The Law Society of
Jersey Law 2005
A LAW to incorporate The Law Society
of Jersey; to provide for its administration; to provide for the recognition of
legal services bodies; and for the disciplinary control of advocates and
solicitors of the Royal Court and of legal services bodies; and for connected
purposes.[1]
Commencement [see endnotes]
1 Interpretation
(1) In this Law, unless the
context otherwise requires –
“advocate” means an advocate of the Royal Court;
“bye-laws” means bye-laws made
under Article 16 or 17A by The Law Society of Jersey;
“case delegate” means the person appointed under Article 21(3)(f)(iii);
“chairman of the disciplinary panel” means a person
appointed under Article 18(7);
“Code of Conduct” means the code of professional conduct
which applies to practitioners and legal services bodies, adopted under the bye-laws, as amended or replaced from time to time;
“Committee” means the Committee of The Law Society of
Jersey to which Article 10 refers;
“Committee member” means the President, Secretary,
Treasurer, Librarian or any other member of the Committee;
“complaint” shall be construed in accordance with
Article 21(1);
“complainant” means a person who makes a complaint;
“disciplinary committee” means a disciplinary committee
selected in accordance with Article 21(3)(f)(i);
“disciplinary panel” means the disciplinary panel to
which Article 18 refers;
“incorporated limited partnership” means an incorporated
limited partnership established in accordance with the Incorporated Limited
Partnerships (Jersey) Law 2011;
“Law Society” and “Society” mean The Law
Society of Jersey to which Article 2 refers;
“legal services” means such professional services as may
be provided by practitioners by virtue of being qualified as a solicitor or
advocate;
“legal services body” means a body recognized as such
under Part 2A;
“Librarian” means the officer referred to in Article 10(2)(d)
who may also be known as the “Development Officer”;
“limited liability partnership” means a limited
liability partnership registered under the Limited Liability
Partnerships (Jersey) Law 2017;
“Minister” means the Minister for Justice and Home
Affairs;
“No. 4 Amendment Law” means The Law Society of
Jersey (Amendment No. 4) Law 2017;
“officer”, in relation to the Law Society, means the
President, Secretary, Treasurer or Librarian;
“ordinary member” means a member of the Law Society to
whom Article 4(1) refers;
“practitioner” means an advocate or solicitor;
“practitioner of at least 10 years’ standing” means
a person –
(a) who
is a practitioner; and
(b) who
has been a practitioner for at least 10 years, whether or not continuously;
“President” means the President of the Law Society to
whom Article 10(2)(a) refers;
“professional misconduct” means –
(a) a breach,
by a practitioner or legal services body, of any principle or rule set out in
the Code of Conduct;
(b) conduct
of which a practitioner or legal services body is guilty under Article 30(3)
by reason of contravening Article 30(1) or (1A); or
(c) such
conduct (other than misconduct referred to in paragraph (a) or (b)) which,
in the opinion of the Royal Court, falls below the standard of conduct expected
of practitioners or legal services bodies, as the case may be;
“separate limited partnership” means a separate limited
partnership established in accordance with the Separate Limited Partnerships
(Jersey) Law 2011;
“solicitor” means a solicitor of the Royal Court;
“special resolution” means a resolution that is passed
by a majority of not fewer than two-thirds of the persons who, being entitled
to do so, vote in person or by proxy;
“this Law” includes the bye-laws.[2]
(2) For the purposes of
this Law –
(a) in
the case of an election, a candidate has a simple majority if he or she
receives more votes than any other candidate; and
(b) in
the case of any other question arising for decision “a simple
majority” means the majority of the votes cast,
being in either case the votes of persons who, being entitled to do
so, vote in person or by proxy.
(3) For the purposes of Part 3,
the expression “the complaint is proved”, means the complaint is
proved, on the balance of probabilities, to constitute professional misconduct
by the practitioner or legal services body who is the subject of the complaint.[3]
(4) The Chief Minister may
by Order amend the definition “limited liability partnership”.[4]
PART 1
THE LAW SOCIETY OF JERSEY
2 Incorporation
of The Law Society of Jersey
(1) On the commencement of
this Law, the association of persons now called The Law Society of Jersey shall
become a body corporate with perpetual succession and a common seal and
may –
(a) sue
and be sued in its corporate name; and
(b) so
far is as possible for a body corporate, exercise the rights, powers and
privileges and incur the liabilities and obligations of a natural person of
full age and capacity.
(2) The name of the body
corporate shall continue to be The Law Society of Jersey.
3 Membership
of the Law Society
(1) From the commencement
of this Law, the Law Society shall consist of –
(a) its
existing members; and
(b) each
person who subsequently becomes a member in accordance with this Law.
(2) No person shall
practise law as an advocate or solicitor unless he or she is an ordinary member
of the Law Society.
(3) A person who
contravenes paragraph (2) shall be guilty of an offence and liable to a
fine.
(4) However, paragraph (2)
does not apply to –
(a) the
Attorney General or the Solicitor General;
(b) a
person who is practising law as an advocate or solicitor in the course only of
his or her employment in the Law Officers Department.[5]
4 Classes
of members
(1) A practitioner who
intends to practise law and is not suspended from practice shall be entitled,
on his or her application, to be admitted as an ordinary member.
(2) The bye-laws
may provide for other classes of members.
5 Termination
of membership
(1) A person shall cease to
be an ordinary member –
(a) on
resigning, by notice in writing delivered to the Secretary; or
(b) on
transferring, in accordance with the bye-laws, to any
other class of membership provided for in the bye-laws.
(2) A person shall cease to
be an ordinary member on ceasing to be a practitioner.
(3) The bye-laws
may provide for the termination of the membership of a person who is not an
ordinary member.
(4) The bye-laws
may prescribe the period of notice to be given by any member before his or her
resignation has effect.
