Law Officers’ Department and members of the Law Society of Jersey: revised disciplinary process (P.152/2013) – comments.

STATES OF JERSEY

LAW OFFICERS' DEPARTMENT AND MEMBERS OF THE LAW SOCIETY OF JERSEY: REVISED DISCIPLINARY PROCESS (P.152/2013) – COMMENTS

Presented to the States on 3rd February 2014 by H.M. Attorney General

STATES GREFFE

2013   Price code: D  P.152 Com.

COMMENTS

1.  Introduction

These comments are presented to the States further to the Proposition P.152/2013 of Deputy R.G. Le Hérissier  of   St. Saviour  ("the  Proposition"),  lodged  on 12th November 2013 entitled "Law Officers' Department and members of the Law Society of Jersey: revised disciplinary process."

The  Proposition  replaces  P.109/2013,  which  was  lodged  by  the   Deputy  on 10th September 2013, but withdrawn on 19th November 2013.

Comments regarding P.109/2013 were presented to the States on 21st October 2013 by H.M. Attorney General (P.109/2013 Com.) (attached as Appendix 1).

The Proposition is in 3 parts –

"(a)  to request the Chief Minister to bring forward within 6 months proposals for

revised procedures to deal with any complaints made against lawyers working in  the  Law  Officers'  Department  (other  than  H.M. Attorney General  and H.M. Solicitor General) to ensure that they conform with "best practice";".

In  P.109/2013,  the   Deputy  had  called  for  lawyers  working  in  the  Law  Officers' Department ("LOD") to be subject to a complaints procedure which was "to mirror those set out in the Law Society of Jersey Law 2005" in relation to complaints made against advocates and solicitors working in the private sector.

P.109/2013 Com.  addressed  that  proposal  and  it  is  unnecessary  to  rehearse  those points again here.

A Code of Conduct for all LOD lawyers was issued in June 2013 and can be found on the LOD website (this was also provided to States Members with the comments on P.109/2013).  The  disciplinary  process  that  underpins  the  Code  is  attached  as Appendix 2.

The Attorney General would be pleased to review with the Chief Minister the current complaints and disciplinary procedure for LOD lawyers to see if it can be improved, given that all are already subject to the Civil Service Code and some, but not all, of them are Advocates and Solicitors of the Royal Court.

"(b)  to request the Chief Minister to consult with the Law Society of Jersey and

other interested parties to develop a revised Complaints and Disciplinary procedure for members of the Law Society that conforms with "best practice" and to present a report with recommendations to the States within 6 months;".

It is understood that the Legislation Advisory Panel is already in process of carrying out a review of the complaints and disciplinary procedure for members of the Law Society as contained in the 2005 Law (and subordinate legislation).

"(c)  to request the Chief Minister to consult with the Crown on the desirability and

feasibility of establishing a revised Complaints and Disciplinary process for H.M. Attorney General and H.M. Solicitor General and to report to the States with recommendations within 6 months on the outcome of this consultation.".

This was set out in a slightly varied form in paragraph (b) of P.109/2013.

Ultimately,  the  discipline  of  the  Law  Officers  is  a  matter  for  Her  Majesty.  The Attorney has not, however, changed his position from that set out in P.109/2013 Com.; and in the interests of clarity and certainty, does not object to discussions with the Crown with a view to clarifying the process over complaints made against the insular Law Officers.

General

Attached  hereto  as  Appendix 3  is  a  summary  note  on  disciplinary  systems  in  a number of other jurisdictions.

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 solicitor[1] 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 –

"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

2 Paragraph 10.2: Hansard 26th September 2006 (Appendix 1). 3 Paragraph 10.3: see 2 ibid.

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 General[1] 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."[2]

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

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."6

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

6 Paragraph 3.1.1: Hansard 2nd July 2013.

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]."[3]

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 Review[4], when the Attorney General is considering a prosecution against a States Department having

previously advised the Department on the course of action which has led 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):[5] "There is no question that the Attorney General and Solicitor General are unaccountable.".

