[2003]JRC077

royal court

(Samedi Division)

 

12^th May, 2003

 

 

 

In The Matter Of a Complaint against an Advocate of the Royal Court

 

The Representation of the Bâtonnier

 

 

 

Judgement following a complaint as to professional conduct

 

The Bâtonnier.

Advocate M. St. J. O’Connell for the First Party Convened.

The Solicitor General on behalf of the Attorney General.

 

 

 

judgment

the deputy bailiff:

1.        The Court is sitting to consider disciplinary complaints brought by the Bâtonnier against Advocate David Le Quesne and Advocate Rose Colley both partners in the firm of Viberts.  In accordance with normal practice the hearing has been in private but this judgment is being delivered in open court. 

The outline of the case

2.        For many years Viberts had acted as legal advisers to the Transport and General Workers Union (the TGWU) and represented their members in legal disputes.  In 1990 Shepherd Hill, the main contractor for the construction of the Queens Valley dam, was declared en désastre.  Viberts were instructed by the TGWU in November 1990 to file claims for loss of wages, holiday pay etc. for its members employed on the project.  There were 150 such members and Viberts dealt directly with them in processing their claims.  There were no written terms of engagement with the TGWU.

3.        The Viscount distributed three dividends to Viberts, namely £66,951 in June 1992; £33,222 in August 1994; and £254 in November 1995.  Each distribution was on an individual basis showing how much was being paid to each former employee.  Viberts in turn distributed the amounts to the individual employees.  However, some of them could not be traced despite efforts to do so.  The sums owing to the untraced employees were held by Viberts on their client account.

4.        Prior to November 2000, Viberts had rendered three fee notes addressed to the TGWU in respect of this matter as follows:

(i)        4^th June 1993, £2,400; the narrative stated that it was for the first distribution.

(ii)       8^th May, 1996, £816; this was said to be in respect of the third distribution.

(iii)      20^th March, 1997, £174; for some minor work from June 1996 to August 1996.

5.        As at October, 2000, Viberts held the following sums in two separate client accounts for 37 un-traced members.

(a)       £9,192.29 re the first dividend.

(b)       £7,742.19 re the second dividend.

The client accounts were listed in the name of the TGWU.

6.        On 1^st November, 2000, Viberts raised two fee notes addressed to the TGWU.  The first was for £9,192.29 and the second was for £7,742.19.  These were paid out of the two clients accounts referred to above and therefore exhausted those accounts.  On 17^th November, 2002, two further invoices were raised in respect of interest credited on the two client accounts since 1^st December, in the sums of £44.29 and £37.30 respectively.   It remained the position, therefore, that both client accounts were exhausted.

7.        The four fee notes were addressed to the TGWU but were not delivered to it.  It is agreed that no material work had been done on the file between March, 1997, the date of the last bill, and the raising of the bills in November 2000.

The history of the complaint

8.        Both the Bâtonnier and Advocate O’Connell have placed great weight on the course of the investigation, and have taken us through it in some detail.  We must therefore summarise how this matter comes before the Court.  On about 11^th December, 2000, the then Bâtonnier, Advocate R J Michel, received an oral complaint from Mrs Vella Holmes.  Mrs Holmes had been an employee of Viberts for many years and had had the day to day conduct of the Shepherd Hill matter under the supervision of Advocate Le Quesne.  She had been declared redundant on the 6^th December, 2000.  Her complaint was subsequently reduced to writing in January, 2001. 

9.        That complaint gave a general summary of the events which we have described.  But importantly, she thought that a fee note had been raised in respect of the second distribution.  The nub of her complaint was that no work had been done on the file since the 1997 fee note, and that the fee notes of November, 2000, were ”dummy” fee notes for the exact amounts shown on the ledgers as being in the client accounts.  The inescapable inference from what she was saying was that there had been no valid ground for raising the fee notes in November, 2000, because there was no unbilled work in progress, and that accordingly the raising of the fee notes had been dishonest.   She asserted that she had raised objections to the fee notes, when she had found out about them after the transfers out of the client accounts, with both Advocate Le Quesne and Advocate Colley but had in effect been fobbed off.  It is right to say, however, that both advocates deny that she raised objections with them as she contends.

