Tribunal finds failures to uphold law and public trust; independence breach not proved
A top disciplinary tribunal has fined two leading lawyers after finding they breached professional rules by advising a client to remove materials ahead of a police search. The Solicitors Disciplinary Tribunal (SDT) ruled that Ian Richard Burton and Michael John Drury CMG, then partners at BCL Burton Copeland, failed to uphold the law and the proper administration of justice, and acted in a way that undermined public trust. The tribunal did not find that either solicitor allowed his independence to be compromised.
The case unfolded under unusually tight secrecy. Because the dispute centred entirely on legally privileged client instructions and advice, the SDT heard the application in private and later issued a public judgment to explain its decision while protecting the client’s anonymity. The tribunal stressed this was a wholly exceptional course, taken to balance open justice with the client’s rights. The “Relevant Date” for the contested advice was in 2011; the hearing ran from 19–21 and 27 July 2016, with a full confidential judgment given to the parties that September and a public judgment produced after further submissions in December 2016.
According to findings largely agreed, the Second Respondent, Mr Drury, received word on the morning of the Relevant Date that police might conduct another search of the client’s premises. He strongly suspected any fresh search would be unlawful, echoing concerns after an earlier raid nine days before. After speaking to the First Respondent, Mr Burton, Mr Drury advised the client at about 9.10am to remove specific material and secure it. He confirmed that advice by email at 9.17am and again at 9.48am. The client removed the material by 9.35am. Shortly after 10.20am, Mr Burton informed police that the material had been taken off-site. An inspector authorised a s.18 PACE search at 10.50am. By around 11.00am, the removed material had been delivered to the firm’s offices; at 11.18am Mr Burton agreed to provide it to police, who obtained it by about 2.25pm the same day.
The SDT accepted there was no bad faith. It also noted the preservation and continuity of the material, that the client intended cooperation, and that the case ran in a “febrile” atmosphere amid serious concerns about police tactics. However, the tribunal found the advice given before 9.17am left the respondents, their firm and their client exposed to accusations of preventing or impeding a potentially lawful search, with attendant risks of obstructing police or perverting the course of justice. That, it ruled, failed to uphold the rule of law and the administration of justice and failed to maintain public trust, contrary to Rules 1.01 and 1.06 of the Solicitors’ Code of Conduct 2007. The SDT did not find the independence allegation under Rule 1.03 proved.
Embed from Getty ImagesThe tribunal said other options existed. Over the nine days after the first search, the respondents could have prepared full advice setting out lawful routes: engaging police, signalling objections, seeking urgent relief, or marking out a legal position in writing, potentially after counsel’s input. On the morning itself, Mr Drury could and should have sought confirmation from police about any arrest underpinning s.18 powers. Meanwhile, as senior partner and strategic lead, Mr Burton should have urged caution or advised against the removal proposal; by not doing so, he caused or allowed the advice to be given.
Neither solicitor had previous disciplinary findings. The SDT weighed culpability and harm, concluding that although the conduct was serious, the material was quickly handed to police, there was no prejudice shown to the investigation, and the misconduct occurred within a short window. It determined there was no need to restrict their ability to practise.
On sanction, the tribunal fined Mr Burton £5,000 and Mr Drury £10,000. It ordered them to pay, on a joint and several basis, two-thirds of the reasonable costs of the case (subject to detailed assessment on the standard basis if not agreed). Counsel appearances included Mr Timothy Dutton CBE QC for the Solicitors Regulation Authority and Mr Gregory Treverton-Jones QC with Mr Patrick Gibbs QC for the respondents.