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 common-sense 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 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 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 [TO P.109/2013] 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.

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.

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.

Law Officers' Department Disciplinary Procedure

Interpretation

1. The following definitions shall have effect for the purposes of this procedure.

1. "A serious breach of the Code" shall be a breach of the Code which is considered sufficiently serious that, in the case of an Advocate or Solicitor, it requires a reference to the Royal Court.
2. "Advocate or Solicitor" shall mean an Advocate or Solicitor of the Royal Court of Jersey.
3. "Attorney General" shall unless the context requires otherwise include reference to the Solicitor General.
4. "a/the Director" shall mean either the Director of the Civil Division or the Director of the Criminal Division.
5. "the Code" shall mean the Code of Conduct of the Law Officers' Department (July 2013).
6. "CS  Disciplinary  Procedure"  shall  mean  the  Civil  Service Disciplinary Policy and Procedure (October 2009).
7. "the Department" shall mean the Law Officers' Department.

2. Save as otherwise specified, the terms used in this procedure have the same meaning that they have in the Code.
3. Words importing the masculine gender shall include females.

General Principles

4. This document sets out the procedure for the investigation of a complaint against or conduct by a lawyer working in the Law Officers' Department, and the manner in which such complaints or conduct may be dealt with.
5. This procedure operates in conjunction with the CS Disciplinary Procedure and nothing in this procedure derogates from the rights of a lawyer under the CS Disciplinary Procedure. The Attorney General may vary or depart from the approach set out in this procedure in any given case, if the interests of justice require him to do so, subject to the CS Disciplinary Procedure not being departed from.
6. Nothing in this document qualifies or touches upon the powers and duties of the Attorney General to bring before the Royal Court, as he sees fit, any issues relating to an Advocate or Solicitor.

7. At each stage of the process the Director or the Attorney General, as the case may be, must consider

1. whether the complaint or conduct is such that the lawyer is able to remain  in post  pending  the  outcome  of  any  investigation  or disciplinary hearing; and
2. whether the complaint requires a reference to the Attorney General in order that the Attorney General may consider exercising his powers and  duties to bring  a  matter  concerning  an  Advocate  or  Solicitor before the Royal Court.

8. Nothing in this procedure shall prevent the Attorney General from notifying a legal professional body, in a jurisdiction other than Jersey, of conduct by a lawyer who is regulated by such a legal professional body.
9. The Attorney General may at any stage seek external independent advice on the matters contained within this procedure, the substance and procedure in dealing with a complaint or conduct and the Attorney General's duties in law.
10. A note of the outcome of any complaint should be placed on the lawyer's file, subject to the CS Disciplinary Procedure.

Application

11. This procedure shall apply where:

1. the Attorney General receives a complaint in writing about a lawyer working in the Department; or
2. the Attorney General becomes aware of conduct by a lawyer working in the Department which may constitute a breach of the Code.

Threshold Determinations

12. The Attorney  General  shall  dismiss  a  complaint  received  under Paragraph 11(a) if:

1. it does not adequately particularise the matter complained of or is not in writing;
2. he considers itto be vexatious, malicious, frivolous or trivial;
3. it does not even if true amount to a breach of the Code;
4. itis without substance;
5. itis untrue, mistaken or misconceived
6. it raises a matter already dealt with and does not raise any material new consideration that would change the manner in which the matter had been disposed of; or

7. for any other reason it does not relate to misconduct by the lawyer.

13. A complaint shall not be dismissed under 12(a) unless the complainant has been afforded an opportunity to provide adequate details of the complaint or an opportunity to put the complaint in writing. A complainant must provide further details as requested or put the complaint in writing within 21 calendar days of any such request by the Attorney General.
14. The Attorney  General  may  dismiss  a  complaint  if received  more  than 6 months after the last of the events giving rise to the complaint, and should do so unless the Attorney General is satisfied that exceptional circumstances exist which justify the making of the complaint outside that period.
15. If the Attorney General dismisses a complaint under Paragraphs 12 or 14, he shall inform the complainant in writing, and provide reasons. If the lawyer is aware of the complaint, he shall also be informed of the dismissal and reasons.

