Professional Misconduct
The current definition normally applied in Scotland, derives from the leading
case of Sharp -v- the Law Society of Scotland (1984 SLT at 313).
"There are certain standards of conduct to be expected of competent and reputable solicitors. Any departure from these standards which would be regarded by competent and reputable solicitors as serious and reprehensible may properly be categorised as professional misconduct.
Whether or not the conduct complained of is a breach of rules or some other actings or omissions, the same question falls to be asked and answered, and in every case it will be essential to consider the whole circumstances and the degree of culpability which ought properly to be attached to the individual against whom the complaint is made."
Is defined as conduct by a solicitor which does not amount to professional misconduct but which involves a failure to meet the standard of conduct observed by competent solicitors of good repute.
This definition has been evolved by the Law Society since about November 2000, in place of the previously – used “unprofessional conduct”. It has no formal statutory or court origin, but has been found useful in other jurisdictions for cases which fall short of the high standard necessary to meet the “Sharp” definition, but where there is seen to be a significant failure to meet desired standards.
The test generally adopted is that in the unreported case of Kane -v- Carmichael, 20 January 1993, which is found in a commentary on the case of Caldwell -v- Normand, 1993 SCCR 624. The opinion of Lord Hardie in the case HMA -V- Graeme George Dickie 14th February 2002 confirms that an intention to challenge or affront the authority of the court or to defy its orders is a necessary prerequisite for a finding of contempt of court. It is clear that even gross recklessness can never amount to contempt of court. The test is whether there was a wilful challenge or a wilful failure in defiance of the authority of the court.
In the Anderson Appeal reported in 1996 SCCR at 131 the Court acknowledged the tension between the principles which give a wide discretion to Counsel (and that includes solicitor or solicitor-advocate) to conduct the defence as he or she thinks fit, and the duty of a Court of Criminal Appeal to correct a miscarriage of justice on the grounds that the accused did not have a fair trial.
“Counsel's independence must be preserved if he is to fulfil his duty to the court and to act in the public interest upon his professional responsibility. Any erosion of this principle would be bound to lead to uncertainty, and with it to the risk of delay and confusion in the conduct of criminal trials, which rely to a substantial extent for their fairness and efficiency on the right of counsel to exercise their own judgement as to the way in which the defence is conducted."5.
Recent evidence of “Anderson Evolution”
Hemphill v HMA 2001 S.C.C.R 361
Failure to call rebuttal evidence which was later said to have been obtainable,
to counter a crucial Crown inference against the accused. Appeal allowed.
Garrow v HMA 2000 S.C.C.R 772
Failure to re-precognosce and call an available defence expert on an
alternative explanation whereby a crucial inference against the accused was
then left unchallenged.
Wright v HMA 2000 S.C.C.R 638
Alibi defence presented on basis of erroneous date. Although the Crown
seem to have initiated the error, and the court failed to correct it, the defence
solicitor is alone in taking the blame.
Millar v Dickson plus other similar cases 2000 S.C.C.R 793
Not taking the “Temp Sheriff” point, which had succeeded
in the Starr and Chalmers cases, was not found to be a basis for an Anderson
appeal.
Another landmark case in Anderson terms may be the recent decision AJE -v- HMA 2002 SCCR where the decision of an eminent Q.C., in an extremely serious case involving rape of two children, to adopt a “softly, softly approach and deal with the mother and children gently on a non-escalating basis” was the subject of serious criticism by the Appeal Court of the “minimalist” way the defence was conducted. The Appeal was allowed. The accused represented himself.
Anderson drew the distinction between a failure by an Advocate to present the defence that the accused instructed him to present and the making of a judgement by an Advocate as to the manner in which the defence should be presented in the course of the Trial. In the former case it can be said that the accused has been deprived of his right to a fair trial. In the latter case the accused is bound by the way in which his defence has been presented on his behalf. The Lord Justice Clerk felt that the distinction should not be applied too rigidly and there could be circumstances in which the Court could hold that the conduct of the defence at the Trial was such as to deny the accused a fair trial.
A helpful view on how Anderson cases have “blossomed” can be found in Sir Gerald Gordon’s commentary on the Jeffrey case 2002 SCCR 837.
