Wednesday, May 27, 2009

Private Eye

From the Times of London:

Thousands of disciplinary rulings against lawyers accused of misconduct can be publicised after one of Britain's leading solicitors lost a battle in the Court of Appeal to keep his own case under wraps.

Lawyers for Michael Napier, former President of the Law Society, went to court to seek an injunction to stop Private Eye from publishing identifying details of a complaint against him. But on Tuesday the Court of Appeal backed an earlier ruling by Mr Justice Eady in the High Court and refused to grant the banning order.

The ruling also clears the way for thousands of other cases each year against solicitors and barristers to be publicised, as well as findings by the legal ombudsmen who act as a last “court” of appeal.

The ruling also raises a question mark over the publication of disciplinary findings by other professional bodies and other ombudsmen.

One lawyer said yesterday: “This will be a free-for-all for complainants. Anyone aggrieved with his or her lawyer will be able to publicise details, whether the complaint was upheld or not — and the public will think there's no smoke without fire.”

Mr Napier, senior partner of the law firm Irwin Mitchell and a member of a new arch regulator, the Legal Services Board, has been reprimanded and found guilty of acting in circumstances where there was “significant risk” of a conflict of interest.

The complainant, a barrister called Michael Ford, then referred the case to the legal ombudsman. It was looked at by the Scottish ombudsman because Mr Napier had held a prominent position in the Law Society. He concluded that the Law Society had failed to investigate the original complaint properly and said that the penalty imposed, the reprimand, should be reinvestigated to see whether some other penalty should be imposed. In January this year Private Eye obtained a copy of the ombudsman's report but Irwin Mitchell and Mr Napier sought an injunction to prevent him from being identified in any publication.

This week's robust ruling by the appeal judges means that decisions by adjudication panels can be published if the complainant wishes. The Solicitors Regulation Authority, the body that took over the job of disciplining solicitors from the Law Society, makes almost 2,500 adjucations a year.

Lord Justices Hughes, Toulson and Sullivan ruled that complainants did not owe a duty of confidentiality to their solicitors. Lord Justice Hughes rejected the argument from Mr Napier's lawyers that the disciplinary scheme would be unworkable or would “impair the integrity of the process” unless the adjudications by panels were confidential to themselves.

Mr Napier was not available for comment.

Mr Ford's complaint against Mr Napier relates to the barrister's suspension from the Hong Kong Bar Association over misuse of confidential client information. He appealed to the Privy Council and engaged Mr Napier, who acted free of charge and won the appeal. But five years later Mr Ford alleged a conflict of interest.

He claimed that the relationship of another branch of Irwin Mitchell with Esso was deterimental to him and beneficial to Exxon and its wholly owned subsidiaries, including Esso, which was in litigation with him.

Irwin Mitchell said: “We expect the decision will be a surprise and of concern to the legal profession and to other regulated professsions and businesses which might have thought information provided to their regulator would be treated as confidential, especially in the sensitive area of complaint investigation and processing.”

Thanks to John Van Bolt of Michigan for sending this information. (Mike Frisch)

http://lawprofessors.typepad.com/legal_profession/2009/05/from-the-times-of-london----thousands-of-disciplinary-rulings-against-lawyers-accused-of-misconduct-can-be-publicised-after.html

Bar Discipline & Process | Permalink

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Comments

There have been considerable complaints in recent years about the disciplinary process in England & Wales which is one of the major reasons that Solicitors Regulatory Authority took over from the Law Society.

I personally have had an almost identical experience to the one described. I brought a complaint with the Law Society of England & Wales against solicitors of that society who also happened to be the leadership in the Law Society of Hong Kong. The LSHK informed the LSEW that it had already investigated the complaint. Based solely upon that, the LSEW refused to undertake an investigation. The LSEW even refused to consider my claims that the LSHK had conducted a sham proceeding, which it had. The conflict of interest was obvious. The Ombudsman upheld the decision, again based solely upon the assurances of the LSHK that it had investigated itself. Faced with the same choice as Mr. Ford, whether to take the matter to court or not, I chose not to.

