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The chair of the Solicitors' Family Law Association stood down last week over the group's refusal to challenge the government on law that will turn solicitors into "government narks".
David Burrows, a sole practitioner, talked to LawZone about the reasons why he resigned from the SFLA over the group's stance on the controversial Proceeds of Crime Act 2002 (POCA). "The Law Society and the SFLA are both supporting the government against the very people they represent and I find that a very uncomfortable position for the group to be in," he said. Burrows says, the SFLA's own working party recommended challenging the government, however the group's national committee overturned that decision. Burrows is hoping to make an application in the administrative court "by way of seeking a declaration as to the meaning of the Act" in the next two to three weeks.
Divorce lawyers were alarmed at a High Court ruling last October by Dame Elizabeth Butler-Sloss in P v P , which confirmed that barristers and solicitors negotiating divorce settlements risked committing a criminal offence if they failed to report to the National Criminal Intelligence Service (NCIS) any suspicion that family assets resulted from tax evasion or social security fraud under POCA. At the time, Burrows was critical of the ruling which, he believed, weakened the duty of confidentiality to clients. He told LawZone that solicitors might "lose some of the trust which is essential to the solicitor-client relationship", which was "regrettable".
Under the Act, the term 'criminal property' includes any benefit derived from committing a criminal offence, including fraud, drug dealing and tax evasion, irrespective of how little money is involved.
Burrows cites the example of one his own clients who he had to advise last week who had purchased a house, part paid for by cash. "Now, had she paid cash to help her builder evade tax or is it the builders' responsibility?" he asked. "I don't know the answer to that and, anyway, for solicitors to become government narks it isn't something that we have ever done before."
Louisa Cross, SFLA Communications Director, said that his decision was due to "differences of opinion" with the national committee over the best way to deal with the legislation. "There is widespread concern among family lawyers about the way in which the provisions of POCA interact with client confidentiality and legal professional privilege," she said. "David believes strongly that POCA should be challenged in the courts, and that SFLA should lead that challenge. The National Committee is of the view that for a number of reasons SFLA is not the appropriate body to do so."