“The Defence case must not merely be presented, but be properly presented and also must be properly prepared”.
If an accused instructs the taking of a certain line, Counsel must obey or withdraw.
Following upon Anderson there is a recent decision which you will find in the Scottish Law Gazette October 2002. Vol 70 No 5 Wright -v- Paton Farrell & Others and the opinion of T G Coutts, QC sitting as a Temporary Judge, 27th August 2002. Here it was recognised that Barristers and Advocates have traditionally enjoyed immunity from suit if claims of negligence are raised in relation to the conduct of cases. The famous case of Batchelor -v- Pattison & Mackersy (1876) 3R914 establishes that solicitors are officers of the court and owe the court various duties which can transcend duties owed to a client but generally when a counsel is employed the solicitor is bound to follow his instructions. In England the Rondel -v- Worley 1969 AC191 case established that solicitors “should not blindly follow counsel”.
This has implications for questions of negligence when they arise in the context of the conduct of hearings. In this case a client decided to sue his former solicitor in relation to his conduct of the trial claiming that his solicitor had been negligent. He advanced a human rights argument that he had been denied a fair trial because of negligence and claimed a miscarriage of justice had resulted. He did not aver that he would have been acquitted but for this negligence. Various breaches of service provided by his agent were cited, for example failure to precognose certain crown witnesses, failure to pin down precise dates and times of offences which were alleged to have taken place relevant to a plea of alibi.
The Temporary Judge’s view was that Batchelor still applied. The Temporary Judge found that a solicitor did enjoy immunity. It was clear therefore that if someone is tried on a criminal charge and has been convicted there is no purpose for him to assert that his Counsel has been unskilful unless he can prove, or could prove, that he would have been acquitted had his Counsel conducted the case with due care and skill. He would have to prove that on balance of probability. This is an interesting case and worthwhile reading. The Temporary Judge’s interpretation of immunity is in keeping with the traditional interpretation of the situation as far as Scottish Solicitors are concerned.
Section 33 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 provides:-
Where any person with an interest has made a complaint (a conduct complaint) to a professional organisation that a practitioner has:-
(a) been guilty of professional misconduct, or
(b) provided inadequate professional services, the organisation shall investigate………
Many problems arise from the definition of a person "having an interest". The Law Society, on the basis of a 1995 Counsel's Opinion, applies a wide, even generous, interpretation of these provisions, making it virtually impossible to knock out, or even to edit or sift, any complaint whatever its source or merit.
It is a mistake to attempt any exhaustive definition of an “interest” for the purposes of Section 33 of the Law Reform Act 1990.
One must distinguish between “the busybody” (who has no right to interfere in other people’s affairs) and the person affected by or having a reasonable concern with the matter to which the complaint relates, the latter being the person whose complaint has to be entertained.
One has to look at the underlying statute to see if it gives any clue as to the nature of the qualifying interest and, finally, the identity of the complainer need not be the sole consideration.
The Law Society has two objectives in terms of statute:-
(a) the promotion of the solicitor’s profession in Scotland; and
(b) the promotion of the interest of the public in relation to the profession.
The Law Society need not waste time on “the busybody” but it must take cognisance of information having a bearing on the achievement of these objectives and in particular protecting the interest of the public.
The definition of I.P.S. is found in s.65 (1) of the 1980 Act as amended:-
“Inadequate Professional Services” means “professional services which are in any respect not of the quality which could reasonably be expected of a competent solicitor.…including reference to not providing professional services which such a solicitor ought to have provided”.7. Article 6(1) of the European Convention on Human Rights
“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time” by an independent and impartial tribunal established by law. Reference should be made to the approach of the Judicial Committee of the Privy Council in the case K -v- HMA (Privy Council 29th January 2002) and HMA -v- Watson & Burrows (Privy Council 29th January 2002).
