In The Dock/Aids Advice. Would you take the rap for a client?
12 May 1995
When an outraged official threatened reprisals, Groucho Marx waved his cigar and barked: "You'll hear from my lawyer - when he gets out of prison."
For barristers and solicitors the possibility of prison is more remote than getting knocked down by a number nine bus outside the Law Courts; if a case goes wrong they get a wigging from the judge, an unpleasant costs order or a writ alleging negligence. But a disturbing trend is bringing the prospect of porridge closer for even law-abiding lawyers.
Even judges are not insulated from contemporary trends and no trend is more contemporary than the wish to berate the media. For example, the Court of Appeal was critical of the tabloid coverage given to the now exonerated Taylor sisters.
In October this year the Attorney General launched an inquiry into the activities of the national newspapers after the trial for assault of Geoff Knights, partner of Eastenders actress Gillian Taylforth and celebrated libel plaintiff against The Sun, was halted because of a 'gross abuse of process' by the press which had allegedly reported prejudicial background information.
There may be much to justify criticism. But if judges find they cannot pronounce sentence on the press tycoons, judicial displeasure can be indicated through other means. And lawyers who advise high-profile clients are finding themselves in the firing line.
In April 1995 media lawyers were put on notice by Family Division judge Mr Justice Thorpe that they, rather than their newspaper or broadcasting clients, may have to take the blame if a mistake is made which leads to a contempt of court and contempts can be punished by imprisonment as well as fines. Traditionally the editor went to prison. Next time it could be the legal adviser.
Earlier this year The Sun's publishers and editor Stuart Higgins admitted contempt of court and were fined £1,000 after Gloucester County Council commenced committal proceedings because the paper published a photograph of one of the children of alleged serial killer Fred West attending his funeral. An earlier order prohibited the publication of photographs of West's children.
The judge cleared the editor but blamed the newspaper's unnamed lawyer. Higgins "was entitled to and did rely on an experienced barrister whose responsibility it was to check the newspaper". The judge said: "If any individual bears responsibility for this unfortunate publication it should be the barrister who should have heard alarm bells ringing when he saw, in relation to the photograph caption and the text, the individual was a minor."
The lawyer, who worked for the paper part-time, faced no penalty but the judicial criticism could open the door to fines or prison sentences for lawyers accused of giving poor advice to media clients.
It is rare, at least in England, for the courts to jail editors but the sanction of imprisonment exists and may now be used against errant lawyers. Media lawyers be on your guard. In earlier contempt proceedings against The Sun a fine of £100,000 was imposed. The judge said if the contempt had not been a mistake "an effective prison sentence and a fine of at least seven figures would have been called for".
One benefit of of sending an editor to prison, which happened to a Daily Mirror editor some years ago, was increasing staff awareness of the risk of contempt. Newspapers ensure legal advice is provided by employed lawyers during the day and a rota of barristers or solicitors during the evening. If a mistake is made the editor would apologise and hope to avoid a more serious sanction and the night lawyer would be asked to explain how the error occurred and occasionally dropped from the rota if at fault.
One professional negligence expert said: "Barristers are insured but this is to protect them against claims that they were negligent rather than pay fines or fund their representation in committals for contempt. Since the 1970s there have been cases where the courts have expanded the duties of care owed by lawyers to their clients but this is a disturbing development if pursued by the courts. But the judge's remarks were obiter and therefore not binding." A lawyer would have to be seriously at fault to find him or herself hauled before court.
Barrister Peter Gray, an experienced night lawyer, said: "While I appreciate that contempt of court is a strict liability offence, to make the lawyers solely responsible for mistakes is not really reasonable bearing in mind the piecemeal way some stories are put together, with information coming from the news agencies, local reporters and the newspaper's own journalists. A story can change dramatically through sub-editing and it is sometimes not feasible for the lawyer to see all the versions in time. Sometimes a story can miss the lawyer altogether."
But it is not only media and night lawyers who can find themselves in difficulties. Two partners in the City office of an international firm were recently exonerated after a money laundering investigation team of the South East regional crime squad raided their homes and the Holborn office of their firm as part of an inquiry into an alleged plot to launder millions of pounds of Russian mafia cash.
Although they were exonerated, it was nonetheless an unpleasant experience.
Under money laundering regulations recently imposed, law firms must have effective reporting systems. According to banking lawyer Roger Fink: "Under regulations which came into force last year, law firms are now included among the organisations required to set up systems to prevent money laundering. These include obtaining identification evidence from new clients - there must have been some consternation when the regulations first came into force with clients being requested to produce passports - and appointing a money laundering officer to consider suspicious cases."
Fink says if a law firm fails to comply with the regulations, those responsible face a fine and up to two years imprisonment - a substantial penalty.
And the clampdown on lawyers is international. Donald Ferguson, ex-US federal prosecutor, pleaded guilty to obstructing justice and laundering money for Colombia's Cali cocaine cartel claiming he did not know he was breaking the law.
Representing clients is becoming a dangerous occupation. If these developments continue lawyers may find themselves attending court not only with their briefs but also their toothbrushes.