6 Suspension
of membership
(1) While an ordinary
member is suspended from practice as an advocate or solicitor, his or her
membership of the Law Society shall be automatically suspended by operation of
this paragraph.
(2) The bye-laws
may provide –
(a) for the
suspension from membership of an ordinary member while any money is due by the
member under this Law to the Law Society; and
(b) for
the suspension from membership of a person who is not an ordinary member.
(3) A person whose
membership is suspended shall not be regarded as a member for the purposes of
this Law.
(4) Paragraph (3) of
this Article does not affect a person’s liability under Article 7(1).
7 Liability
of members
(1) A person shall be
liable to contribute towards the Law Society’s assets and liabilities the
amounts due by the person to it under this Law.
(2) However, no one shall
be liable, by reason only of being a member or former member of the Law
Society, to contribute any other amount personally to the assets and
liabilities of the Society.
8 Objects
of the Law Society[6]
The objects of the Law Society shall be –
(a) to encourage and
promote the upholding of the rule of law;
(b) to promote high
standards of professional conduct among practitioners and legal services bodies;
(c) to regulate, foster and
protect the interests of its members and the practice of law in Jersey;
(d) to encourage and
promote the study of law;
(e) to make
representations, as appropriate, on any matter affecting –
(i) the
administration of the law, the judicial system or the legal profession,
(ii) civil
rights or liberties or matters of public interest, or
(iii) the
enactment of legislation or the review or reform of existing laws; and
(f) to do everything
that is reasonably incidental or conducive to the attainment of those objects.
PART 2
ADMINISTRATION OF THE LAW
SOCIETY
9 Meetings
of the Law Society
(1) The Law Society shall
hold an annual general meeting in every year.
(2) The Law Society may
hold other general meetings.
(3) At a general
meeting –
(a) each
ordinary member shall have one vote on each question arising for decision; and
(b) each
question shall be decided by a simple majority.
(4) Paragraph (3) of
this Article is subject to –
(a) the
provisions of Article 16(3) relating to an equality of votes on a
question; and
(b) Article 17(1)
(under which the power of the Law Society to make bye-laws
is exercisable only by special resolution).
10 The
Committee of The Law Society
(1) There shall continue to
be a Committee of The Law Society, which shall be the executive body of the Law
Society and shall administer its affairs in its name and on its behalf.
(2) From the commencement
of this Law, the Committee shall consist of the following persons –
(a) the
President of the Law Society;
(b) the
Secretary of the Society;
(c) the
Treasurer of the Society;
(d) the
Librarian; and
(e) such
other Committee members as the bye-laws may specify.
(3) The President, the
Secretary, the Treasurer and the Librarian are the officers of the Law Society.
(4) A person shall be eligible
to be a Committee member if, but only if –
(a) he or
she is an ordinary member of the Law Society; or
(b) he or
she is a member of any other class, and the bye-laws
provide that members of that class are eligible to be Committee members.
(5) At a meeting of the
Committee –
(a) each
Committee member shall have one vote on any question arising for decision; and
(b) each
question shall be decided by a simple majority.
(6) Paragraph (5) of
this Article is subject to the provisions of Article 16(3) relating to an
equality of votes on a question.
(7) If the number of
persons who are Committee members is for the time being fewer than 4, the
Committee may only act for the purposes of having a vacancy filled.
(8) However, the powers of
the Committee are not otherwise affected by a vacancy in its membership.
(9) The Committee may
appoint any of its members to exercise and perform the functions, powers and
duties under this Law of any officer while that officer is for the time being
unable to act.
(10) Subject to the other
provisions of this Law, the Committee may regulate its own procedure.
11 Election
of Committee members
(1) The members of the
Committee shall be elected by the Law Society at an annual general meeting.
(2) Unless the bye-laws provide for a longer term of office, a Committee
member shall hold office until the annual general meeting next following the
one at which the member is elected.
(3) Unless the bye-laws provide otherwise, a Committee member shall be
eligible for re-election.
(4) This Article is subject
to Article 12.
12 Vacation
of office
(1) A Committee member
shall cease to hold office –
(a) on
resigning, by notice in writing delivered to the Committee;
(b) on
ceasing to be eligible to be a Committee member;
(c) on
being suspended from practice as an advocate or solicitor;
(d) on
becoming bankrupt;
(e) on
the appointment of a delegate, under Part 4 of the Capacity and
Self-Determination (Jersey) Law 2016, in relation to the member;
(f) on
being received into guardianship under the Mental Health (Jersey) Law 2016; or
(g) on
being removed by the Law Society at a general meeting.[7]
(2) If a Committee member
ceases to hold office before the expiry of the member’s term, the Law
Society may at a general meeting elect another person to fill the vacancy.
(3) A person who is elected
to fill such a vacancy shall hold office, subject to the other provisions of this
Law, for the remainder of the term of the Committee member whom he or she
replaces.
13 Powers
of the Law Society
(1) In furtherance of its
objects, the Law Society may –
(a) enter
into contracts;
(b) acquire
property (gratuitously or onerously, or beneficially or on trust);
(c) dispose
of its property in any manner (gratuitously or onerously, beneficially or on
trust);
(d) create,
execute or perform trusts;
(e) operate
bank accounts;
(f) invest
in stocks, funds, shares, securities and other investments;
(g) borrow
or lend money, with or without having given or taken security;
(h) guarantee
the performance of obligations by other persons; and
(i) participate
in joint ventures with other persons.
(2) The Law Society may
provide for the payment of compensation to persons who suffer or are likely to
suffer loss or hardship in consequence of the fault of a member or of a partner
or employee of a member of the Society.
(3) The Law Society
may –
(a) provide
and maintain a law library; and
(b) publish,
sell and distribute books, pamphlets, papers and other information for the
purposes of stimulating interest in and promoting its objects.
