A GUIDE
TO THE PROFESSIONAL CONDUCT AND DISCIPLINE
OF THE LEGAL PROFESSION
published by the International Relations Committee
of the Bar Council of England & Wales
London, January 2007
1
FOREWORD
The Bar Council was prompted to prepare this Guide because over a number of years
professional conduct and discipline has emerged as a theme in many meetings
between members of the Council’s International Relations Committee and visiting
delegations of bar associations from abroad.
It appeared that many bar associations were anxious to clarify the meaning and
content of principles of lawyers’ ethics and to find ways to enforce them in their home
jurisdictions. Several delegations also expressed the wish to have practical assistance
in developing or improving codes of conduct and to put in place organisational
structures to develop and enforce their own Code.
In response to this need the IRC assembled a working group of practitioners and staff
members with relevant experience. This group has now produced the present Manual
which we offer to bar associations, parliamentarians, and other interested parties for
consideration and as a basis for discussion. It is available on CD – ROM and for
download from the Bar Council Website at www.barcouncil.org.uk.
We hope that this Guide will become a useful tool to assist reform efforts in other
jurisdictions. The Bar Council would be pleased to receive requests for co-operation
from bar associations and other relevant bodies. The Bar of England & Wales has a
long-standing tradition of and reputation for professional standards and is more than
willing to share its expertise and experience on a pro bono basis.
We would like to express our gratitude to all colleagues who have contributed to the
production. Sections of this Guide were written by James Bailey, Martin Griffiths,
Anthony Leonard QC, Nicholas Price QC, David T Morgan and Mark Stobbs.
Additional editing and proofreading was contributed by Christian Wisskirchen, who
also handled the overall production process. Thanks for further proofreading go to
Amy Streeter. Additional research and drafting was contributed by Edward Elliott.
Lastly, we thank the Foreign & Commonwealth Office for funding the cost of
publication and translation.
We hope this publication is found to be useful and we would be very grateful to
receive any comments and feedback.
Geoffrey Vos QC,
Chairman of the Bar Council
Ross Cranston QC,
Editor and member of the International
Relations Committee of the Bar Council
2
ABBREVIATIONS
ABA:
American Bar Association, Model Rules of Professional Conduct
BC:
Bar Council of England and Wales, Code of Conduct
CCBE:
Council of the Bars and Law Societies in the European Union, Code of
Conduct for Lawyers in the European Union.
IBA:
International Bar Association, Statement of General Principles for
Ethics of Lawyers (1995)
LSG:
Law Society of England and Wales, The Guide to the Professional
Conduct of Solicitors (1999)
LSUC:
Law Society of Upper Canada, Rules of Professional Conduct
UNHCR:
United Nations Office of the High Commission for Human Rights,
Basic Principles of the Role of Lawyers
3
TABLE OF CONTENTS
PART 1. THE NATURE OF RULES OF PROFESSIONAL CONDUCT
1.01 The Lawyer’s Duties Regarding Rules of Professional Conduct
1.02 Nature of “Public Interest
PART 2 THE PRACTICE OF LAW
2.01 Duties and Responsibilities
2.02 Public Interest
2.02(1)
2.02(2)
2.02(3)
Serving the Interests of Justice
Duty to the Court
Making Legal Services Available
2.03 Advertising and Marketing Legal Services
2.03(1)
2.03(2)
2.03(3)
Advertising
Marketing Legal Services
Advertising Name of Practice
2.04 Competition and Legal Services
2.04(1)
2.04(2)
[2.04(3)
2.04(4)
Competition and Non-Lawyers
Practices with Lawyers and Non-Lawyers
Multidisciplinary Practices]
Employed Lawyers
PART 3: Assessing and Maintaining Competence
3.01 Education and Training
3.01(1)
3.01(2)
3.01(3)
3.01(4)
3.01(5)
Entry Level Requirements for the Legal Profession
Good Character and Standing
Academic Education
Practical Training
Apprenticeship
4
3.02 Practising Certificates
3.03 Sheltered Practice: The First Few Years of Practice
3.04 Continuing Education
3.05 Specialist Panels
3.06 Quality Standards
PART 4: ETHICS AND CONDUCT
4.01 Fundamental Principles
4.01(1) Fundamental Principles
4.01(2) Integrity and Honesty
4.01(3) Duty to the Court
4.01(4) Duty to the Client
4.01(5) Duty to Other Parties
4.01(6) Duty to Partners
4.01(7) Duty not to discriminate
4.01(8) Integrity of the Profession
4.02 Instructions
4.02(1) Contracts for legal services
4.02(2) Management and administration of the Client’s affairs
4.02(3) Conducting Litigation
4.02(4) Refusing Instructions
4.02(5) Terminating legal services
4.03 Conduct of Work
4.03(1) Conduct of Work: General duties
4.03(2) Duty of Competence
4.03(3) Confidentiality
4.03(4) Conflicts of Interest
4.03(5) Compensation Fund
4.03(6) Money Laundering
5
4.04 Duties of Training Lawyers and Trainees
4.04(1)
4.04(2)
4.04(3)
4.04(4)
4.04(5)
4.04(6)
Duties in Training Lawyers
Duties of Training Principal
The Training Contract
Responsibility of Supervising Lawyers
Responsibilities of Trainees
Monitoring of Training
PART 5. MAINTAINING AND REVIEWING ETHICS AND CONDUCT
5.01 Establishing Rules of Conduct
5.02 Status of the Code
5.03 General Areas Covered by the Code
5.04 Making the Rules
5.05 Waivers
5.06 Training in Ethics
PART 6. ENFORCEMENT
6.01 Sanctions for Breach of Rules
6.02 Temporary Suspension
6.03 Suspension and Fitness to Practice in Cases of Ill Health or Mental
Illness
6.04 Powers of Investigation
6.05 Enforcement
6
6.06 Costs
PART 7 COMPLAINTS PROCEDURE
7.01
Complaints Procedure
7
PART 1. THE NATURE OF RULES OF PROFESSIONAL CONDUCT
1.01 The Lawyer’s Duties Regarding Rules of Professional Conduct
1.02 Nature of “Public Interest
8
1.01. LAWYERS’ DUTIES REGARDING RULES OF PROFESSIONAL
CONDUCT
Discussion
Law is an especially important profession in any society. Lawyers need codes of
ethical conduct to maintain confidence in them and in the legal system. They
undertake work of vital importance to clients. A nation’s economic future depends
on how confident overseas investors and businesses are that the legal system is
capable of justly resolving the disputes that will inevitably arise and of respecting
the human rights of those they employ and the population more generally. Legal
work is usually of central importance to the client and often the integrity of the
social system. Lawyers are relied on by courts to provide independent and
accurate statements of the law and other matters. It is vital that they can be trusted.