Informal Resolution of Minor Complaints

16. If the Attorney General does not dismiss a complaint that has been made to him  under  Paragraph 11(a)  or  conduct  has  come  to  his  attention  under Paragraph 11(b), the Attorney General shall refer the matter to the Director of the  Division  in which  the  lawyer  is  employed.  That  Director  may  then determine how to proceed.
17. The Director may decide to resolve the complaint or deal with the misconduct informally if the complaint or misconduct is minor. If the matter is not minor the Director shall cause an investigation in accordance with Paragraphs 20–23.
18. Informal resolution may include, but is not limited to, the following:

1. inviting the lawyer to apologise in writing to a complainant;
2. holding an informal meeting to resolve the issues; and/or
3. establishing  an  agreed  course of action  with  the  lawyer  including setting objectives, identifying timescales for improvement, and the provision of additional training.

19. If  the  Director is considering  dealing  with  a  complaint  or  potential misconduct informally, he shall:

1. seek the views of the complainant and the lawyer concerned about the matter;
2. give  the  lawyer  concerned  the  opportunity  to respond  to the complaint, orally or in writing; and
3. take such other steps as may appear to the Director to be appropriate.

Investigation

20. If  the  Attorney  General  does  not  dismiss  a  complaint,  or  a complaint  or potential misconduct has not been dealt with informally by the Director, the Director shall cause a thorough investigation into the matter.
21. An investigation shall take into account at least a statement from the lawyer and any information from a complainant. The lawyer may be interviewed and shall  have  the  right  to be  accompanied  at  such  interview  by  a  legal representative, a workplace colleague or a trade union representative.
22. A written complaint shall be taken as the statement of any complainant for the purposes of the investigation and if necessary the complainant may be invited to a separate interview.
23. The investigation  will  normally  commence  within  7 calendar  days  of  the Attorney General deciding not to dismiss a complaint or the Director deciding that informal resolution is not possible or appropriate, as the case may be. The investigation  will  normally  be  completed  within  21 calendar  days  of  the decision not to dismiss a complaint or the decision that informal resolution is not possible or appropriate.
24. Following the completion of the investigation, the Director may:

1. refer the matter back to the Attorney General with a recommendation that the matter be dismissed under Paragraph 12;
2. seek an informal resolution in accordance with Paragraphs 17 to 18; or
3. cause a disciplinary hearing to be held if he considers, based on an investigation  report  or  otherwise,  that  there  is a  prima  facie case against the lawyer of a breach of the Code which cannot be dealt with informally.

Disciplinary Hearing

25. A  disciplinary  hearing  shall  be  chaired  by  a  Director  (hereinafter  "the Chairman").
26. The Chairman shall not be the Director to whom the complaint was referred by the Attorney General under Paragraph 16. The Chairman may appoint any other persons as he considers necessary to assist in conducting the disciplinary hearing.
27. If the Attorney General considers a Director unable to present the case against the lawyer or chair the disciplinary panel, as the case may be, he shall appoint a suitably qualified person to otherwise fulfil either rôle.
28. The lawyer shall be notified of the hearing by the Chairman in accordance with the CS Disciplinary Procedure. If there is a complaint, the complainant shall, unless inappropriate, be called as a witness and notified of the date, time

venue  and  hearing  and  the  identity  of  the  Chairman  of  the  disciplinary hearing.