(4) In furtherance of its
objects, the Law Society may retain the services of any person (whether or not
a member) and employ staff on such terms and conditions (including provision
for pensions or gratuities) as it may agree.
(5) The Law Society shall
have such other powers as are reasonably necessary for or incidental to the
attainment of its objects.
14 Application
of assets
(1) The assets and income
of the Law Society may be applied only in furtherance of its objects, or for
such other purposes as are for the time being authorized or required by any
enactment or rule of law.
(2) The assets and income
of the Law Society shall not be distributed directly or indirectly amongst its
members without the prior approval of the Royal Court.
(3) Paragraph (2) does
not apply to the payment of remuneration by the Law Society to any of its
members for services rendered by the member to it at its request.
15 Accounts
(1) The Committee shall
keep full and accurate accounts of all money received and spent by the Law
Society, and of its assets and liabilities.
(2) The accounts shall give
a fair view of the Law Society’s affairs and explain its transactions.
(3) The bye-laws
may provide for the auditing of the Law Society’s accounts.
16 Bye-laws
(1) The Law Society may
make bye-laws for the internal management of its
affairs.
(2) In relation to the
membership of the Law Society, the bye-laws may
provide for the following matters –
(a) classes
of members other than ordinary members;
(b) the
duty of a member to inform the Society if he or she ceases to be or is
suspended from practice as an advocate or solicitor, or ceases to practise as
an advocate or solicitor;
(c) the
setting of annual subscriptions to be paid to the Society by classes of
members;
(d) the
setting of levies to be paid to the Society by ordinary members;
(e) the
suspension from membership of an ordinary member while any money is due by the
member to the Society under this Law;
(f) the
termination and suspension of the membership of persons who are not ordinary
members; and
(g) the
service of documents on members by any means other than personal service and
the conclusiveness or otherwise of any such means of service as proof that it
has been effected,
and must provide that ordinary members shall be required to maintain
adequate insurance cover, in amounts to be determined by or under the bye-laws according to the nature of their practices, against
professional liabilities arising from practice.
(3) In relation to general
meetings of the Law Society and the meetings of the Committee, the bye-laws may provide for the following matters –
(a) when
they are to be held, the ways in which they shall be convened, business that is
to be transacted and notice that is to be given to members;
(b) quorums,
and the persons who shall preside;
(c) proxy
voting, by persons who are entitled to vote;
(d) in
the case of an equality of votes, the decision of a question by the casting
vote of the person presiding, or by lot;
(e) the
methods of voting to be used, and the recording and counting of votes (including
the conclusiveness of a count); and
(f) generally,
the regulation of the procedures to be followed.
(4) In relation to the
Committee, the bye-laws may provide for the following
matters –
(a) the
number of Committee members to whom Article 10(2)(e) refers;
(b) the
classes of members (other than ordinary members) who are eligible to be
Committee members;
(c) longer
terms of office of Committee members than those specified in Article 11(2);
(d) the
continuance of Committee members in office (notwithstanding the expiry of their
terms) until their successors take up office;
(e) circumstances
in which Committee members are or are not eligible for re-election;
(f) the
manner in which candidates for election as Committee members shall be
nominated;
(g) the
co-opting by the Committee of other persons as Committee members;
(h) the
appointment by the Committee of subcommittees, and the delegation by the
Committee of functions and powers to them;
(i) duties
of the Committee, Committee members and members of subcommittees; and
(j) generally,
the regulation of the way in which the Committee is to administer the affairs
of the Law Society.
(5) In relation to the
disciplinary control of practitioners or legal services bodies, the bye-laws may provide for the following matters –
(a) the
prescription or adoption of any code or rules of professional conduct or
etiquette; and
(b) the
issuing by the Committee of directives in writing that relate to the
professional conduct of practitioners or legal services bodies and are binding
on them.[8]
(6) The bye-laws
may also provide –
(a) for
any other matter for which an Article provides that bye-laws
may be made; and
(b) for
any other matters that are reasonably necessary for or incidental to the
purposes of this Law.
(7) The bye-laws
shall bind each member of the Law Society and each legal services body.[9]
(8) This Article is subject
to Article 17.
17 Manner
of making bye-laws
(1) The powers of the Law
Society under Article 16 and 17A shall be exercisable only by special
resolution –
(a) at an
annual general meeting; or
(b) at a
general meeting that has been convened specially for the purpose.[10]
(2) No bye-law
shall have effect unless and until it is approved by the Royal Court.
PART 2A[11]
LEGAL SERVICES BODIES
17A Recognition of
legal services bodies
(1) The Law Society may
make bye-laws prescribing the circumstances in which a
limited liability partnership, or any other body that the Minister may
prescribe by Order, may be recognized by the Law Society as a legal services
body.
(2) Articles 2 and 3
of the Loi (1961) sur l’exercice de la profession de droit à Jersey shall not apply to a body
that is recognized as a legal services body by the Law Society.
(3) Bye-laws
made under paragraph (1) may –
(a) prescribe
the legal services that may be provided by a legal services body;
(b) make
provision as to the management and control of a legal services body;
(c) prescribe
the requirements which (subject to any exceptions provided in the bye-laws) must at all times be satisfied by a legal services
body so recognized if it is to remain so recognized; and
(d) regulate
the conduct of the business of legal services bodies.
(4) Except as otherwise
permitted in Regulations made by the States under Regulation 17B, bye-laws made under paragraph (1) –
(a) must
not recognize a limited liability partnership as a legal services body unless
all of its partners are practitioners;
(b) must
not permit a limited liability partnership that is a legal services body to
undertake any business other than the provision of legal services or any
activity other than one which is ancillary or incidental to the provision of
legal services.