The Crown appealed against two decisions of the High Court dismissing criminal proceedings on the basis that delays in the proceedings meant the Trials did not take place “within a reasonable time” in terms of Article 6 (1). In the case of Burrows and Watson two police officers were accused of committing perjury at a Trial in April 1998, the Sheriff having expressed an opinion to that effect in open Court. Their Trial would proceed in August 2000. In the case of K -v- HMA, K, born in December 1984, was cautioned and charged in October 1998 with rape, sodomy and other indecent practices committed over a period of Twenty months against three younger cousins. The Convention does not lay down precise time limits but looks to an objective common measure of protection; that the right to Trial within a reasonable time was a free standing one with the aim of protecting all parties against excessive procedural delays and that whilst prejudice to an accused was relevant to the question of reasonableness it was not necessary to show that he had suffered, or would suffer, any actual prejudice. Further the Convention was concerned not with departures from the ideal but with basic rights and freedoms and had regard also to public interest. A relatively high threshold had to be crossed before it could be said in any particular case that a period of delay was unreasonable and it was only when the period was one which on its face gave grounds for real concern that it was necessary to look into the detailed facts and circumstances and the onus passed to the State to explain and justify the lapse of time.
(a) the complexity of the case;
(b) the conduct of the defendant; and
(c) the manner in which the case had been dealt with by the authorities.
In the Appeals before the Privy Council the third factor was treated as the material one.
In the Watson and Burrows case there was a delay of Twenty months from January 1999 to August or September 2000, that is between the date of charge and the actual date of probable trial.
It was held that this was not a period which on its face caused real concern nor did European Case Law suggest that such a period violated Article 6. In particular given the nature of the case there was a particular need for careful and independent examination of the conduct of policemen in their own interest and the officers were in no special category which required priority and the delay was not such as to jeopardise the effectiveness and credibility of the Criminal Justice System.
However, in relation to K the reasonable time requirement had, when dealing with children, to be read in light of the UN Convention on the Rights of the Child and the Beijing Rules under both of which, criminal proceedings, if brought at all, had to be prosecuted with due expedition. The delay was particularly undesirable where children were concerned and the Twenty seven month period in K’s case was one which on its face gave ground for real concern. The case had not been treated with the urgency which it had undoubtedly deserved and no satisfactory explanation had been given for the lapse of time. The considerations pointed towards discontinuance of the proceedings and that was the remedy given.
Regard should also be had to the Opinion of the Court delivered by the Lord President in the Petition of the Council of the Law Society of Scotland -v- Alastair David Armstrong Hall 11th June 2002. There it was common ground that for the purpose of Article 6.1, the proceedings before the Scottish Solicitors Discipline Tribunal were concerned with the determination of a solicitor’s “civil rights and obligations” as opposed to the determination of the criminal charge against him. The powers conferred upon SSDT under Section 53 (2) of the 1980 Solicitors Act empower the Tribunal to impose a number of penalties. These plainly impinge on a solicitor’s right to pursue his profession. However, the proceedings are not of a truly criminal nature. Therefore the Discipline Tribunal cannot rely on decisions relating to criminal proceedings so far as delay is concerned. What is before the Tribunal where an issue of delay is concerned is the determination of a contestation in respect of civil rights and obligations. The starting point is the date when Council of the Law Society made the complaint to the Discipline Tribunal thereby putting an issue of dispute as to professional misconduct the result of which could affect a solicitor’s civil right to practise as a solicitor.
.Specific obligations regarding the retention of financial records are noted in the Solicitors (Scotland) Accounts Rules. The client ledger records and daybook records of journals must be retained for a period of ten years. The Law Society has therefore recommended that any documents which may be required to be produced to vouch payments or receipts within the client ledger account should be retained for a period of ten years.
Client files which deal with conveyancing, executry or trust accounting matters would contain within the general correspondence files matters of importance which would require to be kept for the full ten - year period. Bank statements, cashed cheques, VAT fee notes or any passbooks or print-outs which relate to funds invested or borrowed on behalf of clients also fall directly into this category.
Those solicitors who use a system of debit/credit posting slips to instruct the cashroom in their work should also ensure that these documents are retained safely for the ten year period. Previous advice from the Law Society had suggested that these posting slips might not require to be retained for the full ten - year period. Police enquiries into matters of employee or solicitor fraud have now indicated that these documents are of vital significance to their enquiry since the handwriting will give significant evidence as regards the source of instructions in respect of any misleading or false entries. You may wish to take account of this advice.
