1(e): ensure their ability to act independently is not compromised
Takilla Limited - Pl unsuccessfully sought removal of 1 D’s advocate on ground that friend of partners in other D firm, to be called as witnesses and would be cross-examined
03 Honesty, integrity and independence - R.4
R.4.1 - members must not do anything which could reasonably be seen by public to undermine their honesty, integrity and independence
Full text:
R.3 - Duty to the Court
R.3.1 - Duty to act with independence in the interests of justice
Members owe a duty to the court to act with independence in the interests of justice. This duty overrides any inconsistent obligations which they may have (other than obligations under the criminal law and confidentiality).
It includes the following specific obligations which apply whether they are acting as an advocate or are otherwise involved in the conduct of litigation in whatever rôle (with the exception of R.3.1 a), which applies when acting as an advocate before any court or tribunal).
For the purpose of this Rule, references to advocate shall mean any member fulfilling the role of an advocate irrespective of whether they are an Advocate or Solicitor.
Members must:
a) not knowingly or recklessly mislead or attempt to mislead the court orpermit the court to be misled (R.3.4 applies);
b) not abuse their role as an advocate (R.3.5 applies);
c) take reasonable steps to avoid wasting the court’s time;
d) take reasonable steps to ensure that the court has before it all relevantdecisions and statutory provisions; and
e) ensure that their ability to act independently is not compromised.
R.4 - Honesty, integrity and independence
R.4.1 - Members must not do anything which could reasonably be seen by the public to undermine their honesty, integrity and independence.
Standards - Practice Framework
Who can a member practice with or be in partnership with and through what entity can the member operate business and what other business may be carried on?
Practice Framework
01 Member (i.e. qualified) before practicing practising advocate/solicitor - R.11.1 - not practise Jersey law as advocate or solicitor, unless member of Law Society
02 Only practice in partnership with other members (i.e. qualified) - R.11.2 only practise Jersey law in partnership (including LLP), with another member
03 Jersey office practice by LLP or legal services body - R.11.3 must practice from Jersey office by only Jersey LLP or legal services body recognised by Committee of Law Society
04 Not involved in other professions, occupations or business adverse on reputation or prejudicial to administration of justice - R.11.4 member/firm not carry on:
(a) other profession, occupation or business might reflect
(b) adversely on reputation of Jersey legal profession, or which might be
(c) prejudicial to the administration of justice in Jersey
Full text:
Rule 11 -Practice framework
R.11.1 - Entitlement to practise
In accordance with, and except as provided by The Law Society of Jersey Law 2005, no person shall practise Jersey law as an advocate or solicitor unless he or she is an ordinary member of the Law Society.
R.11.2 - Restrictions on practice
A member must not practise Jersey law in a partnership practising Jersey law, including a limited liability partnership, with any person other than another member.
R.11.3 - Legal Services Bodies
A limited liability partnership registered in Jersey, or other legal services body constituted in Jersey, which has been recognised by the Committee of The Law Society of Jersey in accordance with the Bye-Laws, may practise from an office in Jersey and must have such an office.
R.11.4 Involvement in other professions, occupations or business
A member or partnership, including a limited liability partnership, shall not carry on any other profession, occupation or business, which might reflect adversely on the reputation of the legal profession in Jersey, or which might be prejudicial to the administration of justice in Jersey.
Standards - CPD - What must a lawyer do in relation to continuing professional development?
Referrals/fee sharing - Rule 9
01 Only sharing fees with members/partners (former/dependents) or staff bonus scheme - R.9.1 only share legal practice fees/profits:
(a) with other members/partners (or former partners or their dependants), or
(b) staff bonus scheme
unless with Committee approval
R.9.2 Referral fees
Members/employees must not make (or agree to make) payments to:
(a) third party for client referral
(b) except for agency arrangements with foreign law firm where payment does
(c) not exceed 1/3 of fee for matter
unless with Committee approval
Full text:
Rule 9 -Referrals/fee sharing
R.9.1 -Sharing fees
Without the prior approval of the Committee, members may only share fees/profits of their legal practice a) with other members (including partners) or former partners or dependants of former partners; or b) pursuant to a staff bonus scheme.