29. The lawyer  has  the  right  to attend  the  disciplinary  hearing  and  be accompanied at the disciplinary hearing by a legal representative, workplace colleague or trade union representative
30. Unless  otherwise  agreed,  notice  shall  be  affected  by  ordinary  service  in accordance with Rule 5/6 of the Royal Court Rules 2004.
31. In addition to the investigation report, the Chairman may also request any further documents which appear to be relevant or make any further inquiries he considers appropriate to fulfil his functions.
32. The Director who to whom the matter was referred by the Attorney General under Paragraph 16 shall present the case against the lawyer first. The lawyer or  his representative  and  the  Chairman  shall  have  the  opportunity  to ask questions relating to the case against the lawyer as presented.
33. The lawyer or his representative shall present the case for the lawyer. The Director,  and  the  Chairman,  shall  have  the  opportunity  to ask  questions relating to the lawyer's case as presented.
34. The Chairman may otherwise make whatever arrangements are necessary or appropriate for hearing the complainant or other witnesses or obtaining other evidence.
35. The Chairman may regulate and determine the procedure of a disciplinary hearing  as  he  sees  fit  subject  to this  procedure  and  the  CS  Disciplinary Procedure.

Director decision

36. Once the case has been presented, the Chairman shall determine the facts of the matter. Such a decision shall be made on the civil standard of proof. The Chairman shall then determine if the facts amount to a breach of the Code or otherwise  amount  to a  breach  of  the  lawyer's  terms  and  conditions  of employment.
37. If the Chairman is not satisfied that there has been a breach of the Code or of the lawyer's terms and conditions of employment, he shall dismiss the matter.
38. If the Chairman is satisfied that there has been a breach of the Code, he may decide either that no further action is necessary or he may do one or more of the following things:

1. require the lawyer to issue a written apology to the complainant;
2. give advice to the lawyer as to future conduct;
3. require the lawyer to undertake certain training;
4. recommend that the Attorney General privately reprimand the lawyer;

5. determine to:
   1. issue a verbal warning to the lawyer;
   2. issue a written warning to the lawyer;
   3. issue a final written warning to the lawyer;
   4. recommend that the Attorney General dismiss the lawyer; and/or
6. recommend that the Attorney General refer the matter to the Royal Court if the lawyer is an Advocate or a Solicitor.

39. In considering an action or recommendation under Paragraph 38(e)(i)–(iii) or a  recommendation  under  Paragraph 38(e)(iv),  the  Director  shall  take  into account the CS Disciplinary Procedure.
40. A recommendation under Paragraph 38(e)(iv) may not be made in the case of a first breach of the Code unless it amounts to gross misconduct.
41. A recommendation under Paragraph 38(f) shall only be made if the breach is considered by the Director to be a serious breach of the Code.
42. The lawyer  and the  Director  who  presented  the  case  shall  be  notified in writing of the Chairman's decision within 5 calendar days of the hearing and the action, if any, which the Chairman has decided to take. If there was a complaint, the complainant shall be notified by the Director who presented the case of the outcome of the disciplinary hearing and that disciplinary action has or will be taken.

Appeal

43. A complainant shall have no right of appeal regarding any of the Chairman's decisions.
44. If the lawyer is aggrieved by:

1. the Chairman's decision determining that the facts amount to a breach of the Code; and/or
2. the action(s) taken or the recommendation(s) made by the Chairman. he may appeal to the Attorney General.

45. An appeal must be lodged with the Attorney General within 5 calendar days of the lawyer being notified of the Chairman's decision(s). The Attorney General may however extend this period as he thinks fit. An appeal shall normally be held within 21 calendar days of the appeal being lodged.

46. The appeal shall be heard by either the Attorney General or Solicitor General and will generally not be heard by the same person who made a threshold determination under Paragraph 12. The lawyer may request that a member of Human  Resources  attend  the  appeal.  The  Attorney  General  shall  retain discretion to appoint suitably qualified persons to assist him in hearing the appeal.
47. The appeal shall proceed, in the same manner as a disciplinary hearing and the lawyer retains the right to attend the appeal hearing and have representation as described in Paragraph 29. The appeal shall otherwise proceed in such manner as the Attorney General shall determine.
48. The Attorney General may:

1. allow the appeal;
2. dismiss the appeal; or
3. subject to Paragraph 49, substitute some other penalty or sanction.

