The Law Society of Jersey (Disciplinary Proceedings) Rules 2010

Link to law: http://www.jerseylaw.je/Law/display.aspx?url=lawsinforce%2fconsolidated%2f07%2f07.570.40_TheLawSocietyofJersey(DisciplinaryProceedings)Rules2010_RevisedEdition_1January2011.htm
Published: 2011-01-01

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The Law Society of Jersey (Disciplinary Proceedings) Rules 2010

Revised Edition

07.570.40

Showing the law as at 1 January 2011

This is a revised edition of the law

The Law Society of Jersey (Disciplinary Proceedings) Rules 2010

Arrangement

Rule

PART 1

PRELIMINARY

1            Interpretation

PART 2

ACTION ON RECEIPT OF COMPLAINTS

2            Formulation of written complaint

3            Arrangements for presentation of a complaint

PART 3

ACTION UPON REFERENCE TO DISCIPLINARY COMMITTEE

4            Application

5            Service of documents

6            Address for service of disciplinary committee

7            Directions etc.

PART 4

HEARING AND EVIDENCE

8            Hearing date

9            Rules of evidence

10          Written evidence

11          Representation

12          Hearings

13          Determination of the complaint

PART 5

MISCELLANEOUS, CITATION ETC.

14          Record of proceedings

15          Saving for references to mediator

16          Citation

Supporting Documents

Endnotes

Table of Legislation History

Table of Renumbered Provisions

Table of Endnote References



The Law Society of Jersey (Disciplinary Proceedings) Rules 2010

THE SUPERIOR NUMBER OF THE ROYAL COURT, in pursuance of Article 34 of The Law Society of Jersey Law 2005[1], and of all other powers enabling it in this behalf, has made the following Rules –

Commencement [see endnotes]

PART 1

PRELIMINARY

1      Interpretation

In these Rules, unless the context otherwise requires –

“complaint” means a complaint alleging that a practitioner is guilty of professional misconduct, and “complainant” shall be construed accordingly;

“hearing” means a hearing by a disciplinary committee sitting pursuant to Article 22 of the Law to consider a complaint;

“Law” means The Law Society of Jersey Law 2005[2];

“party” means the complainant or the practitioner and, unless the context requires otherwise, in relation to proceedings of a disciplinary committee, includes a person appointed under Rule 3(2);

“practitioner” means the practitioner against whom a complaint has been made.

PART 2

ACTION ON RECEIPT OF COMPLAINTS

2      Formulation of written complaint

(1)    Subject to Article 21(3) of the Law, the President must ensure that a complaint is referred to a disciplinary committee promptly.

(2)    The President shall not refer a complaint unless satisfied that it has been stated in writing and properly formulated.

(3)    A complaint is properly formulated if –

(a)     each of the allegations of professional misconduct is set out so that the issues are clear and can be properly addressed and determined by the disciplinary committee, and understood by the practitioner; and

(b)     the facts in support are set out with reference being made, wherever appropriate, to any documents upon which the complainant may rely.

(4)    The President may appoint a member of the Law Society or such other person, whether or not an advocate or a solicitor, as the President shall think fit to assist the President to discharge any of the requirements of paragraphs (1) and (2).

(5)    The President or the member of the Law Society, or person, appointed under paragraph (4) may require particulars (including documentation or other supporting evidence) to be provided in such form and within such time, having regard to the requirement in paragraph (1), as the President or, as the case may be, the member or person may determine.

(6)    The reasonable costs of the member or person appointed under paragraph (4) shall be met out of funds provided by the Law Society.

3      Arrangements for presentation of a complaint

(1)    Before referring a complaint to a disciplinary committee, the President must be satisfied that the arrangements for presenting the complaint to the committee are fair and reasonable for the complainant and the practitioner.

(2)    The President may appoint a member of the Law Society to present the complaint to the disciplinary committee.

(3)    The reasonable costs of a member appointed under paragraph (2) shall be met out of funds provided by the Law Society.

PART 3

ACTION UPON REFERENCE TO DISCIPLINARY COMMITTEE

4      Application

This Part applies when a complaint has been referred to a disciplinary committee.

5      Service of documents

(1)    Any application, statement, notice or other document to be served under these Rules shall be served –

(a)     personally; or

(b)     by sending by ordinary post to the last known place of business or abode of the person to be served; and

(c)     in such other manner as the disciplinary committee may direct.

(2)    Any application, statement, notice or other document sent by ordinary post shall be deemed to have been served on the second working day following the day on which it was transmitted.

6      Address for service of disciplinary committee

The disciplinary committee must as soon as practicable notify –

(a)     the practitioner;

(b)     the complainant;

(c)     if applicable, the person appointed under Rule 3(2); and

(d)     either –

(i)     the Bâtonnier, if the complaint relates to an advocate, or

(ii)    the President of the Chambre des Écrivains, if the complaint relates to a solicitor,

of the address for service of the committee (including the name of the person to whom all communications in connexion with the complaint are to be addressed).

7      Directions etc.

(1)    When the committee sends written copies of a complaint in accordance with Article 22(2) of the Law, or at any time, it may give any directions deemed necessary or appropriate.

(2)    Without prejudice to paragraph (1), directions may be made with regard to –

(a)     documentation;

(b)     inspection;

(c)     statements (whether or not upon oath);

(d)     skeleton arguments;

(e)     witnesses;

(f)     the place or time of any hearing.