(5) Bye-laws
made under paragraph (1) may make provision –
(a) for
the manner and form in which applications for recognition as a legal services
body, or for the renewal of such recognition, must be made, and requiring such
applications to be accompanied by a fee of such amount as the Law Society may
prescribe;
(b) for
the manner and form in which other applications under the bye-laws
are to be made, and requiring such applications to be accompanied by a fee of
such amount as the Law Society may prescribe;
(c) requiring
legal services bodies to pay periodical fees of such amount as the Law Society
may prescribe;
(d) for
regulating the name that may be used by a legal services body (provided that
the name must not be inconsistent with the requirements of any other law in
Jersey);
(e) about
the time when any recognition, or renewal of recognition, takes effect and the
period for which it is (subject to the provisions made by or under this Part)
to remain in force;
(f) for
requiring a legal services body, or a partner, secretary, director or other
officer of a legal services body, to notify the Law Society where the legal
services body no longer satisfies any requirement for it to remain a legal
services body;
(g) for
the suspension or revocation of any such recognition, on such grounds and in
such circumstances as may be prescribed in the bye-laws;
(h) about
the effect on the recognition of a legal services body of any change in the
membership of the body, including provision for the body’s recognition to
be transferred to another body;
(i) for
the keeping by the Law Society of a register containing the names and places of
business of all bodies which are for the time being recognized as legal
services bodies and such other information relating to those bodies as may be
specified in the bye-laws;
(j) for
information (or information of a specified description) on such a register to
be made available to the public, including provision about the manner in which,
and times at which, information is to be made so available;
(k) for bye-laws to have effect in relation to legal services bodies
with such additions, omissions or other modifications as appear to the Law
Society to be necessary or expedient;
(l) requiring
legal services bodies to appoint a person or persons to monitor compliance, by
the legal services body, with requirements imposed on it under this Law or any
bye-laws applicable to it by virtue of this Article;
(m) for the
manner of service on legal services bodies of documents authorized or required
to be served on such bodies under this Law.
(6) Bye-laws
made under paragraph (1) may make provision for appeals to the Royal Court
against decisions made by the Law Society under the bye-laws to suspend or
revoke the recognition as a legal services body or any bye-laws relating to a
legal services body.
(7) Where the Law Society
decides to recognize a body as a legal services body under this Article it may,
if the Society considers that it is in the public interest to do so, grant that
recognition subject to such conditions as may be prescribed under bye-laws made under paragraph (1).
(8) Conditions imposed
under paragraph (7) may include provisions that –
(a) require
the legal services body to take specified steps that will, in the opinion of
the Law Society, be conducive to that legal services body carrying out its business
and providing legal services efficiently; and
(b) prohibit
the legal services body from taking any specified steps without the approval of
the Law Society.
(9) Bye-laws
made under paragraph (1) may make provision about when conditions imposed
under this Article take effect (including provision conferring power on the Law
Society to direct that a condition is not to have effect until the conclusion
of any appeal in relation to it).
(10) A certificate signed by an
officer of the Law Society which states that any body
is or is not, or was or was not at any time, a legal services body shall,
unless the contrary is proved, be evidence of the facts stated in the
certificate; and a certificate purporting to be so signed shall be taken to
have been so signed unless the contrary is proved.
(11) This Article is subject to
Article 17.
17B Regulations: legal
services bodies
The States may by Regulations provide for any enactment (including
this Law) to have effect in relation to legal services bodies with such additions,
omissions or other modifications as appear to the States to be necessary or
expedient.
17C Offences:
pretending to be a legal services body
(1) A body that describes
itself or holds itself out as a legal services body for the time being recognized
as such under Article 17A, unless it is so recognized, shall be guilty of
an offence and liable to a fine.
(2) This paragraph applies
where an offence under this Part by a body corporate, a limited liability
partnership or any other partnership with separate legal personality is
proved –
(a) to
have been committed with the consent or connivance of a person mentioned in
paragraph (3); or
(b) to be
attributable to any neglect on the part of a person mentioned in paragraph (3).
(3) The persons to whom
paragraph (2) refers are –
(a) in
the case of an incorporated limited partnership, a general partner or a limited
partner who is participating in the management of the partnership;
(b) in
the case of any other body corporate, a director, manager or other similar
officer of the body corporate;
(c) in
the case of a limited liability partnership, a partner;
(d) in
the case of a separate limited partnership or any partnership, with a separate
legal personality except a limited liability partnership, a general partner or
a limited partner who is participating in the management of the partnership; or
(e) in
any case, any other person purporting to act in a capacity described in any of
sub-paragraphs (a), (b), (c) and (d).
(4) Where paragraph (2)
applies, the person shall also be guilty of the offence and liable to the
penalty provided for that offence in the same manner as the incorporated
limited partnership, other body corporate, limited liability partnership,
separate limited partnership or other partnership with separate legal
personality.
(5) Where the affairs of a
body corporate are managed by its members, paragraphs (2) and (4) shall
apply in relation to acts and defaults of a member in connection with that
member’s functions of management as if the member were a director of the
body corporate.
PART 3
DISCIPLINE
18 The disciplinary panel of the Law Society
(1) There shall be a
disciplinary panel consisting of –
(a) not
less than 7 and not more than 15 fit and proper persons, as lay members of
the panel; and
(b) not
less than 7 and not more than 10 ordinary members of the Law Society.[12]
(1A) The Minister may by Order, after
consultation with the Committee, amend paragraph (1) so as to specify the
numbers, or minimum and maximum numbers, of lay persons and ordinary members of
the Law Society required to constitute the disciplinary panel.[13]
(1B) Where there is specified in
paragraph (1) a minimum and maximum number of lay persons or ordinary
members of the Law Society required to constitute the disciplinary panel, the
Committee shall determine the exact number of persons of that description
required, within the range specified.[14]
(2) The lay members of the
disciplinary panel shall be appointed by the Minister on the recommendation of
the Jersey Appointments Commission established with the approval of the Act of
the States dated 28th May 2002, after consultation by that Commission with
the Law Society.[15]
(3) A person shall be
eligible for appointment to the disciplinary panel as a lay member if, but only
if, he or she –
(a) is
not an advocate or solicitor; and
(b) is
not admitted in any other jurisdiction as a legal practitioner.
