The Gazette 1975

therefore 1 direct that he be suspended from praC ' e

a period of four years. I give liberty to cii r

e t o a

PPiy. I do not consider on the whole that

is an appropriate case in which to order this

P'jcitor to pay the costs of the Society or the Dis-

ciplinary Committee and therefore I make no, order

a s

to costs. The Order which I have made is entirely

ithout prejudice to any action which may be taken

ed on different facts if there are any facts

Justifying such action. But there are no facts before

m e

which in my opinion necessitated the taking of

jy step beyond the comparatively lengthy suspension

h I have seen fit to impose.

Solicitor's appeal against striking off on the ground of

lack of independent advicc dismissed

The appellant and B, both solicitors, entered into

Partnership in 1932 and bought the existing practice

a firm of solicitors. Among the clients of that firm

nom the appellant and B took over were two ladies,

arie and Jane, whose family had had a long associa-

tion with the firm. Marie had a forceful personality and

as versed in business matters. Jane was 1 . capable

looking after her own affairs. In 1948 Marie sum-

oned B to see her. At the meeting she indicated to

that she wished to make a will and that, after certain

Pecuniary legacies had been made, she wished the

emainder of her estate to go to Jane for life and

to be distributed as to one moiety to B's son

as to the other moiety to the appellant's daughters,

drew up a will for her on those lines, and it was

y executed by her. She received no independent

dvice in regard to the making of it and the

etailed attendance note made by B of the meeting

•

n 0 t

c o n t a i n

any reference to the question of

dependent legal advice being discussed. B acquainted

appellant with the contents of the will; the

ppellant had the impression that it had been sug-

a r / -

M a r i e

that she should obtain independent

advice m respect of the will but had refused to do

of í

a r l y i n 1 9 4 9

a n e m a d e a w i l 1 l e a v i n

t h e b u l k

cod-

r C S t a t e t 0 M a r i e

I n 1 9 5 5

Marie executed a

i d to her will in which she specifically confirmed

* gift of residue made under the will. In 1963 Jane,

W °

W a

s in poor health, instructed B to make a new ^

for her. Under it, inter alia, the residue was to "

® held on trust for W for life and then to be divided

^qually between B and the appellant. Jane did not

win'

6 a n y i n d e

e n d e

advice before she made that

J. but the appellant had the impression that it had

a d

? suggested to her that she should seek such

vice. I

1965 Marie died and under her will Jane

a n

0 3

6 e n t i t l e d

^ the residue of Marie's estate. The

v S i r f ?

n t W

s t h e n c o n c e r n e d

to devise a scheme which

deatfi

a V

i d o r m

' t i ga te esate duty claims on Jane's

Droc

H e

t o o k

counsel's opinion and as a result

r e d

the drafting of a deed of release by Jane of

her life interest in Marie's estate.. He did not suggest

that she should be separately advised and she was

not. Jane died in 1969. Claims were made that the gifts

t'o B, the appellant and their respective families could

not stand and as a result B and the appellant had to

refund all the money which they recived from either

estate. A complaint was made to the Law Society that

B and the appellant had been guiltv of professional

misconduct in that they had prepared documents

under which they had benefited to a substantial extent

without observing the appropriate rules as to ensuring

that their client received independent advice before

committing herself to them. The Disciplinary Com-

mittee of the Law Saciety held (i) that a solicitor in

whose favour a client wished to make a will, was

bound to tell her that she must be separately advised

and if she refused to go to another solicitor, it was his

duty to forego the benefit; (ii) as B and the appellant

had failed to comply with that standard of conduct

they were guilty of the offence and would be struck

off the Roll of Solicitors. The appellant appealed

contending that the Disciplinary Committee had

imposed too strict a standard and that the penalty was

too severe.

Held—(i) A decision as to what was professional

misconduct was primarily a matter for the profession

expressed through its own channels and the Court

vould not, and should not, question what a properly

constituted Disciplinary Committee considered was

the standard of conduct required of its profession.

(ii) The committee, in considering the penalty to

be imposed on a person guilty of professional mis-

co i !uct, had to have regard to the extent to which

the existence of the standard was known and accepted

within the profession at the time when the alleged

default occurred; and the Court could and would alter

the penalty imposed if it found that there were

extenuating circumstances affecting the accused which

would make it proper to say that his failure to comply

with the rule laid down by the Committee did not

merit the penalty imposed, i.e. because he did not

know of the rule he was breaking. There were no

grounds for reducing the penalty imposed on the

appellant for (a) he must have known that Marie and.

more especially, Jane should have* been offered

indpendent advice in respect of their respective wills

and that he was himself under a personal obligation to

see that each was separately advised before he

accepted her gift; (b) in respect of the deed of release

he knew that Jane had never been separately advised

or invited to have separate advice and yet he had

proceeded with the matter regardless of his obligations

to her as a solicitor. The appeal would accordingly be

dismissed.

[In Re a Solicitor—Queen's Bench Division (Lord

Widgery CJ, Milmo and Ackner JJ—8 October 1974

—1974) 3. All E.R. 853]