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You are here: BAILII >> Databases >> Jersey Unreported Judgments >> In the matter of the Jersey Law Society re Advocate A. P. Begg [2022] JRC 149 (13 July 2022) URL: http://www.bailii.org/je/cases/UR/2022/2022_149.html Cite as: [2022] JRC 149 |
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Before : |
Sir Timothy Le Cocq, Bailiff, and Jurats Ramsden, Averty, Hughes, Le Cornu and Le Heuze |
IN THE MATTER OF THE LAW SOCIETY OF JERSEY LAW 2005
IN THE MATTER OF THE REPRESENTATION OF HM ATTORNEY GENERAL CONCERNING ADVOCATE ANDREW BEGG
Attorney General in person (for 7th and 9th June)
Advocate S. A. Meiklejohn for the Attorney General (for 4th July)
Advocate C. J. Scholefield for Advocate A. P. Begg (for 7th and 8th June)
Advocate A. P. Begg in person (for 4th July)
Bâtonnier for the Law Society of Jersey (for 4th July 2022)
judgment
the bailiff:
1. This is the Representation of the Attorney General in disciplinary proceedings against Advocate Andrew Begg ("Advocate Begg")
2. On 10th June 2022 the Court gave its decision following a hearing on 7th and 8th June 2022 on factual issues to be determined in the disciplinary proceedings with reasons to follow. These are those reasons.
3. The issues that fell to be determined arose out of the representation by Advocate Begg of Mrs X who was the surviving widow of Mr Y who died intestate on 18th May 2017. Mr Y was survived by siblings.
4. We have had the benefit of affidavits from Mrs X, Advocate Begg and Mrs Denise Heslam (an employee of Advocate Begg) and have heard evidence from all three. We do not think it necessary to go into the evidence that they gave in detail save where it directly relates to our findings on the issues before us.
5. Neither do we think it necessary to go into the detail of the dealings between Advocate Begg and Mrs X and instead, for the purposes of this judgment, draw to a significant extent on the summary of the factual background provided in the Attorney General's submissions.
6. Mrs X applied for the grant of letters of administration with regard to Mr Y's estate in August 2017 which was granted pending filing of an affidavit with regards the nature of the separation between Mrs X and the late Mr Y who had lived apart for some 15 years prior to the latter's death. Accordingly, there was a question as to her rights on intestacy and whether or not Article 8 of the Wills and Succession (Jersey) Law 1993 applied. The siblings lodged a caveat on the estate on 10th September 2017.
7. Negotiations then took place in October 2017, between Mrs X represented by Advocate Begg and the siblings represented by BCR Law. There was broad agreement at an early stage of the negotiations that there would be an equal division between Mrs X on the one hand and the siblings on the other with Mrs X receiving a monetary sum that would reflect half the estimated value of Mr Y's estate net of any debts he owed to the siblings. Mrs X would surrender any further rights against Mr Y's estate and, indeed, the estate of a deceased sister of the late Mr Y and, further, against the siblings in the share of her estate which was due to go into Mr Y's estate. It was also proposed that Voisins Executors Limited (Voisins) would be appointed to administer the estate.
8. The negotiations did not proceed entirely smoothly and Mrs X through Advocate Begg sought an early distribution before the estate of Mr Y was administered. Correspondence continued back and forward until 9th April 2018. BCR appeared to be responsible for some of the delay during the early stages of the negotiation.
9. A draft agreement was sent to Advocate Begg on 30th March 2018 which he sent to Mrs X on 6th April 2018. From 9th April 2018 there was no substantive correspondence sent by Advocate Begg to BCR until April 2019.
10. On 27th March 2019, BCR sent an email marked "without prejudice" seeking to progress the matter. The email was sent to an email address [email protected] and Advocate Begg responded on 11th April 2019 but with observations on a previous draft agreement rather than a response to the email of 27th March 2019. BCR chased communications and a substantive response was sent on 29th May 2019. A revised draft was produced the following day by BCR but nothing further was received from Advocate Begg after 30th May 2019. As a result of this the siblings lost patience and issued proceedings against Mrs X on 20th September 2019 which were served directly on her.