10.      The Bâtonnier raised the matter with the President of the Jersey Law Society, Advocate Clapham.  He spoke with Advocate Le Quesne who arranged for the moneys to be transferred back to the firm’s client account.  On the 15^th December, 2000, Advocate Le Quesne met Mr Kavanagh of the TGWU, when it was agreed that the money would be divided equally between the TGWU and Viberts.  Viberts retained their half-share on client account.

11.      There followed some correspondence between Advocate Clapham and Advocate Le Quesne in which the latter contended that, as the matter was now sorted out with the TGWU, there was no complaint for the Law Society to consider.  In a letter of 13^th January, 2001, following a meeting with his Committee, Advocate Clapham emphasised that they had to look into the matter in view of the fact that moneys had been removed from a client account without any notification to anyone; and in circumstances where it was not clear that there was work in progress which had not been billed.  He emphasised that the Law Society needed Advocate Le Quesne’s co-operation. 

12.      We have to say that Advocate Clapham and the Committee were absolutely right in the stance they took, namely that the matter was one which required investigation.  However, it is unfortunate that they did not supply Advocate Le Quesne with Mrs Holmes’ written complaint because at that stage Advocate Le Quesne did not know the exact nature of the complaint against him.  Following further correspondence the Committee of the Law Society appointed two members, namely Advocate Dessain and Mr Moon, to investigate the matter as inspectors.  They prepared terms of reference which were approved by the Committee.  These were sent to Advocate Le Quesne on 14^th March.  On 16^th March he protested that he had not yet seen the written complaint from Mrs Holmes and this was then sent to him on 26^th March.  On 18^th April he wrote taking issue with the terms of reference.  He objected to a provision that stated that any statement from Viberts would be shown to Mrs Holmes for her comment.  He also wanted a precise formulation of the misconduct alleged against him. 

13.      In relation to the second request he may well have been influenced by the fact that Advocate Dessain had written to him on 9^th April indicating that if the inspectors were to come to suspect any form of criminal conduct they would have to consider referring the matter back to the Law Society. 

14.      Having consulted further with the Committee of the Jersey Law Society, which stood by its terms of reference, the inspectors informed Advocate Le Quesne of this in a letter from Advocate Dessain dated 22^nd May.  Advocate Dessain also pointed out, quite correctly in our view, that the inspectors could not formulate the alleged misconduct because they had been appointed to investigate Mrs Holmes’ complaint in order to see if there had been any misconduct.  This was an investigation as opposed to a disciplinary hearing.  Advocate Dessain went on to say in his letter:

“Please confirm whether you agree that this enquiry can progress.  If you do not, the Law Society Committee is minded to refer the matter to the Bâtonnier, as obviously both parties must agree to the enquiry and its terms of reference.”.

15.      Despite this request Advocate Dessain never heard anything further from Advocate Le Quesne.  Following a query as to progress by the Bâtonnier, Mr. Moon wrote to the new President of the Jersey Law Society, Advocate Binnington (who had taken over from Advocate Clapham on 16^th June) to say that it was impossible to proceed with the investigation because of the lack of co-operation by Advocate Le Quesne, and his belief that there was not a valid cause of complaint requiring investigation.  We think that he was entitled to so conclude, although it is unfortunate that he did not inform Advocate Le Quesne of this decision because, as we shall see, Advocate Le Quesne heard nothing further until approached by the police in the autumn.

16.      Mr O’Connell criticised the inspectors for not sending a reminder.  We accept that they might well have done so, but it is the duty of an advocate to co-operate fully and promptly with an investigation.  The onus lay on Advocate Le Quesne to answer the clear question posed by Advocate Dessain rather than on the inspectors to chase him up. 