What follows is an attempt to identify the main features of any code governing
lawyers’ professional conduct. The principles are not set in stone and given the
diversity of jurisdictions and types of legal practice will need to be modified in the
light of local circumstances. Nonetheless, since the principles are drawn from a
variety of sources in a number of jurisdictions it is thought they provide a template
for others. The principles are just that – a set of standards which should be used
purposively in the light of their underlying aims. Compliance should be with their
spirit as much as their letter.
Lawyers typically have a system of ethical control which is largely self-governing,
although ultimate authority must rest with the courts and legislation. That imposes
a heavy responsibility on the body regulating and representing the legal profession
(called throughout “the professional body”), not least because of the close
relationship between high ethical standards and the integrity of the legal and
governmental systems. Self-regulation is to be valued as one aspect of an
independent legal profession which, with an independent judiciary, are central to
the rule of law. If self-regulation is ineffective, not only does this sap confidence
in the legal profession but it also means the state will seek to justify imposing
regulatory control on the profession. A large degree of self-regulation is essential
to ensure that lawyers remain protected from any pressure that the executive may
seek to exert on them.
Principle 1.01
(a)
Lawyers have a duty to uphold the values and reputation of the legal
system and to assist in the advancement of its goals, organisations, and
institutions. They must at all times maintain the honour and dignity of the
profession.
(b)
Lawyers must willingly accept as one aspect of this duty that their failure
to observe the rules in the last resort results in disciplinary action.
Source: CCBE, §§1.2.1 – 1.2.2; LSUC , 1.03(1)
9
10
1.02. NATURE OF PUBLIC INTEREST
Discussion
Although the principles are founded on the basic obligation that lawyers have to
clients, it quickly becomes apparent that lawyers also have obligations to the court,
to the legal system more generally (including its reform) and to the public interest.
Lawyers should always aspire to the very highest standards, being guided by the
importance of their personal role in ensuring the integrity of the system as part of a
crucial service to the public. These ideals are informed by the concept of the
public interest.
Principle 1.02
The “public interest” as far as the legal sector is concerned includes the integrity and
standing of the legal profession, the independence of the judiciary, access to justice
and the efficient operation of the legal system.
11
PART 2 THE PRACTICE OF LAW
2.01 Duties and Responsibilities
2.02 Public Interest
2.02(1)
2.02(2)
2.02(3)
Serving the Interests of Justice
Duty to the Court
Making Legal Services Available
2.03 Advertising and Marketing Legal Services
2.03(1)
2.03(2)
2.03(3)
Advertising
Marketing Legal Services
Advertising Name of Practice
2.04 Competition and Legal Services
2.04(1)
2.04(2)
[2.04(3)
2.04(4)
Competition and Non-Lawyers
Practices with Lawyers and Non-Lawyers
Multidisciplinary Practices]
Employed Lawyers
12
2.01 DUTIES AND RESPONSIBILITIES
Discussion
At the very outset of the Code, it is desirable to state the basic principles of
professional behaviour. These are developed at greater length elsewhere in the
Code. For example, in relationship to the duty to the client detailed rules on
confidentiality and conflicts of interest are necessary, not only to spell out how the
relationship between lawyer and client must be conducted (e.g. with vulnerable
clients), but also to govern how lawyers conduct their practices (e.g. when law
practices merge) (see Part 4 below)
In addition to basic principles it may also be thought valuable to address at the
outset problems facing a particular jurisdiction. In some jurisdictions this may be
as simple as underlining the general criminal law prohibition on corrupt payments.
For example, a Code provision may require lawyers to establish systems within
their offices so that none of their clerks or employees are able to bribe court or
registry staff. In another jurisdiction a Code provision may require lawyers to
encourage compromise of legal disputes where possible and to discourage
excessive litigation. In yet other jurisdiction excessive fees or discrimination may
be problems that should be addressed by Code provisions.
Principle 2.01
(a) Lawyers must at all times maintain the honour and dignity of their
profession as essential agents of the administration of justice.
(b) As well as their duties to their client lawyers have responsibilities to the
courts and tribunals, other members of the profession and the public, and
must perform all these responsibilities with honesty, diligence and
integrity.
Source: UNHCR, §§ 12-15
13
2.02 PUBLIC INTEREST
2.02(1) SERVING THE INTERESTS OF JUSTICE
Discussion
The law is a profession and lawyers perform a special role in society in upholding
the rule of law. Thus beyond personal integrity and faithfulness to the client’s
purpose there exists a duty to the public interest, which extends beyond any duty
that exists to the client to a concern with ensuring the interests of justice.
The duties of lawyers do not begin and end with the faithful performance of what
they are instructed to do (so far as the law permits). Lawyers must serve the
interests of justice as well as those whose rights and liberties they are trusted to
assert and defend. It is their duty to plead their client's cause.
A lawyer's function therefore leads to a variety of legal and moral obligations
(sometimes appearing to be in conflict with each other) towards:
a)
b)
c)
d)
the client;
the courts and other authorities before whom the lawyer acts;
the legal profession;
the public for whom the existence of a free and independent profession,
bound together by respect for rules made by the profession itself, is an
essential means of safeguarding human rights in face of the power of
the state and other interests in society.
Principle 2.02 (1)
Lawyers’ duties go beyond their duties to their clients. Lawyers must serve the public
interest, the interests of justice and the wider public interest through safeguarding
human rights in face of the power of the state and other interests in society.
Source: CCBE, 1.1
14
2.02(2) DUTY TO THE COURT
Discussion
Central to the administration of justice are the courts. Their efficiency and
effectiveness and their standing in society turn firstly on the integrity and
independence of the judiciary. However, the conduct of lawyers and their
behaviour have a significant impact on the operation and public perception of the
legal system.
Principle 2.02 (2)
(a) Lawyers have an overriding duty to the court to act with independence in
the interests of justice: they must assist the court in the administration of
justice and must not deceive or knowingly or recklessly mislead the court.
(b) Lawyers must while maintaining due respect and courtesy towards the
court defend the interests of their clients honourably and fearlessly without
regard to their own interests or to any consequences to themselves or to
any other person.
(c) Lawyers must never knowingly give false or misleading information to the
court.
Source: BC, 302; CCBE, 4.2 – 4.3
15
2.02(3) MAKING LEGAL SERVICES AVAILABLE
Discussion
As previously mentioned lawyers have duties not only to their clients but also to
the wider public interest. An important way of fulfilling their public interest duty
is the provision of pro bono legal services, in particular to those unable to afford
them. Those legal services may be given either free or at a reduced fee. They may
be rendered to a group (a charity or faith group) or individually. By devoting time
to pro bono work, lawyers ensure access to justice for those otherwise unable to
assert their legal rights.
