Simms v The Law Society

A professional disciplinary tribunal may determine serious allegations of dishonesty within civil proceedings, while applying a high standard of proof. A disciplinary charge need identify the allegations and a sufficient summary of supporting facts; it need not plead all the evidence. Legal professional privilege may be overridden or qualified where the statutory scheme authorises the Law Society to obtain documents for regulatory purposes, and the fraud exception may also apply where intervention is based on suspected dishonesty. A solicitor must not lend professional authority to a transaction which he knows or suspects to be bogus, dishonest or illegal, and must protect clients and the profession from conflicts of interest and improper use of client money.

The appellant, a solicitor, appealed to the Divisional Court from findings of the Solicitors Disciplinary Tribunal that he had engaged in conduct unbefitting a solicitor. The Tribunal struck him off the Roll and made two interlocutory costs orders.

The appeal challenged procedural fairness, the use of documents said to be protected by legal professional privilege, the admissibility and treatment of expert evidence, the Tribunal’s findings on a series of transactions, and the costs orders. The central issues were whether the proceedings were fair, whether the documents could be used, and whether the evidence established breaches of the appellant’s professional obligations and dishonesty.

1. Disposition. The appeal was dismissed. The findings that allegations 1.1, 1.2, 1.3, 1.5 and 1.7 were proved, and the order striking the appellant from the Roll, were upheld.
2. Fairness and procedure. The Rule 4(2) statement adequately identified the nature of the allegations and the case to be met. It was not required to set out all the evidence. Restricting the hearing and cross-examination to the eleven agreed sample transactions was fair. Robust or pejorative advocacy did not itself make the proceedings unfair. The proceedings were civil in character, although the seriousness of dishonesty allegations required a high standard of proof. A criminal good-character direction was not required.
3. Evidence. Mr Gould was entitled to give evidence about proper solicitor practice and Ms Norton evidence within her forensic-accounting expertise. The weight of their evidence was for the Tribunal. The strict rules of evidence were in any event disapplied by Rule 30(iii) of the Solicitors (Disciplinary Proceedings) Rules 1994.
4. Privilege. Parry-Jones v Law Society remained good law. The statutory scheme under the Solicitors Act 1974, particularly section 35 and paragraph 9 of Schedule 1, provided comprehensive powers to obtain and supervise documents in intervention and investigation proceedings. The New Zealand decision in B and Others v Auckland District Law Society and Another was confined to materially different legislation. The exception in Cox v Railton also applied because the intervention was based on suspected dishonesty. Confidentiality should nevertheless be preserved where possible.
5. Professional duty. A solicitor must not so act as to further a transaction which he knows or suspects to be bogus, dishonest or illegal. By lending his professional authority to such a transaction he may give it authenticity. The duty extends beyond legality and includes independence, integrity, proper client advice, avoidance of conflicts, and protection of the profession’s reputation. The Tribunal correctly applied that approach to the transactions proved, while its conclusion concerning the Federal Reserve Bonds was not justified; the separate finding concerning the Silk Notes was justified.
6. The costs orders were upheld. The respondent succeeded on the practical issue whether the Tribunal could see and rely on the documents, and the adjournment costs were properly recoverable even though the adjournment was not the appellant’s fault.

• High Court (Administrative Court): appeal from the Solicitors Disciplinary Tribunal dismissed. The strike-off order and interlocutory costs orders were upheld.