ETHICS
“Honesty is a fundamental requirement that every solicitor must bring to bear on dealings with his own or her own client.” Retired President of the High Court of Ireland Mr Justice Kearns
In Irish Life & Permanent plc v Financial Services Ombudsman & Ors. [2012] IEHC 376, Hogan J, (then sitting as a judge of the High Court) stated that the whole object of a fiduciary relationship was based upon a recognition that certain categories of persons owed duties to others, over and above conventional contractual obligations, by virtue of the special nature of their profession (includes solicitor profession), occupation or position, such that, such persons were obliged to act in a completely selfless manner. Trustees, agents, directors and partners were among those normally regarded as fiduciaries.
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The Ethics Committee of the Bar Council of England and Wales have issued on: September 2019 Last reviewed: June 2020 very useful article on Ethics entitled “Personal issues and relationships” whose purpose is : “To advise barristers regarding their professional obligations in relation to personal issues and relationships”. An extract is set out below for guidance and it is noteworthy that the existence of such relationships can be used as a litigation tactic by an opponent to effectively seek to leverage the “relationship” to gain access into the other parties case (e.g. by “trading confidences” in a Machiavellian manner in the hope/expectation these “opponent confidences” will be related back to the client/legal team to pollute their mindset/strategy/attitude and/or obtaining insights into the other sides’ strategy) in breach of the human right to consult confidentially with your lawyers (“A lawyers mouth is forever shut”). As these exchanges are invariably in confidence and “off the record” it may (wrongly) be felt by the players involved they are free from all sanction to act with impunity.
“Relationships with opponents
The existence of any relevant past or pre-existing relationship in any case in which the parties to a sexual or other close relationship are solicitors and/or barristers instructed on opposite sides of a dispute, ought promptly to be disclosed to clients (and your opponent if he/she is unaware). If, for some reason, one of you is, or both of you are, unwilling for this disclosure to be made, you should consider carefully whether it is proper for you to act. If appropriate, you may wish to discuss the particular circumstances with the Ethical Enquiries Service.
It is generally unwise to start a relationship with a lawyer on the other side during a case in which you are involved. PERCEPTION is important, as well as reality, and clients (or, in a case which attracts publicity, the press and wider public) might justifiably perceive in a sexual or other close relationship in those circumstances a danger of BREACH OF CONFIDENCE or conflict of interest, or the risk that you may not act in the best interests of your client. If a relationship is commenced during a case, this should be promptly disclosed to clients and the other side if they are unaware of it. (emphasis added)”
ref: https://www.barcouncilethics.co.uk/documents/personal-issues-relationships/
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2018 SOVANI James made an error: she missed a deadline in a particular piece of litigation and, afraid to tell anyone, she lied to both her employer and her client about it. “I had been terrified to report my mistake,” she later said. The deception continued and she backdated four letters over a 17-month period to cover it up. Her lie wasn’t discovered until after she left to work at another firm.
Three years later, an appeals court last month ruled that James should be struck off from the practice of law, ending her legal career. “Dishonesty of any kind is […] a serious matter,” Lord Justice Flaux said in his judgement. “I do not consider that mental health issues […] suffered as a consequence of work conditions […] justify a lesser sanction than striking off.”
REF: ‘Toxic, cut-throat’: the work culture awaiting junior lawyers | Studying law | The Guardian
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Doyle v Donovan [2020] IEHC 11 (17 January 2020) Simons J.
“Whereas it is most regrettable that the Defendant and her insurer (represented by BLM Solicitors) chose to make the entirely unsubstantiated allegation that the Plaintiff had deliberately caused the accident, much of the sting of same has been removed by the fact that the plea was not pursued at the hearing before the Circuit Court and, ultimately, liability was conceded in its entirety before the High Court. “
” Applying the principles stated by the High Court (Barniville J.) in Trafalgar Developments Ltd. v. Mazepin [2020] IEHC 13, I am satisfied that the defendant and her insurer have engaged in precisely the type of litigation misconduct which justifies the making of an award of costs on the higher basis (“legal practitioner and client” basis). A party should not make a claim of fraud or dishonesty against the other party without ensuring that there exists clear evidence supporting a prima facie case in relation to such claim. The plea that the plaintiff had deliberately caused the collision was one which imputed fraud and dishonesty to him. The making of this allegation had potentially serious consequences for the plaintiff in terms of his reputation and good name. Moreover, even if not calculated to do so, the existence of the plea might well have dissuaded the plaintiff from pursuing his personal injuries claim for fear that he would be exposed to penalties under the Court and Civil Liability Act 2004. No explanation, still less a justification, has ever been offered for the defendant’s conduct.