An issue is whether pro bono activities should be mandatory. While major
jurisdictions treat the provision of pro bono legal services as highly desirable, they
have rejected the notion of a mandatory duty. One reason for this is that it is
difficult to impose a universal duty given that lawyers have such varied practices.
For example, the lawyer concentrating on publicly funded work may already be
receiving lower fees than those who practice for large commercial clients.
In some jurisdictions the issue of fixed (scale) fees arises. While these are
generally abhorrent to competition authorities they are one way of securing access
to justice. While this is a matter of public policy the professional code may need to
contain an obligation on lawyers to comply with the scale fees and not to try to
avoid them. A related aspect is whether lawyers have an obligation to undertake
legal aid work at the rates payable by the legal aid authorities.
The third rule is drawn from of the Law Society of Upper Canada. Their
commentary to this reads, in part: “It is essential that a person requiring legal
services be able to find, with a minimum of delay, a lawyer qualified to provide
such services. The lawyer may assist in making legal services available by
participating in the Legal Aid Plan and lawyer referral services, by engaging in
programmes of public information, education or advice concerning legal matters,
and by being considerate of those who seek advice but are inexperienced in legal
matters or cannot readily explain their problems”.
Principle 2.02 (3)
[(a) Lawyers must support pro bono work, which represents a commitment to
good citizenship.]
[(b) Lawyers must comply with any fixed rates set for legal services.]
(c) Lawyers shall make legal services available to the public in an efficient
and convenient way that commands respect and confidence and is
compatible with the integrity and independence of the profession.
16
Source: LSUC, 3.04
17
2.03 ADVERTISING AND MARKETING LEGAL SERVICES
2.03(1) ADVERTISING
Discussion
Law first and foremost is a profession. That explains the nature and extent of many of the
rules of professional conduct which apply to the practice of law. Lawyers are not simply
there to make profit by representing clients. Beyond the duty to clients are the other duties
mentioned, such as to the court and the integrity of the system of justice. One aspect of
these rules has been the historic restrictions on the way lawyers can obtain their clients.
With time, however, competition policy, concerns about commercial free speech and the
desire to make members of the public aware of the legal services available, have eroded
many of these restrictions.
Many jurisdictions now permit lawyers to advertise their services, even on television,
subject to general controls to ensure honesty and decency. While the old rules on touting
and ambulance chasing are less restrictive than in the past, there might still be controls to
prevent people being misled or exploited . Trying to ensure that members of the legal
profession do not lower its standing in society might also be a factor in the continuation of
some of the earlier controls. A third factor in the remaining controls is to curb the tendency
of any member of the profession to use unfair tactics to obtain clients from others.
The problem as regards the advertising and marketing of legal services is to balance
competing goals. On the one side is the need to promote access to legal services and to
ensure the benefits of competition. On the other side is the need to maintain the standing of
the profession, to prevent unfair tactics which may harm other members of the profession,
and to prevent the public from being misled or exploited. The rules may vary according
to the degree of sophistication of the consumer and the extent to which they discount
advertising claims because of a more or less cynical view of claims made in advertising.
General rules on advertising in the Code may exist along with more specific ones. At one
end of the spectrum is a complete ban on advertising, or certain types of advertising (e.g.
on television). Along the spectrum is an approach under which only certain types of
advertising are permitted or only certain types of information can be used in
advertisements. This might be defined in general terms (for example any information
which assists the public in making an informed choice as to a provider of legal services).
Alternatively, the information permitted may be specifically defined and could be limited
to qualifications of lawyers, their specialisms and contract details.
The principle below adopts a liberal approach. So long as the information is not false or
misleading, a breach of confidentiality and is not such as to bring the profession into
disrepute, it is allowed. Specific provisions about fees and charges may be thought
necessary, such as requiring that they be clear and include disbursements and any value
added or consumption tax payable.
18
Principle 2.03 (1)
(a) Lawyers are entitled to inform the public about their services provided that
the information is accurate and not misleading, and respectful of the
obligation of confidentiality and other core values of the profession.
(b) Personal publicity by a lawyer in any form of media such as by press,
radio, television, by electronic commercial communications or otherwise is
permitted to the extent it complies with the requirements of Principle 2.03
(1)(a).
(c) Any publicity as to charges or a basis of charging must be clearly
expressed. It must be clear whether disbursements and tax are included.
Source: CCBE, 2.6; LSG, Annex 11A 1(b)
19
2.03(2) MARKETING LEGAL SERVICES
Discussion
Restrictions on “ambulance chasing” and touting are designed not only to maintain
the dignity of the legal profession but also to prevent abuse. While many
jurisdictions have loosened these restrictions, controls still operate on different
aspects of marketing. Some of these might derive from the general law and apply
to the marketing of all types of services including legal services. Others might
apply to the marketing of legal services specifically.
The issue is to balance the need to provide the public with access to legal services
on the one hand and the need to prevent its exploitation, especially when in a
vulnerable position. So unsolicited mail and even door-to-door marketing of legal
services might be acceptable, but visits to wards in hospitals to make unsolicited
contact with those injured in accidents might not be. At that point people are
especially vulnerable and their capacity for judgement is impaired.
Principle 2.03 (2)
(a) Lawyers may engage in any advertising or promotion in connection with
their practice, which conforms to the [applicable domestic law relating to
Advertising and Sales Promotion] and such advertising or promotion may
include:
(i)
(ii)
(iii)
(iv)
photographs or other illustrations of the lawyer;
statements of rates and methods of charging;
statements about the nature and extent of the lawyer’s services;
information about any case in which the lawyer has appeared
(including the name of any client for whom the lawyer acted)
where such information has already become publicly available or,
where it has not already become publicly available, with the
express prior written consent of the lay client.
(b) Advertising or promotion must not:
(i)
(ii)
(iii)
(iv)
be inaccurate or likely to mislead;
be likely to diminish public confidence in the legal profession or
the administration of justice or otherwise bring the legal profession
into disrepute;
make direct comparisons in terms of quality with or criticisms of
other identifiable persons (whether they be lawyers or members of
any other profession);
include statements about the lawyer’s success rate;
20
(v)
(iv)
indicate or imply any willingness to accept instructions or any
intention to restrict the persons from whom instructions may be
accepted otherwise than in accordance with this Code;
be so frequent or obtrusive as to cause annoyance to those to whom
it is directed.
(c) Practitioners must not publicise their practices by making unsolicited visits
or telephone calls to a member of the public.
“Member of the public” does not include:
(i)
(ii)
(iii)
(iv)
a current or former client;
another lawyer;
an existing or potential professional or business connection; or
a commercial organisation or public body.