17.      On 12^th July, 2001, having discussed the matter with the President of the Law Society, the Bâtonnier referred the matter to the Attorney General for his consideration as to whether there should be a criminal investigation.  In September 2001, the Solicitor General referred the matter to the police for investigation.  As we have said Advocate Le Quesne first learned of this when he was subsequently approached by the police.

18.      Following receipt of the police report the Solicitor General wrote to the Bâtonnier on 6^th February, 2002, to say that no criminal proceedings were proposed.  Unfortunately, no one thought to inform Advocate Le Quesne of this decision until 12^th April, when, following resuscitation of the inspectors’ enquiry, he telephoned the police to be told that they had recommended against prosecution some two months earlier.  We have to say that this omission was most unfortunate.  We think that when the Law Officers decide, following a police investigation, not to proceed with criminal proceedings, the police should be directed to inform the suspect of that decision (subject to any necessary caveats should fresh evidence arise) and we note that the Solicitor General will be considering the necessary procedures with the Attorney General.  We accept that the failure arose out of misunderstanding because everybody thought somebody else would tell Advocate Le Quesne of the outcome.  But the upshot was that it undoubtedly caused him and his family unnecessary and prolonged worry. 

19.      Following receipt of the Solicitor General’s decision not to prosecute the Bâtonnier referred the matter back to Advocate Dessain and Mr Moon.  The inspectors were, however, now reporting to the Bâtonnier rather than, as previously, to the Law Society.  They wrote to Advocate Le Quesne on 12^th April, 2002, with amended terms of reference which took account of his concern in relation to Mrs Holmes seeing any statements from Viberts.  Advocate Le Quesne replied at length on 30^th April, pointing out that he felt “ill-used” by the process of investigation.  However, he sent statements from himself and Advocate Colley.  Further exchanges of correspondence and a meeting took place at which we are told Advocate Le Quesne produced a number of files and offered them for review by the inspectors. 

20.      The inspectors produced their report on 28^th August, 2002.  Unfortunately, as both Advocate Clyde-Smith and Advocate O’Connell agreed, the inspectors’ report was fundamentally flawed.  It misread Mrs Holmes’ complaint by attributing a comment which she made about work in progress on legal aid matters to the Shepherd Hill matter.  They therefore understood her to be accepting that there was some unbilled work in progress on the Shepherd Hill matter, when it is clear that the whole point of her affidavit was that she was saying that there was no such unbilled work in progress on that file.  That is why she considered the invoices of November, 2000, to have been dummy invoices.

21.      Based upon this misunderstanding the inspectors concluded that Viberts were entitled to bill the TGWU, but that because of the absence of records Viberts had not been able to justify the amount of the bills raised.  However, they concluded that Viberts were not entitled to take any fees from the client accounts because those moneys were held on trust for the untraced employees whereas the fees were due by the TGWU.  Accordingly, they found there had been a breach of Rule 15 (2) of the Code of Conduct of the Jersey Law Society, but that the breach was not due to improper intent but rather to lack of discipline and clear thinking.  They recommended that the remaining half of the trust money should be paid to the TGWU to hold upon trust for the untraced members and any fees of Viberts should be billed separately to the TGWU.  Viberts complied with that recommendation and the balance was subsequently transferred to the TGWU as suggested.

22.      Having considered the report of the inspectors, the Bâtonnier decided that, even on the basis of their finding in relation to the nature of the professional misconduct the matter was serious enough to require reference to the Court.  He instructed Advocate Clyde-Smith to represent him.  It seems clear that Advocate Clyde-Smith immediately spotted the flaw in the inspectors’ report, because when the Representation was issued on 15^th November, 2002, it alleged a breach of Rule 15 (2) of the Code of Conduct on the basis the advocates knew, or alternatively ought to have known, (1) the moneys were held on bare trust for the untraced members;  (2) no, or no sufficient work had been done on the file which justified the invoices raised in November, 2000, and (3) Viberts had no right to use the money in the client accounts to discharge those fee notes.

