Law Officers’ Department: revised disciplinary process (P.109/2013) – comments.

STATES OF JERSEY

LAW OFFICERS' DEPARTMENT: REVISED DISCIPLINARY PROCESS (P.109/2013) – COMMENTS

Presented to the States on 21st October 2013 by H.M. Attorney General

STATES GREFFE

2013   Price code: C  P.109 Com.

COMMENTS

1. Introduction

The purpose of these comments is to provide information to Members in light of the Proposition  (P.109/2013)  of   Deputy  R.G. Le Hérissier  of   St. Saviour  ("the Proposition") lodged on 10th September 2013, entitled "Law Officers' Department: revised disciplinary process".

The comments will deal with –

1. The statutory position under The Law Society of Jersey Law 2005 ("the 2005 Law");
2. Lawyers in the Law Officers' Department ("LOD") and the current disciplinary environment;
3. The position of the Law Officers;
4. The rôle of the Attorney General in discipline of members of the legal profession.

2. The 2005 Law

The 2005 Law was adopted by the States on 2nd November 2004, received Royal Assent on 9th February 2005 and was registered by the Royal Court on 4th March 2005. The Appointed Day Act was then made on 6th December 2006, and the 2005 Law, save for Article 3(2) and (3), entered into force on 1st January 2007.

Article 3(2) and (3) came into force on 1st April 2007. Article 3(2) provides that no person shall practise law as an advocate or solicitor1 unless he or she is an ordinary

member of the Law Society of Jersey ("LSJ"); and Article 3(3) makes it an offence to contravene this requirement.

Article 3 in its original form applied to LOD advocates and solicitors and might, on one  analysis  of  the  wording,  also  have  applied  to  the  Law  Officers  themselves. However, a proposition was lodged (P.96/2006), and adopted by the States, to amend the 2005 Law before it came into force, by adding a new Article 3(4) which came into force, along with paragraphs (2) and (3) of Article 3, on 1st April 2007.

Article 3(4) provides that the Attorney General, Solicitor General and advocates or solicitors practicing law at the LOD are not required to be members of the LSJ.

The purpose of this amendment was clear to States Members at the time. Hansard (see Appendix 1) records that the then Senator Stuart Syvret voted against the amendment, having stated –

1 Any reference to "advocate" or "solicitor" in these comments is a reference to an advocate or

solicitor of the Royal Court of Jersey.

"It seems to me to exclude Jersey Advocates simply because they happen to be Crown Officers from the disciplinary structures and processes of the Law Society is wholly undesirable, given the absence of an alternative framework. Of course it is absolutely fair enough and it makes commonsense that they should not be required to pay themselves the annual subscription fees for the Jersey Law Society, nor indeed carry that kind of private sector professional indemnity insurance that is a requirement. Amending the Law to exclude them from those requirements, or perhaps for the State in some way to pay it for them, would be entirely acceptable but I am afraid removing the Law Officers, referred to by this Law, from the disciplinary structures and the general codes and so on that are required by the Jersey Law Society I regard as wholly unacceptable."[2]

The then Solicitor General, Stéphanie Nicolle, Q.C., answered the above statement as follows –

"The disciplinary controls, such as they are, at the moment which can be either a complaint to the Bâtonnier or a complaint to the Law Society – are generally a complaint by a client about the lawyer who has advised him and those are the most frequent complaints. Our clients are the States and their departments and if the States or any department are unhappy with the service given by the Attorney General, the Solicitor General, or any member of the department, the States can pursue that through the Chief Minister, through Human Resources or through whatever level is appropriate so that there is not the same need for the client to have a right of recourse to the Law Society. The second point is this; the Attorney General has a number of customary law and indeed statutory functions which increasingly include the inquiry into both locally, and assisting other jurisdictions, quite serious organised crime – frauds, drug trafficking and various other kinds of organised crime. Members will probably have seen in the paper the challenges which are frequently made by persons who are under investigation, here and in other jurisdictions, who have tried to challenge at every step the Attorney General when he has been seeking to assist in investigations into organised crime and into fraud. I am not disclosing anything confidential; there have recently been well- publicised and long drawn-out proceedings in relation to assistance that the Attorney General has been giving to the authorities in Brazil who have been inquiring into some very serious alleged corruption and fraud offences. At every stage the lawyers acting for the persons under investigation have sought to impede the assistance that has been given. It would be a God-send, and one of the easiest ways in the world to handicap the Attorney General in this kind of thing, by making spurious complaints to the Law Society. The Law Society would then call upon the Attorney General or whichever lawyer was dealing with this to give a full account of what they were doing and it really would be extremely seriously detrimental to the work of the Attorney General in assisting other jurisdictions and indeed in work in this jurisdiction in the policing of quite serious crimes."[3]

In voting for the amendment, the intention of the States Assembly was plain: to remove the Law Officers and LOD advocates and solicitors from the ambit of the 2005 Law, as regards membership of the LSJ and the disciplinary jurisdiction of the LSJ.

The amendment was also supported by the then president of the LSJ, who wrote to the Attorney General of the day confirming that position.

3. Lawyers in the LOD and the current disciplinary environment

The Proposition asks in (a) that the States agree that the Chief Minister bring forward proposals,  within  12 months,  "which  align  the  disciplinary  process  of  the  Law Officers' Department with those that currently apply to private sector lawyers."

There is no explanation or justification offered for this proposal, and it requires the Chief Minister to bring forward proposals without any analysis of or inquiry into the current disciplinary environment or the need for change.

Reasons provided in 2006 for removing LOD advocates and solicitors from the 2005 Law

P.96/2006 set out the reasons for removing the LOD Jersey lawyers from the ambit of the 2005 Law –

• such lawyers are salaried public employees with less freedom of action than those in private practice to participate in the LSJ's affairs;
• the need for insurance cover to be taken out for the protection of clients does not arise for such lawyers; and
• advocates and solicitors working within the LOD carry out their duties on behalf of the Attorney General and Solicitor General.

