case 16,2003 律师公会的决议

Holder v The Law Society [2003] EWCA Civ 39 (24 January 2003)

英格兰及威尔士上诉法院

在ALDOUS大法官、CARNWATH大法官、CHRISTOPHER STAUGHTON爵士之前

Carnwath大法官给出了主要判决理由

Human Rights Act—Solicitors Practice Rules 1990—律师事务所—合伙制—财务上独立—实际上个人执业

大致案情是：On Friday 15th June 2001 the Law Society resolved to intervene in the practice of the claimant under the Solicitors Act 1974. On 26th June the claimant applied to the High Court for an order directing the Law Society to withdraw the Notice of Intervention. No further steps were taken pursuant to that application, until 2nd August when The Law Society applied for summary judgment under CPR Part 24. On 30th August Master Price made an order dismissing the claim. The appeal which was heard by Peter Smith J almost a year later, led to him allowing the appeal on 25th July 2002 and directing that the claim should go to trial. The Law Society now appeals against that order.

结果律师公会开始调查，发现了许多财务问题。the Chairman of the Compliance and Supervision Committee of The Law Society，也就是律师公会纪律与监督委员会的主席作出干预命令，要求被上诉人提供practice documents，大概是执业文件/资料/证书，估计是暂停他的执业资格。

初审法官认为律师公会的处分是正当的。根据证据，他指出原告，也就是后来的被上诉人，1、严重违反了执业纪律；2、挪用客户的款项；3、胡乱借钱，因而存在欺诈性乱用律师赔偿基金的可能；4、他自己承认这些指责。因此，他判决这构成不诚实，律师公会加以干预是合理的。

这里涉及到一种信托关系，律师都要拿一笔钱出来放在律师公会。 Such money is, on the making of the resolution, held by the Society "upon trust for the persons beneficially entitled". 在特定条件下，律师公会应当去作出决议，必要时冻结这笔钱的帐户：The Society is required to serve on the solicitor, and "any other person having possession of" money to which the resolution applies, a certified copy of the resolution, and "a notice prohibiting the payment out of any such sums of money" (para 6(3)). 对此决议如有不服，当事人可以上诉到高等法院，请求法院撤销这决议。律师公会可以要求律师提供/呈交一些和他执业有关的资料/文件/证书，他也可以请求法院，让律师公会返还这些资料/文件/证书。

这些都是在较为严重的情况下的措施：

Where intervention powers have been exercised on the grounds of suspected dishonesty or breach of accounting rules the exercise of the power operates immediately to suspend any practising certificate of the solicitor for the time being in force (1974 Act s 15(1)(a)). The solicitor may before the certificate expires apply to the Society to terminate the suspension, and if the Society refuses he may appeal to the Master of the Rolls. (s16) 也就是怀疑律师不诚实、帐户有问题，需要立即暂停其所有职业证书。律师本人可以向律师公会的主席上诉/申诉。这些一直被认为是适当的，为保护公共利益所必需的。

在判决书中，Carnwath大法官引用了一些先例。
在Giles v Law Society [1995] 8 Admin LR 105一案，Sedley大法官说;

The manifest purpose of sch 1 to the Solicitors Act 1974… is to create an ex-parte procedure leading where appropriate to intervention, the consequences of which are undoubtedly drastic and potentially terminal for a solicitor's practice.
...Since this is the key intervention power, at least in cases of suspected dishonesty, it is realistic to describe the sub-paragraph as conferring jurisdiction upon the court to direct the Law Society to withdraw from the intervention. 法院有审查的必要。

Neuberger法官在Dooley v Law Society 15.9.2000案中指出，法院需要做两阶段的审查:

First it must decide whether the grounds under paragraph 1 are made out; in this case, primarily, whether there are grounds for suspecting dishonesty. Secondly, if the Court is so satisfied, then it must consider whether in the light of all the evidence before it the intervention should continue. In deciding the second question, the Court must carry out a balancing exercise between the need in the public interest to protect the public from dishonest solicitors and the inevitably very serious consequences to the solicitor if the intervention continues.也就是说，法院首先要查明有无不诚实，其次，法院要在公共利益和律师需要面临的严重后果（停止执业之类）之间加以考虑，比较孰轻孰重。而且，这种审查必须尽快作出，期限是8天。必要时，法官可以通过电话给律师公会一个口头的临时禁令，暂停他们的干预。

本案中另一个问题是被上诉人认为律师公会的措施侵犯了他的财产权：right to "peaceful enjoyment of his possessions" 。这规定在欧洲人权公约里，在英国的相应立法是Human Rights Act 1998。在上诉法院，上诉人的辩护律师的理由是冻结帐户会使被上诉人没有钱请律师，这变相剥夺了他寻求司法救济的权利因而违反Human Rights Act 1998，也就是公约的规定。辩护人引用了欧洲法院在对爱尔兰、希腊、瑞典类似案例的判决中采取的标准。

公约规定：

Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.

安宁领有财产的权利不受侵犯。除非是为了公共利益，或是法律、国际法的一般准则规定的条件。

因为剥夺律师的职业资格，那怕是暂时的，这也涉及到在公共利益和个人基本权利之间的取舍，需要考虑比例原则（ proportionality）。

大法官指出;

In the present case, the "margin" arises at two stages: first, the discretion allowed to the legislature in establishing the statutory regime, and, secondly, the discretion of the Law Society as the body entrusted with the decision in an individual case. (In the former case, the only remedy for exceeding the "margin" may be a "declaration of incompatibility" under the 1998 Act.) The intervention procedure, now contained in the Solicitors Act 1974, is long-established (dating back to 1941, in its earliest form), and has been reviewed by the court on many occasions. As appears from the cases to which I have referred, it has been recognised as "draconian" in some respects, but necessary for the protection of the public interest; and the courts have repeatedly emphasised the "balancing exercise" which it involves. I see no material difference between this and the "fair balance" which Article 1 requires. Nor do I see any reason why the Human Rights Act 1998 should be thought to have changed anything. There has long been a right of individual petition to the Strasbourg Court for breaches of the Convention, but we have not been referred to any questioning of the intervention procedure under Article 1.

The Law Society also has a "margin of discretion", but the court has a separate duty to consider the merits of the case, in accordance with the principles I have discussed, while paying due regard, as Sedley LJ said (see Giles above), to the views of the Law Society, as the relevant professional body. As I have said, this meets any "fair balance" requirement. The judge found that, viewed by reference to the Solicitors Act itself, the Society's intervention was "entirely justified". I agree. In my view, that should have led him to have upheld the Society's view as to where the balance lay on the facts of this case.

也就是说，这种纪律惩戒历史悠久，为维护公共利益所必需。法院一直在考虑其适当性。这么做并无不妥。当事人如有不服，可以向斯特劳斯堡的欧洲法院申诉。人权法与此没有多大关系，等等。

他最后维持了高等法院大臣法庭的判决。其余两位法官同意他的分析。

判决结果：上诉接纳。律师公会胜诉。