Source: BC, 7.09-7.10; LSG, Annex 11A 1(d)
21
2.03(3) ADVERTISING NAME OF PRACTICE
Discussion
There may be restrictions on the names which legal practices use so as to avoid any
misleading impression. Some jurisdictions may take the strict view that only the
names of the partners and former partners can be used. If a more liberal approach is
taken, the name of the firm should not suggest any official connection of approval
or otherwise be misleading or deceptive. Some jurisdictions may take the view that
a geographic designation is misleading, by suggesting that the law firm is stronger
or has a greater coverage than other firms (e.g. “Ruritanian Law Firm”). It would
clearly be misleading if persons were described as partners when they were not.
Terms such as “associate”, “assistant”, “consultant” and “of counsel” may need
defining if there is no accepted meaning in a jurisdiction and lawyers are
beginning to use these on their letterhead. It may be the role of government to
protect by legislation basic titles such as “lawyer” or “advocate”.
Principle 2.03 (3)
(a) A private practice must not use a name or description that is misleading. It
would be misleading for a name or description to include the word
"lawyer", if none of the principals or directors (or members in the case of a
limited liability partnership) is a lawyer.
(b) If non-partners are named on notepaper, their status should be made clear.
A printed line is not in itself sufficient to distinguish partners from nonpartners in a list.
(c) If salaried partners’ names appear on headed notepaper of a firm in the list
of partners, they will be treated as full partners and as holding or receiving
clients’ money irrespective of whether they can operate the client account.
This is so even if the names appear on the notepaper under a separate
heading of ‘salaried partners’. Salaried partners must accept responsibility
for the books of the firm and for any breach of the [Accounts Rules], even
if they are not permitted access to the books.
(d) Salaried partners whose names appear on headed notepaper of a firm in the
list of partners, whether or not separately designated salaried partners, are
thereby held out as principals. Thus they must comply with the [Indemnity
Rules].
(e) It is improper for two sole principals to hold themselves out as being in
partnership when this is not in fact the case.
Source: LSG, Annex 11A 1(c); 3.05 (3) – (6)
22
2.04 COMPETITION AND LEGAL SERVICES
2.04(1) COMPETITION AND NON-LAWYERS
Discussion
We have seen the need for integrity and competence on the part of lawyers. We
have also touched on the public interest obligations of lawyers, including the need
to further access to justice. Part 2.03 touched on competition in shaping the way
lawyers can advertise and market their services. Another competition issue is
whether lawyers should have a monopoly on certain aspects of legal practice.
The extent to which non-lawyers should be able to practice law involves balancing
the benefits of competition and access to justice against the damage to the public
interest of unqualified persons, whose competence and integrity may not be
subject to satisfactory control, offering legal services. Lawyers authorised to
practice law must demonstrate a level of competence during their training. In many
jurisdictions continuing legal education requirements make a contribution to
lawyers’ continuing ability to meet standards of competence.
Lawyers authorised to practice law must adhere to professional standards. These
standards are policed by associations, the courts, and others. Thus, there is some
guarantee to the public and the courts that legal services will be provided with
integrity and competence. For these reasons there is a strong case to reserve the
exclusive right to provide certain legal services to lawyers.
On the other hand, monopolies may have adverse consequences, especially in
relation to price. In all countries certain parts of the community face problems in
obtaining access to justice. These factors may favour permitting non-lawyers to
offer certain legal services if there are adequate guarantees of competence and
integrity. In some countries licensed conveyancers may now provide real estate
services when these were once the exclusive preserve of lawyers. The result of this
has sometimes been a fall in the price of such services. Similarly, paralegals that
are trained in particular areas such as social welfare law provide advice and
advocacy services before tribunals. So called “bare foot lawyers” in some countries
provide basic legal services in geographical areas far from the towns where
lawyers may be based.
The difficulty is in balancing these sometimes conflicting policy issues in any
particular case. Much will turn on the circumstances of time and place. General
principles, such as confining matters to lawyers, which require an ability to relate
these to the general body and philosophy of law, are of no real assistance. Specific
areas reserved for lawyers alone must be identified. In order to guarantee the
efficient conduct of court business most jurisdictions reserve the provision of
litigation and advocacy services to qualified lawyers . As regards other areas of
legal services the key issue will be whether the competence and integrity of
paralegals can be assured in areas not reserved to lawyers.
23
Illustrative areas where the issue will need to be addressed, possibly by legislation,
are:
(a) Advocacy:
In higher courts this will generally be confined to lawyers, except for
litigants in person, but in lower courts/tribunals access to justice may
point to allowing paralegals.
(b) Conveyancing:
To bring down the price areas like conveyancing has now been opened
in many jurisdictions to non-lawyers who still, however, must be
licensed.
(c) “Do-it yourself” kits:
Many jurisdictions permit the scale of forms and kits which assist
people draft simple documents or court forms e.g. for divorce, wills.
Since the Code cannot regulate non-lawyers, restrictions must appear elsewhere,
possibly in statute, although the Courts may of their volition refuse to hear
advocates who are not lawyers. However, in advocating public policy positions on
these matters lawyers must always bear in mind Principle 2.02(3) of making legal
services available as widely as possible.
Principle 2.04(1)
[In taking a position on public policy as it relates to non-lawyers providing legal
services lawyers must bear in mind the public interest, in particular the need to further
access to justice.]
24
2.04(2) PRACTICES WITH LAWYERS AND NON-LAWYERS
Discussion
Where matters are the exclusive preserve of lawyers, such as appearing on behalf
of clients in the higher courts, decisions will need to be made as to the relationship
between lawyers and others. This may lead to rules in the Code.
Illustrative areas where the issue needs to be addressed are:
(a) delegation: As a practical matter lawyers will need to delegate some
work to non-lawyers such as clerks and secretaries. However, they must
supervise them adequately and they are ultimately responsible for the
services provided.
(b) partnership with non-lawyers. In many jurisdictions lawyers cannot
practice law and be in business with a non-lawyer in their legal practice.
If a lawyer practising law cannot be in business with a non-lawyer, the same result
should not be achievable by a more informal arrangement e.g. sharing fees or
profits. A separate rule may be required. Of course, lawyers may pay employees
from fees or profits.
Principle 2.04(2)
[A lawyer must not practise in association (including any arrangement, which
involves sharing the administration of the practice) with any person other than a
lawyer or any of the following:
(a) a foreign lawyer
(b) a person who is practicing as arbitrator or mediator
(c) a charity worker.]
Source: BC 403.1
25
2.04(3) MULTIDISCIPLINARY PRACTICE
Discussion
Multidisciplinary practice is permitted in a limited number of jurisdictions on
competition and access grounds. Where this is permitted there need to be detailed
provisions preventing conflicts of interest.