49. The Attorney  General  may  not  substitute  some  other  penalty  or  sanction unless it was available to the Chairman under Paragraph 38 and itis less severe than that imposed by the Chairman, save that in all cases the Attorney General reserves the right to refer a matter, in the case of an Advocate or Solicitor, to the Royal Court.
50. The Attorney General, having reached his decision under Paragraph 48, shall notify the lawyer of the decision in writing within 5 calendar days.
51. The decision of the Attorney General shall be final and no further appeal shall be available under this procedure. This Paragraph shall not affect any further appeal available to a lawyer under the CS Disciplinary Procedure.

Reference to the Royal Court

52. In deciding whether to refer a breach of the Code to the Royal Court, the Attorney General may, other than in clear cut cases and without prejudice to the  generality  of  Paragraph 9,  seek  independent  advice  from  outside  the Department on whether the breach is a serious breach of the Code, sufficient to justify reference to the Royal Court.
53. If the Attorney General concludes that a reference to the Royal Court is necessary,  he  will  generally  appoint  a  Crown  Advocate,  who  is not  an employee of the States Employment Board, to bring the matter to the Court's attention in the Attorney General's name.

APPENDIX 3

Discipline of Public Sector Lawyers in other Jurisdictions

Introduction

1. The contents of this Note have been collated to provide States Members with information that he has requested about the discipline of public sector lawyers in other jurisdictions. It informs some parts of Proposition (P.152/2013) ("the Proposition")  lodged  on  12th  November  2013  entitled  "Law  Officers' Department and Members of the Law Society of Jersey: revised disciplinary process."

Background

2. A full background to the Law Society of Jersey Law 2005 ("the 2005 Law") and the position regarding Advocates and Solicitors (Écrivains) of the Royal Court  employed  by  the  Law  Officers'  Department ("LOD")  is  set  out inP.109/2013 Com.
3. It may, however, assist further by setting out briefly the general disciplinary process for Advocates and Solicitors under both the 2005 Law and customary law.
4. If a complaint is received by the Law Society of Jersey ("LSJ") alleging that a practitioner (i.e. an Advocate or Solicitor who is an ordinary member of the LSJ)  is  guilty  of  professional  misconduct,  the  President  shall  appoint  a disciplinary committee from the membership of the disciplinary panel. The latter  is comprised  of  persons  appointed  by  the  States.  The disciplinary committee consists of 2 lay persons and one existing ordinary member of the Law Society. One of the lay persons shall be appointed as the Chairman. The President then refers the complaint to the Disciplinary Committee.
5. The President has the right to refuse to refer a complaint to a Disciplinary Committee  if  he  or  she  considers  that  the  complaint  does  not  relate  to professional  misconduct  or  that  it is vexatious,  frivolous  or  trivial.  The President  must  confirm  this  decision  in writing  with  reasons  to the complainant and the Attorney General.
6. The Attorney General retains discretion to refer a complaint to the Royal Court, notwithstanding the fact that the President has refused to refer it to a Disciplinary Committee (more information regarding a referral to the Royal Court is provided below).
7. Should a complaint be referred to a Disciplinary Committee, the Committee (which  sits  privately)  shall  give  the  complainant  and  practitioner  an opportunity to be heard, to call evidence and to cross-examine witness.
8. If the Disciplinary Committee does not dismiss the complaint but is satisfied that it is proven, the Committee may –

1. privately reprimand or publicly rebuke the practitioner if it is satisfied that this punishment is a proper way of dealing with the misconduct; or
2. refer the complaint to the Attorney General without making a finding.

