APPLICATION FOR RESTORATION TO THE ROLL

Transcription

1 No IN THE MATTER OF IAN MILNE, former solicitor - AND - IN THE MATTER OF THE SOLICITORS ACT 1974 Mr. W. M. Hartley (in the chair) Mr. R. B. Bamford Mrs. N. Chavda Date of Hearing: 8th November 2007 APPLICATION FOR RESTORATION TO THE ROLL of the Solicitors Disciplinary Tribunal Constituted under the Solicitors Act By an affidavit dated 7 th June 2007 Mr Milne, a former solicitor who had been struck off the Roll of Solicitors made application that his name be restored to the Roll of Solicitors. 2. The application was heard at the Court Room, 3 rd Floor, Gate House, 1 Farringdon Street, London, EC4M 7NS, when Mr Milne was represented by Giles Colin of Counsel and The Law Society, the Respondent to the application, was represented by Jennifer Johnson solicitor employed by the Solicitors Regulation Authority The Law Society, 8 Dormer Place, Leamington Spa, CV32 5AE. The History of the Matter 3. Mr Milne, born in 1941, had been admitted as a solicitor in Following a substantiation of the allegation that he had been convicted of a criminal offence such that his conduct would be regarded as disgraceful or deplorable and compromise his reputation and that of the profession Mr Milne was subject to an Order of the Tribunal that he be struck off the Roll of Solicitors and that he pay the costs of and incidental

2 2 to the application and enquiry fixed in the sum of 1, inclusive of VAT and disbursements of 2 nd March In its Findings the Tribunal recorded that Mr Milne had pleaded guilty to the charge on 9 th May 1994 but there then followed a trial on the issues. A Miss L had given evidence to the effect that Mr Milne had encouraged her to provide sexual services at the massage parlour. The stipendiary magistrate had accepted that Mr Milne was actively involved as alleged by Miss L, although her account was challenged by Mr Milne's counsel. It had been argued before the Tribunal that although the magistrate had made a finding on Miss L's evidence that should not be relevant to the Tribunal. Miss L's account had been the only piece of evidence which showed that the Respondent had taken an active role in the management of the massage parlour but it was the Respondent's case that his main fault had been that he had turned a blind eye to what his manageress was allowing to take place on the premises. 5. In making its Striking off Order the Tribunal in its Findings of 24 th April 1995 said:- "The Tribunal FOUND this a very sad case. From the numerous references before them they perceived that the Respondent (Mr Milne) was held in high esteem by his fellow professionals and by his clients. The references additionally revealed universal astonishment that the Respondent could have acted so stupidly to put his liberty and career in jeopardy. The Tribunal could only echo that sentiment. Although the Tribunal were urged to discount the evidence of Miss L, they were not minded to do so. The Stipendiary Magistrate had called Miss L and she had been subject to crossexamination. Consequent upon this the Stipendiary Magistrate reached the conclusion that her evidence was credible. Even if the Tribunal had not accepted the evidence of Miss L, they were quite clear that the damage to the profession by the Respondent's actions was very great indeed. The Tribunal were urged to consider the Respondent's conduct as matters of omission rather than commission i.e. "turning a blind eye" to what was going on. The Tribunal felt that this was an untenable position for any solicitor to take and that such a gross infringement of the standards of the profession merited the most severe sanction". The Submissions of Mr Milne 6. On 9 th May 1994, at Wolverhampton Magistrates Court, Mr Milne pleaded guilty to one charge of managing or assisting in the management of a brothel, contrary to section 33 of the Sexual Offences Act On 20 th July 1994 Mr Milne was sentenced to a community service order of 100 hours and ordered to pay costs of He had fulfilled these obligations. 7. Mr Milne's offence occurred between 1 st October 1993 and 6 th November Mr Milne was the tenant of a property needed for the purpose of a greetings card business. He had sublet part to a lady who ran a massage and aromatherapy business. She had engaged two women. The Respondent had "turned a blind eye" to the nature of the business being pursued. He had not been directly involved. 8. The offence was not one which involved dishonesty. It was not connected with Mr Milne's work as a solicitor. The offence was a matter concerned with his personal life.