R.9.2 Referral fees
Members and their employees must not (without the prior approval of the Committee) make or agree to make any payments to a third party for the referral of clients except in relation to agency arrangements with a legal firm practising the law of another jurisdiction where the payment does not exceed more than one third of the fee for the matter involved.
Standards - CPD - What must a lawyer do in relation to continuing professional development?
Standards - CPD - What must a lawyer do in relation to continuing professional development?
Disciplinary - Procedures and complaints - what must a member not do in relation to any complaint or investigation concerning misconduct of member or firm’s employee?
Disciplinary procedures and complaints
01 Complaints, investigation and disciplinary action: Jersey Law Society of Jersey
(a) takes seriously complaints against members
(b) investigates fully, and
(c) takes appropriate disciplinary action if performance is below standards
02 Not obstruct complaints - Rule 12.4: members must not:
(a) Prevent reporting: hinder or prevent person reporting conduct to Law Society
(b) Preclude Investigation: take action or enter agreement attempting to preclude investigation into misconduct complaint by Law Soc (see G.12.13)
(c) Incentive to withdraw: offer incentive to complainant to withdraw complaint
(d) Victimise person for reporting conduct to Law Society; or
(e) Issue/threaten defamation proceedings (unless malice): issue or threaten defamation proceedings pending complaint being resolved, unless malice properly alleged
03 No agreement preventing investigation - Guidance 12.13:
(a) No agreement with client or 3P affect Law Soc right to:
1. investigate misconduct, or
2. consider complaints
(b) breach to attempt to make agreement - R.12.4
(c) Examples:
1. Agreement: accept client instructions with agreement preventing investigation of conduct of member or firm’s employee
2. Bribe - member: improperly offering or making payment for not reporting misconduct;
3. Bribe - fellow member: improperly demanding or accepting payment for not reporting misconduct of fellow member
4. Harass/Pressure: harassing or improper pressure on complainant or potential complainant
Full text:
Law Society Code of Conduct 2017 Ed
Rule 12.4 -Obstruction of complaints
Members must not:
a) attempt to hinder or prevent a person who wishes to report their conduct to the Law Society from doing so;
b) take any action or enter into an agreement which would attempt to preclude the Law Society from investigating any complaint made to the Law Society which alleges misconduct;
c) offer any incentive to a complainant to withdraw a complaint;
d) victimise a person for reporting their conduct to the Law Society; or
issue, or threaten to issue, defamation proceedings pending the resolution of a complaint to the Law Society, unless malice can be properly alleged.
Guidance 12.13
No agreement, whether with a client or a third party, can affect the rights of the Law Society to investigate misconduct or to consider complaints. To attempt to make such an agreement would breach R.12.4. Examples are:
a) accepting instructions to act for a client which involve any agreement preventing the Law Society from investigating a member’s conduct or the conduct of a member or employee of the firm;
b) improperly offering or making payment in return for not reporting alleged misconduct;
c) improperly demanding or accepting payment in report for not reporting a fellow member for misconduct; and
harassing or bringing improper pressure to bear on a complainant or potential complainant.
Disciplinary - Client Care - how must lawyer conduct a client relationship to avoid or mitigate against complaints or claims?
Disciplinary procedures and complaints
01 Good client care - G.1.14: prevention better than cure
(a) clear engagement: client and member have clear mutual understanding of:
- work to be undertaken (including limitations as to scope)
- timescales, and
- level of service
- reports (appropriate or required)
-
progress reports (frequency)
(b) minimise risk: - misunderstanding
- complaints or
- claims
- increased costs
(c) poor communication: major source of complaints
Full text:
Law Society Code of Conduct 2017 Ed
Gudiance G.1.14
It is important that the client and the member have a clear mutual understanding of what work is going to be undertaken (including any limitations as to scope), the timescales and the level of service and, if such reports are appropriate or required, the frequency of progress reports, as this will minimise the risk of misunderstanding, complaints or claims. Poor communication is a major source of complaints and can result in increased costs.
Disciplinary - Complaint - what must you tell the client in relation to disciplianry procedures?