So I am very happy to see that a former president of the Law Society has been brought to book and that he hasn’t been able to hide the result.

Incidentally, for those interested in more general reading, the Solicitors Disciplinary Tribunal decisions are published by the Law Society here:

http://www.lawgazette.co.uk/sdt

This information has been available for a long time. So it is unclear to me which decisions had previously remained confidential. Perhaps those that involved only a reprimand?

The Solicitors’ Code of Conduct 2007 (similar to our Rules of Professional Conduct) can be found here:

http://www.sra.org.uk/solicitors/code-of-conduct.page

Also relevant are the Solicitors’ Accounts Rules 1998:

http://www.sra.org.uk/solicitors/code-of-conduct/accounts-rules.page

The English accounting rule are specified in much greater detail than are our own rules.

The main statutory instrument governing solicitors is the Solicitors Act 1974:

http://www.opsi.gov.uk/Acts/acts1974/PDF/ukpga_19740047_en.pdf

Stephen

Posted by: FixedWing | May 27, 2009 12:45:55 PM

This is long overdue.How many times have solicitors got away with wrong doing becuase they see themselves above the law - especially someone as "suppposidly untouchable" as Michael Napier"??

Posted by: Richard,London | May 28, 2009 2:33:53 AM

The latest news on this is that Michael Napier has quit his position on the Legal Services Board, the new legal profession regulator in the UK. As he is a solicitor, the front line regulator, the Solicitors' Regulation Authority, will have to investigate this. This makes his position untenable.

The entire issue of conflicts has yet to be dealt with properly in the UK. But what we are also witnessing is a struggle between the new "super" regulator and the present regulators. The next big battle is to be over "alternative business structures" which the profession is resisting. It won't win, however.

Private Eye (www.private-eye.co.uk) will be publishing more on the Napier story in the next issue, due out in 2 weeks.

Posted by: John Flood | May 29, 2009 2:44:32 AM

I've obviously missed the point of this story - can someone explain? As I see it:
1. Michael Napier acted this guy for no fee out of a sense of public duty
2. He won the case
3. But it turned out there was a potential (not actual) conflict of interest
4. And that was wrong so Michael Napier got a reprimand from the Law Society
5. But hey, that didn't satisfy the guy who seems to have got his career back as a result of Napier's efforts
6. So now Napier must be metaphorically set in the stocks and pelted with rotten fruit.
7. And as I said, I've completely lost the plot. What is going on?

Posted by: MadMacNeil | May 29, 2009 3:47:09 AM

Mad Mac, welcome to the mad, mad, mad world of lawyer discipline.

Stephen

Posted by: FixedWing | May 29, 2009 12:51:20 PM

Mad Mac,

The following article will provide a more complete response to your question:

http://www.private-eye.co.uk/news.php?article=4&

I'm not sure how permanent that link is.

I have to say, the description of events is strikingly similar to my own experiences save that I did not take matters nearly as far as Ford did. My case also involved Hongkong and powerful members of the Law Society -- though in my case it was of the Law Society of Hong Kong. I also attempted a collateral attack through the USA courts which also failed. And I also took a complaint to the Law Society and the Ombudsman though in my case, it was prior to the recent changes which obviously have made the system more responsive. I too faced an attempt to punsih me through the costs system. Reading through this story brings back a number of memories -- not least because I was in Hongkong at the time of some of the earlier events.

Others might also find interesting the Court of Appeals decision:

http://www.bailii.org/ew/cases/EWCA/Civ/2009/443.html

Stephen

Posted by: FixedWing | May 29, 2009 1:23:39 PM

Solicitors are just like that. Code of conduct is in place but needs to be respected.

Posted by: Magannyomozo | Apr 13, 2011 8:03:52 AM

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