The  first  two  reasons  are  not  relevant  to the  Proposition,  because it  is  primarily focused on the discipline aspect of the 2005 Law and its non-application to LOD advocates and solicitors. What the reasons as a whole illustrate, however, is that the position of LOD lawyers is very different from lawyers in private practice.

Carrying out duties on behalf of the Law Officers

LOD lawyers carrying out their duties on behalf of the Law Officers. The Attorney General4  is  appointed  by  the  Crown  by  Letters  Patent.  As  the  Carswell  Review

highlighted, this method of appointment "is a guarantee of [the Crown Officers'] independence and freedom from political pressure."5

This  independence  is  also  preserved  by  the  Departments  of  the  Judiciary  and Legislature (Jersey) Law 1965, which provides that a person employed in the LOD could only have their employment terminated with the agreement of the Attorney General. This independence is vital and ensures that those who advise government or operate the prosecution service cannot be made subject to improper pressure whether

4 Any reference to the Attorney General includes a reference to the Solicitor General. 5 Paragraph 7.1: Review of the Roles of the Crown Officers (2010).

by States members, persons under investigation or prosecution, or by members of the public.

The Attorney General's rôle is multi-faceted, but includes –

• Legal adviser to the Crown on matters of Jersey law;
• Legal adviser to the States Assembly, Ministers and their Departments, Committees and Panels;
• Partie Publique;
• Prosecuting authority;
• Legal adviser in certain areas to Parochial Authorities;
• Central Authority for inter-jurisdictional assistance; and
• Titular Head of the Honorary Police and responsible for Honorary Police discipline.

The rôle of Partie Publique is potentially wide, and includes representing the Public interest before Courts and also participating in the disciplinary processes for the legal profession.

In discharging these functions the need for independence, both for the Attorney General and, by extension, those advocates and solicitors operating within the LOD, is firmly established. The above functions often involve advice and decisions which are sensitive and at times controversial; such as advising the States or Ministers whether a particular course of action or draft legislation is lawful or not; deciding whether or not to prosecute a suspected criminal; assisting other jurisdictions in criminal matters; holding a disciplinary enquiry into a complaint made by a member of the public against the honorary police; and deciding to begin an investigation under, for example, the Investigation of Fraud (Jersey) Law 1991 or, indeed, to refer a lawyer to the Royal Court for some disciplinary offence. It would be detrimental to the independent discharge of those functions were the Attorney General and his department to be subject to improper pressure from any source. This includes the possibility that a potential or actual defendant, States member, honorary officer or a member of the public might use – might exploit – for his own interest – the existence of a complaints system for the purpose of defeating the proper exercise of the Attorney's powers.

An unscrupulous person could make vexatious claims to the LSJ so as to hinder the work of the LOD because that person's interests run contrary to the example decisions taken above. It could be used to undermine advice and decisions in criminal cases and to undermine advice given to public bodies. This was one of the reasons that the then Solicitor General put forward in 2006; and the current Solicitor General emphasized the continuing validity of this point in the States on 2nd July 2013 when he said: "there is concern that employees of the Law Officers' Department are particularly vulnerable and susceptible to malicious complaints by, in particular, defendants who wish to use the complaint to gain some sort of advantage in criminal proceedings. That concern remains today, and advocates remain at risk of malicious complaint."[2]

The Attorney General receives notification of all complaints made to the LSJ made against private practitioners, and the majority of such complaints against private practitioners are by clients. LOD lawyers do not have clients' in the conventional sense. Unlike lawyers in private practice, the duties discharged by advocates and

solicitors working within the LOD do not involve interaction with members of the public to the same extent as they do for those working within the private sphere. In the areas of advice, the client is invariably the Crown, the States, a Minister/Department, or another body exercising a public function, and any issues over the conduct of the LOD employee, should they ever arise, may be dealt with internally, by the Attorney General or, if necessary, by the States Employment Board. In civil litigation, the client will again be one of the above. In criminal matters there is no client', but the Attorney is representing the public interest in which, of course, there is co-operation with other public bodies such as the States of Jersey Police or Customs and Immigration, and with foreign authorities. In terms, therefore, of a complaint against LOD advocates and solicitors, there is no need for them to be covered by the 2005 Law, given that such advocates will rarely deal with members of the public and will never represent a client member of the public nor be entrusted with such a person's money. As the then Solicitor General noted during the debate on P.96/2006: "there is not the same need for the client to have a right of recourse to the [LSJ]."7

The "clients" of the LOD have recourse to the Attorney General either privately, in the  Council  of  Ministers,  or  in  the  Assembly  in  appropriate  cases.  No  private practitioner is subject to similar recourse.

Ways in which an LOD advocate or solicitor may be disciplined

LOD  advocates  and  solicitors  are  already  subject  to  supervision  and  appropriate disciplinary procedures. Save for reference to the LOD Code of Conduct mentioned below (which was not then published) these and the provisions of Article 3 of the 2005 Law were set out in brief in a written answer that the Attorney General gave to Deputy Le Hérissier on 1st March 2011 (ref. 1240/5(6062)) (see Appendix 2), and it is not therefore  entirely  clear  to  the  Attorney  General  why  the   Deputy  sees  the  earlier question of Deputy M.R. Higgins of St. Helier as the springboard for the Proposition.

Inherent Jurisdiction of the Royal Court

Article 32 of the 2005 Law expressly preserves the inherent jurisdiction of the Royal Court  to  discipline  advocates  and  solicitors.  It  is  therefore  open  to  the  Attorney General to bring a representation to the Royal Court to discipline any advocate or solicitor. In the previous 18 months, the Attorney has brought two representations to the Royal Court to discipline advocates without any involvement of the LSJ. This power would only normally be exercised in circumstances where it is unnecessary to involve the LSJ because the Disciplinary Committee's powers of sanction are not sufficient to meet the seriousness of the offence, or because there has been a criminal conviction (as there was in both representations recently brought).