11. Parallel to the proceedings, correspondence continued between Advocate Begg and BCR and this was primarily concerned with the issue of an interim payment to Mrs X. Advocate Begg sought to persuade BCR and therefore the siblings not to table the action that they had served.
12. Advocate Begg failed to respond to a proposal sent about an interim payment and the siblings applied for judgment in default of an answer as one had not been filed and the time limit for doing so had expired. An answer was filed under threat of a judgment in default and a directions hearing took place in January 2020 and a further hearing in March 2020 was adjourned due to the onset and impact of Covid-19.
13. A settlement was ultimately reached in July 2020 and a hearing then took place before the Master on the issue of the costs of the proceedings.
14. The Master decided that up to 31st March 2018 the parties should recover their costs out of the estate. He then ordered that the balance of the siblings' costs (after March 2018) were to be paid out of Mrs X's share of the estate on the indemnity basis and she was to bear her own costs for the same period. The Master in his judgment was critical of the Respondent's part in the delay and referred the matter to the Law Society. He said this:
15. The costs were settled by agreement in the sum of £36,891.18 which was paid out initially from Mrs X's share of the estate. Subsequently under cover of a letter of 3rd June 2021, Advocate Begg reimbursed Mrs X for this amount by cheque and at the same time sent an invoice for his costs, reduced by 50% as a "gesture of good will" to reflect "that this matter has not progressed the way it should have". The bill reduced by 50%, was in the sum of £12,567.20. Mrs X counter offered to pay £6,000 and Advocate Begg agreed to reduce the fees to £6,327.88. At the time of the hearing before us the matter remained outstanding.
16. It is also fair to note that Advocate Begg sent a written apology to BCR on 23rd April 2021 noting amongst other things that:
17. The Law Society having received the complaint from the Master reviewed Advocate Begg's file and copies of correspondence received by Mrs X. It became apparent that a without prejudice email sent by BCR on 27th March 2019, was eventually forwarded to Mrs X on 10th May 2019 and had been altered to remove the date of the email and remove the word "inordinate" from the sentence "given the inordinate delay which has occurred in simply agreeing to the appointment of an executor, my client has instructed me to move the matter on more generally."
18. It was also apparent that Advocate Begg had instructed his secretary to carry out both of these actions and that is clear from an email exchange between them.
19. BCR had also sent to Advocate Begg an open email on the same day, 27th March 2019, which included the following:
20. The email then went on to ask for answers to specific questions.
21. Advocate Begg did not forward the email to his client or in any way bring the criticism of him contained within it to her attention.
22. The complaint is before us by virtue of Article 26 of the Law Society (Jersey) Law 2005 ("the 2005 Law") which also provides (in Article 32) that nothing in the Law should limit the inherent jurisdiction of the Court to exercise disciplinary control over practitioners.
23. The Law Society of Jersey's Code of Conduct (as issued from time to time) is engaged, so far as it is relevant to this matter, as follows:
24. The issues before the Court were as follows:
"(i) Whether delays between April 2018 and April 2019, and May 2019 and September 2019 which were the responsibility of Advocate Begg amounted to misconduct;
(ii) Whether Advocate Begg's failure to forward to his client an open email sent by BCR on 27 March 2019 ("the open email") was misconduct and, if so, whether it amounted to a lack of integrity or to dishonesty on the part of Advocate Begg;
(iii) Whether Advocate Begg's alteration of a without prejudice save as to costs email sent by BCR on 27 March 2019 ("the without prejudice email") before forwarding it to his client was misconduct and, if so, whether that misconduct was a want of integrity or was dishonest. The email in question was altered by the removal of its date (which would have revealed that it had been received several weeks before by Advocate Begg) and the word "inordinate" from the phase "inordinate delay"."
25. It was accepted by Advocate Begg that the delays referred to in paragraph 24(i) amounted to misconduct and it was further accepted by him that the alteration in the words of the without prejudice email of 27th March 2019 was also misconduct. He accepted that that misconduct amounted to a lack of integrity, but he did not accept that it was dishonest. He did not accept that the failure to forward the open email of 27th March 2019 was misconduct in any way.