3 3 9. Mr Milne had resigned from practice as soon as the matter came to light and he refrained from practice until the matter had been fully considered by The Law Society and the Tribunal. 10. Mr Milne accepted that his conduct was such a gross infringement of the standards of the profession that merited the most severe sanction. It would never be repeated. 11. Almost thirteen and half years had passed since Mr Milne committed the offence which resulted in his being struck off the Roll. Since then he had not been convicted of any criminal offence. 12. An application by prospective employers of the Mr Milne to the Conduct Committee of the Adjudication and Appeals Committee at the Solicitors Complaints Bureau, pursuant to section 44 of the Solicitors Act 1974, had been considered on 17 th May The Committee granted permission to Messrs Alan Mann & Co Solicitors of St Albans, Hertfordshire, to employ Mr Milne as a solicitor's clerk and he had been employed by Messrs Alan Mann & Co in that capacity since that date. 13. Mr Milne had kept his legal skills and knowledge up to date throughout that employment. He had attended "CPD" courses and regularly read legal journals. 14. The Tribunal was invited to give due weight to the testimonials which had been placed before the Tribunal in the proceedings in April The Tribunal was also invited to give due weight to written references, testimonials and letters of support from clients, colleagues and personal friends of Mr Milne in support of this application. In particular Mr Milne's employer, who attended the hearing, spoke highly of Mr Milne and supported his application. 16. In his capacity as a solicitor's clerk Mr Milne undertook conveyancing, wills and probate work and in dealing with such client matters had worked in a position of trust. 17. In his written statement Mr Mann said:- "Mr Milne has always behaved with absolute decorum during his employment with me. There are certain clients who are aware of Mr Milne's situation but none have ever raised any objection. As with all members of the firm Mr Milne's work is supervised and he has never taken any responsibilities above his current position. Mr Milne has proved himself to be a capable and efficient member of my firm and is liked by both his clients and colleagues. I believe he has earned the right to be readmitted to The Law Society and would be an asset to my firm and the profession alike. I wholeheartedly support his application for readmission". 18. In all of the particular and somewhat unusual circumstances of this case the Tribunal was invited not only to find that the Respondent had achieved a remarkable personal rehabilitation. He had the support of clients, members of the public and fellow professionals. The Law Society had adopted a neutral position in its response to his

4 4 application. Two local Law Societies had been notified of Mr Milne's application and neither had wished to make any comment. 19. The Tribunal was invited to consider that the isolated incident in respect of which the Respondent had been convicted did not amount to a course of conduct and did not demonstrate that Mr Milne was a person who did not act with the probity, integrity and trustworthiness required of a solicitor. He had acted incorrectly on an isolated occasion. He had learned a salutary lesson. He would never offend in such a way again. 20. Should Mr Milne's name be restored to the Roll it was proposed that he would continue to undertake the same non-contentious work that he had undertaken in his capacity as a supervised clerk, but he would be able to sign documents which required to be signed by a member of the solicitors' profession. Mr Mann and his daughter were the only solicitors at the firm. Mr Mann had not enjoyed the best of health and that firm would be assisted if Mr Milne were able to practise there in the capacity of a solicitor. 21. Mr Milne owed no financial debt to The Law Society, he had suffered the ignominy of being struck off the Roll for a long period of time, he had established himself as a competent hardworking and trustworthy employee enjoying as he did a position of trust within the solicitors' profession. He had kept up to date with The Law. He was highly thought of by all of those with whom he came into contact. The high level of personal rehabilitation coupled with the isolated, aberrational nature of the offence for which he was convicted would, it was submitted, permit the Tribunal to conclude that the public's confidence in the solicitors' profession would not be damaged by Mr Milne's restoration to the Roll. The Submissions of The Law Society 22. The Law Society adopted a neutral stance to Mr Milne's application. 23. The Law Society had granted permission to Mr Mann to employ Mr Milne. The Law Society had no record of any complaint having been made about Mr Milne during the course of that employment. It was accepted that Mr Milne's conviction did not relate directly to the work carried out as a solicitor. It was confirmed that the Wolverhampton Law Society and the Hertfordshire Law Society had been notified of Mr Milne's application for restoration and neither had made any comment. 24. The Tribunal was reminded that the Guide to the Professional Conduct of Solicitors, 8 th Edition, Cordery on Solicitors and the relevant case law made it plain that it was only a very narrow category indeed of applicant's that would be successful in an application for restoration to the Roll. In Bolton v The Law Society the then Master of the Rolls said that the Tribunal would wish to ensure that the offender did not have the opportunity to repeat the offence and its second duty was to maintain the reputation of the solicitors' profession as "one in which every member of whatever standing may be trusted to the ends of the earth". The Master of the Rolls went on to say "to maintain this reputation and sustain public confidence in the integrity of the profession it is often necessary that those guilty of serious lapses are not only expelled