If a member of the LOD, or indeed any practitioner, has acted in a manner that requires reference to the Royal Court, then it is open for the Attorney to seize the Court of the matter. Clearly, in the case of an employee of the LOD, it would usually be appropriate to seek independent advice on the decision to refer and, if a reference were brought, it might be appropriate to appoint an advocate from outside the LOD to act. This is similar to the process recommended by the Carswell Review8, when the Attorney General is considering a prosecution against a States Department having

7 See 3 ibid.

8 Paragraph 6.6: see 5 ibid.

previously advised the Department on the course of action which has lead to a breach of law.

In the past, States Committees, members and Ministers have been prosecuted by the Attorney General for breaching the law, and in 2012 the Magistrate-Designate, a former  LOD  employee  (although  from  before  the  current  Attorney's  time)  was prosecuted for serious offences.

Civil Service Code of Conduct

Advocates and solicitors within the LOD are employees of the States Employment Board and are therefore subject to the Civil Service Code of Conduct. The Proposition asserts that this Code is "not tailored for lawyers." It is not clear what this comment is directed at, because there is no ostensible need for the Civil Service Code to be specifically tailored for each individual department or profession. The Civil Service Code of Conduct is widely framed to ensure the standards expected of those within the civil service are kept high; and the Proposition does not offer any examples of lawyer misconduct which might not be caught by the Civil Service Code of Conduct. It is limited in its application to lawyers in the LOD only to the extent that no LOD employee can be dismissed without the consent of the Attorney General.

Law Officers' Department Code of Conduct

There is, moreover, an internal Code of Conduct for all "lawyers" within the LOD. This is significant because it is wider than the LSJ Code of Conduct in that it applies not only to Jersey advocates and solicitors, but also to those who have obtained a legal professional qualification in Jersey or elsewhere (for example solicitors or barristers from England and Wales), and is more closely tailored to what would be relevant to LOD lawyers. The Proposition mentions that "Details were not provided, but it did not appear that this Code was a substitute for the disciplinary processes of the [2005 Law]." The LOD Code of Conduct is in fact published on the LOD website and was published  both  at  the  time  that  the  Solicitor  General  answered   Deputy  Higgins' question in the Assembly and at the time of the lodging of the Proposition (see Appendix 3).

Although the process for dealing with a complaint made against lawyers in the LOD is not  published,  it  would  follow  standard  civil  service  disciplinary  protocols.  In addition,  the  Senior  Management  Team  of  the  LOD  has  minuted  the  Attorney General's decision that in all serious complaints (that is, complaints in which the Attorney might consider referring the matter to the Royal Court), the matter should first be referred to external counsel for advice.

The  Attorney  General  is  pleased  to  confirm  that  he  will  publish  details  of  the procedure that would apply to complaints made against LOD lawyers.

Conclusion

Advocates  and  solicitors  in  the  LOD  are  therefore  subject  to  supervision  and disciplinary process, both internally and by the Royal Court. There is no evidence to suggest that the combination of the nature of the work done by the LOD, disciplinary supervision by the Royal Court, the Civil Service Code of Conduct and the LOD Code of Conduct does not provide an adequate disciplinary framework in relation to LOD advocates and solicitors and lawyers in general. The Proposition offers no justification

for reversing the States' decision in 2006 that it was not appropriate for such lawyers to fall within the scope of the 2005 Law. To do so would be not only be unnecessary but  potentially  a  substantial  hostage  to  fortune.  Accordingly  it  would,  in  the Attorney's view, be a risk not worth taking.

4. The position of the Law Officers

The Proposition proposes in (b) that the Chief Minister –

" consult with the Crown on the desirability and feasibility of establishing a revised disciplinary process for H.M. Attorney General and H.M. Solicitor General and to report to the States on the outcome of this consultation."

No evidence of any difficulty with the existing arrangements, or justification for this proposal, is offered in the Proposition.

The points made above relating to independence and freedom from improper pressure apply with even greater force to the Law Officers themselves.

The Law Officers are accountable to the States Assembly in some circumstances and this, and the Law Officers' accountability generally, was the subject of a written answer to a question by Deputy Higgins on 29th January 2013 (ref. 1240/5(73980)) (see  Appendix 4).  See  also  the  Attorney  General's  answer  about the  process  for complaints made against the Law Officers on 19th February 2013 (ref. 1240/5(7428)) (Appendix 5).

As stated above, the Law Officers are appointed by the Crown. These appointments are by Letters Patent during good behaviour and until the age of 70. If a person had a complaint against either Law Officer, then such a complaint, if it were not able to be resolved with the Attorney General, would have to be made to the Crown, via the Crown's representative in the Island, i.e. His Excellency the Lieutenant-Governor.

Exactly how such a complaint would progress from there is not laid down in statute, but would be a matter for the Crown, in consultation with the insular authorities, acting on the advice of its Ministers in the United Kingdom. The Attorney General understands that in the past the responsible UK department has made inquiry into any such complaint and if appropriate appointed a senior person from outside the island to investigate it.

However, in the interests of clarity and certainty, the Attorney General does not object in any way to discussions with the Crown over complaints made against the Law Officers as suggested in the proposition.

Ultimately, of course, it would be open to the Crown to withdraw the Letters Patent (as in the case of the then Deputy Bailiff in 1992).

As the then Bailiff put it in 2006 (during the debate on the Amendment to the 2005 Law):9 "There is no question that the Attorney General and Solicitor General are

unaccountable.".

9 Paragraph 10.7: see 2 ibid.

5. Rôle of H.M. Attorney General in disciplinary procedures

The Proposition mentions this but it is not clear in what context it is being referred to, as it follows immediately the paragraph regarding the discipline of the Law Officers.

On the assumption that this refers to the Attorney's statutory rôle under the 2005 Law regarding the referral of complaints against advocates and solicitors to the Royal Court, the Legislation Advisory Panel are currently undertaking a review of the 2005 Law including the role of the Attorney General in this respect.

STATES OF JERSEY OFFICIAL REPORT

TUESDAY, 26TH SEPTEMBER 2006

10.  Draft  The  Law  Society  of  Jersey  (Amendment)  Law  200- (P.96/2006)

The Bailiff :

We  come  now  to  Projet  96 –  the  Draft  The  Law  Society  of  Jersey (Amendment) Law 200- in the name of the Chief Minister. I ask the Greffier to read the citation of the draft.

