Using stolen documents: Advocate James v Law Society of Jersey

Summary

1. Where documents are or appear to be improperly obtained and are provided to an advocate by his or her client, he or she may retain them to advise the client.
2. If the advocate receives the documents from a source other than his or her client, he or she must not read them, and must return or destroy them.
3. No improperly obtained documents may ever be deployed in litigation, regardless of how the advocate came about them. As a matter of public policy, document and information theft is not encouraged.

The Facts

1. Advocate James’ client received an anonymous package by post, purporting to contain information she felt was useful to her. She provided the documents to Advocate James, and then later instructed him to provide them to the advocate representing the other parties in the litigation, who she wished to assist. The latter considered the documents but returned them to Advocate James without first transmitting them to his clients.
2. On their face, the documents belonged either to Advocate Sinel, the Second Respondent, or his client (who also had an interest in the estate which stood to be administered) or a combination of both.

The Application

1. Advocate James applied to the Court for guidance as to whether he, and by extension the advocate for the other parties, could deploy the documents in the context of another action. In particular he sought a declaration that it would not be a breach of the Law Society of Jersey’s Code of Conduct if he re-sent the Anonymous Package to the advocate for the other parties.

Whether it was proper to consider the application for declaratory relief

1. The Court first considered whether this was a proper situation in which to consider exercising its discretion to give declaratory relief. The Court assumed the accuracy of the facts as presented by the Representor, with the qualification that a proper inference from those facts might well be supportive of the Second Respondent’s view that the documents in question were his and were stolen.
2. The Court considered Craven v Island Development Committee [1970] JJ 1425, Rahman Showlag v Mansour and another [1994] JLR 269, and In the matter of the curatorship of X[2002] JLR 259. Citing with approval Birt, Deputy Bailiff, in In the matter of the curatorship of X[2002] JLR 259 who preferred the Scottish approach: “Scottish Courts do not appear to have become involved in technical considerations of whether a right is future or hypothetical. They have adopted a much broader approach” and applied the approach “It has been observed that it is the function of the courts to decide only live, practical questions and that they have no concern with hypothetical, premature or academic questions, nor do they exist to advise litigants as to the policy which they should adopt in the ordering of their affairs.”, the Court found that the present dilemma for Advocate James was very much a live practical question. Advocate James had instructions and did not know whether it would be right or wrong to act as instructed.

Whether the Anonymous Package could be re-sent

1. Advocate James said he had no personal interest in the outcome. Nonetheless he thought it was his duty to help the Court as far as he could and he thought that the correct conclusion was that he was obliged to pass the documents to the other parties’ advocate.
2. Advocate Sinel asserted that the Anonymous Package contained copy papers which belonged to him. He said that the papers had been stolen, and should be returned to him. In addition, the documents which were disclosed in the Anonymous Package were clearly communications between him and his client, and were therefore privileged. It did not matter whether they belonged to him or his client because the privilege was of itself sacrosanct, a fundamental human right protected by Article 8 of the European Convention on Human Rights. He submitted that the Court should exercise its discretion against disclosure of the relevant documents to the other parties’ advocate because the nature of legal professional privilege trumped any other public interest.
3. The Law Society’s view was that the relevant rule of the Code of Conduct was inapplicable where the material comes into a member’s possession by reason of disclosure by the member’s own client, unless the information was received from the client in circumstances where the documents had been disclosed inadvertently or obtained improperly. In the latter case, a member was obliged to return the information to the rightful owner without use being made of the information or documents.

Decision

1. On the face of it, the guidance in question formed part of the Code of Conduct, and bye-law 38 provides that a breach of the Code is professional misconduct. On the other hand, Rule 14.3 of the Code provides that the guidance notes are not binding.
2. The Court found that the proper construction of the Code of Conduct was that it was only a breach of the principles and/or the rules which amount to professional misconduct. The guidance was intended to explain the principles and/or the rules as the case may be, and the guidance was not intended to provide a stand-alone set of provisions which create a new list of professional obligations.
3. In In re an Advocate [1978] JJ 193, the Court of Appeal said: “If for example the envelope had fallen directly into the appellant’s hands [the advocate’s hands] and he had known to whom it rightly belonged, it would then have been most reprehensible for him to open it and read its contents, just as it would be reprehensible for him to read or attempt to read any of his opponents papers which happened to be within reading range while he was in court.”
4. Advocate James came into possession of documents which appear to belong either to Advocate Sinel or his client, but did so through his own client. It was on the face of it difficult to identify a valid reason why Advocate James’ client should have been sent documents which did not belong to her; the reasonable inference was that they must have been obtained improperly, and it would be unsurprising if a court were to determine that in those circumstances they ought not to be used.
5. Unless they were legitimately sent to Advocate James’ client by someone entitled to do so, they cannot be said to belong to her, and they are documents over which Advocate Sinel’s client can claim legal privilege. Advocate James was entitled to keep them for the purpose of giving his client advice.
6. The Court held that the standards required of a Jersey Advocate were high. When a Jersey advocate or solicitor receives documentation from any source other than his or her client which, on its face, he or she ought not to have because either it has been received by mistake or clearly belongs to someone else or is privileged, it is his or her duty not to read it, not to deploy it in any litigation on behalf of the client and to return it to the person entitled to it. Where the documentation is received from the client, the Jersey advocate or solicitor can advise the client upon it but should not deploy the documentation in any litigation without leave of the Court following an application with full disclosure of all relevant circumstances. Whether to grant such leave would be a matter of discretion for the trial court, probably the Judge sitting without Jurats.
7. In the present case, there is no adequate basis upon which it could be said, on the evidence currently available that Advocate James’ client is entitled to assert ownership of the Anonymous Package. That being so, Advocate James should not transmit the documents to the other parties’ advocate even though he has been instructed to do so. To permit him to do so would circumvent the obligations which on the facts of this case the Court, having regard to the apparent ownership of the documents, privilege, and the Code of Conduct and the guidance, imposes on him.

Comment

1. This case clarifies the Law Society of Jersey Code of Conduct, which was recently revised. The law on this area has not changed, and the obligations owed by advocates to their clients, the Court, and other members of the profession have likewise not changed. The new structure of the Law Society of Jersey Code of Conduct has been explained. Guidance explains the Rules and does not create separate obligations. It is not binding to the extent that it goes beyond the scope of the Rule which it seeks to clarify.
2. However, it is important to recall that officers of the Royal Court of Jersey are required to adhere to the very highest ethical standards. Nowhere is this clearer than in the present case, where the obligation to act in the best interests of the client was effectively overridden by the obligation to have regard to the profession’s code of conduct, which places a greater emphasis on the provenance of evidence.
3. There are powerful reasons for maintaining this approach. To derogate from it would render the improper acquisition of evidence more likely, and therefore increase the proliferation of generally unethical practices.
4. Although the present case turned on the express wording of the Law Society of Jersey Code of Conduct, this case might have broader application to the interpretation of other codes of conduct, for example such as that issued from time-to-time by the Jersey Financial Services Commission.
5. Fundamentally, the Court is likely to take an unhelpful stance in relation to improperly obtained documentation, and quite rightly so, as to do otherwise is to encourage unlawful conduct.