Confidentiality (-not) of disciplinary determinations

The Times has an article about a solicitor on the Board of the English legal regulator and former president of the Law Society who, rather embarrassingly, had a conflict of interest determination go against him after a disciplinary investigation.  The solicitor acted pro bono for a barrister who was being sued by an Exxon subsidiary.  He acted in an appeal from a Hong Kong court to the Privy Council, which succeeded.  At the time of the appeal, the solicitor’s firm merged, and one of his new partners did some work for another Exxon subsidiary.  The barrister complained later of a conflict of duties.  The complaint was made out. Private Eye got a hold of the adjudication and was preparing to make merry with it when the solicitor applied for an injunction to prevent publication on the basis that it was confidential. That application failed, and so did the solicitor’s appeal. It is easy to say ‘bad, bad move’ with the benefit of hindsight, yet it is a difficult conclusion to escape, since none of the judges seem to have thought much of what I also consider to be an odd argument that a disciplinary adjudication was confidential to the complainant, the solicitor, and the Bureau de Spanque.  Here is the decision of the English Court of Appeal’s Lord Justice Toulson with whom Lords Justice Sullivan and Hughes agreed: Napier v Pressdram Limited [2009] EWHC 39 (QB).

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3 Replies to “Confidentiality (-not) of disciplinary determinations”

  1. The CA reference is actually [2009] EWCA Civ 443. The ref you have given is to the first instance decision.

  2. The CA reference is actually [2009] EWCA Civ 443. The ref you have given is to the first instance decision.

  3. In Victoria there is a general requirement that disciplinary actions, defined by the Act to refer to adverse determination rather than the fact of an application for orders having been made, be publicised: see Division 6 of Part 4.4 the Legal Profession Act. The exceptions are where there is an appeal against the action (ie order) and a discretion to suppress because the legal practitioner has an infirmity, illness or injury: see s.4.4.29 and 30.

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