5 5 but denied readmission... a profession's most valuable asset is its collective reputation and the confidence which that inspires". 25. In application number 5 of 1983 it was made clear that fitness of the applicant had to be considered but account also had to be taken of apparent fitness, that was to say fitness in the eyes of the public. The question to be asked was "what would the ordinary member of the public say if he knew that somebody had been restored to the Roll having been convicted of the offence in question a number of years ago?", in another case it was said that a reasonably minded member of the public knowing the facts, should be able to conclude that any profession would be proud to readmit the applicant as a member. The Tribunal's Decision 26. On the face of it the Respondent's conviction had been in respect of a serious offence that inevitably would have brought the solicitors' profession into disrepute. The Tribunal had been given some detail of the background to the offence and in accepting Mr Milne's explanation of what had occurred found that the offence was rather less serious than it might on its face appear. The Tribunal was encouraged in this view by the fact that a custodial sentence had not been imposed upon the Respondent at the time of his conviction. He had paid all monies which the court ordered him to pay and he had completed 100 hours of community service. The Tribunal accepted that the Respondent had thereby paid his debt to society. 27. The offence was committed some 12 years ago. The Tribunal gave Mr Milne credit for his recognition of the seriousness of his position and his remorse. Mr Milne had accepted that his being struck off had been an appropriate sanction. 28. The Tribunal had also taken into account Mr Milne's very proper behaviour at the material time when he did not practise from the moment he had been charged until the investigation into his case had been concluded by The Law Society and he had been dealt with by the Tribunal. 29. The Tribunal recognised that Mr Milne had achieved a remarkable personal rehabilitation. He had worked as a clerk in a solicitors' practice with the consent of The Law Society. The written testimonials, and in particular the statement of his solicitor employer, made it plain that Mr Milne was highly thought of and trusted by clients, his employer and others, a number of whom were fully aware of his unfortunate background. Mr Milne had met all of the requirements of an individual seeking readmission to the Roll. 30. The Tribunal had then to consider the reputational issues. The Tribunal concluded that Mr Milne had committed his offence over a very short period of time. The Tribunal accepted Mr Milne's submission that rather than being actively involved in a criminal activity he had rather turned a blind eye to what was going on. The Tribunal took into account the seriousness with which the stipendiary magistrate had regarded the offence noting that no custodial sentence was imposed upon Mr Milne. Mr Milne had accepted his punishment. He had fulfilled the required community service and had paid the costs. A considerable period of time had passed since the commission of the offence during which Mr Milne had not offended in any manner whatsoever. The

6 6 Tribunal further concluded in the light of the circumstances that Mr Milne's falling from grace was a single isolated incident and did not demonstrate that Mr Milne's character was so flawed that it would be inappropriate for him to be a member of the solicitors' profession. 31. After taking all of these matters into account the Tribunal concluded that no reasonable member of the public, knowing all of the facts, would consider that the readmission of Mr Milne to the Roll of Solicitors would damage the good reputation of the solicitors' profession. The Tribunal granted Mr Milne's application. As Mr Milne himself recognised The Law Society was required to respond to his application and it was right that he should bear The Law Society's costs. He had very properly agreed the sum of and the Tribunal ordered that he pay The Law Society's costs fixed in that sum. 32. The Tribunal's Order was:- The Tribunal Orders that the application of IAN MILNE of Radburn Way, Letchworth Garden City, Hertfordshire, for restoration to the Roll of Solicitors be GRANTED and the Tribunal further Ordered that he do pay the costs of the response of the Law Society to this application fixed in the sum of Dated this 11 th day of January 2008 On behalf of the Tribunal W. M. Hartley Chairman