(3A) Article 2 of the States of Jersey (Appointment
Procedures) (Jersey) Law 2018 shall apply to the appointment of the lay
members of the disciplinary panel.[16]
(4) The members of the
disciplinary panel who are ordinary members of the Law Society shall be
appointed by the Society in general meeting.
(5) An ordinary member of the
Society shall be eligible for appointment to the disciplinary panel if, but
only if, he or she –
(a) is in
private practice; and
(b) is a
practitioner of at least 10 years’ standing.
(6) However, Committee
members, the Bâtonnier and the President of the
Chambre des Ecrivains shall not be eligible for
appointment to the disciplinary panel.
(7) The Committee shall,
from amongst the disciplinary panel’s lay members, appoint one of those
members to be the disciplinary panel’s chairman for such period not exceeding
24 months as the Committee shall determine.[17]
(8) The disciplinary
panel’s chairman is eligible for re-appointment on the expiry of the
period determined by the Committee under paragraph (7) provided that the
period of re-appointment does not exceed 24 months.[18]
(9) Any period of
appointment or re-appointment under paragraph (7) or (8) must, in any
event, not exceed the remaining period of the member’s term of office as
a member of the disciplinary panel.[19]
19 Tenure
of members of disciplinary panel
(1) A member of the
disciplinary panel shall hold office for a term of 5 years to be specified in
the member’s appointment.
(2) The member shall be
eligible for re-appointment.[20]
(3) The member may continue
in office, after the expiry of his or her term, for the purposes of completing
any proceeding that the member has begun to hear.
(4) However, a member of
the disciplinary panel shall in any event cease to hold office –
(a) on
resigning, by notice in writing delivered to the person or body by whom he or she
was appointed;
(b) on
ceasing (otherwise than by reason of paragraph (2)) to be eligible to hold
that office;
(c) if he
or she is an ordinary member of the Law Society, on being suspended from
practice as an advocate or solicitor;
(d) on
becoming bankrupt;
(e) on
the appointment of a delegate, under Part 4 of the Capacity and
Self-Determination (Jersey) Law 2016, in relation to the member;
(f) on
being received into guardianship under the Mental Health (Jersey)
Law 2016; or
(g) on
being removed from office by the Royal Court, on grounds of professional
misconduct proved to its satisfaction.[21]
(5) A member of the disciplinary
panel shall not be removed from office for any other reason before the expiry
of the member’s term.
19A Reports to the
disciplinary panel about complaints of professional misconduct[22]
(1) Every 3 months the
President shall arrange for the submission to the chairman of the disciplinary
panel, a report setting out the number of –
(a) new
complaints received in the 3 month period
immediately before the submission of the report;
(b) complaints
that were either dismissed or referred to a disciplinary committee in the 3 month period immediately before the submission of the
report; and
(c) ongoing
complaints previously reported.
(2) In the case of
complaints that are dismissed, the report shall state the reasons for the
dismissal.
20 Disciplinary
committees of the Law Society
(1) Three members of the
disciplinary panel, selected in accordance with Article 21(3)(f)(i), shall constitute a disciplinary committee for the
purposes of this Law.[23]
(2) For the purposes of
dealing with a matter under this Law –
(a) all 3
members of a disciplinary committee constituted for that purpose shall sit; and
(b) its
chairman shall preside,
but this paragraph is subject to paragraph (4).
(3) The determination of
any question before a disciplinary committee shall be according to the opinion
of the majority of its members.
(4) If –
(a) a
disciplinary committee has commenced dealing with a matter; and
(b) before
it determines the matter any member becomes unable to continue to act,
the other members may continue to deal with and determine the
matter, as long as their number is not fewer than two
(of whom one is an ordinary member of the Law Society and the other is a lay
member of the disciplinary panel).
21 Action
on receipt of complaint of professional misconduct[24]
(1) Any person may make a
complaint to the Law Society alleging that a practitioner or legal services
body, as the case may be, is guilty of professional misconduct.
(2) A complaint must be
made not more than 12 months after the last of the events giving rise to
the complaint, unless the President is satisfied that exceptional circumstances
exist which justify the complaint being made after the expiry of that period.
(3) If the Law Society
receives a complaint alleging that a practitioner or legal services body is
guilty of professional misconduct, the President shall promptly take the
following action –
(a) if
the complaint is not made in writing, the President shall –
(i) require
the complainant to submit it in writing, or
(ii) having
regard to the complainant’s circumstances, arrange for the complaint to
be submitted in writing on the complainant’s behalf;
(b) for
the purposes of determining whether or not the complaint establishes a prima
facie case of professional misconduct, the
President may cause an investigation to be undertaken in accordance with
Article 21A;
(c) the
President shall dismiss a complaint if he or she is satisfied that no prima
facie case of professional misconduct is
established, or the complaint is vexatious, frivolous or trivial;
(d) where
the President dismisses a complaint he or she shall inform the complainant, the
practitioner or legal services body, as the case may be, and the Attorney
General in writing of the decision, stating the reasons for the dismissal;
(e) if
the President is satisfied that a prima
facie case of professional misconduct is
established, he or she shall, on behalf of the Law Society, cause a written
statement of complaint to be prepared which –
(i) shall
fully set out details of the alleged professional misconduct,
(ii) may
include additional information arising from any investigation under Article 21A
or information which did not form part of the complaint as originally made, and
(iii) shall
be copied and sent to the practitioner or legal services body in question;
(f) the
President shall –
(i) select
from the disciplinary panel a disciplinary committee consisting of 2 persons
who are lay members of the disciplinary panel and one person who is an ordinary
member of the Society who shall act as the chairman of the disciplinary
committee,
(ii) refer
the complaint to that disciplinary committee,
(iii) subject
to paragraphs (4) and (5), appoint a case delegate to present the
complaint to the disciplinary committee, and
(iv) send
a copy of the statement of complaint to the Attorney General.
