MacPherson v Law Society

Proceedings before the Solicitors Disciplinary Tribunal are disciplinary rather than criminal proceedings. A solicitor is not entitled to legal representation at public expense merely because the allegations are serious, where the procedure is straightforward and the relevant facts are within the solicitor’s knowledge. The Tribunal’s statutory structure does not, without evidence of actual improper influence, establish a lack of independence or impartiality. Professional obligations may entail waiver of privilege against self-incrimination where disclosure is required for the investigation of professional misconduct. Legal professional privilege belongs to the client, not the solicitor. Dishonest handling of clients’ money ordinarily warrants striking the solicitor off the roll, and that sanction is not disproportionate merely because criminal penalties might differ.

Mr Allan Macpherson appealed under section 49 of the Solicitors Act against findings by the Solicitors Disciplinary Tribunal that he had engaged in conduct unbefitting a solicitor. The allegations concerned client money, legally aided clients’ funds, failures to account to the Legal Aid Board, misleading information, failure to deliver bills, and misleading use of a letterhead.

The Tribunal found the allegations proved, treated the conduct relating to the Legal Aid Board as dishonest, struck Mr Macpherson off the roll, and ordered him to pay £9,323.60 in costs. He did not attend the appeal hearing but invited the court to decide the matter on the papers. The central issues were whether the disciplinary process was criminal, unfair, insufficiently independent or impartial, contrary to the privilege against self-incrimination or legal professional privilege, and whether striking off was disproportionate.

1. Appeal dismissed. The grounds of appeal were wholly unsustainable. The proceedings before the Solicitors Disciplinary Tribunal were not criminal in nature. The Court of Appeal’s decision in Pine v The Law Society was directly applicable.
2. The absence of legal advice or representation did not make the process unfair. The procedure was not complex, the relevant facts were within the solicitor’s knowledge, and the solicitor had an opportunity to identify any defence. The seriousness of the possible consequences did not alter that conclusion.
3. The statutory scheme did not establish that the Tribunal lacked independence or impartiality. The Law Society was a party entitled to make submissions, but there was no indication that it could influence the Tribunal’s decisions. The court adopted the reasoning of Crane J, as referred to in Pine v The Law Society.
4. Entering the profession involved accepting its professional duties and liabilities. In disciplinary proceedings, the obligation to provide relevant information could amount to waiver of privilege against disclosure. The reasoning in R v Institute of Chartered Accountants for England & Wales ex parte Nawaz had been applied to solicitors in Holder v The Law Society.
5. The complaint concerning legal professional privilege was also without merit. Such privilege belonged to the client rather than the solicitor, and the same reasoning applied.
6. The intervention in the solicitor’s practice did not provide an effective ground of appeal. There was no material suggesting that the intervention was inappropriate, improper or unlawful.
7. Striking off was an appropriate and proportionate sanction. The court referred to Bolton v The Law Society and Weston v The Law Society, and held that striking off a solicitor who had acted dishonestly in relation to clients’ money was the normal sanction and was not rendered unfair or disproportionate by comparison with criminal penalties.
8. The defendant was entitled to costs, to be assessed if not agreed. The court directed that Mr Macpherson receive a transcript at public expense.

The judgment states that the appeal was brought under section 49 of the Solicitors Act against the decision of the Solicitors Disciplinary Tribunal. The Tribunal had struck the claimant off the roll and ordered him to pay costs. The Divisional Court dismissed the appeal and ordered costs to be assessed if not agreed.