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Supreme Court of Denmark

Breach of the code of conduct for solicitors 

Case no. 355/2010
Judgment 28 November 2011

Solicitor A
vs.
The Ministry of Justice

Based on an overall assessment of three concrete complaints and previous complaints, the Disciplinary Board of the Danish Bar and Law Society had found that there was basis to suspend A from practicing law for the time being. The three complaints concerned lack of price information, interview of a child in a custody case and disclosure of information from the interview to the judge and opposition to a compulsory examination of a child under the Danish Service Act.  In the latter case, solicitor A had also filed an unfounded police report and issued an unfounded writ claiming compensation against an employee in the local administration and the head of the institution where the child was staying. 

Solicitor A moved for rejection of the claims, submitting, among other things, that the complaints made against him concerned his freedom of speech as a solicitor. He referred to Article 10 of the European Human Rights Convention and to the child's right to receive information, cf. Articles 12 and 13 of the Convention on the Rights of the Child, and stated that according to the case law of the European Court of Human Rights, any restrictions of the freedom of expression must be proportional to the aim pursued and necessary in a democratic society. 

The Supreme Court found that solicitor A had breached the code of conduct for solicitors in the three cases. Unlike the Disciplinary Board, the Supreme Court found that no serious breach of the code of conduct had been committed in the case concerning price information, while the Supreme Court agreed that solicitor A had committed serious breach of the code of conduct in the two other cases.  

The Supreme Court stated that the freedom of expression has been restricted by the provision in Section 26 of the Danish Administration of Justice Act and found that such restriction must be regarded as being necessary in a democratic society to protect the rights of others and that the restriction is proportional to the aim pursued. In addition, Articles 12 and 13 of the UN Convention on the Rights of the Child could not justify solicitor A's actions.

With regard to the sanction, the Supreme Court stated that importance had to be given to the fact that the case concerning unfounded legal action etc. had a repetitive character. However, importance had to be given to the facts that prior to the matter at hand, solicitor A had not been fined heavily based on the principle of recognition of previous convictions and that these cases primarily concerned solicitor A overstepping the boundaries of what could be regarded as being justified to safeguard his clients' interests. Based on an overall assessment, the conditions for suspending solicitor A from practicing law had not been fulfilled. In order to impress on solicitor A the seriousness of the repeated breaches of the code of conduct, the Supreme Court fined him DKK 50,000.

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