(4) The case delegate must
be an ordinary member or any other class of member specified under the bye-laws.
(5) A person appointed
under paragraph (7) may, if the President thinks fit, be appointed as the
case delegate if that person is a member of the Law Society as required under
paragraph (4).
(6) The reasonable costs of
the case delegate shall be met out of funds provided by the Law Society.
(7) The President may, as
he or she thinks fit, appoint any person, regardless of whether or not that
person is a practitioner, to assist the President in carrying out any of the
actions required under paragraph (3)(a), (c), (d) or (e).
(8) The reasonable costs of
the person appointed under paragraph (7) shall be met out of funds
provided by the Law Society.
(9) If the President is,
for any reason, unable to discharge his or her functions under this Part, he or
she shall delegate those functions to another Committee member.
21A Investigation of
complaint[25]
(1) For the purposes of
investigating a complaint against a practitioner or legal services body, as the
case may be, the President may –
(a) require
the practitioner in question or a member of his or her firm, or the legal
services body to produce or deliver to the President any relevant documents in the
practitioner’s or legal services body’s custody or control, and the
President may retain possession of those documents until his or her
investigation and any disciplinary proceedings that arise from the
investigation are completed;
(b) conduct
interviews with the complainant, practitioner or legal services body, as the
case may be, or any other person whom the President considers may assist the
course of the investigation.
(2) A person who, without
lawful excuse, fails to comply with the President’s requirement under
paragraph (1)(a) shall be guilty of an offence and liable to a fine.
(3) This Article does not
limit –
(a) a
right to decline to produce or deliver a document to the President or be
interviewed on the ground of legal professional privilege; or
(b) the
rule against self-incrimination.
(4) The President shall not
use –
(a) a
document obtained under paragraph (1)(a); or
(b) any
information obtained in consequence of the production or delivery of that
document or in consequence of an interview under paragraph (1)(b),
for any purpose other than for the purposes of the investigation of
the complaint, or any disciplinary or criminal proceedings that arise from the
complaint.
(5) For the purposes of
this Article, the expression “President” shall be taken to include
a person appointed to conduct the investigation on the President’s
behalf.
22 Procedure
and conduct of proceedings before a disciplinary committee[26]
(1) When, under Article 21(3)(f)(ii),
the President refers a complaint to a disciplinary committee, that complaint
shall be conducted in the name of the Law Society and that committee shall
action the matter promptly.
(2) The disciplinary
committee shall –
(a) sit
in private;
(b) allow
the case delegate, the practitioner or legal services body, as the case may be,
to make representations, call evidence and cross-examine witnesses;
(c) allow
the complainant to be present; and
(d) allow
the Attorney General to make representations.
(3) The disciplinary
committee may, by notice in writing signed by the chairman, require a
person –
(a) to
attend and give evidence before it in a matter on which it is proceeding; and
(b) to
produce to it any documents in the person’s custody or control that
relate to the subject matter of the proceedings.
(4) The disciplinary
committee may require a person to give evidence on oath or under affirmation,
and for that purpose any member of the disciplinary committee may administer an
oath or take an affirmation.
(5) A person who without
lawful excuse –
(a) fails
to comply with a requirement made by a disciplinary committee under paragraph (3);
or
(b) on
being required to do so under paragraph (4), refuses to take an oath or
make an affirmation, or to give evidence,
shall be guilty of an offence and liable to a fine.
(6) The disciplinary
committee may issue such directions as it considers necessary to facilitate the
fair conduct of the proceedings including directions concerning the adducing of
evidence alleging professional misconduct which is not set out in the statement
of complaint.
(7) A person giving
evidence (on oath or otherwise), or appearing before a disciplinary committee,
shall have the same privileges and immunities as if he or she were giving
evidence in or appearing before a court of law.
(8) Subject to paragraph (9),
a person who is required to attend and give evidence before a disciplinary
committee, or to produce or deliver a document to it, shall be reimbursed by
the Law Society for his or her reasonable expenses (including loss of earnings)
in doing so.
(9) Paragraph (8) does
not apply to the practitioner or legal services body who is the subject of the
complaint.
(10) The disciplinary committee
may, at any time, and if it thinks fit to do so, adjourn the proceedings and
refer the complaint to the Attorney General.
23 Determination
of complaint by a disciplinary committee[27]
(1) The disciplinary
committee shall, at the conclusion of the complaint proceedings, determine the
matter –
(a) by
dismissing the complaint;
(b) if
the committee is satisfied that the complaint is proved –
(i) and
is satisfied that it can be dealt with by applying one of the penalties
specified in paragraph (2), by so dealing with it,
(ii) but
is not satisfied that any of the penalties specified in paragraph (2) are
adequate, by referring it to the Attorney General; or
(c) by
referring the complaint to the Attorney General without making a finding.
(2) For the purposes of
paragraph (1)(b)(i), the disciplinary committee
may in respect of the practitioner or legal services body, as the case may
be –
(a) issue
a private rebuke or a public reprimand;
(b) impose
a fine of up to £10,000; or
(c) impose
a fine of up to £10,000 and issue a public reprimand.
(3) The disciplinary
committee shall inform the practitioner or legal services body, as the case may
be, and the President in writing of its decision and reasons, but subject to
paragraph (6), it shall not publish them in any other way.
(4) The President may
inform the complainant, in writing, of the disciplinary committee’s
decision.
(5) There shall be a right
of appeal, in accordance with Article 24, against a decision of the
disciplinary committee determined under paragraph (1)(a) or (b).
(6) Subject to paragraphs (7)
and (8), the disciplinary committee is required to publish without delay, on
the Society’s website, its decision and reasons for finding the complaint
proved and disposable under paragraphs (1)(b)(i)
and (2).