In all the circumstances, I propose to make an order pursuant to Order 99, rule 10(3) of the Rules of the Superior Courts (as amended by Rules of the Superior Courts (Costs) 2019 directing that the costs shall be adjudicated on a legal practitioner and client basis.For the avoidance of any doubt, the intention of this order is that the plaintiff will recover costs at a higher level than the usual “party and party” basis, and that the adjudication will allow all reasonable costs (even if such costs are not strictly speaking “necessary” in the sense that the term is understood for the purposes of adjudication). For example, the costs are to include the costs of both senior and junior counsel before the High Court, and to include the costs of the written legal submissions filed.
Barney Quirke, SC and the late Ivan Daly BL RIP for the Plaintiff instructed by Ferrys Solicitors
England & Wales: When George Belamoan succeeded on appeal in suing his solicitor Holden for professional negligence appeal court criticised trial judge for getting caught up in emotion of trial & failing to recognise Belamoan had legitimate reasons to be “angry” at having lost 3 years.
IRISH COURT OF APPEAL IN O’CONNOR V WEXFORD COUNTY COUNCIL
Noonan J.
24. The trial judge’s reference to Byrne v Ardenheath is, I think, somewhat problematic in a number of respects. It was not referred to by either party in oral and written submissions as a relevant authority. That of itself does not mean that a court ought not be entitled to refer to authorities that might not necessarily be cited in argument but nonetheless come to the attention of the court in carrying out research for the purposes of a judgment. Sometimes a court may refer to a case or cases that may illustrate a particular point being made in the course of a judgment but may not necessarily be decisive to the outcome.
25. In such cases, it is not usually necessary to seek further assistance from the parties before judgment is delivered. However, where a court intends placing primary reliance for its decision on a judgment that has been neither cited nor the subject of argument by the parties, in general the proper approach is to invite the parties to address the court in relation to that authority before a final view is reached.
26. If that procedure were adopted in this case, it is perfectly possible that the trial judge might have been swayed by arguments as to its relevance or non-relevance but unfortunately, that opportunity was not afforded the parties and, in particular, the plaintiff. In my view, Byrne v Ardenheath is of little, if any, assistance in the present case. It bears a passing factual resemblance to the present case in that it involved a person slipping down a steep grassy slope instead of pursuing an alternative route. There, however, the similarity ends.
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Law Society of Ireland -v- Doocey (Unapproved) [2022] IECA 2_1 (11 January 2022) JUDGMENT of Ms. Justice Donnelly dated the 11th day of January, 2022
77. It is noteworthy that in this jurisdiction the Court of Appeal has on two occasions held that dishonesty in criminal law is to be assessed on an objective basis and has specifically rejected the R v Ghosh line of authority. In The People (DPP) v. Bowe & Casey [2017] IECA 250 in respect of an offence of conspiracy to defraud held:
“All of the jurisprudence relating specifically to this offence seems to us to indicate that it is sufficient for a conviction that the prosecution should prove merely that the accused intended to do the impugned act or to participate in the impugned scheme in circumstances where the relevant act or scheme would attract the value judgment, judged by the standards of ordinary reasonable men, that it was dishonest.”
78. In the subsequent case of The People (DPP) v. Murphy [2019] IECA 63, which unlike the offence of conspiracy to defraud, concerned a statutory offence – the offence of theft – under the Act of 2001, the Court of Appeal also adopted that approach. The Court cited dicta from The People (DPP) v. Bowe & Casey in which the Court of Appeal had said that the R v. Ghosh approach appeared to be predicated on the idea that dishonesty was a state of mind for the purposes of the Theft Act, 1968 (having regard to a definition therein). The Court in The People (DPP) v. Murphy concluded at para. 21 that:-
“Dishonesty has a statutory meaning under the 2001 Act and so can be contrasted with the English position. Section 4(1) includes the term ‘dishonestly’ in the definition of the offence of theft and so, must be a constituent element of the offence. Therefore, the prosecution must prove that element of the offence. If the defence can point to evidence of an honest belief that he/she was entitled to the property in question, then the prosecution must negative that belief beyond reasonable doubt.”
79. I am satisfied that there is also no basis for the argument that dishonesty in the context of disciplinary proceedings in this jurisdiction must be judged on a standard that leaves it to the individual solicitor’s understanding of dishonesty. The rationale of the disciplinary code would be shaken if the amoral solicitor, who simply does not advert to the possibility of dishonesty, can escape severe sanction for their otherwise deliberate actions which are objectively dishonest. In fairness to Ms. Doocey, I do not understand her to contend vigorously for such a standard of dishonesty to be accepted. For the avoidance of doubt however, I reject any such approach to judging the standard of dishonesty. It is a standard to be assessed objectively. The requirement that there be knowledge or belief as to the facts at issue is nonetheless a sensible one.
