Darby v Law Society

A solicitor must provide timely and sufficiently detailed costs information from the beginning of the retainer and periodically as litigation progresses. A client’s experience does not dispense with that obligation unless the solicitor establishes that the client is sufficiently knowledgeable about litigation and its costs. Failure to provide advice where escalating costs and litigation risks require it may constitute professional misconduct.

A solicitor who remains on the court record must protect the client’s interests and the court’s proper functioning. Refusing at short notice to attend a hearing because unpaid, unbilled sums have not been provided may amount to professional misconduct. Separate penalties may be imposed for distinct forms of culpable conduct. The disciplinary tribunal’s assessment of seriousness, penalty and costs attracts substantial appellate deference.

Michael John Darby, a solicitor, appealed under section 49 of the Solicitors Act 1974 against findings of the Solicitors Disciplinary Tribunal. The Tribunal found five allegations of conduct unbefitting a solicitor proved, imposed five fines of £3,000, and ordered him to pay the Law Society’s costs.

The challenged findings concerned failure to provide costs information under Rule 15 of the Solicitors Practice Rules 1990, failure to attend a taxation hearing and provide proper advice about it, and the writing of offensive, inappropriate and confidential letters to third parties. The appeal also challenged the penalties and costs order. The central issues were whether the Rule 15 breach amounted to professional misconduct, whether the failure to attend the taxation hearing was misconduct, and whether the Tribunal’s sanctions and costs order should be disturbed.

1. Appeal dismissed. The Court considered the appeal by way of rehearing, but applied appropriate deference to the Tribunal’s factual and professional assessment.

2. The solicitor-client retainer in the litigation began in November 1994. Rule 15 required costs information at the outset and periodic updating as the matter progressed. The solicitor had a heavy onus to establish that the client was sufficiently sophisticated in litigation and attentive to its costs for the rule to be disregarded. That burden was not discharged. Given the relatively small sum in issue and the escalating exposure to the solicitor’s own costs and the legally aided opponent’s costs, waiting until February 1996 to provide information was professionally irresponsible. The breach was serious and material, and amounted to professional misconduct.

3. The solicitor acted contrary to the client’s best interests by demanding, shortly before the taxation hearing, payment of unbilled sums relating to separate matters and funds for attendance as a condition of attending. Since he remained on the court record, his failure to attend without adequate warning was a dereliction of duty to both client and court. If he wished to cease acting, he should have applied to come off the record with reasonable notice and reasons. This also amounted to professional misconduct.

4. The Tribunal was entitled to impose separate penalties for the three allegations concerning the improper letters. Although the contents overlapped, the allegations addressed distinct culpable conduct, including offensive communications, damage to professional reputation and breach of confidentiality.

5. The total fine of £15,000 was not disproportionate. Professional disciplinary sanctions primarily protect professional standards and the public rather than punish in the ordinary criminal sense. Personal mitigation therefore had reduced weight. The Court also found no basis to interfere with the costs order under section 47(2)(i) of the Solicitors Act 1974 and paragraph 22 of the Solicitors Disciplinary Proceedings Rules 1994.

• Solicitors Disciplinary Tribunal: On 27 February 2002, found five allegations of conduct unbefitting a solicitor proved, imposed fines totalling £15,000 and ordered payment of the Law Society’s costs.
• High Court (Administrative Court): The appeal under section 49 of the Solicitors Act 1974 was dismissed in its entirety.