23.      In other words the Bâtonnier was resuscitating the allegation of dishonesty when he pleaded that the respondents knew that the fees were not justified.  That allegation was based squarely on Mrs Holmes’ affidavit of complaint.  We can well understand Advocate Le Quesne’s dismay at this turn of events.  The Law Officers had decided that there was insufficient evidence of dishonesty to require prosecution, and the inspectors had found that his error was due only to muddled thinking.  However we are in no doubt that the Bâtonnier was right to maintain the allegation.  The core allegation had not been satisfactorily answered other than by repeated assertions on Advocate Le Quesne’s part that he had not been dishonest and was entitled to raise a bill.  The inspectors’ conclusions were flawed for the reasons we have given.

24.      We accept that the Representation must have come as a surprise to Advocate Colley and indeed Advocate Le Quesne.  Nevertheless, on the evidence then available to him we conclude that the Bâtonnier was justified in proceeding against Advocate Colley as well as Advocate Le Quesne and in maintaining the allegation of dishonesty.

25.      In December, 2002, Advocate Clyde Smith was elected Bâtonnier following the retirement of Advocate Michel.  We have been taken through the process since then in some detail.  However we think we can deal with this briefly.  As Mr O’Connell made clear, although he was critical of the decision to bring the Representation in the first place, he had no criticism of the way the Bâtonnier had dealt with the matter following the launch of the proceedings.  In summary Advocate Le Quesne and Advocate Colley swore affidavits on 16^th December; essentially these re-stated the position and produced one or two more documents.  At a meeting and in two letters in December, Advocate Clyde-Smith set out with clarity his concerns, and explained why the state of the evidence led him to the conclusion that he must maintain the allegation of dishonesty at that stage.

26.      Advocate Le Quesne then eventually did, with the considerable assistance of Advocate O’Connell, what he should have done so much earlier.  He sought out all the available files including those in storage; statements were taken from the accounts staff at the time, who shed considerable light on the matter; the TGWU was approached although it transpired that they had routinely destroyed the relevant records for the period in question; and most importantly all the ledgers (handwritten up until 1995 and computer produced thereafter) were produced for the first time.

27.      The product of all this work was supplied to the Bâtonnier on 26^th March 2003.  Having considered it and with the benefit of a further meeting the Bâtonnier accepted that there was indeed unbilled work in progress in respect of the period covering the second distribution which justified a fee note in excess of the amounts standing in the client accounts.  Having seen for the first time all the ledgers it became clear that Mrs Holmes was mistaken in her assertion that a fee note had already been raised in respect of the second distribution.  Furthermore, her complaint acknowledges by implication that work sufficient to justify a substantial fee note had been done on the second distribution, and this provided corroboration of much of what was now being put forward.  It also became clear that the failure to send the fee notes to the TGWU, which on its face, when taken with the fact that the fee notes exactly matched the amounts in the client accounts, was somewhat suspicious, had arisen through an administrative error in the accounts department. 

28.      In summary the Bâtonnier was satisfied that Viberts were entitled to raise a fee note in respect of unbilled work in progress in relation to the second distribution in a sum which was in excess of the amounts in the client accounts and that Advocate Le Quesne had taken the decision to reduce the fee notes to the amount in the client accounts and apply those funds in payment of the fee notes.  The Bâtonnier accepted that there was no element of dishonesty and, having been taken through the case, we are similarly satisfied.  Advocate Le Quesne and Advocate Colley are therefore entitled to an unambiguous finding that any allegation of dishonesty against either of them in relation to this matter is unfounded.  Furthermore, in the light of the withdrawal of the allegation of dishonesty the Bâtonnier has withdrawn the case against Advocate Colley on the basis that she was merely an employee at the material time and had no knowledge of the history of the matter.  She acted purely under the direction of Advocate Le Quesne.

Conclusions on the process

29.      It was as long ago as in 1977 that the Court of Appeal In Re an Advocate (1977) JJ 193 pointed out the urgent need for clear rules of procedure in disciplinary matters, both for the benefit of the public and the profession.  This was echoed in the Report of the Legal Practice Committee RC 35/93, chaired by Sir Godfray Le Quesne QC which commented at paragraph 6.15:-

“The defects of these haphazard arrangements are too obvious to need further emphasis.”