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HUMAN RIGHTS BREACHES
” As you may be aware, the Legal Services Regulatory Authority is now responsible for investigating complaints against legal practitioners, including barristers. It may be the case that the attempts made to listen in on privileged client consultations in the way you describe constitutes a conduct issue that justifies referral to the Authority. “
Law Society of Ireland 22/06/2023
USA attorney-client privilege only applies to confidential communication Bogle v. McClure “To determine if particular communication confidential&protected must prove communication 1.intended to remain confidential and
2. Under circumstances reasonably expected and understood to be confidential.
23 September 2021 Carol Rosenberg The New York Times
GUANTÁNAMO BAY, Cuba — A military judge on Thursday began hearing secret testimony about hidden microphones, allegations of eavesdropping and other government interference in the work of defense lawyers in the case of a Saudi man who is accused of masterminding the bombing of the Navy destroyer Cole in 2000.
About 85 witnesses, all but one unidentified, were being called to testify over eight days on the issue, which has been a major impediment to getting a trial underway since even before a 600-day hiatus in court proceedings caused by the coronavirus pandemic.
At a brief open session on Tuesday, the defendant, Abd-al Rahim al-Nashiri, responded “yes” and gave a thumbs-up when the Army judge, Col. Lanny J. Acosta Jr., asked if he understood that he did not have to attend open hearings.
Secret Hearing Focuses on Hidden Microphones at Guantánamo Prison
Hearings resumed in the destroyer Cole bombing case after a 600-day delay caused by the pandemic.
“Defense lawyers have described a pattern of suspected eavesdropping on confidential attorney-client communications, and call it government intrusion into their ethical duty to safeguard their work, particularly in a death penalty case. “
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Carroll -v- Law Society of Ireland [2016] IESC 49 (28 July 2016)
JUDGMENT of Mr. Justice William M. McKechnie delivered on the 28th day of July, 2016
“Fit and Proper:
65. The phrase “fit and proper” combines two broad elements, fitness and properness. Both, whilst complimentary, are intended to convey different requirements and to cover different aspects of a person’s overall suitability for the solicitors’ profession.
66. In broad terms, ‘fitness’, which covers the necessary academic qualifications and practical experience, also relates to matters such as knowledge, skill, understanding, expertise, competence and the like, all of which impact on one’s capacity to appropriately discharge the obligations which the practice of his profession imposes. The second aspect of the term ‘being a proper person’ is much more directly related to character and suitability. Critical in this respect are matters such as honesty, integrity and trustworthiness: a person of principled standards, of honest nature and of ethical disposition; a person who understands, appreciates and takes seriously his responsibilities to the public, to the administration of justice, to individual colleagues and to the profession as a whole.”
Perhaps consideration should be given to introducing some screening process – akin to the HPAT for medicine – to assist in ensuring “proper persons” are admitted into the legal profession which due to their access and proximity to the Judicial arm of the State (with almost infinite powers over citizens) and their unique position to harness these judicial powers against their “opponents” through their use of submissions to the Court and use/abuse of procedural tools/applications available to them which due to their sheer almost overwhelming voluminous nature are inaccessible to most citizens who have no real choice but to place their trust in legal professionals (both their own and the opposing sides) to operate fairly and with integrity within this process. It is this very bedrock of trust that underpins the ethical obligations of the legal profession which must come with effective sanctions for breaches of these obligations to maintain public trust and confidence in the legal profession.
McKechnie J went on to say
67. It is neither possible nor desirable to try and outline the acts, omissions and conduct by which such a standard should be judged: these range on the vertical scale from the trivial, negligible and inconsequential to the grave, appalling and deplorable. On many occasions the Regulatory Body, and on review the court, will have little difficulty in appropriately positioning the conduct established. On other occasions, however, a fine line and narrow call may have to be made; when that difficulty occurs the decision will be a matter of degree. Whichever may be the situation, each case will be circumstance specific, and must be individually assessed at all levels of the adjudicative process.
68. In a judgment quoted by the President in the instant case, Bolton v. Law Society [1994] 2 All ER 486, Bingham M.R. analysed some aspects of the range of conduct which might call for regulatory intervention in respect of a solicitor. Every solicitor and all intending solicitors should take time to engage with it. Whilst some of what is stated is echoed in Burke, what emerge from the overall decision are the unforgiving consequences which would most likely follow from any proven misconduct, save that at the lowest level of the scale.
