Jersey lawyers who broke code can remain anonymous, court rules
TWO lawyers working for the same firm have escaped a public rebuke and will remain anonymous, despite breaking the Law Society’s code of conduct by representing opposite sides in a family property transaction.
Upholding an appeal from the two legal practitioners, the Royal Court replaced the public reprimand they had received from the society’s disciplinary committee with a private censure, the least severe sanction available, which also has the effect of preserving their anonymity.
The case followed a complaint by a couple, identified only as Mr and Mrs A, who had decided to proceed with the transfer of their family home to Mrs A’s son, Mr X. They consulted a senior legal assistant at their law firm, who was supervised by the advocate concerned, but a partner in the firm also represented Mrs A’s son.
A conflict of interest was identified by the advocate but the firm’s senior partner, whose advice was sought, told the legal assistant involved that they could continue to act if they provided the clients with an engagement letter and a second letter referring specifically to the conflict.
The Royal Court – comprising the Bailiff, Sir Timothy Le Cocq, sitting with Jurats Charles Blampied and Steven Austin-Vautier – noted that at a meeting between the parties held on 7 December 2017, Mr X ‘had been disruptive and there were clear signs that he was pressuring his mother and stepfather to agree to the transfer’.
Concerns initially expressed by the couple themselves were reinforced by advice from the legal assistant but the couple indicated that they still wished to proceed with the transfer, prompting the legal assistant to draft a letter which the court described as ‘unequivocal and uncompromising in its terms’ setting out the risks they faced.
A further meeting was called at which the legal assistant went through the letter in detail and the couple signed it to confirm that they understood. As a result, the transfer was then formalised in January 2018 but relations between the parties soured, prompting the couple to revert to the firm to ask what they could then do. They subsequently complained to the Law Society.
While the two practitioners accepted that they had broken the code of conduct, they argued that the Law Society’s disciplinary committee had failed to take account of the consequences of the breach.
Giving judgment, the Bailiff noted that the advocate concerned was not a partner in the firm but was under the technical supervision of partners who were not before the disciplinary committee, and the senior partner had indicated that it would be acceptable to proceed.
‘Given the then level of [the] advocate’s experience and position within the firm, we have every sympathy with the fact that [they] would have considered the matter to have been properly resolved by referring to the senior partner and being guided by him in that regard,’ Sir Timothy said.
Moreover, he said that the court was satisfied that the advocate ‘was motivated at all times by a concern for Mr and Mrs A and their wellbeing and while technically they made the wrong decision by not refusing to act, in all other respects they gave them the appropriate advice which the clients understood. ‘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,’ he said.
In the case of the partner involved, they had no direct involvement with the complainants and simply acted on the instructions of Mr X.
Giving the court’s decision to reduce the penalties imposed by the Law Society, the Bailiff said that both practitioners had unblemished professional records and that the court could identify no aggravating factors.
‘Neither [the] advocate nor [the partner] proceeded with other than integrity and it is clear that [they] could not have been motivated by financial considerations and indeed [the] Advocate B did all in [their] power… to dissuade Mr and Mrs A from proceeding with their transaction’, Sir Timothy said.
‘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,’ he said.