The Committee recommended the urgent introduction of legislation.  We understand that legislation is now to be brought forward imminently but this case shows only too clearly the difficulties of not having a clear procedure. 

30.      Mr O’Connell was very critical of the procedure; conversely the Bâtonnier and the Solicitor General were critical of Advocate Le Quesne’s lack of co-operation.  We find ourselves agreeing with some, but not all, of the submissions of both parties. 

31.      As to the investigation, we accept that it was carried out by busy practitioners who were giving of their time voluntarily and were doing their best to do the right thing where there was no road map and no established structure.  Nevertheless, with the benefit of hindsight we would agree with the following criticisms made by Mr O’Connell:

(i)        It was quite wrong for Advocate Le Quesne not to be given the written complaint of Mrs Holmes until 26^th March 2001, some three and half months after it was first made, and some two months after it was reduced to writing, which in any event should have been done immediately.  Advocate Le Quesne was therefore reliant on what he was told about the complaint by Advocate Clapham and by the inspectors.  Any alleged lack of co-operation on his part prior to seeing a copy of the complaint was understandable and should not be held against him.

(ii)       We accept that once he was told by the inspectors that there was the possibility of criminal conduct, Advocate Le Quesne was put in a very difficult position.  If he co-operated fully he might lose some of the protections given to a suspect in the criminal process.  In our judgment it was wrong to try and keep both options open.  The Holmes allegation clearly raised the possibility of a criminal offence.  The Bâtonnier was therefore right to refer it to the Attorney General in July 2001, when the first attempted investigation by the inspectors ran into the sand.  In fact nothing had changed since January 2001 when Mrs Holmes reduced her complaint to writing.  If it was right to refer the complaint to the Attorney General in July 2001, it was right to do so in January, and that is when it should have been done.  In our judgment where there is a clear allegation of criminal conduct the Bâtonnier should refer the matter straight away to the Attorney General.  Clearly, it is more difficult where there is not such a clear allegation but merely a concern that criminal conduct might conceivably appear.  In those circumstances the Bâtonnier will have to exercise his judgment.  In this case the allegation of criminal conduct was clear.  This would have avoided six months’ delay.

(iii)      Although, as will appear, we are critical of Advocate Le Quesne for his failure to respond to Advocate Dessain’s letter of 22^nd May, 2001, we think that, in the particular circumstances of this case, it would have been courteous for the Bâtonnier to inform Advocate Le Quesne that he had referred the matter to the Attorney General.

(iv)      It is extremely unfortunate that, despite the Solicitor General having decided not to proceed with criminal proceedings by 6^th February 2002, Advocate Le Quesne was left to find out for himself, by telephoning the police on 12^th April, following notification from the inspectors that they were resuming their investigation.  During the whole of that period he was no doubt extremely worried at the thought that he might be prosecuted.  This was an unnecessary period of worry and distress for Advocate Le Quesne and no doubt for his family.

(v)       The investigation by the inspectors was flawed for the reasons that we have given.  This had the unfortunate consequence that, when the Bâtonnier, with the assistance of Advocate Clyde-Smith, came to review the matter, the essential allegation made by Mrs Holmes remained unsatisfactorily answered. 

(vi)      The confusion of the rôle of the Bâtonnier and the Law Society led to difficulties.  The original complaint was made to the Bâtonnier, but he referred it to the Law Society.  The inspectors were first appointed by and reported to the Law Society which refused Advocate Le Quesne’s requested alteration to the terms of reference.  When the inspectors could not proceed, the Law Society handed the matter back to the Bâtonnier who decided to report the matter to the Attorney General.  Following the completion of the police investigation the inspectors were re-appointed.  This time they were appointed by and reported to the Bâtonnier.  Unlike the Law Society he was willing to amend the terms of reference as requested by Advocate Le Quesne. 