In addition, different professional bodies may have a role in regulating the
multidisciplinary practice. Thus the question arises, unless professionals from other
disciplines are able to comply with the rules applicable to lawyers the interests of
clients and the proper administration of justice may require that other professionals
may not enter in to partnership with lawyers. An example frequently quoted is the
accountancy profession, where certain reporting obligations may be irreconcilable
with the confidentiality rules applicable to lawyers.
Whether or not the lawyers’ professional body can discipline non-lawyers in
practice with lawyers, the problems resulting from inconsistent legal obligations on
lawyers and non-lawyers need to be resolved.
Principle 2.04(3)
(a) A lawyer of a multi-discipline practice must state the services or the nature
of the services provided by non-lawyer partners or associates in the
practice.
(b) A lawyer in a multi-discipline practice must ensure that non-lawyer
partners and associates comply with these rules and all ethical principles
that govern a lawyer in the discharge of his or her professional obligations.
Source: LSUC 3.05(6), 6.10
26
2.04(4) EMPLOYED LAWYERS
Discussion
Lawyers may be in business with non-lawyers as long as none of the activities of
the business consist of legal practice. The issue then becomes whether the business
activities of the lawyer affect their capacity to serve legal clients, or otherwise will
lead to breaches of the Code. We are not concerned with this aspect in this rule.
Moreover, lawyers may be employed by a business (or a government agency or
otherwise) in their capacity as a lawyer. They will need to be licensed in the
ordinary way and will be subject to professional discipline in the ordinary way.
They may simply provide legal services to their employer whether that be the
business, government agency, or otherwise. However, with employed lawyers
providing services to third party clients, restrictions will need to be placed on what
they can do. This issue also arises with multidisciplinary practices (Principle
2.04(3)).
Rule 2.04(2)
(a) Employed lawyers whilst acting in the course of their employment may
supply legal services to their employer and to any of the following
persons:
(i)
any employee, director or company secretary of the employer in a
matter arising out of or relating to that person's employment;
(ii)
where the employer is a public authority (including a government
department or agency or a local authority):
i.
another public authority on behalf of which the employer has
made arrangements under statute or otherwise to supply any
legal services or to perform any of that other public authority's
functions as agent or otherwise;
ii.
in the case of a lawyer employed by or in a Government
department or agency, any Minister or public officer;
(iii) where the lawyer is performing the functions of a judges' clerk, the
judges whom they serve;
(iv)
where the lawyer is employed by a trade association, any
individual member of the association.
(b)
An employed lawyer may supply legal services only to the persons
referred to above and must not supply legal services to any other person
while acting in the course of employment.
(i)
a lawyer employed by a lawyer or other authorised litigator or by
an incorporated legal practice may supply legal services to any
client of the employer;
27
(ii)
(iii)
(iv)
[(c)
a lawyer employed by [the Legal Aid body] may supply legal
services to members of the public;
a lawyer employed by or at a legal advice centre may supply legal
services to clients of the legal advice centre;
any employed lawyer may supply legal services to members of the
public free of charge.
An employed lawyer shall have a right to conduct litigation in relation to
every Court and all proceedings before any Court and may exercise that
right provided that they comply with [specific requirements as to training
and experience].
Source: BC, 5.01-02, 5.04
28
PART 3: Assessing and Maintaining Competence
3.01 Education and Training
3.01(1)
3.01(2)
3.01(3)
3.01(4)
3.01(5)
Entry Level Requirements for the Legal Profession
Good Character and Standing
Academic Education
Practical Training
Apprenticeship
3.02 Practising Certificates
3.03 Sheltered Practice: The First Few Years of Practice
3.04 Continuing Education
3.05 Specialist Panels
3.06 Quality Standards
29
3.01 EDUCATION AND TRAINING
Discussion:
Education and training falls into three distinct stages: academic education; practical
training and “apprenticeship”.
Applicants are admitted to the legal profession through the relevant professional
body in order to maintain standards at admission and regulate professional
standards during a lawyer’s career.
In addition the profession should be able to restrict entry to those who are of an
appropriate character and suitability. This will not be a case of permitting only
those who come from certain social, ethnic or religious background to qualify as
lawyers. However refusing entry to those with criminal records or who have
become bankrupt will need to be considered. Serious criminal offences may be an
automatic bar to entry.
In many jurisdictions the relevant law societies and bar associations have student
members and provide support and guidance for those student members. It is
sensible for students to have to join the relevant professional associations prior to
starting their practical training as a way to ensure that only those of suitable
character commence training. It may therefore be prudent to have additional rules
or guidance as to when prospective lawyers should join their professional body.
It probably matters little whether or not a student is or is not formally admitted to
the legal profession before or after completion of the apprenticeship stage of
training provided that there is sufficient opportunity for practical experience of all
the key skills such as advocacy and case preparation during apprenticeship.
3.01(1) ENTRY LEVEL REQUIREMENTS FOR THE LEGAL PROFESSION
Principle 3.01 (1)
In order to be admitted to the legal profession an applicant must:
(i)
(ii)
be of appropriate character and suitability and
have completed academic education, practical training and
apprenticeship.
Source: LSUC and Law Society England and Wales
30
3.01(2) GOOD CHARACTER AND STANDING
Discussion:
This type of rule is necessary but should not be too detailed. There may well be a
need to ensure that flexibility and discretion can be exercised in certain
circumstances. However, there ought to at least be guidance on when a person is
unlikely to be of appropriate character and suitability to guarantee consistent
application of the rule and to avoid discrimination. Examples include: an applicant
who is engaged in any occupation which is incompatible with the position of a
student seeking call to the Bar; an applicant who has been convicted of a relevant
criminal offence; an applicant who has had a bankruptcy order or director’s
disqualification imposed and an applicant who has been prohibited from practising
in any profession.
In addition, certificates of good character may need to be provided by an applicant.
This does not seem to be a particularly onerous obligation. The requirements for
any certificate might include that it is not to be provided by a person related to the
applicant and the referee must have known the applicant for a minimum period of
time. In addition it might assist if one referee is a person of standing such as a
teacher or university lecturer. Thus categories of appropriate persons may be
stipulated.
Principle 3.01 (2)
(i)
(ii)
The professional body shall issue a certificate of admission only if
it is satisfied as to the applicant’s character and suitability to
become a lawyer.
Prospective applicants must provide certificates of good character
that comply with the requirements of the professional body.
Source: Law Society E & W and Consolidated Regulations of Inns of Court, England
and Wales
31
3.01(3) ACADEMIC EDUCATION
Discussion:
Jurisdictions have different requirements for the academic stage of training: for
example a law degree and passing exams whilst working within the legal
profession.