Disciplinary procedures and complaints
01 Client’s right to complain - G.1.29: important public protection - inform client:
(a) What? - about right to complain: informed about:
1. know about right, and
2. how to complain
(b) When? dealing with complaint: client confident complaint dealt with:
1. promptly
2. fairly, and
3. effectively
(c) Who? to complaint to: told to whom complaint addressed
(d) Complaint handling procedure: dispute provisions Rule 1.6: inform
1. written complaints procedure, and
2. handle complaints promptly, fairly and according to procedure
3. told at outset how to complain
4. advise right to complain if indicate dissatisfied with service or conduct of member or employee
(e) Right to refer to Law Soc: inform client of right to refer matter to Law Soc if complaint not resolved satisfactorily through firm’s complaints procedures
Full text:
Law Society Code of Conduct 2017 Ed
Gudiance G.1.29
The client’s right to complain is an important public protection so it is important that they know about their right and how to complain.
Clients must be confident that if they have a complaint, it will be dealt with promptly, fairly and effectively.
They must be told to whom the complaint should be addressed, about the dispute provisions referred to in R.1.6 and of the existence of the right of a client to refer a matter to the Law Society in the event that their complaint cannot be resolved satisfactorily through the firm’s complaints procedures.
Rule 1.6 Complaint handling
Members must have a written complaints procedure and ensure that complaints are handled promptly, fairly and in accordance with that procedure.
Clients must be told at the outset of the matter or the client relationship how to complain and existing clients must be advised of their right to complain if they indicate that they are dissatisfied with an aspect of the service or conduct of a member or employee.
Disciplinary - Action after Complaint - What action is taken once a complaint is made alleging professional misconduct?
Disciplinary regime - Part 3, Law Society of Jersey Law 2005
Action following complaint - Art 21
01 Professional misconduct compliant
(a) made to Law Soc
(b) in writing
02 Time bar:
(a) after 12 months from last event
(b) unless justified exceptional circumstances: President satisfied
03 President’s actions
(a) conduct investigation to establish prima facie case
(b) dismiss complaint: if satisfied:
1. no prima facie case
2. vexatious, frivolous or trivial complaint
and inform complainant and AG
(c) prima facie case - written statement of complaint prepared:
1. set out details of misconduct
2. additional information from investigation
3. sent to practitioner or firm
(d) form disciplinary committee
(e) refer complaint to committee
(f) appoint case delegate to present complaint: ordinary member - costs met by Law Soc funds
(g) send copy statement to AG
Full text:
21 Action on receipt of complaint of professional misconduct
(1) Any person may make a complaint to the Law Society alleging that a practitioner or legal services body, as the case may be, is guilty of professional misconduct.
(2) A complaint must be made not more than 12 months after the last of the events giving rise to the complaint, unless the President is satisfied that exceptional circumstances exist which justify the complaint being made after the expiry of that period.
(3) If the Law Society receives a complaint alleging that a practitioner or legal services body is guilty of professional misconduct, the President shall promptly take the following action –
(a) if the complaint is not made in writing, the President shall –
(i) require the complainant to submit it in writing, or
(ii) having regard to the complainant’s circumstances, arrange for the complaint to be submitted in writing on the complainant’s behalf;
(b) for the purposes of determining whether or not the complaint establishes a prima facie case of professional misconduct, the President may cause an investigation to be undertaken in accordance with Article 21A;
(c) the President shall dismiss a complaint if he or she is satisfied that no prima facie case of professional misconduct is established, or the complaint is vexatious, frivolous or trivial;
(d) where the President dismisses a complaint he or she shall inform the complainant, the practitioner or legal services body, as the case may be, and the Attorney General in writing of the decision, stating the reasons for the dismissal
(e) if the President is satisfied that a prima facie case of professional misconduct is established, he or she shall, on behalf of the Law Society, cause a written statement of complaint to be prepared which –
(i) shall fully set out details of the alleged professional misconduct,
(ii) may include additional information arising from any investigation under Article 21A or information which did not form part of the complaint as originally made, and
(iii) shall be copied and sent to the practitioner or legal services body in question;
(f) the President shall –
(i) select from the disciplinary panel a disciplinary committee consisting of 2 persons who are lay members of the disciplinary panel and one person who is an ordinary member of the Society who shall act as the chairman of the disciplinary committee,
(ii) refer the complaint to that disciplinary committee,
(iii) subject to paragraphs (4) and (5), appoint a case delegate to present the complaint to the disciplinary committee, and
(iv) send a copy of the statement of complaint to the Attorney General.