The Greffier of the States:

Draft The Law Society of Jersey (Amendment) Law 200-, a Law to amend the Law Society of Jersey Law 2005. The States, subject to the sanction of Her Most Excellent Majesty in Council, have adopted the following Law.

1. Senator T.A. Le Sueur :

Hopefully this matter may be a little bit less controversial than the last one. This is a fairly simple adjustment which really deals with the anomaly of the members of the Law Society who happen to be Crown Officers or working in the Law Officers Department. The rules and regulations of members of the Law Society working in private practice are not really appropriate to those working in the Law Officers Department and this Law really puts that right by making  certain  conditions  for  those  people  in  that  category.  That  is  the substance of the amendments and I propose the preamble.

The Bailiff :

Are the principles seconded? [Seconded] Does any Member wish to speak on the principles of the draft?

2. Senator S. Syvret:

I have some concerns about this and unless I receive a convincing explanation I will be forced to vote against it. It seems to me to exclude Jersey Advocates simply  because  they  happen  to  be  Crown  Officers  from  the  disciplinary structures and processes of the Law Society is wholly undesirable, given the absence of an alternative framework. Of course it is absolutely fair enough and it makes commonsense that they should not be required to pay themselves the annual subscription fees for the Jersey Law Society, nor indeed carry that kind of  private  sector  professional  indemnity  insurance  that  is  a  requirement. Amending the Law to exclude them from those requirements, or perhaps for the State in some way to pay it for them, would be entirely acceptable but I am afraid  removing  the  Law  Officers,  referred  to  by  this  Law,  from  the disciplinary structures and the general codes and so on that are required by the Jersey Law Society I regard as wholly unacceptable. I think the argument that they are Crown appointees is, I have to say, a very old fashioned argument and not really a particularly robust or convincing argument to put forward in the 21st  century.  I  do  believe  that  nobody  should  be  above  the  Law  and  we regulate the practises of Advocates in Jersey through the Jersey Law Society Law  and  it  seems  to  me  that  all  Advocates  practicing  in  Jersey,  and  that includes the Crown Officers, should also be subject to the same disciplinary and professional requirements laid down by the Society. Indeed the Society is

empowered to have those requirements at Law. So, Sir, unless I receive a particularly convincing explanation I am going to vote against that particular provision and I urge other Members to do the same. In the 21st century we should not be exempting Crown Officers and Advocates working in the Crown Offices Department from the disciplinary structures required by the Jersey Law Society Law.

3. H.M. Solicitor General:

I wonder, Sir, if I might respond to the point about the disciplinary controls of the  Law  Society  because  I  understand  the  Senator's  concern  and  I  can understand that Members as well may be concerned  and  I think that they should have an explanation of our concerns. The disciplinary controls, such as they are, at the moment – which can be either a complaint to the Bâttonier or a complaint to the Law Society – are generally a complaint by a client about the lawyer who has advised him and those are the most frequent complaints. Our clients are the States and their departments and if the States or any department are unhappy with the service  given by the Attorney General, the Solicitor General, or any member of the department, the States can pursue that through the Chief Minister, through Human Resources or through whatever level is appropriate so that there is not the same need for the client to have a right of recourse to the Law Society. The second point is this; the Attorney General has a number of customary law and indeed statutory functions which increasingly include the inquiry into both locally, and assisting other jurisdictions, quite serious organised crime – frauds, drug trafficking and various other kinds of organised crime. Members will probably have seen in the paper the challenges which are frequently made by persons who are under investigation, here and in other jurisdictions, who have tried to challenge at every step the Attorney General when he has been seeking to assist in investigations into organised crime and into fraud. I am not disclosing anything confidential; there have recently been well-publicised and long drawn-out proceedings in relation to assistance that the Attorney General has been given to the authorities in Brazil who have been inquiring into some very serious alleged corruption and fraud offences. At every stage the lawyers acting for the persons under investigation have sought to impede the assistance that has been given. It would be a God- send, and one of the easiest ways in the world to handicap the Attorney General in this kind of thing, by making spurious complaints to the Law Society. The Law Society would then call upon the Attorney General or whichever lawyer was dealing with this to give a full account of what they were doing and it really would be extremely seriously detrimental to the work of the Attorney General in assisting other jurisdictions and indeed in work in this jurisdiction in the policing of quite serious crimes.

4. Deputy of St. Martin :

I can well remember asking questions of how long it was going to take for us to obtain this Law Society Law coming to be and that must have been some years ago and I gather this piece of legislation has taken a number of years to come to fruition. What surprises me really is having come to being that we are now asked to delete something. Maybe we could have an explanation as to why that

was not taken into consideration at the time when the Law was drafted. The second question is just as a matter of interest; how much is the subscription to be a member of the Law Society?

Deputy P.N. Troy :

I wondered if I could ask the Solicitor General another question, as to whether this  initiative  is  similarly  enforced  in  other  jurisdictions  for  their  legal representatives for any jurisdiction?

H.M. Solicitor General:

I am afraid I cannot assist with the arrangements in other jurisdictions. It is not that I do not wish to assist, I simply do not know.

5. Deputy R.G. Le Hérissier:

I did inquire of the Attorney General when this qualification came through and in part answer to the Deputy of St. Martin , Sir, apparently this was something that was overlooked. But I must admit when the Law did go through, as it went through the Legislation Committee over many, many decades, this was never an issue and this apparently did pop-up at the last minute. The only point, Sir, I would make in reference to the Solicitor General is of course if you have a particular assiduous policeman and he or she is very effective at countering crime and, talking in the nature of their work, they are the subject of an awful lot of complaints to trip them up of course. So, I do not think lawyers in that sense are very different. The other thing I would say, Sir, it is always a feature of professionals like doctors and lawyers that they seek self-regulation because they feel they are in the best position to judge the actions of their peers because of their knowledge of the field in which they work and in a way, Sir, it seems quite strange that the Solicitor General should aver that someone like Human Resources could well be put in the position of dealing with a discipline case against lawyers, whereas it strikes me they fought through the establishment of this particular disciplinary procedure. They have fought for the right to be judged  by  their  peers,  not  to  be  judged,  for  example,  by  a  Personnel Department so there seems a bit of inconsistency there.