In short we accept that the overall investigation process has taken longer than it should and that very serious allegations have been hanging over Advocate Le Quesne for nearly two and half years. 

32.      As against that we think that Advocate Le Quesne did not help himself as much as he could and should have.  We would not categorise his attitude as being uncooperative, but he could have been much more cooperative.  Thus:-

(i)        Advocate Dessain’s letter of 22^nd May 2001, could not have been clearer in asking Advocate Le Quesne to confirm that the enquiry could proceed as both parties had to agree to the enquiry, failing which the matter would have to be referred back to the Bâtonnier.  Advocate Le Quesne simply failed to reply to this letter.

(ii)       One cannot escape gaining the impression from his various letters that he felt that once he had assured the Law Society and/or the inspectors, as the case may be, that he acted honestly, that should have been sufficient for the whole enquiry to be dropped.  He clearly thought it was unreasonable for the matter to be pursued in the face of his assertion that all was well.  In our judgment that shows a misjudgment on his part.  Given the nature of the allegation the profession was under a duty to investigate the matter properly and thoroughly and not just accept the word of a colleague that all was well.

(iii)      In his affidavit of 16^th December, 2002, Advocate Le Quesne stated at paragraph 3, that it was only following service of the Representation in October 2002, that he appreciated that what was being alleged was that Viberts had rendered a bill when they had not done work to justify such a bill.  We have to say that this assertion shows an astonishing failure to get to grips with the complaint and to treat it with the appropriate degree of seriousness.  As long ago as 13^th January, 2001, Advocate Clapham had stated in his letter to Advocate Le Quesne that the Committee was faced with an allegation that there was no or very little work in progress which had not been billed.  This was referred to specifically by Advocate Le Quesne in his reply to that letter of 16^th January, 2001, when he stated that he was unaware until then that there was an allegation that no work was done to justify the bill, and that, of course, is exactly what Mrs Holmes alleged in her affidavit, which was sent to Advocate Le Quesne in March, 2001.  Yet here he is in December 2002, still apparently having only just understood that the allegation was that Viberts had not done work to justify a bill. 

33.      In our judgment an advocate or ecrivain owes a duty to cooperate promptly, openly and fully with the Bâtonnier or the Law Society in the investigation of a complaint against him.  The public interest so requires.  Although Advocate Le Quesne often wrote letters indicating that, if the investigators or the Bâtonnier required any more information or documents, he would be happy to oblige, that put the onus on them in effect to seek specific discovery (to use an analogy) when his duty was to make full discovery in the first place.  In our judgment he adopted the wrong approach.  The irony is that, if he had done at an early stage what he did under the sound advice of Advocate O’Connell in 2003, i.e. produce all the ledgers, obtain statements from the accounts department etc., he would have proved his innocence of the dishonesty allegation much much earlier than March 2003. 

The nature of the professional misconduct

34.      The matter is now proceeding on an agreed basis.  Rule 15 (2) of the Code of Conduct provides:

“There may be drawn from a Client Account only money properly payable and which is forthwith paid to or on behalf of a client, or in reimbursement of monies expended on behalf of a client or costs due to the firm or such member or money paid into such account by mistake or accident.”

35.      The money in these client accounts belonged to the untraced employees.  The fee notes of 1^st November, 2000, like the previous fee notes, were rendered to the TGWU.  Advocate Le Quesne simply did not apply his mind to this issue, and assumed that the money in the client accounts could be used to pay the fee notes.  Thus money belonging to the untraced employees was used to pay a liability of the TGWU.  That was a clear breach of Rule 15 (2) and amounted to professional misconduct.  Advocate Le Quesne accepts that this was so. 

36.      At the hearing Mr O’Connell submitted that, on the strength of Adams –v- London Improved Motor Coach Builders Limited [1920] All ER Reprints 340, it was possible to argue that the TGWU should be regarded as the agent of the employees, so that the employees were the clients of the firm and could be liable for the fees as well as the TGWU.  If that were right, then bearing in mind that the client accounts belonged only to the 37 untraced employees rather than the 150 employees in respect of whom the fees notes had been raised, 37/150ths i.e. approximately 25% of the fee notes could in fact have been properly deducted from the client accounts.