(4) The case delegate must be an ordinary member or any other class of member specified under the bye-laws.
(5) A person appointed under paragraph (7) may, if the President thinks fit, be appointed as the case delegate if that person is a member of the Law Society as required under paragraph (4).
(6) The reasonable costs of the case delegate shall be met out of funds provided by the Law Society.
(7) The President may, as he or she thinks fit, appoint any person, regardless of whether or not that person is a practitioner, to assist the President in carrying out any of the actions required under paragraph (3)(a), (c), (d) or (e).
(8) The reasonable costs of the person appointed under paragraph (7) shall be met out of funds provided by the Law Society.
(9) If the President is, for any reason, unable to discharge his or her functions under this Part, he or she shall delegate those functions to another Committee member
Disciplinary - Investigation - What investigative powers does the President or the person appointed by the President have?
Disciplinary regime - Part 3, Law Society of Jersey Law 2005
Investigate complaint - Art 21A
01 Professional misconduct compliant
21A Investigation of complaint
01 Investigative powers: President (or appointed person investigating) require practitioner, firm or employee:
(a) production of documents in custody or control:
1. require production/delivery
2. retain documents until end of investigation and proceedings
(b) conduct interviews with:
1. complainant
2. practitioner or firm
3. any other person could assist with investigation
(c) subject to privilege/self-incrimination:
1. legal professional privilege
2. rule against self-incrimination
02 Non-compliance: fail to comply without lawful excuse, offence liable to fine
Full text:
21A Investigation of complaint
(1) For the purposes of investigating a complaint against a practitioner or legal services body, as the case may be, the President may –
(a) require the practitioner in question or a member of his or her firm, or the legal services body to produce or deliver to the President any relevant documents in the practitioner’s or legal services body’s custody or control, and the President may retain possession of those documents until his or her investigation and any disciplinary proceedings that arise from the investigation are completed;
(b) conduct interviews with the complainant, practitioner or legal services body, as the case may be, or any other person whom the President considers may assist the course of the investigation.
(2) A person who, without lawful excuse, fails to comply with the President’s requirement under paragraph (1)(a) shall be guilty of an offence and liable to a fine.
(3) This Article does not limit –
(a) a right to decline to produce or deliver a document to the President or be interviewed on the ground of legal professional privilege; or
(b) the rule against self-incrimination.
(4) The President shall not use –
(a) a document obtained under paragraph (1)(a); or
(b) any information obtained in consequence of the production or delivery of that document or in consequence of an interview under paragraph (1)(b),
for any purpose other than for the purposes of the investigation of the complaint, or any disciplinary or criminal proceedings that arise from the complaint.
(5) For the purposes of this Article, the expression “President” shall be taken to include a person appointed to conduct the investigation on the President’s behalf.
Disciplinary - Committee - What is the composition of the disciplinary committee?
Disciplinary regime - Part 3, Law Society of Jersey Law 2005
01 Disciplinary committee formed - Art 20: on receipt of complaint:
(a) LawSoc President establishes disciplinary committee
(b) unless satisfied complaint either:
1. unrelated to professional misconduct, or
2. frivolous, vexatious or trivial
02 Composition - Art 20: comprises:
(a) 2 lay members on disciplinary panel (7-15 lay & 7-10 ordinary members), and
(b) 1 LawSoc member on panel (in private practice at least 10 yrs’ standing)
(c) chaired by 1 lay members
03 Recommenations:
(a) Chair should be LawSoc member - In matter of MM and Advocate v Disciplinary Committee of Law Society and Y 2010 - criticised chair requirement, preferable LawSoc member, law amendment proposed, but none made to date
(b) LawSoc appoint Legal Adviser - In matter of MM 2011 - alternative suggestion, committee access to legal advice, if necessary LawSoc appoint legal adviser
Full text:
The Law Society of Jersey Law 2005
20 Disciplinary committees of the Law Society
(1) Three members of the disciplinary panel, selected in accordance with Article 21(3)(f)(i), shall constitute a disciplinary committee for the purposes of this Law.