Deputy K.C. Lewis :

Just a brief question for the Solicitor General, Sir. The Law Society of Jersey, if  they  were  given  leave  to  work  outside  of  the  Law  Society,  or  not  be members, if there was a genuine complaint, shall we say, to whom would they be answerable?

H.M. Solicitor General:

Does that mean a genuine complaint from a Member of the States or States Department about the service provided by the Law Officers or a complaint from  a  member  of  the  public?  I  think  the  answer  is  probably  different depending on who the complaint comes from. If there is a States entity who has a complaint about the conduct of the Law Officers – if it is a member of the department – that can be raised with the Attorney General or the Solicitor

General. If it is a complaint of course about one of us then it would, I think, have to be taken up politically.

6. Senator W. Kinnard:

I do hesitate to rise but as one of those who trawled through this law as a previous President of Legislation I am afraid I was not present if this was discussed at the Council of Ministers. I am just a little concerned that I do not think there has been sufficient thought from 2 points; if complaints are made against the police during the conduct of a criminal case this is dealt with after the criminal case has been concluded. I do have concerns that in this day and age of transparency that I still have concerns that it is not as clear to all of us here as to whether what we are suggesting is similar or different to other jurisdictions. My understanding is that all the lawyers for instance in England and Wales are subject to the restrictions and sanctions of the Law Society. I did send a note urging that we should perhaps delay this to have more research done as to what does go on elsewhere and to consider it further and I make that request again now today. Thank you, Sir.

The Bailiff :

I do not wish to join in the debate at all but I hope that Members will appreciate that the Attorney General and the Solicitor General are Crown Officers and are accountable strictly to the Crown. They are of course accountable in a practical sense, as the Solicitor General has said, to whom they provide advice – that is to say States' Members and States' departments – but they are also accountable to  the  Crown.  When  a  complaint –  and  I  say  this  without  fear  of  being controversial at all – is made against a Crown Officer, if it is made to the Lieutenant Governor, as the Queen's personal representative over here, it is investigated  as  appropriate  to  the  complaint  which  is  made.  There  is  no question that the Attorney General and Solicitor General are unaccountable. Does any other Member wish to speak?

7. Deputy P.V.F. Le Claire:

I feel confident that the advice that has been given to us by the Solicitor General and also by yourself and your contribution there, Sir – although very guarded in your advice – I think is that the States can take this on board and agree with it in the knowledge that there are avenues for complaints, should we wish to make them. At the moment I am completely happy with the situation that exists between our relationships, with not only the Law Officers but also your good offices, as States' Members, who are accountable to the public, Sir. I believe quite strongly that if I have a view to take-up an issue on behalf of the public, as I do sometimes undertake to do, that I am given a fair crack of the whip in doing so and it is only my abilities or the lack of them that stop me from proceeding.

The Bailiff :

I call upon the Deputy Chief Minister to reply.

8. Senator T.A. Le Sueur :

I am grateful to the Solicitor General and indeed to yourself, Sir, for dealing with some of the points that have been raised during this debate probably in a better way than I could have done. In response to Senator Syvret, I simply add that nobody in the Island is above the Law. What we are dealing with here is the best way in dealing with a complaints procedure and it may well be that the situation is slightly different between that of the Crown Officers appointed by the Crown and those practising law within the Law Officers Department who indeed would be employees of the States working under the Attorney General and Solicitor General. But to the extent, Sir, that these are employees of the States, just like any other employees of the States, complaints should be made in the proper way and in a normal complaints procedure in respect of any States' officer. As to the other comments that have been made from the Deputy of St. Martin , why was the amendment brought in so soon? I think because when one sees something is wrong one tries to put it right as soon as possible. One does not leave it in the wrong. He would like to know how much the subscription is. I am sorry, I did not come prepared with that one because I did not think the quantum of the subscription was particularly relevant to this amendment to the Law. If he is really interested I am sure we can find out for him. The question from Deputy Le Hérissier about whether self-regulation is suitable: I am not really sure what we are getting at there. In terms of complaints procedures I have said there is a formal complaints procedure in place and I will also deal with the comments of Deputy Lewis about any complaint from a member of the public. Senator Kinnard who thinks we should defer this, I think no, it is pretty straightforward. If the Senator is not happy that the Law, in its present form, is addressing the issue then the simply remedy is to vote against the principle of the Law, Sir. I maintain the principle of the law.

The Bailiff :

May I ask any Member who wishes to vote on the principles of the draft, who is in the precinct, to return to his or her seat. I ask the Greffier to open the voting.

POUR: 34

Senator T.A. Le Sueur Senator P.F. Routier Senator M.E. Vibert Senator P.F.C. Ozouf Senator T.J. Le Main Senator B.E. Shenton Senator F.E. Cohen Senator J.L. Perchard Connétable of St. Saviour Connétable of St. Mary Connétable of St. Peter Connétable of St. Clement Connétable of St. Lawrence

CONTRE: 6 ABSTAIN: 0 Senator S. Syvret

Senator W. Kinnard

Deputy of St. Martin

Deputy C.J. Scott Warr en (S)

Deputy R.G. Le Hérissier (S)

Deputy K.C. Lewis (S)

Connétable of Grouville Connétable of St. John Connétable of St. Brelade Connétable of St. Martin Deputy R.C. Duhamel (S) Deputy A. Breckon (S) Deputy J.J. Huet (H)

Deputy G.C.L. Baudains (C) Deputy P.N. Troy (B) Deputy S.C. Ferguson (B) Deputy of St. Ouen

Deputy P.J.D. Ryan (H) Deputy of Grouville

Deputy J.A. Hilton (H) Deputy G.W.J. de Faye (H) Deputy P.V.F. Le Claire (H) Deputy D.W. Mezbourian (L) Deputy S.S.P.A. Power (B) Deputy A.J.H. Maclean (H) Deputy I.J. Gorst (C)

Deputy of St. Mary

The Bailiff :

Corporate Affairs, no scrutiny?