69. The learned Master of the Rolls identified proven dishonesty, whether attended by a criminal conviction or not, as the most serious such conduct. Where established, “no matter how strong the mitigation” is, a strike off will almost invariably follow. Furthermore, even where the solicitor in question has, over the following several years, made every effort to rehabilitate himself, and has even done so honourably and in a position of trust and responsibility, a restoration to the Roll will be very rare indeed. He described why this approach, which may seem harsh, was necessary: it was to maintain the reputation of the solicitors’ profession in general, and to sustain unreserved public confidence in its integrity.
70. There can be little doubt about the general correctness of these and the other remarks made by Bingham M.R. in Bolton. There is therefore placed on the regulatory body, at first instance, a high level of public responsibility to this end. Equally so, however, there is a corresponding obligation on that body to be ever so discerning in its evaluation of the facts and in the findings arrived at. In all cases the sanction imposed, if any, must be proportionate as determined by the principles of Irish law, which, perhaps unlike in England, contain a constitutional dimension. This is because any sanction akin to a disqualification or a suspension will impact upon one’s declared but qualified right to practice his or her profession. Therefore the strictness of the presumptive approach, as evident in Bolton, may not be altogether appropriate in this jurisdiction. Consequently, until the issue directly arises, I would prefer to offer no definitive opinion on the circumstances, limited as they may be, in which an individual who has been struck off could properly be readmitted to the Roll….
(iii) That the phrase ‘fit and proper’, although composed of two words which appear synonymous with one another, and with associated concepts such as ‘suitability’ and ‘appropriateness’, contains two elements which, whilst related, are distinct components; it cannot be the case the legislature or the Law Society, in enacting s. 24 of the 1954 Act (as substituted by s. 40 of the 1994 Act) and Regulation 26(a)(iv) of the 1997 Regulations, respectively, intended either word to be redundant or devoid of meaning. It seems to me that fitness essentially relates to academic/professional qualifications, knowledge, skills, experience, and the like, whereas properness is concentrated on human attributes, honesty, integrity, probity, trustworthiness etc., as well as issues such as prior criminal convictions or unlawful conduct. These considerations are not intended to be exhaustive in respect of either category, but provide an illustration of the factors arising in respect of each element of the test. Only after this individual analysis does the phrase merge into the overall issue of character suitability;
(iv) That such requirements do not stand only at the entry door; their presence and application continues throughout the entirety of one’s professional life;
(v) That to practice in this profession one does not have to possess extraordinary talent and/or intellect – the vast majority, like all other professions, are not so gifted – nor is it required. Competence and application at a reasonable level are most adequate to fulfil virtually all functions for most clients. Expertise at a higher level is also readily available. However, as with one, as with all: compliance with professional standards is essential, for without this, individual solicitors, firms of whatever size and the profession as a whole will be damaged and irreparably impaired. Such would impact greatly on an essential service which society as a whole depends on;”
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Burke, Re [2001] IESC 13 (9 February 2001)
Keane C.J. stated
“17. A member of either branch of the legal profession enjoys rights and privileges in representing and advising members of the public denied to others. The public are, accordingly, entitled to repose a high degree of trust in both barristers and solicitors in the conduct of their respective professions. Unlike barristers, solicitors are regularly entrusted with the custody of monies belonging to their clients and, if public confidence in the solicitors’ profession is to be maintained, any abuse of that trust must inevitably have serious consequences for the solicitor concerned. Viewed in that context, the range of cases in which a solicitor who has been struck off because of dishonesty can properly be restored to the register pursuant to subsection (4) is, of necessity, significantly limited. In a case where the acts of dishonesty appear to have been wholly out of character and were committed when the solicitor was under severe pressures of some kind, the exercise of the discretion vested in the court in his or her favour may be justifiable. The fact, if it be the fact, that in his or her subsequent career, the solicitor had been entrusted with positions of trust and responsibility without any further lapses would be an additional factor in enabling the court to exercise the jurisdiction in his or her favour. However, it would be inappropriate to attempt an exhaustive definition of the circumstances in which a solicitor might properly be restored to the rolls in cases to which subsection (4) apply: it is sufficient to emphasise again that the category of cases in which re-admission to the profession is permissible will inevitably be limited. That this is the approach which should be adopted is, I think, borne out by the authorities from other jurisdictions which were cited in the course of argument: see the observations of Lord Donaldson MR in In the Matter of a Solicitor No. 5 of 1990 and In the Matter of the Solicitors Act 1974 (unreported: judgment delivered Friday, 27th April 1990) and of the majority of the High Court of Australia in Ex-parte Lenehan (1948) 77 CLR 403.”
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In re Solicitors Act 1954 [1960] IR 239 Kingsmill Moore J noted dishonesty on part of a solicitor has the dual characteristic of criminal and regulatory aspects.