A general rule whereby the relevant professional body issues certificates of
qualification will enable jurisdictions to develop alternative routes and processes
for qualification. Jurisdictions may also wish to consider making allowances for
the experience of mature students which is for example mandatory in the European
Union.. In addition, certificates of qualification allow for foreign lawyers with
sufficient knowledge of a jurisdiction’s laws to be excused all or some of the
requirements of academic training.
It may also be appropriate to specify a pass mark required to complete the
academic stage of training in order to maintain standards.
Principle 3.01 (3)
An applicant satisfies the academic education stage of training by:
(a) graduating with a law degree which has been approved by the professional
body
(b) [passing a common professional examination as approved by the
professional body]
(c) obtaining a certificate of qualification from the professional body
Source: LSUC and Law Society of England and Wales
32
3.01(4) PRACTICAL TRAINING
Discussion:
Prospective lawyers may also have to undertake a practical or vocational training
course. This may include or be followed by a period of “apprenticeship”.
The practical training could be provided by an external provider, independent of
the legal profession in question. The professional body will normally validate each
course so as to ensure that they provide adequate training for the prospective
lawyer. The course might teach and train students in procedural law and practice,
evidence, as well as oral and written communications skills such as drafting,
advocacy and negotiation. Some subjects may be elective to accommodate the
career paths of the student. Professional skills such as office and work
management may be covered.
To some extent the course might train students for specific activities. For example
if the training is for specialist advocates then there will be a greater emphasis on
advocacy training. If the students are to become lawyers within a law firm then
training in keeping accounts, particularly client accounts, and law firm
management are likely to be mandatory.
It is at this stage that the teaching of professional ethics and responsibility is
essential. The ethical standards of individual lawyers are as vital to the standing
and reputation of a legal profession as is the academic and technical expertise of its
members.
Principle 3.01 (4)
An applicant satisfies the practical training stage by completing an admission course
which has been approved by the professional body.
Source: LSUC
33
3.01(5) APPRENTICESHIP
Discussion:
Having completed the taught element of practical training, the student will then undertake
a work experience component of their training. This is now the worldwide trend in the
qualification for lawyers. The amount of apprenticeship (and training) depends on the
outcome expected: is the lawyer expected to be a general practitioner able to advise on a
wide range of topics with direct dealings with clients or a more specialist practitioner,
undertaking a relatively narrow range of work? Apprenticeship can take a number of
forms. A pupillage style of apprenticeship is perhaps the most appropriate where
practicing lawyers are self-employed and self-reliance needs to be learned at an early
stage. Where lawyers group together in firms and junior lawyers are employed an articling
or training contract model may be more appropriate.
The training of lawyers needs to be of a consistent standard even if the content is not
always the same. Therefore training contracts, articling or pupillage must be executed in
accordance with the guidance issued from time to time by the relevant professional body.
There also needs to be training of trainers to maintain standards. Therefore pupillage or
training contract supervisors should have minimum levels of experience and have to
register with the relevant professional body so they can receive appropriate guidance.
In addition to on the job training, apprenticeship ought to include an element of
compulsory continuing education as a bridge between the skills learnt on the training
course and the future continuing legal education required during practice.
Principle 3.01 (5)
(a) An applicant who intends to practice as a lawyer is required:
(i)
(ii)
to train as an apprentice under the supervision of a principal for an
aggregate period of not less than [12 months]; and
to complete such training after completion of the practical training
stage as may be required from time to time by the professional
body.
(b) A principal must be on the professional body’s register of approved
principals. In order to be eligible to seek approval to be a principal a
lawyer must have been in practise for not less than six years immediately
preceding the date of his application and in practise continuously for the
two years immediately preceding his application.
Source: Consolidated Regulations of the Inns of Court, England and Wales
34
3.02 PRACTISING CERTIFICATES AND INDEMNITY INSURANCE
Discussion:
The professional body needs to ensure the maintenance of standards and the easiest
way is make each lawyer periodically reapply for the right to practise. Failure to
comply with the necessary requirements (e.g. completion of the continuing
professional education requirements) will mean the practising certificate will not
be renewed. Practising certificates provide a readily ascertainable list of those
who are actually entitled to practise and, in fact, are doing so. It will also need to
be compulsory for lawyers to have indemnity insurance to cover the losses that
clients incur for any mistakes in their practice of law. Insurance may be provided
commercially or by some sort of mutual arrangement.
Principle 3.02
Lawyers may practise as lawyers provided that they have:
(a) complied with any applicable training requirements imposed by the
professional body.
(b) complied with any applicable requirements of [the Continuing Legal
Education Rules].
(c) a current practising certificate issued by the professional body.
(d) provided in writing to the professional body details of their current
practice address.
(e) made suitable arrangements for indemnity insurance.
Source: The Bar Council Code of Conduct, England and Wales
35
3.03 SHELTERED PRACTICE: THE FIRST FEW YEARS OF PRACTICE
Discussion:
Once a lawyer has completed formal training it is advisable for there to be a
restriction on their right to practice on their own. This is to ensure that the newly
qualified lawyer can be appropriately supervised in the first few years of practice
and that there is someone readily available who can give help or guidance.
For example, an advocate might be required to practice for a period of time from
chambers from which experienced advocates also practice. A lawyer may not be
permitted to establish a solo practice or become a sole principal supervising other
lawyers before a certain level of experience has been reached.
Principle 3.03
When lawyers are of less than [three] years standing their principal place of practise
must also be the principal place of practice of a qualified person who is readily able to
provide guidance to the lawyer. .
Source: The Bar Council Code of Conduct, England and Wales
36
3.04 CONTINUING EDUCATION
Discussion:
Continuing education is necessary to maintain standards of competence where the
law is constantly changing due to evolving case law and new legislation. Many
professional bodies consider that a minimum amount of continuing education is
necessary to ensure lawyers are fit to offer services to clients. In addition, lawyers
should look to extend their knowledge and skills in new directions.
The following activities could be taken into consideration for continuing education:
 Attendance at lectures, seminars, meetings and conferences
 E-learning
 Writing of articles, essays, books
 Teaching
 Any other appropriate activity recognised by the profession.
Special criteria might apply to lawyers in the first years of practice with a
requirement to undertake a particular course or a specific number of hours training
within a particular time frame; for example they could be required to undertake a
forensic accounting course within the first three years of practice. In addition a
certain number of their hours of continuing education could consist of ethics and
advocacy training.
Continuing training undertaken by lawyers should be readily evaluated which can
be done with a weighted allotment of hours/ credit points being given for the
various methods and duration of training. Control over fulfilment of continuing
training obligations (including the consequences of non-completion) could include
a system of self-certification by lawyers subject to checks and should be
administered by the competent professional body. The ultimate sanction for failing
to comply could be the withholding of a practising certificate.