37.      In the absence of any evidence as to the question of agency the Bâtonnier is willing for the matter to proceed on the basis that this may have been the legal position.  In our judgment it does not alter the nature and quality of the professional misconduct in this case.  Advocate Le Quesne did not consider billing the 150 members.  He made it clear throughout that he regarded the TGWU as the client, and all the previous bills had been rendered to and, save for the third bill, paid by the TGWU.  What he actually did was to fail to appreciate the distinction between the TGWU and the untraced employees rather than fail to appreciate the difference between the 37 untraced employees and the 150 employees as a whole.

The Court’s approach

38.      The Court was referred to Bolton –v- Law Society [1994] 2All ER  486.  The head note to that case reads:

“A solicitor who discharged his professional duties with anything less than complete integrity, probity and trustworthiness had to expect severe sanctions to be imposed upon him by the Solicitors Disciplinary Tribunal, and except in a very strong case, an appellate court should not interfere with the sentence imposed by the tribunal.  The decision whether to strike off or to suspend involved a difficult exercise of judgment made by the tribunal as an informed and expert body on all the facts of the case, and only in a very unusual or venial case would the tribunal be likely to regard as appropriate an order less severe than one of suspension.  Furthermore, because orders made by the tribunal were not primarily punitive but were directed to ensuring that the offender did not have the opportunity to repeat the offence and to maintaining the reputation of the solicitor’s profession and sustaining public confidence in its integrity, considerations which would ordinarily weigh in mitigation of punishment had less effect than in criminal cases and so it could never be an objection to an order of suspension in an appropriate case that the solicitor might be unable to re-establish his practice when the period of suspension. was over.”

We were referred specifically to and endorse the comments of Sir Thomas Bingham MR at 491F to 493A. 

39.      The Bâtonnier accepted that we were not dealing with a lack of integrity or probity, both of which import notions of dishonesty, but submitted that we were dealing with a case of lack of trustworthiness because that concept was concerned with questions of reliability.  The facts of Bolton concerned a payment away of the client’s monies which, although apparently found not to be dishonest, was clearly made deliberately in circumstances where the solicitor knew that he was acting in breach of the Rules and of his obligations in respect of the monies and the payment was for his personal benefit.  It was in that context that the Court made its remarks with which, as we say, we entirely agree.

40.      We are dealing here with a misapplication of monies in a client account.  Public confidence in the profession depends upon clients being able to rely upon advocates to deal properly with their money.  It is therefore of the utmost importance that monies in a client account are only dealt with in accordance with the Code of Conduct and paid out for proper purposes.  Advocates shoulder a heavy responsibility to ensure that this is so.  It is incumbent upon them to consider payments from clients’ monies carefully and to ensure that there are adequate systems and accounting personnel in place to achieve this.  Where there is a serious failure by an advocate in respect of the misapplication of client monies the Court is likely to consider as a starting position that at least suspension may be required.  

41.      But we accept that the circumstances in which client monies may be misapplied can vary enormously.  At one end an advocate might dishonestly take funds for his own benefit.  In that case he is likely to be struck off.  At the other extreme there may be an isolated administrative error by a member of a properly established and trained accounts department, in which event no penalty may be required.  We emphasise that members of the profession must devote the necessary consideration and resources to ensure that client monies are properly dealt with.

Decision. 

