Connolly v Law Society

A solicitor’s entitlement to pursue a lawful remedy does not prevent disciplinary liability where the manner of pursuing it is abusive, oppressive or otherwise professionally improper. Conduct must be assessed as a whole. An honest and genuine exercise of professional judgment will generally not constitute misconduct, but liability may arise where the solicitor fails properly to address a conflict of interest or reaches a decision that no reasonably competent solicitor could have made. Charges requiring intention cannot be proved merely by showing that conduct had an improper effect. Written instructions are ordinarily required before commencing proceedings for a corporate client, and a short ultimatum backed by threatened proceedings may amount to taking unfair advantage even where the underlying entitlement is arguable.

Brian Connolly appealed under section 49(1)(b) of the Solicitors Act 1974 against findings by the Solicitors’ Disciplinary Tribunal that he had been guilty of conduct unbefitting a solicitor. Of 50 charges, 36 had been proved, and the appeal was ultimately confined to 17 substantive charges.

The challenges concerned delay in paying counsel and responding to the Office for the Supervision of Solicitors, threats to clients and former clients, conduct in presenting a winding-up petition, conflicts of interest, authority to act for a corporate client, retention of papers, and the preparation of bills and court documents. The court determined which findings were sustainable on the evidence and whether the Tribunal had applied the relevant professional standards.

1. Outcome. The appeal was allowed in relation to charges (ix), (x), (xi), (xxxvii) and (xliii), and dismissed in relation to the remaining charges under appeal.
2. A solicitor’s right as a creditor to present a winding-up petition does not answer a disciplinary allegation based on the manner in which the remedy was used. The Tribunal was entitled to assess the solicitor’s conduct as a whole, including an inaccurate description of a disputed debt as undisputed, an effectively meaningless payment deadline, inadequate warning of the intended proceedings, the inclusion of unfounded interest, and failure to honour an undertaking concerning advertisement of the petition. The reference to [1986] BCLC 26, as approved in [1990] BCLC 216, did not justify the conduct.
3. Intention was an essential element of the charges alleging an attempt to take unfair advantage and an attempt to prevent a client reporting conduct to the OSS. Since the Tribunal had found that the necessary intention was absent, those findings could not stand. By contrast, a short ultimatum to a former client, coupled with the threat of interest and immediate proceedings, could constitute taking unfair advantage even if the solicitor was otherwise entitled to claim the fee or interest.
4. A solicitor’s honest and genuine decision on professional judgment will generally not constitute misconduct. That protection does not extend to acting where there is an obvious or significant risk of conflict. If the issue was not honestly and genuinely addressed, or the decision was one no reasonably competent solicitor could have made, that may be inferred from the circumstances.
5. Where written instructions are received from a third party for a corporate client, the solicitor should obtain written confirmation from the client or take other appropriate steps. Oral instructions from a person whose authority and seniority had not been established rarely suffice for commencing proceedings. The client’s identity as a corporate body does not remove the requirement, since a company necessarily acts through agents.
6. The Tribunal’s finding concerning retention of papers was sustainable. The solicitor did not promptly assert a lien or submit an invoice, and the surrounding conduct supported the conclusion that the papers were retained in an attempt to preserve the retainer rather than to exercise a genuine lien. The Tribunal was also entitled to find that charges based on documentary evidence were proved, but the charge concerning the allegedly misleading statement to the court failed because there was no specific Tribunal finding on it.
7. The court added that disciplinary charges containing multiple “and/or” alternatives should be avoided or resolved by specific findings identifying precisely which alternatives were proved. Highly material documents should also be produced to the Tribunal or appellate court.

• High Court (Administrative Court): appeal under section 49(1)(b) of the Solicitors Act 1974 allowed in relation to five charges and dismissed as to the remainder.
• Solicitors’ Disciplinary Tribunal: findings dated 30 June 2005 that 36 of 50 charges had been proved. The Tribunal’s decision was varied to the extent identified above.