Principle 3.04
(a) Lawyers to whom these rules apply must during the first three calendar
years in which he holds a practising certificate complete a minimum of
[30] hours of continuing education. [The professional body may direct
what form the hours of continuing education should take.]
(b) Any lawyer must complete a minimum of [12] hours of continuing
education during any year they hold a practising certificate.
37
3.05 SPECIALIST PANELS
Discussion:
One way in which lawyers can be encouraged to extend their legal knowledge and
experience are specialist accreditation schemes.
Accreditation panels and schemes can:
(a) promote high standards in legal service provision
(b) ensure that consumers are easily able to identify legal practitioners with
proven competency in given areas of law
(c) help consumers make informed choices
(d) offer solicitors and firms use of a recognisable brand – “Accredited by
professional body”
(e) provide information for the courts, statutory bodies and other
professionals
(f) ensure that panel members maintain relevant standards of competency
and expertise, by means of periodic reselection, re-accreditation and
reauthorisation.
There may be regulations to deal with the process through which a practitioner
becomes a specialist. There could be detailed performance targets and methods of
assessment such as exams, portfolios and interviews.
Principle 3.05
(a) The professional body shall formulate regulations to establish a
mechanism through which lawyers can become accredited specialists.
(b) To become an accredited specialist, a practitioner must:
(i)
meet the eligibility requirements; and then
(ii)
be successful in the assessment process.
(c) To be accredited in any specialty area practitioners must:
(i)
(ii)
(iii)
hold a current practising certificate;
have practised for five years on a full-time basis, or equivalent; and
for the three years prior to application’ demonstrate a substantial
involvement in the area, being not less than 25% of normal
practice.
Source: The Law Society of New South Wales
38
3.06 QUALITY STANDARDS
Discussion:
As consumers have become more knowledgeable and aware of their rights, they
have become much more demanding of those with whom they do business. In
purchasing professional services consumers expect not only a high quality of
advice, but a high quality service and that this service should be “measurable”
against external benchmarks. Furthermore, in an increasingly competitive market
lawyers need to place an ever-greater emphasis on efficiency in order to ensure
they remain cost effective and profitable. External quality standards enable
lawyers to focus on efficiency without cutting corners.
Systems of quality standards in respect of practice management and client care are
becoming increasingly common. Indemnity insurers are becoming increasingly
keen on them as an indicator that the risk of a professional negligence action is
lower. Accreditation under such schemes is achieved by way of an audit by the
awarding body with regular reviewing audits thereafter to ensure that standards are
maintained.
Principle 3.06
Lawyers must demonstrate their adherence to practice management quality standards
in the following ways: […]
39
PART 4: ETHICS AND CONDUCT
4.01 Fundamental Principles
4.01(1) Fundamental Principles
4.01(2) Integrity and Honesty
4.01(3) Duty to the Court
4.01(4) Duty to the Client
4.01(5) Duty to Other Parties
4.01(6) Duty to Partners
4.01(7) Duty not to discriminate
4.01(8) Integrity of the Profession
4.02 Instructions
4.02(1) Contracts for legal services
4.02(2) Management and administration of the Client’s affairs
4.02(3) Conducting Litigation
4.02(4) Refusing Instructions
4.02(5) Terminating legal services
4.03 Conduct of Work
4.03(1) Conduct of Work: General duties
4.03(2) Duty of Competence
4.03(3) Confidentiality
4.03(4) Conflicts of Interest
4.03(5) Compensation Fund
4.03(6) Money Laundering
4.04 Duties of Training Lawyers and Trainees
4.04(1)
4.04(2)
4.04(3)
4.04(4)
4.04(5)
4.04(6)
Duties in Training Lawyers
Duties of Training Principal
The Training Contract
Responsibility of Supervising Lawyers
Responsibilities of Trainees
Monitoring of Training
40
FUNDAMENTAL PRINCIPLES
Discussion
The right to practise law carries with it important obligations. The administration
of justice requires high ethical standards from those who are qualified to appear in
the courts. Practitioners must at all times act honestly, independently, fairly,
skilfully, diligently, and courageously. Both the court and the profession demand
all these attributes. Any failure to meet these requirements not only risks bringing
into disrepute both the legal profession and the rule of law but also of undermining
public confidence.
The profession’s ethical rules have sometimes had the appearance of protectionism
to those on the outside. They have sometimes seemed to be concerned with
attracting and retaining clients and with professional conformity. However, their
key feature must be to ensure right behaviour, the proper administration of justice
and the public interest. There will be some relationship with ordinary morality –
although that will not be an adequate guide to conduct. That is why even
“fundamental principles” need to be fleshed out in the rules.
As well as the duty to their clients, lawyers have a duty to the law, represented by
the court, and the profession as well as to take other matters into account. At the
outset it might be useful to summarise all these and to state emphatically that if
these duties are in conflict lawyers must always put the public interest, represented
by the court, first, followed by the integrity of the legal profession.
Principle 4.01(1)
(a) Lawyers must not do anything in the course of practising as a lawyer, or
permit another person to do anything on their behalf, which compromises
or impairs or is likely to compromise or impair any of the following:
(i)
(ii)
(iii)
(iv)
(v)
(vi)
the lawyer’s independence or integrity;
the lawyer’s duty to the court;
the good repute of the lawyer or of the legal profession;
a person’s freedom to instruct a lawyer of his or her choice;
the lawyer’s duty to act in the best interests of the client;
the lawyer’s proper standard of work.
Source: LSG, 1.01
41
4.01(2) INTEGRITY AND HONESTY
Discussion
The lawyer’s integrity has two bases. First, it is fundamental to the relationship
with clients. If there is any doubt about a lawyer’s honesty or loyalty, then clearly
that undermines the relationship. No matter how competent the lawyer may be,
unless they have integrity their usefulness to the client evaporates. Secondly, there
is the standing of the profession and the justice system more generally. If lawyers
lack integrity, their reputation and that of the courts where they practice are
destroyed. The rule of law suffers. As in so many areas, appearances can be as
important as reality.
The many duties to which lawyers are subject require their absolute independence,
free from all other influence, especially such as may arise from personal interests
or external pressure. Such independence is as necessary to trust in the process of
justice as the impartiality of the judge. Lawyers must therefore avoid any
impairment of their independence and be careful not to compromise professional
standards in order to please a client, the court or third parties.
This independence is necessary in non-contentious matters as well as in litigation.
Advice given by lawyers to their client has no value if it is given only to ingratiate,
to serve personal interests or in response to outside pressure. Relationships of trust
can only exist if a lawyer’s personal honour, honesty and integrity are beyond
doubt. For the lawyer these traditional virtues are professional obligations.