9. The LSJ Disciplinary Committee may therefore be best described as a tribunal of first instance exercising summary judgment for less serious instances of professional misconduct. It is this process to which LOD lawyers are not subject. If professional misconduct is serious, then reference to the Royal Court will be necessary ( the Royal Court has a higher range of penalties available toit (see below)), and LOD Advocates and Solicitors are not exempt from the disciplinary jurisdiction of the Royal Court.
10. The decisions by the Disciplinary Committee may be subject to appeal to the Royal Court –

1. by  the  complainant  or  the  practitioner  regarding  the  decision  to reprimand or rebuke the practitioner; or
2. by the complainant or the Attorney General regarding a dismissal of the complaint.

11. The practitioner, but not the Attorney General or the complainant, has an option to appeal the Royal Court's decision to the Court of Appeal.
12. The procedural detail of how the LSJ progresses complaints are provided for in the Law Society of Jersey (Disciplinary Proceedings) Rules 2010 (Revised Edition chapter 07.570.40).
13. If the disciplinary committee refers a complaint to the Attorney General, or the President has refused to refer a complaint to a Disciplinary Committee, the Attorney General may refer the complaint to the Royal Court, at which the Attorney shall be given the opportunity to be heard, call evidence and cross- examine witnesses.
14. The Royal Court shall dismiss the complaint if it is not satisfied that –
    1. the complaint is proved; or
    2. it constitutes professional misconduct.
15. If however, the Royal Court is satisfied that the complaint is proved and that it constitutes professional misconduct, it may deal with the matter in one of the following ways as it thinks fit –

1. by privately reprimanding the practitioner;
2. by rebuking him or her publicly;
3. by imposing a fine;

4. by suspending the practitioner from practice for a period not exceeding 6 months; or
5. by striking off the practitioner.

16. The practitioner or the Attorney General, but not the complainant, has a right of appeal to the Court of Appeal against the decision of the Royal Court.
17. Under Article 32 of the 2005 Law, the Royal Court retains an inherent jurisdiction to discipline its officers, its officers including of course Advocates and Solicitors. A practitioner may therefore be disciplined by the Royal Court without any necessary involvement of the LSJ. The Attorney General, as partie publique, may bring a Representation to the Court to bring its attention to a matter of professional misconduct. References outside the 2005 Law have been made twice in the recent past, when 2 Advocates were convicted of criminal offences.

Other Jurisdictions

18. The following information relates to the disciplinary processes for lawyers, including public lawyers, in –

• Guernsey (advocates)
• The Isle of Man (advocates)
• England and Wales (solicitors)
• England and Wales (barristers)
• Scotland (solicitors)
• Scotland (advocates)
• Ireland (solicitors); and
• Ireland (barristers).

Guernsey

19. The Guernsey Advocates'[1] position is governed by the Guernsey Bar (Bailiwick of Guernsey) Law 2007 ("the Bar Law"), as well as the Bar Rules 2010 and the Rules of Professional Conduct 1995.
20. The 2010 Rules provide that a practising member shall observe the Code of Conduct in the conduct of his professional practice, a breach of which is professional misconduct.
21. La Chambre de Discipline is empowered under the Bar Law to hear any complaint concerning a member of the Bar in respect of professional misconduct.
22. The complaint procedure involves stages which occur prior to a complaint reaching La Chambre, and any further referral to the Royal Court. The procedure is set out fully inPart II of the Bar Law and may be summarised as follows –

1. the President of La Chambre de Discipline and the Batônnier, on receipt of a complaint, give notice to the Advocate and decide whether the complaint should be referred to the Registrar;
2. if the President and Batônnier consider a complaint to be vexatious, frivolous  or  not  one  of  professional  misconduct,  then  there  is no reference to the Registrar;
3. if either the President or Batônnier do not consider it vexatious, etc., then the complaint is referred to the Registrar;
4. if a complaint has been made 6 months after the conduct complained of, it will be prescribed unless exceptional circumstances justify the complainant bringing the complaint outside that period;
5. the Registrar makes investigations before deciding if a prima facie case is disclosed or not disclosed. If it is the former, itis referred to La Chambre;
6. the complaint is then heard by La Chambre, i.e. a 3 person Panel consisting of an Advocate11, a senior lawyer12 and a lay-person;
7. La Chambre may dismiss the claim, or if satisfied the complaint is proved and that it constitutes professional misconduct, then it may dispose of the issue by –