Deputy P.J.D. Ryan: No, thank you, Sir.

The Bailiff :

Articles 1 and 2 are proposed. [Seconded] Does any Member wish to speak on either of those articles? I put the articles. Those Members in favour of adopting them kindly show. Against? The articles are adopted and in Third Reading. [Seconded] Does any Member wish to speak on the Bill in the Third Reading? I put the Bill. Those Members in favour of adopting it kindly show. Those against. The Bill is adopted in the Third Reading.

APPENDIX 2 1240/5(6062)

WRITTEN QUESTION TO H.M. ATTORNEY GENERAL BY DEPUTY R.G. LE HÉRISSIER OF ST. SAVIOUR ANSWER TO BE TABLED ON TUESDAY 1st MARCH 2011

Question

To what extent, if any, are the provisions of Article 3 of the Law Society of Jersey Law 2005 replicated in procedures that apply to Lawyers in public service and, if there is no replication, what disciplinary provisions, if any, exist to deal with complaints from the public?

Answer

Article 3(4) of The Law Society of Jersey Law 2005 which was a 2006 amendment to the original Law exempts the Law Officers and persons practising law as a Jersey Advocate  or  Solicitor in the  course  of  their  employment  with  the  Law  Officers' Department from a requirement that they must be members of the Law Society and subject to its rules and regulations. This exemption only applies to the Law Officers' Department  and  persons  employed  and  practising  as  lawyers  in  other  States Departments would be required to be members of the Law Society.

Article 32 of the Law specifically preserves the inherent jurisdiction of the Royal Court to exercise disciplinary control over its practitioners. This would include Jersey Advocates and Solicitors employed by the Law Officers' Department.

Some employees of the Law Officers' Department were admitted as solicitors or barristers in England and Wales or are professionally qualified by virtue of them being fellows of the Institute of Legal Executive and are not eligible, in any event, to be members of the Law Society.

The independence of officers employed in the Law Officers' Department is preserved by Departments of the Judiciary and the Legislative (Jersey) Law 1965. The consent of the Attorney General is required before a person employed by the Law Officers' Department  could  have  his  or  her  appointment  suspended  or  terminated.  These safeguards and legal protections are important to ensure that the work of the Law Officers' Department may be and be seen to be free from any Political or Executive interference.

All officers employed in the Law Officers' Department perform their duties for and on behalf of the Law Officers. As such, they are accountable to me for their actions. As Attorney General, I am accountable in the States and I am, from time to time, required to provide information about the work of the Law Officers' Department.

If a member of the public wished to complain that a member of my staff was guilty of professional or other misconduct, the matter should be reported to me so that I might decide how the complaint should be dealt with.

Staff  employed  in  the  Law  Officers'  Department  are  public  servants  and  we  are committed to providing a good service to the public. I expect all members of staff, whether professionally qualified or not, to maintain high professional and personal standards.

Law Officers' Department Code of Conduct for Lawyers

1. The general purpose of this Code is to provide the requirements for working as a lawyer in the Law Officers' Department ("the Department") and the rules and standards applicable to such lawyers which are appropriate in the interests of justice and in relation to the performance of all their duties as public officers.
2. For the purposes of this Code, the term "lawyer" means a person who has obtained  a  legal  professional  qualification  in  Jersey  or  elsewhere  and  is employed in the Department by the States of Jersey Employment Board.
3. It operates in addition to and not in substitution for, the Lawyer's contract of service and the terms and conditions applying to States Employees, for the time being.
4. This Code applies to all lawyers and any breach of this Code will be treated as a matter of discipline.
5. The Attorney General and Solicitor General shall have the power to waive in writing,  in whole  or  in part,  conditionally  or  unconditionally  any  of  the provisions  of  this  Code  of  Conduct  for  a  particular  purpose  or  purposes expressed  in  such  a  waiver,  and  to revoke  such  waiver  conditionally  or unconditionally.

Reputation

6. A lawyer must not engage in conduct whether in pursuit of his/her profession or otherwise which is:

1. dishonest or otherwise discreditable;
2. prejudicial to the administration of Justice;

3. likely to diminish public confidence in the legal profession or the  administration  of  justice  or  otherwise  bring  the  legal profession into disrepute; or
4. likely  to compromise  the  independence  and  political neutrality of the Law Officers' Department or to bring that Department into disrepute.

7. A lawyer must not, without the prior express permission of the Attorney General, engage directly or indirectly in any other business, occupation or profession.  Such  permission  will  not,  in any  case,  be  given  if his/her association with the same may adversely affect the reputation of the Law Officers' Department, the Jersey Bar or solicitor's profession or otherwise prejudice  the  lawyer's  ability  to attend  properly  to his/her  duties  and responsibilities.

Standards

8. A lawyer shall uphold the dignity and high ethical and technical standards of the legal profession.
9. A lawyer has an overriding duty to the Court to act with independence in the interests of justice; he/she must assist the Court in the administration of justice and must not deceive or knowingly or recklessly mislead the Court.
10. A lawyer must exercise independence of judgment and fearlessly promote and protect the best interests of the person or department whom he has been requested to advise and represent. He/she must do so without regard to his/her own  interests  or  to any  consequences  to  himself  or  any  other  person. However, the lawyer's duty to the Court remains paramount.
11. A lawyer must not:

1. permit  his/her  absolute  independence  and  integrity  and freedom from external pressures to be compromised;

2. do anything (for example accept a present or pay or loan monies) in such circumstances as may lead to any inference that his/her independence may be compromised;
3. compromise his/her professional standards in order to please his/her client, the Court or a third party.