The only financial records which are not covered by the ten year rule are the documents which comprise lists of client balances, bank reconciliation workings and statements of surplus/deficit prepared in respect of the monthly client ledger account reconciliation. These working papers are now required to be kept for a period of three years.
Prior to the Code of Practice issued by the Scottish Legal Aid Board there was a convention among solicitors who carried out significant amounts of legal aid work whereby files which related to completed cases were routinely destroyed twelve months after the matter had been concluded. The compliance requires files to be stored physically in the solicitor’s office for one year following payment of the account following which it will be held off site in storage for two years.
Generally, if you are in doubt with regard to the destruction of specific client files or papers, then every effort should be made to retain all documents for the minimum ten years.
You will find attached guidance issued to the profession in the Law Society of Scotland Journal, May 1998 in respect of Money Laundering Regulations and in connection with Mandates.
DISCUSSION POINTS :-
A. CRIMINAL
1. The Statutory Factors
2. The Statement of Defence - how important is it?
3. The multiple pinks.
4. The Mandate problem - Mr McKinstry's Judicial Review.
5. Gifts and Goodies - humanity or misconduct? The Code of Conduct.
6. The Legal Aid Compliance Code under the 1997 Crime and Punishment Act.
7. Contempt of Court - recent cases.
8. The "Anderson" accountability.
9. S32 Legal Aid Act.
B. THE GUARANTEE FUND ENQUIRY
1. Accounts Rules - the usual offenders
(i) Designing cheques Rule 6(2)
(ii) Keeping a list of inter-client transfers Rule 8(3)(a)&(b)
(iii) Client identification - Money Laundering Rule 24
(iv) Taking the fee before raising the Fee Note - Rule 6(1)(d).
(v) The solvency of the firm – no longer private - Rule 8
2. Client identification - the husband and wife.
3. Client identification - the Company or Club.
4. Linked Conveyancing transactions.
5. The insolvency question – treatment of WIP and family loans
6. Sanctity of Deeds including Powers of Attorney
C. CIVIL
1. The ambulance chaser - can we compete with Claims Direct Companies?
2. The Advocates' fees.
3. The Sheriff Officers' outlays.
4. The Expert's Report.
5. Promises to third parties.
6. Tell the client the truth on prospects, on progress and on costs.
7. Husband and wife - the joint sale operation and how to account.
8. Warranting your client.
9. The Power of Attorney for the elderly - new rules.
10. The Hospital Will.
11. Dodging those Residential Care costs - don't advise at all?
12. The defamation risks.
Arising from Section 32 of the Legal Aid (Scotland) Act 1986 where Legal Aid is available to a person in connection with any proceedings solicitors shall not take any payment in respect of any advice given or anything done in connection with such proceedings during any period when Legal Aid was so available except for such payment as may be made in accordance with the Act. Furthermore, the fixed payment scheme covered by Para. 47 of the Criminal Legal Aid (Fixed Payments) (Scotland) Regulations 1999 states “where the Board grants an application for change of solicitor under Regulation 17 (3) of the Criminal Legal Aid (Scotland) Regulations 1996 there should be paid to each of the solicitors who act for the assisted person in the relevant proceedings an equal part of the total amount payable in respect of those proceedings by virtue of Para. (1) above and for the purposes of calculating that total amount Para. (5) shall not apply. Accordingly, solicitors must recognise that where they are registered as Criminal Legal Aid Practitioners with the Scottish Legal Aid Board they cannot breach Section 32. The terms of the fixed payment regime do not alter Section 32. Accordingly any payment received whether to meet exceptional outlays or to provide fees are specifically prohibited and will give rise to complaints and in certain cases there will be sufficient evidence to bring a prosecution of misconduct before the Scottish Solicitors’ Discipline Tribunal should the Law Society Council consider the matter sufficiently serious.
© Levy & McRae 2009Terms and ConditionsPrivacyContactSitemap
266 St Vincent Street, Glasgow, G2 5RL +(0)141 307 2311