26. There are a number of English authorities concerning dishonesty and the discipline of lawyers. In the case of Ivey v Genting Casinos (UK) Ltd (trading as Crockfords Club) [2018] AC 391, the Supreme Court set out the test for dishonesty at paragraph 74:
27. In the Attorney General v Sinel and Chiddicks [2015] JRC049B, Commissioner Beloff confirmed the following in relation to misleading by omission, which is instructive to this case in so far as Advocate Begg failed to forward the 'open' email to his client:
28. Principle 3 of the Law Society of Jersey's Code of Conduct states that, "Members must, at all times, act with honesty and integrity" (emphasis added). In the case of Wingate v Solicitors Regulation Authority [2018] 1 WLR 3969, the English Court of Appeal considered two cases brought against solicitors in the Solicitors Disciplinary Tribunal which were subsequently appealed. The Court found that there was the following distinction to be drawn between honesty and integrity:
29. In the light of the cases, the Attorney General submits that the following applies in relation to integrity:
(i) Integrity is a broader and more nebulous concept than dishonesty;
(ii) Integrity denotes adherence to the ethical standards of one's own profession;
(iii) Integrity applies to what a practitioner does as well as to what they say; and
(iv) Unrealistically high standards of integrity ought not to be applied.
30. We first heard from Mrs X who impressed us as a straightforward witness. It is clear that she was untutored in the ways of the Law and lawyers and indeed Advocate Begg was the first lawyer she had ever had the need to engage. It is fair to say also that she relied on him entirely and said quite frankly on the matter of the removal of the word "inordinate" that she would not have understood what it meant.
31. There is no doubt at all from both her affidavit and her evidence that she feels bitterly let down by Advocate Begg and found the process of being sued highly stressful and that stress, on her evidence, has had a continuing effect on her wellbeing. She is a retired lady of limited means and to become embroiled in an unnecessary dispute was a real challenge for her. She would describe herself as a simple person with no knowledge at all of these types of matters.
32. Advocate Begg gave evidence and was cross examined by the Attorney General. In essence he maintained that the emails of 27th March 2019 had been sent to his personal email address which was not checked regularly. Had they been sent to his business email address then they would have automatically been forwarded to his secretary, filed and printed out for his attention. That did not happen which accounts for an element of the delay.
33. It is difficult to understand that an email address of the type stated above should be anything other than the business address but we accept Advocate Begg's evidence on this point. We were shown screen shots of his phone where he reviews such emails and the first line may be visible but not the rest. He assumed, he told us, that the email had been forwarded to his secretary for printing and he was not able to tell whether it was an email to his "personal address" or his professional address.
34. He sought to explain some of the delay and his actions by reference to other things that were going on in his professional and personal life. He had undertaken a great deal of work and he was under pressure and there had been an office move which had demanded a great deal of his attention. When the emails came to his attention, he had been on holiday with his siblings who he had not seen for a significant period and he felt that the judgments that he made and the directions he gave to his secretary to alter the without prejudice email were taken with his "holiday head on". He expressed the view that he would not have made those decisions, which he now knew to be wrong, if he had been in the office and dealing with it in the ordinary course of business.
35. We must say immediately that we find those explanations difficult to accept. We are sure that Advocate Begg had other professional and indeed personal pressures at the same time and we accept the decisions that he made were made whilst he was on holiday. The simple fact is, however, if a practitioner takes it upon themselves to make a decision, they have a responsibility for making that decision as well and as clearly as they are able no matter where they make it. Advocate Begg was only away for a relatively short period and could easily have deferred making any such decision until his return. He had a responsibility, as a sole practitioner, to ensure that his clients were not prejudiced and therefore we reject the explanation that we should take into account the fact that he was on his holiday in determining those matters that we have to determine.
36. His explanation for the removal of the word "inordinate" and the date of the without prejudice email we find particularly difficult to grasp. In his affidavit he gives the following reason:
37. However, in his evidence he explained that he had made the decision to direct his secretary to alter the email because he wanted to protect Mrs X. Had she seen the dates and the word "inordinate" she would have been concerned and he thought that it was much more important for her to focus on the issues that needed to be resolved in her affairs rather than the date on which the email had originally sent or that Advocate Begg was being accused of inordinate delay.
38. With regard to his failure to forward the open email which, in its first paragraph, is highly critical of him and makes threats of reporting him to the Law Society, he gave a similar explanation. He did not want to trouble his client with these concerns and wished instead for her to focus on that which was important.