(2) For the purposes of dealing with a matter under this Law:
(a) all 3 members of a disciplinary committee constituted for that purpose shall sit; and
(b) its chairman shall preside,
but this paragraph is subject to paragraph (4).
(3) The determination of any question before a disciplinary committee shall be according to the opinion of the majority of its members.
(4) If –
(a) a disciplinary committee has commenced dealing with a matter; and
(b) before it determines the matter any member becomes unable to continue to act,
the other members may continue to deal with and determine the matter, as long as their number is not fewer than two (of whom one is an ordinary member of the Law Society and the other is a lay member of the disciplinary panel).
Disciplinary regime - Hearing procedure - What is the procedure at a disciplinary hearing?
Disciplinary regime - Part 3, Law Society of Jersey Law 2005
01 Hearing procedure
(a) sits in private
(b) persons present:
1. delegate
2. practitioner/firm
3. complainant may be present
4. AG, Bâtonnier (for advocate) or President of Chambre des Ecrivains (solicitor)
(c) present case:
1. right for delegate and practioner/firm to:
i. heard
ii. call evidence, and
iii. cross-examine witnesses
2. right for AG, Bâtonnier or Ecrivains President to be heard
(d) standard of proof: balance of probabilities - In matter of MM 2010
(e) duty to co-operate promptly, openly and fully in investigation: duty of advocate’s/ecrivain - Re An Advocate (2003) and Bâtonnier v Sinel 2005
(f) committee powers: in relation to proceedings:
1. give directions
2. refer to mediation, unlikely if serious case
3. refer to AG
(g) Decision - Art 23: committee can:
1. dismiss complaint, or
2. find professional misconduct proved and administer:
i. private rebuke or public reprimand
ii. fine up to £10,000
ii. fine and public reprimand
3. make no finding and refer matter to AG
Full text:
The Law Society of Jersey Law 2005
22 Procedure and conduct of proceedings before a disciplinary committee
(1) When, under Article 21(3)(f)(ii), the President refers a complaint to a disciplinary committee, that complaint shall be conducted in the name of the Law Society and that committee shall action the matter promptly.
(2) The disciplinary committee shall –
(a) sit in private;
(b) allow the case delegate, the practitioner or legal services body, as the case may be, to make representations, call evidence and cross-examine witnesses;
(c) allow the complainant to be present; and
(d) allow the Attorney General to make representations.
(3) The disciplinary committee may, by notice in writing signed by the chairman, require a person –
(a) to attend and give evidence before it in a matter on which it is proceeding; and
(b) to produce to it any documents in the person’s custody or control that relate to the subject matter of the proceedings.
(4) The disciplinary committee may require a person to give evidence on oath or under affirmation, and for that purpose any member of the disciplinary committee may administer an oath or take an affirmation.
(5) A person who without lawful excuse –
(a) fails to comply with a requirement made by a disciplinary committee under paragraph (3); or
(b) on being required to do so under paragraph (4), refuses to take an oath or make an affirmation, or to give evidence,
shall be guilty of an offence and liable to a fine.
(6) The disciplinary committee may issue such directions as it considers necessary to facilitate the fair conduct of the proceedings including directions concerning the adducing of evidence alleging professional misconduct which is not set out in the statement of complaint.
(7) A person giving evidence (on oath or otherwise), or appearing before a disciplinary committee, shall have the same privileges and immunities as if he or she were giving evidence in or appearing before a court of law.
(8) Subject to paragraph (9), a person who is required to attend and give evidence before a disciplinary committee, or to produce or deliver a document to it, shall be reimbursed by the Law Society for his or her reasonable expenses (including loss of earnings) in doing so.
(9) Paragraph (8) does not apply to the practitioner or legal services body who is the subject of the complaint.
