Law Soc, SRA found wanting as Napier takes the fall for failings
8 June 2009 | By Katy Dowell
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The Law Society has been slammed for its handling of an investigation into a conflict of interest complaint against its former president and Irwin Mitchell senior partner Michael Napier.
The chairwoman of the Scottish Legal Complaints Commission (SLCC) Jane Irvine found that the Law Society’s process had failed when it investigated claims regarding pro bono work undertaken by Napier and former Irwin Mitchell partner Ellen Windsor in 1996.
As a result the Solicitors Regulation Authority (SRA) has been forced to reopen an investigation into Napier, while Napier has relinquished his position on the Legal Services Board (LSB).
The background to the complaint is complex and convoluted. Barrister Michael Ford had been asked by the Hong Kong coroner to investigate the cover up of a 1992 explosion at a power plant owned by Exxon subsidiary Castle Peak Power. Ford claimed that when he discovered that scientific documents at the inquest had been forged, an Exxon lawyer threatened him with reprisals if he made the evidence public. After reporting the threat to the police Ford was escorted to the airport and asked not to return. He was then landed with a breach of confidentiality lawsuit from Exxon, which also attempted to have his Hong Kong practising certificate suspended.
In 1996 Ford instructed Napier, but in 2003 Ford discovered that Irwin Mitchell had represented another Exxon subsidiary, Esso Petroleum, in a multimillion-pound litigation at the same time as representing Ford. This apparent conflict of interest led to Ford’s complaint to the Law Society about Napier’s conduct.
The Law Society found that Irwin Mitchell did have a conflict of interest, but that the conflict was not serious enough for Napier and Windsor to be referred to the Solicitors Disciplinary Tribunal, leading Ford to turn to the SLCC. The case was referred to SLCC chairwoman Jane Irvine after Ford complained that the Law Society’s three-year investigation was fundamentally flawed due to Napier’s prominent position in the Law Society.
In her report Irvine stated: “The SLCC has concluded that, overall, the approach taken in this investigation was far from satisfactory.
“As a result of the failure to define complaints, who was being complained about, and the scope of the investigation, this process became unnecessarily protracted and disjointed.”
The report said that recommending the investigation be reopened was an “extreme step”, but added: “The failings of the process are such that the SLCC considers its recommendations an unavoidable conclusion.”
While the SLCC recognised that the Law Society and the SRA had both overhauled their complaints investigation process since the complaint was originally made, it recommends that the SRA re-examine how it handles such issues.
While Napier has been shamed into stepping down, largely because the firm attempted to gag Private Eye from reporting on the complaint, for the Law Society, LSB and SRA the recommendations remain just that - recommendations. They will not be enforced.
Napier clearly made a mistake in relation to the conflict, and made an even bigger one by trying to prevent Private Eye from publishing details of a report that the public had a right to see, but can he be seen as a fall guy in this case?
As the comments in the column (right) show, Napier is clearly held in high regard by his peers, but because he has publicly taken the full heat of the SLCC’s findings, it is his and his firm’s reputations that appear to have been damaged.
Yes, he was wrong to take on a case he should have been conflicted out of, and yes, he was foolish to try to use confidentiality laws to gag Private Eye, but those representing and regulating a profession that prides itself on upholding justice have been found to be sidestepping the issue, and surely that is wrong too.