1. issuing a private reprimand or public rebuke,
2. imposing a fine (not exceeding £2,000),
3. ordering training, or
4. suspending the Advocate for 3 months,

(the decision of La Chambre may be appealed to the Royal Court);

8. if La  Chambre  feels  that  its  powers  are  inadequate  in the circumstances, reference may be made to the Royal Court for the sentencing';
9. the  Royal  Court  shall  consider  the  most  appropriate  disposal  and afford the respondent the opportunity to be heard and for an Advocate instructed  by  the  Registrar  to present  the  facts  as  found  by La Chambre;
10. The Royal Court may deal with the complaint by –

1. privately reprimanding or publicly rebuking the Advocate,
2. fining the Advocate (no prescribed limit),
3. ordering the Advocate to complete such training as directed,
4. suspending the Advocate (no prescribed limit), or
5. disbarring the Advocate;

11 The Advocate must have been practising for at least 15 years

12 The Senior Lawyer must not be an Advocate but instead a practitioner or judge from a

jurisdiction in the British Islands of at least 15 years' standing

11. the decision of the Royal Court may be appealed to the Court of Appeal.

23. The standard of proof applied by La Chambre is the criminal standard, save for proceedings in respect of breaching Proceeds of Crime Regulations. This contrasts with the position in Jersey, where the burden is the civil standard, i.e. that professional misconduct must be proved on the balance of probabilities.
24. La Chambre is similar to the LSJ disciplinary committee and the SRA in being a tribunal of first instance for professional misconduct for less serious matterscale, although La Chambre is distinguished by its power to suspend an Advocate for up to 3 months.
25. Advocates within the employ of the Law Officers of the Crown are subject to the disciplinary jurisdiction of La Chambre and the Royal Court. Any complaints against LOFC Advocates would most likely be made in the first instance to H.M. Procureur. LOFC Advocates are also, like their Jersey counterparts, bound by their Civil Service Code.

Isle of Man

26. The discipline of Isle of Man Advocates[2]is governed by the Advocates Act 1976.
27. Under that Act, a complaint against an Advocate regarding his professional conduct  is to be  made  in writing  to the  Advocates  Disciplinary  Tribunal ("the ADT"). The ADT, on hearing a complaint, may dismiss itifitis not proved to the ADT's satisfaction, or if it is so proved, the ADT may –

1. reprimand the Advocate;
2. fine the Advocate (up to a maximum of £5,000);
3. refer the complaint to the Governor if it considers its powers inadequate in the circumstances of the complaint.

28. Any person aggrieved by the ADT's determination may require the ADT to refer the complaint to the Governor.
29. The Governor may hear a complaint (referred to him by the ADT either at the ADT's insistence or at the insistence of a person aggrieved by the ADT's determination). The Governor must hear the complaint in the presence of Deemsters (i.e. Manx judges).
30. The Governor may dismiss the complaint if not proved to his satisfaction, but ifitisin fact proved to his satisfaction, he may order that the advocate –

1. be reprimanded;
2. pay a fine to the Treasury not exceeding £25,000;

3. be suspended for such specified period; or
4. be struck off, i.e. the Advocate's commission is cancelled.