39. We should say at once that we find both of these explanations incredible and we reject them. As far as we can see the only reasonable explanation for the alteration of the "without prejudice" email and the failure to send the open email was because they contained things which were expressly or impliedly critical of Advocate Begg himself and which were true. He was taking those steps not for the benefit of his client but to protect himself from embarrassment or from criticism or indeed other action from his client. He had every motivation to keep his client "on side" but the fact is that he had seriously prejudiced her position by his delay and failure to deal with her matter in a proper and reasonably expeditious way. He did not act in her best interests and deliberately did not send the open email of 27th March 2019 to her and the motivation for the deliberate alteration of the without prejudice email was to avoid embarrassment and difficulties with his client. In our judgment both the failure to forward the open email and the alteration to the without prejudice email not only demonstrated a want of integrity but were dishonest.
40. In argument before the Court, Advocate Begg's legal adviser had sought to argue that the failure to send on the open email was not a matter that amounted to a want of integrity. In cross examination, however, Advocate Begg conceded that it did amount to a lack of integrity although he maintained his view which we have rejected that it was not dishonest.
41. We also heard from Mrs Denise Heslam who is Advocate Begg's secretary. She had explained in her affidavit the processes within his office. She had made the alterations requested by Advocate Begg and did not appear to have any real explanation as to why that happened. She hypothesised that it was done to assist Mrs X. It had never been done with any emails in the past but she had largely forgotten the circumstances of it.
42. Although we do not reject her evidence we do find it difficult to credit that she would have forgotten entirely something which was on her own evidence such a singular event as to alter a communication from another lawyer before forwarding it to a client.
43. Accordingly, in our decision of 10th June 2022 we made the following findings:
(a) the delays set out in paragraph 3(i) above which were attributable to Advocate Begg were excessive, amounted to misconduct, and that misconduct was moderately serious;
(b) With regard to the failure to forward the open email of 27th March 2019, we note that the email began with a preliminary paragraph which pointed to BCR's clients' exasperation at the delays in answering their queries and contained a phrase suggesting that BCR's clients were close to reporting Advocate Begg to the Law Society for the delays. In our judgment Advocate Begg's failure to pass this email on was clearly because it contained criticism of him and was to avoid embarrassment with or criticism from his client. It was a deliberate withholding of information which, had it been provided, might have caused his client to take different actions. It was not in her best interests; it was deliberate, and in the context, dishonest;
(c) With regard to the removal of the words "inordinate" and the date from the without prejudice email on the same day, in our judgment those details were removed because they implied criticism of Advocate Begg or would have given rise to concerns by his client as to the delay in passing the email on, and were accordingly done to avoid embarrassment and difficulties with his client, were not in her best interests, were knowing and deliberate and were in the circumstances dishonest.
44. In the light of those findings, on 4th July 2022 we proceeded to consider penalty.
45. The principles that the Court is to consider when sanctioning a legal practitioner for misconduct are set out in the case of Bolton v Law Society [1994] 1 WLR 512 at 518. These principles have been oft cited by the Royal Court and re-affirmed as applicable to legal practitioners in this jurisdiction, mostly recently in AG v Harrigan [2022] JRC064:
46. In Law Society (Solicitors Regulation Authority) v Emeana [2014] A.C.D. 14, The appellant authority appealed against sentences imposed by the Solicitors Disciplinary Tribunal in respect of three respondent solicitors who received fines rather than having been struck off. The High Court held that breaches less serious than dishonesty could still result in a practitioner being struck off:
47. We note the principles in these judgments which we approve.
48. Advocate Begg has previous findings of misconduct by the Superior Number on two occasions: AG v Begg [2012] JRC 209 and AG v Begg [2014] JRC 254.
49. The Attorney General moves that Advocate Begg should be removed from the roll of advocates of this Court. Advocate Begg does not resist these conclusions and we think rightly so. Other than in exceptional circumstances a finding of dishonesty will be met with striking off. We note that Advocate Begg has already taken steps to enable the transfer of his practice to other firms.
In all the circumstances we order that Advocate Begg's name be removed from the roll of Advocates of the Court with immediate effect and make the necessary ancillary orders as suggested on behalf of the Attorney General and agreed by the Bâtonnier.