12. A lawyer must not act in any matter or take any instructions which if accepted, would cause him/her to be professionally embarrassed and for this purpose a lawyer will be professionally embarrassed if:
    1. the  instructions  seek  to limit  the  ordinary  authority  or discretion of a lawyer in the conduct of the proceedings or to require the lawyer to act otherwise than in accordance with the provisions of this Code;
    2. the matter is one in which he/she has reason to believe that he is likely to be a witness or in which whether by reason of any connection with the client or with the Court or a member of it or  otherwise  it  will  be  difficult for him/her to maintain  a professional  independence  or  the  administration  of  justice might be or appear to be prejudiced;
    3. the  client  refuses  to authorise  him/her  to make  some disclosure to the Court which his duty to the Court requires him/her to make.
13. A lawyer should report any such matter to his/her manager. A lawyer must in all  his/her  professional  activities  be  courteous  and  act  promptly, conscientiously,  diligently  and  with  reasonable  competence  and  take  all reasonable and practicable steps to avoid unnecessary expense or waste of the Court's time and to ensure that professional engagements are fulfilled.
14. A lawyer must not in relation to any other person discriminate directly or indirectly  because  of  race,  colour,  ethnic  or  national  origin,  nationality, citizenship, sex, sexual orientation, marital status, disability, age, religion or belief.

The Law Officers

15. Ultimately, lawyers provide advice for and on behalf of the Law Officers. All lawyers should accordingly follow Law Officers' instructions and/or provide advice consistent with the Law Officers' view.
16. Otherwise, a lawyer is individually and personally responsible for his/her own conduct and for his/her professional work. He/she must exercise his/her own personal judgment in all his/her professional activities.

Drafting Documents

17. A lawyer must not draft any statement of case, witness statement, affidavit notice of appeal or other document containing:

1. any contention which he/she does not consider to be properly arguable having regard to his overriding duty to assist the Court in the administration of justice. It is the lawyer, not the client, who decides what is properly arguable;
2. any statement of fact or contention which is not supported by the lay client or by his/her instructions;
3. any allegation of dishonesty, fraud or other improper conduct against any person (including an Advocate representing the opposing party) unless he/she has clear instructions to make such allegation and has before him/her reasonably credible material which as it stands establishes a prima facie case;
4. in the case of a witness statement or affidavit any statement of fact other than the evidence which in substance according to his/her instructions the lawyer reasonably believes the witness would give if the evidence contained in the witness statement or affidavit were being given in oral examination;

provided  that  nothing  in  this  paragraph  shall  prevent  a  lawyer  drafting  a document containing specific factual statements or contentions included by the  lawyer  subject  to  confirmation  of  their  accuracy  by  the  lay  client  or witness.

Conduct in Court

18. A lawyer when conducting proceedings in Court:

1. is personally responsible for the conduct and presentation of his/her case and must exercise personal judgment upon the substance  and  purpose  of  statements  made  and  questions asked;
2. must not make a submission which he/she does not consider to be properly arguable, having regard to his/her overriding duty to assist the Court in the administration of justice. It is the  lawyer,  not  the  client,  who  decides  what  is properly arguable;
3. must  not  unless  invited  to  do  so  by  the  Court  or  when appearing before a tribunal where it is his/her duty to do so assert a personal opinion of the facts or the law;
4. must  ensure  that  the  Court  is informed  of  all  relevant decisions and legislative provisions of which he/she is aware, whether the effect is favourable or unfavourable towards the contention for which he/she argues;
5. must bring any procedural irregularity to the attention of the Court during the hearing and not reserve such matter to be raised on appeal;
6. must not adduce evidence obtained otherwise than from or through  the  client  or  invent  facts  which  will  assist  in advancing the lay client's case;
7. must not make statements or ask questions which are merely scandalous or intended or calculated only to vilify insult or annoy either a witness or some other person;
8. must  if possible  avoid the  naming  in open  Court of  third parties whose character would thereby be impugned;
9. must  not  by  assertion  in an  oral  submission  or  by  cross examination or otherwise make any allegation of dishonesty, fraud or other improper conduct against any person (including an Advocate representing the opposing party) unless he/she has  a  clear  basis  to make  such  allegation  and  has  before

him/her  reasonably  credible  material  which  as  it  stands establishes a prima facie case;

10. must not by assertion in a speech impugn a witness whom he/she  has  had  an  opportunity  to cross-examine  unless  in cross-examination  he/she has  given  the  witness  a  full  and proper opportunity to answer the allegation;
11. must not suggest that a victim, witness or other person is guilty of crime, fraud or misconduct or make any defamatory aspersion  on the  conduct of  any  other person  unless  such allegations go to a matter in issue (including the credibility of the  witness)  which  is material  to the  case  and  appear  to him/her to be supported by reasonable grounds.

Contact with witnesses

19. A lawyer must not:

1. rehearse, practise or coach a witness in relation to his/her evidence;
2. encourage a witness to give evidence which is untruthful or which is not the whole truth; or
3. except with the consent of the Court or the representative of the opposing side, communicate directly or indirectly about a case with any witness, once that witness has begun to give evidence  until  the  evidence  of  that  witness  has  been concluded.

Documents

20. A lawyer should not obtain or seek to obtain a document, or knowledge of the contents of a document, belonging to another party other than by means of the normal and proper channels for obtaining such documents or such knowledge.
21. If a lawyer comes into possession of a document belonging to another party by some means other than the normal and proper channels (for example, if the document has come into his/her possession in consequence of a mistake or inadvertence  by  another  person  or  if the  document  appears  to belong  to another party, or to be a copy of such a document, and to be privileged from

discovery or otherwise to be one which ought not to be in the possession of his/her client) he/she should:

1. where appropriate make enquiries in order to ascertain the circumstances in which the document was obtained; and
2. unless satisfied that the document has been properly obtained in the ordinary course of events at once return the document unread to the person entitled to possession of it.

22. If having come into possession of such a document the lawyer reads it before he/she realises that he/she ought not to, the lawyer should immediately draw this to the attention of the lawyer's manager and should inform his opponent of his/her knowledge of the document and of the circumstances, so far as known  to him/her,  in which  the  document  was  obtained  and  of  his/her intention to use it. In the event of objection to the use of such document it is for the Court to determine what use, if any, may be made of it but subject thereto the lawyer shall make such use of the document as will be in his/her client's interests.
23. If during the course of a case a lawyer becomes aware of the existence of a document which should have been but has not been disclosed on discovery he/she should advise his/her professional client to disclose it forthwith.

