An interesting case, which we believe raises matters of some concern, floated this week onto our desks.

The case is in fact the core of that inane Silly Cow story (see NLJ, December 5, 1997) which has enlivened much of the last 12 months.

It is the first occasion within living memory that a solicitor has been charged with theft by overcharging a client.The case involved a solicitor who, given that barristers are granted anonymity in cases in which they face criticism or disciplinary proceedings, must be referred to only as Mr X.

He was accused of theft by virtue of over-charging on a probate/tax avoidance scheme, and the seven week adjournment opposed by the magistrates' clerk was to enable the defence to have the file assessed by an independent costs draftsman.

The prosecution stemmed from information given by a member of staff of the Law Society to the Fraud Squad, after a complaint from the family of a client.

The prosecution's case, based on the evidence of a cost draftsman with apparently more experience in criminal than civil work, had been that the fair figure was £5,000 with a maximum of £9,600, when in fact the solicitor charged £20,000.After the solicitor was charged with theft by overcharging, but before he was tried, the Law Society's Compensation Fund paid out £15,500 to the family of the aggrieved client.

How it felt able to pay out at that stage is unclear, because the power only arises after the dishonesty of a solicitor has been established.The case came on for trial earlier this month.

Fifteen prosecution witnesses were scheduled to give oral evidence.

By this time the defence had the benefit of the advice of its own costs draftsman.

His view was that the evidence of the costs draftsman for the prosecution was untenable.

Indeed it was so untenable that far from theft, there was no over-charging at all.

On a worst case scenario -- tough Taxing Master, burnt toast for breakfast, no parking space -- his view was that £15,000 was the appropriate figure.

As might be imagined, this put the prosecution in some difficulty in substantiating its allegation of theft.Before the jury were empanelled, counsel for the prosecution, who must also be nameless, indicated that while he was confident of obtaining a conviction on the indictment, he would invite counsel for the defence to take instructions from his client and solicitor as to whether if all allegations of theft were dropped, the solicitor would plead guilty to a final count, this time of false accounting in the sum of £235.The defendant solicitor and his own solicitor rejected out of hand any such deal and counsel for the defendant returned to convey the message.

Then came the good news.

Counsel for the prosecution informed the defence that he had decided to drop the entire prosecution.

Had the solicitor's nerve failed and had he pleaded guilty to the false accounting count, his striking off would have been inevitable on the basis of The Law Society v Bolton, (1994) The Times, December 10.

The possibility of a prison sentence was not remote.The story does not end there.

The Law Society has commenced disciplinary proceedings against the solicitor.

What will happen to these proceedings? Prior to the trial the Disciplinary Tribunal twice refused an adjournment to await the outcome of the criminal proceedings? (In the event, the trial judge wrote a letter to the Solicitors' Disciplinary Tribunal indicating that he considered it desirable "in the interests of justice" that the criminal case should be heard first.) This seems to be in sharp contrast to the attitude of the OSS which regularly declines to intervene in complaints until civil or criminal proceedings are concluded.

Will the solicitor now be able to offer a plea of a form of autrefois acquit? Worse, from the point of view of the profession, the Compensation Fund has paid out £15,500 of solicitors' money to the client.Several further embarrassing points arise from the prosecution.

The first is the apparent try-on in the plea bargain.

"Get a plea to something if we can, even though we don't propose to go ahead if our bluff fails".

Isn't this the very antithesis of the usual description of the Bar as "fearlessly independent"? Now, of course, plea bargaining is something which happens in courts every day up and down the country.

Nothing much more concentrates the defendant's mind -- but is it really proper behaviour in a court of just ice, or is it behaviour more appropriate to a Turkish rug bazaar?The second is the whole question of taxation of lawyers' fees.

Obviously this is something of an inexact science, but no one can be happy with the thought that one day a solicitor or barrister can be awarded 25 per cent more on the same set of facts.

One might of course argue that this is the same with a plaintiff's or defendant's judge in a civil claim, but that is none too happy a position either.The case brings into sharp focus the claims of the barristers before the House of Lords whose fees, admittedly submitted by their clerks, have been substantially slashed (see News, p 1543).

Should the police have investigated the clerks and their masters for conspiracy to steal/defraud? Of course not.

It is well known that whatever fees are submitted are likely to be cut and it is almost standard practice to submit a higher one to end up with what is thought to be the correct figure.The CPS ought now to explain the circumstances in which this case came to be abandoned only after the defendant rejected the deal offered to him by prosecution counsel in court.

A second question the CPS might care to answer is whether it intends to set out its guidelines for future prosecutions in similar circumstances.

Shall there be a prosecution in any case where it is thought that there has been an overcharge of 100 per cent or 200 per cent? Or should 75 per cent be the figure? If so, the silks are just about at risk.Meanwhile caveat solicitors -- and barristers.