42.      Mr O’Connell put forward the mitigation in this case powerfully and persuasively.  He emphasised that this was a momentary error of judgment at the end of a long meeting to consider a number of matters.  Viberts was in a state of flux at the time; its systems and procedures were being brought up to date by Advocate Colley, who had been brought in for that very purpose.  The previous systems had been rudimentary.  This was undoubtedly causing some stress within the firm and it was a difficult time for Advocate Le Quesne as the managing partner by reason of the various matters which were explained to us.  The error was the simple failure on his part to appreciate that the monies belonged to the untraced employees whereas the bills were being rendered to the TGWU.  The moment the error was pointed out by Advocate Clapham the money was returned.  The investigative process had gone on for far too long with twists and turns which were not Advocate Le Quesne’s fault.  In particular the involvement of the police and the resuscitation of the allegation of dishonesty by the Bâtonnier, with the potentially very serious consequences for Advocate Le Quesne in each case, had imposed very considerable stress and worry over an unnecessarily long period. 

43.      He referred also to the fact that Advocate Le Quesne although advised that he had grounds to do so had foregone a legal challenge to the jurisdiction of this Court.  He referred to Advocate Le Quesne’s distinguished twenty-five year career as advocate, his unblemished record, of the respect in which he is held, of his honorary contribution both to the profession (for example his lengthy period as secretary of the Jersey Law Society), and to the wider community (for example he was a member of the Clothier Panel on the review of the machinery of government and other bodies).

44.      Finally he referred to the fact that this could not happen again.  Viberts had been an old fashioned firm with hand-written ledgers until 1995.  All was now changed.  The reforms introduced by Advocate Colley under the authority of Advocate Le Quesne had transformed and modernised the practices and procedures of the firm so that they met the standards required of a modern legal practice. 

45.      The Court has available a number of sanctions, we take them in ascending order.  The first is reprimand, a moderate form of rebuke.  The second is censure, a strong rebuke.  Next comes a fine where the Court considers that a rebuke (whether moderate or strong) is insufficient.  This is followed by suspension from practice for a period and finally striking off.

46.      In the recent case of Re An Advocate (14^th August, 2002) Jersey Unreported; [2002/151] the Court suspended the advocate in question for 2 months.  In that case the advocate accessed the file of a client of his firm in order to use information in the file for his own purposes which were adverse to those of the client.  Although the present case involves the misapplication of client funds the Court regards it as less serious than the 2002 case, which involved a deliberate breach of trust and confidence in obtaining improper access to a client’s file for the advocate’s personal use.  Here on the other hand, we are dealing with an error of judgment, not a deliberate breach of duty. 

47.      The Court concludes that the particular circumstances of this case do not require suspension.  However, the Court is divided on the appropriate sanction.  Four Jurats consider that taking into account the nature and circumstances of the breach and the mitigation put forward by Mr O’Connell a censure would be the appropriate decision.  The other four Jurats consider that notwithstanding these points, this was a case where Advocate Le Quesne did not give the matter the careful consideration which he should have.  He simply saw the funds in the client ledger and decided to use them to pay the fee notes which were due.  In their judgment clients of lawyers are entitled to expect a more measured and considered approach.  They feel that, in the circumstances, the need to emphasise both to the profession and to the public the responsibility which falls upon advocates when dealing with client monies, and the need therefore for advocates to exercise proper care and attention when dealing with client funds requires the Court to mark the failure to do so on this occasion by more than a rebuke, even at the higher level of censure.  They consider that a fine of £10,000 is the least sanction which is commensurate with these requirements.  I find myself in agreement with the latter group of Jurats for the reasons which they give.

48.      The decision of the Court, therefore, by a majority of 5 to 4, is that Advocate Le Quesne is fined £10,000 for his professional misconduct by acting in breach of Rule 15 (2) of the Code of Conduct.  For the sake of good order we should state formally that the Bâtonnier has discontinued the proceedings against Advocate Colley and we agree entirely with his decision to do so.  She is therefore discharged from the proceedings and there is accordingly no adverse finding of any description against her.

Authorities

Bolton –v- Law Society [1994] 2 All ER 486.

In Re an Advocate (1977) JJ193.

In Re an Advocate (14^th August, 2002) Jersey Unreported; [2002/151].

Report of the Legal Practice Committee RC 35 of 93.

Adams –v- London Improved Motor Coach Builders Limited [1920] All ER Reprints 340.