Media

24. A lawyer must not in relation to any court proceedings express a personal opinion to the press or other media or in any other public statement upon the facts or issues arising in the proceedings.
25. Personal opinion may be expressed in an academic context with the prior consent of the Attorney General or Solicitor General.

WRITTEN QUESTION TO H.M. ATTORNEY GENERAL BY DEPUTY M.R. HIGGINS OF ST. HELIER

ANSWER TO BE TABLED ON TUESDAY 29th JANUARY 2013

Question

Will Her Majesty's Attorney General explain to members the various checks and balances that apply to the Law Officers and the Law Officers Department and explain how and in what way the department is accountable to the States of Jersey Assembly?

Answer

It is unclear from the question precisely what is intended by "accountability" and "checks and balances".

The Attorney General and Solicitor General are appointed by the Crown and hold office  during  good  behaviour.  Although  the  Attorney  General  is  the  senior  Law Officer they are independent of each other. The Law Officers have supervision of the Criminal and Civil Functions of the department through the Director of the Criminal Division and the Director of the Civil Division. The Law Officers are sworn office holders and are bound by the terms of their oaths.

Many of the members of the Department are also lawyers who owe independent professional obligations. Other than the Law Officers, all members of the department are subject to the codes of conduct and other policies applying to all civil servants.

The  Law  Officers'  Department  carries  out  a  number  of  different  functions  and different considerations apply to the various functions.

Neither the Law Officers nor the department are accountable to the States Assembly for  prosecution  decisions  or  prosecutorial  matters  which  are  and  must  remain independent of political considerations and pressure.

Similarly, the Law Officers' Department is not accountable to the States Assembly for operational matters as it must maintain its ability to give impartial and independent advice.

Subject to such exceptions the Law Officers' Department is accountable to the States Assembly through the Attorney General or Solicitor General who are members of the Assembly.

Financially  the  Law  Officers'  Department  is  accountable  to  the  Chief  Minister's Department and Treasury and thereby ultimately to the States Assembly for matters of financial management.

Some decisions of the Law Officers may be challenged before the courts. In the exercise of their functions, the Law Officers are public authorities under the Human Rights Jersey Law and must therefore act compatibly with the Convention rights of others, whenever such rights are engaged by the exercise of those functions.

Should the States Assembly fundamentally lose confidence in a Law Officer then the Assembly could adopt a motion of no confidence in that officer. Although the motion would not be legally binding, the Crown and the officer concerned would inevitably pay regard to the views expressed by the elected representatives of the Island.

WRITTEN QUESTION TO H.M. ATTORNEY GENERAL BY DEPUTY M.R. HIGGINS OF ST. HELIER

ANSWER TO BE TABLED ON TUESDAY 19th FEBRUARY 2013

Question

1. Will H.M. Attorney General set out clearly each of the steps that need to be taken by anyone wishing to make a complaint (including misconduct) against the actions of any of the following office holders, explaining in detail each step and each level, until the matter reaches the persons or bodies ultimately responsible for determining such matters:

1. Legally qualified members of the Law Officers Department;
2. Solicitor General;
3. Attorney General;
4. Deputy Bailiff ;
5. Bailiff ;
6. Jurats;
7. Magistrates?

2. To whom  are  the  office  holders  (i)  to (vii)  listed  above  accountable  for appraisal purposes?

Answer

1. The question is not clear as to what is meant by "complaint", particularly in respect of the office holders who are listed at (iv) to (vii) whose functions require them to act as judges in the Jersey courts. It is important to distinguish between two types of complaint in relation to a judge.

In so far as the complaint relates to matters occurring in the course of legal proceedings (for example, a complaint that the judge's decision is wrong or that he or she has behaved unfairly or should not have sat because he or she had a conflict of interest) then the appropriate remedy is for the aggrieved party  to  use  the  judicial  process  and  appeal  or  apply  for  doléance  (an alternative method of review) where available.

Where the complaint alleges misconduct other than in the course of legal proceedings,  then  the  appropriate  course  in  respect  of  a  complaint  made against a Jurat or a Magistrate is to lodge that complaint with the Bailiff . The Bailiff can then decide if the complaint requires investigation. If it does, he will seek to replicate the procedures applied in England and Wales as far as possible  and,  where  appropriate,  will  appoint  an  independent  person  to investigate the matter.

The process thereafter in respect of a Jurat is set out in the Royal Court (Jersey)  Law  1948.  The   Bailiff  can  convene  the  Superior  Number  at  the conclusion of any investigation so that the Royal Court can consider whether

or not to petition the Privy Council seeking the removal of the Jurat (if no resignation is forthcoming) by Order in Council.

A  Magistrate  may  only  dismissed  by  Order  in  Council.  Should  the independent investigation merit such a course of action, the Bailiff would make a recommendation accordingly.

The Bailiff and Deputy Bailiff are appointed by Her Majesty and may only be dismissed by Her Majesty.

If a complaint of misconduct outside court proceedings concerns the Bailiff or the Deputy Bailiff then the complaint should be lodged with the Lieutenant Governor as Her Majesty's personal representative. If he decides that the complaint requires investigation, he may appoint an independent person to investigate in the same manner as described above. Should the result of the investigation merit such a course of action, a recommendation can then be made to Her Majesty.

The Attorney General and the Solicitor General are appointed by Her Majesty and may only be dismissed be Her Majesty. The procedure for a complaint against either of them would be analogous to that in respect of the Bailiff and Deputy Bailiff .

The Law Officers' Department has its own internal disciplinary procedures and any complaint about a legally qualified member of staff should be made to the Attorney General in the first instance.

The  procedures  described  above  are  designed  to  provide  for  effective investigation when merited but at the same time preserve the independence of the office holders as the independence of the judiciary and the prosecuting authorities is vital to the maintenance of the rule of law.

2. The management at the Law Officers' Department conducts appraisals of legally qualified members of staff. The Law Officers and members of the Judiciary are not the subject of appraisals. The members of the Judiciary receive  training  on  a  regular  basis. The  Court's judgments  are subject to public scrutiny and litigants are able to exercise any rights of appeal.