(3)    The committee may at any time itself or on application to it make an order on such terms as it thinks just to –

(a)     give consent to the withdrawal of a complaint or allegation;

(b)     adjourn any hearing;

(c)     agree to the amendment of any complaint or allegation or the correction of any matter;

(d)     make any directions which shall appear necessary or appropriate to secure the timely hearing of the matter.

PART 4

HEARING AND EVIDENCE

8      Hearing date

(1)    Unless a disciplinary committee has made directions in respect of the hearing, it shall appoint a date for the hearing and shall give notice of the date to –

(a)     the parties; and

(b)     each of the persons having a right to be heard under Article 22(5) of the Law.

(2)    The hearing shall not, unless the parties have agreed or the committee has so ordered, take place sooner than the expiry of a period of 21 days beginning with the date of service of the notice appointing the date of the hearing.

9      Rules of evidence

The strict rules of evidence shall not apply at a hearing before a disciplinary committee unless the committee directs otherwise.

10    Written evidence

(1)    A disciplinary committee may in its discretion either as to the whole case or as to any particular fact or facts proceed and act upon evidence given by statement in writing (whether or not on oath).

(2)    Every statement in writing upon which a party proposes to rely shall be filed with the disciplinary committee and served upon –

(a)     the other party; and

(b)     each of the persons having a right to be heard under Article 22(5) of the Law,

not less than 14 days before the date fixed for the hearing, unless the committee directs otherwise.

(3)    Any party on whom a statement has been served under paragraph (2) and who requires the attendance at the hearing of the witness in question shall, unless the disciplinary committee directs otherwise, no later than 7 days before the date of the hearing require, in writing, the other party to produce the witness at the hearing.

(4)    If no party requires the attendance of a witness in accordance with this Rule, the committee may accept the statement in question in evidence.

(5)    If a witness who has been required to attend a hearing in accordance with this Rule fails to do so, the onus shall be on the party seeking to rely on the statement of that witness to show why it should be accepted in evidence.

(6)    If a party intends to call as a witness any person who has not given a statement, the party must, no later than 7 days before the date fixed for the hearing, notify the committee and –

(a)     the other party; and

(b)     each of the persons having a right to be heard under Article 22(5) of the Law,

of that intention and forthwith serve a copy of a written proof of evidence on the other party and each of the said persons and lodge 4 copies of the proof with the committee.

(7)    This Rule does not affect the powers under Article 28 of the Law of a disciplinary committee to take evidence.

11    Representation

(1)    A complainant may be represented before a disciplinary committee by an advocate or a solicitor independently of the appointment of a member of the Law Society under Rule 3(2).

(2)    The practitioner may be represented before a disciplinary committee by an advocate or a solicitor.

(3)    A complainant or a practitioner may at a hearing appear and be heard by a representative who, if not an advocate or solicitor, shall be a person approved by the disciplinary committee as a person appropriate to represent that party.

(4)    A complainant or a practitioner wishing to appear and be heard by a representative other than an advocate or solicitor shall (unless the disciplinary committee directs otherwise), not less than 7 days before the date fixed for the hearing, state in writing to the committee and to the other party –

(a)     the name and address of the intended representative; and

(b)     why he or she is considered appropriate to represent the party concerned.

12    Hearings

(1)    A hearing shall take place at such time and place as shall be considered by the disciplinary committee to be appropriate and convenient.

(2)    No person other than –

(a)     the complainant and the practitioner and their respective representatives;

(b)     any person appointed under Rule 3(2);

(c)     the Bâtonnier or, as the case may be, the President of the Chambre des Écrivains;

(d)     the Attorney General or the Solicitor General; and

(e)     witnesses, whilst giving evidence,

shall be present at a hearing without the consent of the committee.

(3)    If the committee is satisfied that notice of the hearing has been served on the parties in accordance with these Rules, it shall have power to hear and determine a complaint in the absence of either or both of the parties or their representatives (whether by agreement of the parties or otherwise).

13    Determination of the complaint

(1)    If the disciplinary committee does not refer the complaint to the Attorney General under Article 23(1)(c) of the Law, it shall make a finding as to whether any or all of the allegations in the complaint have been substantiated.

(2)    If some or all of the allegations in the complaint are found to have been substantiated –

(a)     the practitioner shall be entitled to make submissions by way of mitigation; and

(b)     subject to paragraph (3), the disciplinary committee shall announce the sanction.

(3)    The disciplinary committee may, subject to the requirements of Article 23(2) of the Law –

(a)     hand down its decision at the conclusion of the hearing; or

(b)     reserve its decision for later announcement.

PART 5

MISCELLANEOUS, CITATION ETC.

14    Record of proceedings

A note shall be taken of proceedings at any hearing and may be taken by electronic means.

15    Saving for references to mediator

(1)    Nothing in these Rules affects the power of a disciplinary committee with the consent of the parties to appoint, and refer a matter to, a mediator.

(2)    Upon a reference of a matter to a mediator a disciplinary committee may give such directions to stay the proceedings before it on such terms as to the committee shall appear just.

16    Citation

These Rules may be cited as The Law Society of Jersey (Disciplinary Proceedings) Rules 2010.



Endnotes

Table of Legislation History



Legislation



Year and No



Commencement



The Law Society of Jersey (Disciplinary Proceedings) Rules 2010



R&O.64/2010



5 July 2010



Table of Renumbered Provisions



Original



Current



None



 



Table of Endnote References



[1]



chapter 07.570



[2]



chapter 07.570