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24 April 2013
8 November 2013
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12 December 2013
At the same time it strives to protect the reputation of the profession from the damage that might be caused by the small number of practitioners who do not have their clients' best interests at heart. This is a tough job. To do it effectively, the Law Society must have muscle and, where necessary, use it.
So I was not impressed by The Lawyer's front-page report on the David Holder case (The Lawyer, 29 July). The headline stated, that "Crooked solicitors gain immunity from Law Soc". Incompetent or dishonest solicitors have not been granted immunity from the intervention measures available to the Law Society to protect the public.
The issue is more complex than report suggests. The Law Society intervened in Holder's practice because it had reason to suspect dishonesty. There appeared to be more than £200,000 missing from the client account and he was in serious breach of the Solicitors' Accounts Rules. Holder appealed to the High Court against the Law Society's intervention notice, as he was entitled to do under the Solicitors Act. To save unnecessary costs, the Law Society sought summary judgment on the basis that his appeal had no prospect of success.
Holder, however, argued before Mr Justice Smith that the intervention was in contravention of the Human Rights Act 1998 (HRA), specifically Article 1 of the First Protocol of the European Convention, which states that "every natural or legal person is entitled to the peaceful enjoyment of his possessions". In his view, the society's intervention interfered with his right to possessions, such as client fees, which he claimed were due to him, and that it could not be said that he had no prospect of success. On these grounds Holder suggested that the power of intervention granted to the society under the Solicitors Act 1974 was incompatible with the convention and he argued that he should have the opportunity to put forth his arguments at trial.
Judge Smith held that the power of intervention is a necessary power and of itself is not contrary to the HRA. However, he did not uphold the summary judgment that the society had previously been granted because he considered that whether there was an infringement of the HRA was a question of fact and degree in each case. He could not, therefore, conclude that there was no real prospect of the claimant establishing at trial that his human rights had been infringed and so allowed Holder's appeal to the extent of allowing him to have his trial.
The society has not, as the article suggested, been "thrown into confusion" over this ruling. It goes without saying that every solicitor is entitled, like all of us, to the protection of the HRA where it applies and the Law Society would not question such entitlement. What Judge Smith's judgment emphasises is that in exercising its regulatory functions, the Law Society must satisfy itself - and where necessary the court - that the measure adopted to deal with a failing practitioner is suitable for achieving the desired objective. Furthermore, we must continue to be rigorous in ensuring that proper consideration is given to any alternative measures which might be available in case an alternative approach, less damaging to the individual concerned, might be adopted. The judgment is a useful reminder of this point, but the society has in any event always considered alternatives, such as the imposition of practising certificate conditions where they would be sufficiently (and quickly) effective.
What the judgment does not suggest is that the Law Society should have its hands tied when dealing with suspected dishonesty, fraud or other cases of serious misconduct. In some cases intervention will be appropriate, as Judge Smith has recognised, and the society will continue to use this measure where it is necessary to protect the public.
The society has applied to the Court of Appeal for permission to appeal against the Holder judgment. In the meantime, having taken careful note of the judge's comments, the society will continue robustly to regulate the solicitors' profession in the interests of the public, the profession itself and the administration of justice more broadly. It is in no one's interest to imply that crooked solicitors can get away with their dishonest activities, and the Law Society will always ensure, through proper use of its regulatory process, that this will never be the case.