31. The Isle  of  Man  Law  Society  does  not have  a  role  in the  discipline  of Advocates other than appointing 2 persons (typically Advocates) to the ADT. The ADT further consists of 2 persons appointed by the Office of Fair Trading (Isle of Man) and is chaired by an Advocate, Barrister or Solicitor of at least 10 years'  standing  who  is  appointed  by  the  Governor,  and  must  not  be carrying on practice in the Isle or have a spouse/civil partner who is carrying on practice in the Isle. This contrasts with Jersey, where the LSJ enjoys both a representative and regulatory/disciplinary role. The ADT itself is like the LSJ, SRA and La Chambre, i.e. a first-instance tribunal for minor cases, and more serious cases require reference to the Governor. The ADT, like the SRA and La Chambre, has the power to impose a fine, but does not have the same powers of suspension as La Chambre.
32. Advocates within the A.G.'s Chambers are subject to this disciplinary regime, and are subject to both an internal Attorney General's Chambers Code and the Isle of Man Civil Service Code.

England and Wales (solicitors)

33. The Law  Society  of  England  and  Wales'  functions  are  now  limited  to representation.  The  regulation  and  discipline  of  the  profession  has  been delegated  since  January  2007  to the  independent  regulatory  arm  of  the Society, i.e. the Solicitors Regulation Authority ("the SRA").14
34. The SRA's  rules  may  be  found  in the  SRA  Handbook,  which  includes, inter alia,  the SRA Principles 2011 ("the Principles"), the SRA Code of Conduct 2011 (in this part, "the Code of Conduct")and the SRA Disciplinary Procedure Rules 2010 (in this part "the Rules").
35. The Principles are stated to apply to all practising solicitors of England and Wales. A "solicitor" is defined in the SRA Handbook Glossary 2012 to mean a person who has been admitted as a solicitor of the Senior Courts of England and Wales and whose name is on the roll kept by the Society. "Practice" means the activities, in that capacity of, inter alia, a solicitor.
36. The Code  of  Conduct  also  applies  to all  solicitors  practising  as  such  in England and Wales –
37. The Rules also apply to all solicitors. Where a complaint is made against a solicitor, the SRA may hear the complaint and, if it is upheld, then the SRA has jurisdiction to –

1. issue a written rebuke on the solicitor;
2. impose a fine of up to £2,000 on the solicitor; or

14 Previously known as the "Law Society Regulation Board."

3. make  an  application  to the  Solicitors  Disciplinary  Tribunal ("the SDT") in respect of that solicitor.

38. The SRA acts as a first-instance tribunal for discipline and may therefore be compared  in  some  respect  to  the  LSJ  disciplinary  committee.  The SRA however  is a  fully  independent  regulatory  body  separate  from  the representative Law Society. The SRA also has the ability to impose a fine, although minor, on solicitors, whereas the LSJ is limited to making a private reprimand or a public rebuke.
39. A disciplinary matter may be referred by the SRA to the SDT (a statutory body with disciplinary jurisdiction over solicitors) if –

1. there is a realistic prospect of an application being upheld by the SDT;
2. itisin the public interest to do so; and
3. the allegations are sufficiently serious that the SDT is likely to impose an order which exceeds the SRA's jurisdiction.

40. Where the SDT upholds a complaint, the penalties which may be imposed are –

1. to subject the solicitor to an order revoking its recognition;
2. a fine which may exceed the maximum that the SRA may impose;
3. suspension;
4. striking off; or
5. any other order which the SRA is not empowered to make.

41. The SDT  sits  in a  3 person  division  which  is  comprised  of  2 practising solicitors of at least 10 years' standing, one of whom is the Chairman, and one lay-person. The sanctions which the SDT is capable of issuing, which of course the SRA of course are not, makes the SDT comparable in this context to the Royal Court – being the ultimate tribunal of disciplinary jurisdiction over practitioners.
42. Solicitors  employed  by  the  Government  Legal  Service  or  the  Crown Prosecution Service are subject to the Code of Conduct and Principles, and the disciplinary jurisdiction of the SRA and SDT. Solicitors working in public departments are, however, exempt from the requirement to hold a practising certificate.