(10) The disciplinary committee may, at any time, and if it thinks fit to do so, adjourn the proceedings and refer the complaint to the Attorney General.
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 one 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 adequate, 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) The disciplinary committee shall inform the practitioner or legal services body, as the case may be, and the President in writing of its decision and reasons, but subject to paragraph (6), it shall not publish them in any other way.
(4) The President may inform the complainant, in writing, of the disciplinary committee’s decision.
(5) There shall be a right of appeal, in accordance with Article 24, against a decision of the disciplinary committee determined under paragraph (1)(a) or (b).
(6) Subject to paragraphs (7) and (8), the disciplinary committee is required to publish without delay, on the Society’s website, its decision and reasons for finding the complaint proved and disposable under paragraphs (1)(b)(i) and (2).
(7) The disciplinary committee shall not publish its decision and reasons –
(a) where it –
(i) privately rebukes the practitioner or legal services body, as the case may be, or
(ii) dismisses the complaint or refers it to the Attorney General,
regardless of whether or not that decision is later upheld or rejected by the Royal Court further to an appeal brought under Article 24(1); or
(b) pending –
(i) the expiry of the period in which an appeal must be lodged under Article 24(2),
(ii) the abandonment of any appeal brought under Article 24(1), or
(iii) a determination of the Royal Court to reject any such appeal (subject to sub-paragraph (a)).
(8) Where in relation to an appeal the Royal Court makes a determination under Article 24(5), the disciplinary committee shall publish its decision and reasons in accordance with paragraph (6) but shall publish the substituted penalty applied by the Royal Court.
Disciplinary regime - Appeal - Can a practitioner or firm appeal a decision?
Disciplinary regime - Part 3, Law Society of Jersey Law 2005
01 Appeal to RC - Art 24
(a) persons with right of appeal:
1. President or AG
2. practitioner or firm
(b) appeal against:
1. decision of disciplinary committee
2. penalty
(c) time barred after 1 month (or longer if RC allow)
(d) decision
1. reject decision of disciplinary committee
2. uphold decision
3. remit matter for re-determination
4. make costs orders as it thinks fit:
i. rule costs follow event does not apply
* ii. just and equitable*
iii. crt weigh up
- financial burden on successful practitioner if not made in his favour
- need to support Law Soc bringing proceedings in public interest
iv. costs usually not awarded against Law Soc: exception:
Costs against Law Soc - In matter of MM and An Advocate v Disciplinary Committee and Y 2011 fundamentally flawed proceedings due to very significant failures of Law Soc’s duty
(e) RC penalties
- private rebuke or public reprimand
- fine (any amount)
- fine and public reprimand
- suspend practitioner from practice not more than 12 mths
- suspend firm operating not more than 12 mths
- remove practitioner’s name from roll
-
removed firm’s name from register of legal firms/bodies
i. Fine - AG v Begg 2012 - important factor in determining Crt’s assessment of gravity of misconduct - £25,000 plus costs - breach high technical standards,
ii. suspended - AG v James 2013 - suspension 2 months, following conviction for supply of Class B drug)
iii. struck off - AG v Michel 2012 struck off after conviction for attempting to pervert course of justice
(f) further appeal to CofA: for - practitioner or firm
-
AG - Art 25 right to refer where:
i. President not accept it
ii. disciplinary committee referred it to him, or
iii. in case of non-member lawyers, as partie publique
Full text:
The Law Society of Jersey Law 2005
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) the President or the Attorney General, against a decision of a disciplinary committee either to dismiss the complaint or in respect of a penalty applied under Article 23(2); and
(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) The appeal shall be lodged within one month after the disciplinary committee complies with Article 23(3), or within such further time as the Royal Court may allow.
(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
(6) The practitioner or legal services body, as the case may be, and the Attorney General, shall have a right of appeal to the Court of Appeal against a decision or order of the Royal Court under this Article.
25 Reference of complaint by Attorney General to the Royal Court
The Attorney General may refer to the Royal Court –
(a) a complaint which the President has dismissed under Article 21(3)(c);
(b) a complaint referred to the Attorney General under Article 22(10) or Article 23(1)(b)(ii) or (c).