(7) The disciplinary
committee shall not publish its decision and reasons –
(a) where
it –
(i) privately
rebukes the practitioner or legal services body, as the case may be, or
(ii) dismisses
the complaint or refers it to the Attorney General,
regardless of whether or not that decision is later upheld or
rejected by the Royal Court further to an appeal brought under Article 24(1);
or
(b) pending –
(i) the
expiry of the period in which an appeal must be lodged under Article 24(2),
(ii) the
abandonment of any appeal brought under Article 24(1), or
(iii) a
determination of the Royal Court to reject any such appeal (subject to
sub-paragraph (a)).
(8) Where in relation to an
appeal the Royal Court makes a determination under Article 24(5), the
disciplinary committee shall publish its decision and reasons in accordance
with paragraph (6) but shall publish the substituted penalty applied by
the Royal Court.
24 Appeals
against decision of a
disciplinary committee
(1) The following persons
shall have a right of appeal to the Royal Court under this Law –
(a) the
President or the Attorney General, against a decision of a disciplinary
committee either to dismiss the complaint or in respect of a penalty applied
under Article 23(2); and
(b) the
practitioner or legal services body, against a decision of a disciplinary
committee that the complaint is proved or in respect of a penalty applied under
Article 23(2).[28]
(2) The appeal shall be
lodged within one month after the disciplinary committee complies with Article 23(3),
or within such further time as the Royal Court may allow.[29]
(3) On hearing the appeal,
the Royal Court may –
(a) reject
or uphold the decision of the disciplinary committee; or
(b) remit
the matter to the disciplinary committee for re-determination, and
make such order as to the costs of the proceedings before the Royal
Court as it thinks fit.[30]
(4) If the Royal Court
rejects the disciplinary committee’s decision to dismiss a complaint
because the Court is satisfied that the complaint is proved, it may deal with
the practitioner or legal services body, as the case may be, by applying one of
the following penalties –
(a) by
issuing a private rebuke or a public reprimand;
(b) by
imposing a fine of any amount;
(c) by
imposing a fine of any amount and issuing a public reprimand;
(d) by
suspending the practitioner from practice as an advocate or solicitor for a
specified period not exceeding 12 months;
(e) by
suspending the legal services body from operating as such for a specified
period not exceeding 12 months;
(f) by
ordering that the practitioner’s name be removed from the roll of
advocates or solicitors, as the case may be; or
(g) by
ordering that the legal services body be removed from the register of legal
services bodies (if any).[31]
(5) If the Royal Court
upholds the disciplinary committee’s finding that the complaint is proved
but the Court is of the opinion that the penalty applied by the committee under
Article 23(2) is not appropriate in the circumstances, the Court may,
under paragraph (4), apply such penalty as it considers appropriate.[32]
(6) The practitioner or
legal services body, as the case may be, and the Attorney General, shall have a
right of appeal to the Court of Appeal against a decision or order of the Royal
Court under this Article.[33]
25 Reference
of complaint by Attorney General to the Royal Court[34]
The Attorney General may
refer to the Royal Court –
(a) a
complaint which the President has dismissed under Article 21(3)(c);
(b) a
complaint referred to the Attorney General under Article 22(10) or Article 23(1)(b)(ii)
or (c).
26 Consideration
of complaint by Royal Court on Attorney General’s reference
(1) If the Attorney General
refers a complaint to the Royal Court, the Court shall only hold a hearing in
respect of a complaint where Article 21(3)(c), 22(10) or 23(1)(c) applies.[35]
(2) At the hearing, the
Attorney General shall present the complaint to the Royal Court.
(3) The Royal Court shall
give the Attorney General and the practitioner or legal services body, as the
case may be, an opportunity to be heard, to call evidence and to cross-examine
witnesses.[36]
(4) The complainant shall
be entitled to be present.
(5) On hearing the
complaint, the Royal Court may –
(a) dismiss
the complaint;
(b) if it
is satisfied that the complaint is proved, apply one of the penalties specified
in paragraph (6); or
(c) remit
the matter to the disciplinary committee for re-determination or determination,
as the case may be, and
make such order as to the costs of the proceedings before the Royal
Court as it thinks fit.[37]
(6) For the purposes of
paragraph (5)(b) or where the complaint is a referral in respect of which
Article 23(1)(b)(ii) applies, the Royal Court may in respect of the
practitioner or legal services body, as the case may be –
(a) issue
a private rebuke or a public reprimand;
(b) impose
a fine of any amount;
(c) impose
a fine of any amount and issue a public reprimand;
(d) suspend
the practitioner from practice as an advocate or solicitor for a specified
period not exceeding 12 months;
(e) suspend
the legal services body from operating as such for a specified period not
exceeding 12 months;
(f) order
that the practitioner’s name be removed from the roll of advocates or
solicitors, as the case may be; or
(g) order
that the legal services body be removed from the register of legal services
bodies (if any).[38]
(7) However, where the
Royal Court determines a referral in respect of which Article 23(1)(b)(ii)
applies, the Court shall not apply a penalty under paragraph (6)
until –
(a) the
expiry of the period in which an appeal (under Article 24(1)(b) against a
decision that the complaint is proved) must be lodged under Article 24(2);
(b) the
abandonment of any such appeal; or
(c) a
determination of the Royal Court to reject that appeal,
whichever occurs first.[39]
(8) The practitioner or
legal services body, as the case may be, and the Attorney General shall have a
right of appeal to the Court of Appeal against a decision or order of the Royal
Court under this Article.[40]
(9) [41]
(10) [42]
27 [43]
28 [44]
29 Recovery
of fines and costs[45]
Any fine imposed on a practitioner or legal services body
under –
(a) Article 23(2)
shall constitute a debt due and payable to the Law Society; or
(b) Article 24(4) or
26(6), or costs that are awarded to the Attorney General under this Part, shall
constitute a debt due and payable to the States, and shall be enforceable by
the Treasurer of the States in the same manner as an order for the payment of
costs made by the Royal Court in a civil case.
