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 . as 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 a, jy step beyond the comparatively lengthy suspension lc h I have seen fit to impose. 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 u y executed by her. She received no independent . a 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 ^ e 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 I a n e m a d e a w i l 1 l e a v i n S 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 ^ . 11 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' K 6 a n y i n d e P e n d e nt advice before she made that J. but the appellant had the impression that it had a d e ? suggested to her that she should seek such vice. I n 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 Solicitor's appeal against striking off on the ground of lack of independent advicc dismissed

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]

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