Notes Of Cases
| Date | 01 October 1940 |
| DOI | http://doi.org/10.1111/j.1468-2230.1940.tb02740.x |
| Published date | 01 October 1940 |
I38
MODERN
LAW
REVIEW
Oct.,
1940
NOTES
OF
CASES
Extent
of
SoliciWs
Respomibility
for
Conduct
of
Cle&s
A
solicitor is an agent remuneratively employed about
his
principal’s
affairs. and under the obligation to do his best to further the principal’s
interests. But he is also an officer of the Court, and therefore responsible
for strict observance
of
the Court’s requirements
as
regards observance
of
rules, respect for the policy of the judges, and in other ways which the
Court may indicate from time
to
time.
It
does not require much reflection
to
see that there lies in these
two
aspects of professional work the
possi-
bility of serious conflicts of duty. Such difficulties undoubtedly arise from
time
to
time during the career of most solicitors, and indeed barristers,
though here they are naturally less frequent. On the whole the standard
of conduct in the profession
is
high and there can be little doubt that the
majority of solicitors conduct their clients’ business with a due regard
to
their position
as
officers
of
the Court. There are, of course, wide divergencies
of education and social background among solicitors which undoubtedly
give rise to variations in standards. Moreover much
of
the most trouble-
some work, from a moral point of view, which has to be done in
a
solicitor’s
office is entrusted
to
unadmitted managing clerks. Anybody with experi-
ence of litigation will be aware that among these men there is a not incon-
siderable proportion whose standards are not
so
high
as
their abilities.
Unscrupulous conduct and even shady practices are only too frequent
among
this
section, and temptation is frequent.
It
is
consequently of very
great importance that their employers should supervise their work closely
and impress upon them the necessity for strict observance of all the Court
rules and requirements. They are much more likely to do this if they are
held personally responsible to the Court for the actions of their clerks, and
also to third parties who may suffer pecuniary loss as a result of misconduct
of
such clerks.
Myers
v.
Elman
(1940).
A.C.
282.
in which the House of
Lords considered the extent of a solicitor’s liability in this respect is
therefore worthy of very careful study.
The respondent Elrnan had represented certain defendants in an action
for damages for fraudulent conspiracy. As in all such actions the question
of discovery of documents turned out to be of vital importance, and great
difficulties arose in securing proper discovery from the defendants. The
detailed conduct of this part of the case was entrusted by the defendant to
his clerk, ose Osborne, who was not a solicitor. Difficulty arose over the
disclosure
of
items in the pass
book
of one of the defendants, and
Osborne
sealed
up
a
considerable number of highly relevant entries. Eventually
this particular defendant did not appear at the trial, and it became obvious
that he could not be good for any of the damages. The plaintiff accordingly
applied
to
the trial judge for an order against Elman that he should pay his
costs
of
the action on the ground that he had been guilty of professional
misconduct through the acts
of
Osborne. The trial judge made the order
asked for, holding that Osborne had knowingly prepared a false affidavit
of
documents, and that Elman
was
responsible for such conduct.
On appeal, however, the majority of the Court of Appeal were of opinion
that the jurisdiction
of
the Court to order a solicitor to pay
costs
personally
is
a punitive power resting on the personal misconduct of the solicitor.
They accordingly discharged the order. In the
House
of Lords, however,
their lordships were unanimously of opinion that the jurisdiction
of
the
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