30 Prohibition
of employment of practitioners removed from roll for misconduct, or suspended
(1) No practitioner shall
in connection with his or her practice employ, retain or
remunerate –
(a) a
person whose name has been removed from the roll of advocates or solicitors, on
grounds of professional misconduct, and has not been restored to that roll; or
(b) a
practitioner who is suspended from practice as an advocate or solicitor,
without the prior approval of the Committee and in accordance with
such conditions (if any) as it may specify in giving its approval.[46]
(1A) No legal services body shall
employ, retain or remunerate –
(a) a
person whose name has been removed from the roll of advocates or solicitors, on
grounds of professional misconduct, and has not been restored to that roll; or
(b) a
practitioner who is suspended from practice as an advocate or solicitor,
without the prior approval of the Committee and in accordance with
such conditions (if any) as it may specify in giving its approval.[47]
(2) Before it gives any
approval under this Article, the Committee shall consult the Attorney General.
(3) A practitioner or a
legal services body who contravenes paragraph (1) or (1A) shall be guilty
of professional misconduct.[48]
31 Protection
of persons acting in good faith
No person shall incur criminal or civil liability in respect of any
act or omission by the person in the exercise or intended exercise of any
disciplinary function conferred on him or her by or under this Part unless it
is proved that the act or omission was in bad faith.
32 Inherent
jurisdiction of Royal Court
Nothing in this Law limits the inherent jurisdiction of the Royal
Court to exercise disciplinary control over practitioners.
PART 4
OTHER PROVISIONS
32A Regulations[49]
(1) The States may make
Regulations to amend this Law.
(2) The power to make
Regulations under paragraph (1) or Article 17B includes the power to
make any supplementary, incidental, consequential, transitional, transitory or
saving provision which appear to the States to be necessary or expedient for
the purposes of –
(a) amending
this Law; or
(b) Regulations
under Article 17B,
as the case may be.
33 Election
of the Bâtonnier
The ordinary members who are
advocates shall elect every 3 years one of their number as the Bâtonnier, to be their head and to oversee the
interests of the Bar.
34 Rules[50]
(1) Rules may be made, for
the purposes of this Law, by the Superior Number of the Royal Court after
consultation with the Rules Committee for –
(a) regulating
and prescribing the procedure to be followed in, or in connection with,
proceedings conducted and determined by disciplinary committees under Articles 22
and 23, and any matters incidental to or relating to any such procedure;
(b) regulating
the means by which particular facts may be proved, and the mode in which
evidence thereof may be given, in any proceedings before disciplinary
committees or on any application in connection with, or at any stage of, any
such proceedings;
(c) regulating
any matters relating to costs of proceedings before disciplinary committees and
in relation to the collection of fines imposed by disciplinary committees;
(d) regulating
or prescribing any procedure or matter described in sub-paragraphs (a) to
(c) where, under Article 36(3)(a),(b) or (c), the complaint is to
proceed, or be determined as if the No. 4 Amendment Law had not been
enacted.
(2) In paragraph (1), “Rules
Committee” means the Committee established under Article 13(4) of
the Royal Court (Jersey)
Law 1948 (the “Royal Court Law”).
(3) The Attorney General
shall be summoned to attend every sitting of the Superior Number of the Royal
Court at which it is proposed to make or consider the making of rules under
paragraph (1).
(4) The power to make Rules
of Court under Article 13 of the Royal Court Law shall include a power to
make rules regulating and prescribing the procedure to be followed on, or in
connection with –
(a) appeals
to the Royal Court against decisions of disciplinary committees under Article 24;
and
(b) references
to the Royal Court by the Attorney General under Article 25, including the
hearing of any such references under Article 26.
35 Publication
of bye-laws[51]
The Law Society shall publish the bye-laws
it makes under this Law in a manner that is likely to bring them to the
attention of those affected.
36 Transitional
provisions
(1) This Article applies
where, in the 3 months immediately before the commencement of Articles 12
to 16 of the No. 4 Amendment Law –
(a) the
Law Society received a complaint alleging that a practitioner is guilty of
professional misconduct;
(b) a
disciplinary committee referred a complaint to the Attorney General;
(c) the
Attorney General referred a complaint to the Royal Court; or
(d) an
appeal to the Royal Court was lodged.[52]
(2) On the commencement of
Articles 12 to 16 of the No. 4 Amendment Law, paragraph (3)
or (4) shall apply, as the case may be.[53]
(3) If, in the case of
paragraph (1)(a) –
(a) the
complaint has not been referred to a disciplinary committee, the complaint
shall proceed in accordance with the provisions of Part 3, as amended by
the No. 4 Amendment Law, unless the President, on hearing representations
made by, or on behalf of the complainant or practitioner, determines that the
complaint should proceed as if the No. 4 Amendment Law had not been
enacted;
(b) the
complaint has been referred to a disciplinary committee but the committee has
not convened to hear the complaint, the complaint shall proceed in accordance
with the provisions of Part 3, as amended by the No. 4 Amendment Law,
unless the committee, on hearing representations made by, or on behalf of the
complainant, practitioner or President, determines that the complaint should
proceed as if the No. 4 Amendment Law had not been enacted; or
(c) the
complaint is in the process of being heard by a disciplinary committee, the
committee shall continue to determine the complaint as if the No. 4
Amendment Law had not been enacted.[54]
(4) In the case of
paragraph (1)(b), (c) or (d), the complaint or appeal shall proceed in
accordance with the provisions of Part 3 as if the No. 4 Amendment
Law had not been enacted.[55]
37 Citation
This Law may be cited as The Law Society of Jersey Law 2005.