Principle 4.01(2)
(a) Lawyers must at all times maintain the highest standards of honesty and
integrity towards all those with whom they come into contact.
(b) Lawyers must maintain sufficient independence to allow them to give their
clients unbiased advice.
(c) Lawyers must not engage in conduct whether in pursuit of their profession
or otherwise which is:
(i)
(ii)
(iii)
dishonest or otherwise discreditable;
prejudicial to the administration of justice; or
likely to diminish public confidence in the legal profession or the
administration of justice or otherwise bring the legal profession
into disrepute.
42
Lawyers must not:
(iv)
permit their absolute independence, integrity and freedom from
external pressures to be compromised;
(v)
accept a bribe or otherwise do anything (for example accept a
present) in such circumstances as may lead to any inference that
their independence may be compromised;
(vi)
compromise their professional standards in order to please their
client, the court or a third party;
(vii) give a bribe, commission, or present or lend any money for any
professional purpose to a client or (save as a remuneration in
accordance with the provisions of this Code) accept any money by
way of loan or otherwise from a client;
(viii) make any payment (other than a payment for advertising or
publicity permitted by this Code) to any person for the purpose of
procuring professional instructions.
Source: BC, 301(a); CCBE 2.1; IBA (1995), 1, 8.
43
4.01(3) DUTY TO THE COURT
Discussion
The independence of courts and their operation in accordance with law, is
fundamental to the rule of law. Without the support of the legal profession, the
courts will not be able to carry the heavy burdens that are imposed upon them in a
democratic society. The Code must contain provisions, which underline for
lawyers the contribution which they make to this role of the courts. These
provisions are a key aspect of the obligation, which lawyers have to act in the
public interest. In certain circumstances, those obligations will be in conflict with
those of their clients.
Principle 4.01(3)
(a) Lawyers must do all in their power to uphold the independence of the
courts and other features of the rule of law.
(b) Lawyers must uphold and seek improvement in the administration of
justice, access to the legal system and the quality of service rendered.
(c) Lawyers must further the public’s understanding of and confidence in the
courts, the rule of law and the justice system.
(d) Lawyers must not make a statement that they know to be false or act with
reckless disregard as to its truth or falsity concerning the qualifications or
integrity of a judge, adjudicatory officer or public legal officer.
Source: ABA Model Rules, Preamble, 8.2.
44
4.01(4) DUTY TO CLIENT
Discussion
Devotion to the client’s interest on the part of lawyers demands commitment and
competence. One aspect is that lawyers must act towards their clients in good
faith. Conflicts of interest must be avoided. Confidentiality must be observed.
More detailed consequences of loyalty also include the principle that lawyers
should not take advantage of the age, inexperience, want of education, disability or
ill health of a client. In essence loyalty involves vigorously advancing the client’s
interests without regard to the lawyer’s own interests or the consequences which
might follow. That is what this basic rule demands. What loyalty entails is
explored elsewhere in the rules, as are its limits. Duty to the client includes a duty
to maintain the standard of service that the client is entitled to expect (see 4.02 –
4.03 below).
Principle 4.01(4)
Lawyers must promote and protect fearlessly by all proper and lawful means the
client’s best interests and do so without regard to their own interests or to any
consequences to them or to any other person.
Source: BC, 303(a); CCBE, 2.7; IBA (1995), 2.
45
4.01(5) DUTY TO OTHER PARTIES
Discussion
The duty to act with integrity and fairness is probably broad enough to cover
undertakings given between lawyers. Such undertakings must be realistic and
unambiguous and be fulfilled. Unless it is clear that undertakings are to be
fulfilled by others the lawyer bears the responsibility to ensure they are satisfied.
Moreover, the rule should catch “sharp practice” and the lawyer who takes
advantage of slips and mistakes on the part of other lawyers and of unrepresented
parties. In some cases there may be a fine dividing line between “sharp practice”
and vigorously representing the best interest of one’s client. It is clearly a
contempt of court for a lawyer to be disruptive within the courtroom. However,
the principle is more demanding in requiring civil behaviour and good faith.
Behaviour that does not amount to contempt may still require censure not only
within the court but also outside. It may be desirable that the rule extends to
communications with other parties as well.
Principle 4.01(5)
(a) Lawyers must not give an undertaking that cannot be fulfilled and must
fulfil every undertaking given.
(b) Lawyers shall be courteous, civil, and act in good faith with all persons
with whom they have dealings in the course of their practice.
(c) Lawyers must avoid sharp practice and must not take advantage of or act
without fair warning upon slips, irregularities, or mistakes on the part of
others not going to the merits or involving the sacrifice of a client’s rights.
(d) Lawyers must not in the course of a professional practice send
correspondence or otherwise communicate to a client, another lawyer, or
any other person in a manner that is abusive, offensive, or otherwise
inconsistent with the proper tone of a professional communication from a
lawyer.
(e) Lawyers must answer with reasonable promptness all professional letters
and communications from other lawyers that require an answer, and
lawyers must be punctual in fulfilling all commitments.
Source: LSUC, 6.03.
46
4.01(6) DUTY TO PARTNERS
Discussion
Partnership is based on mutual trust and partners must act towards each other in
good faith. Thus partners in a law firm must keep fellow partners fully informed,
especially about matters which may give rise to difficulties such as conflicts of
interest, or which might damage the reputation of the firm.
Principle 4.01(6)
(a) Lawyers who practice in partnership must be aware of the duty to disclose
all relevant matters to other partners. In particular they should keep them
informed of any activity that could give rise to difficulties in relation to the
obligation not to act where there is a conflict of interest, whether real or
perceived. This may include not acting where there is a conflict with the
interests of another partner or client.
(b) A partner must at all times take care to ensure that all professional
obligations are complied with so that no act or omission will cause damage
to the interests of the partnership, subject to the overriding interest of the
client.
47
4.01(7) DUTY NOT TO DISCRIMINATE
Discussion
All societies have diverse populations, some more so than others. The law may
contain statutory provisions prohibiting discrimination against sections of society.
Lawyers have a special responsibility, as guardians of the rule of law, not to
discriminate and to treat all members of a society with the equal respect demanded
by it. Thus it is entirely appropriate to have a special provision in the Code
directed at discrimination, not only in respect to members of the lawyer’s office or
chambers, but to clients, potential clients and other members of the legal
profession.
Principle 4.01(7)
(a) Lawyers owe a special duty not to discriminate. Such a duty extends to
staff in a lawyer’s office, other members of the profession and clients.
(b) Proof of discrimination does not depend on showing motive or bad faith.
48
4.01(8) INTEGRITY OF THE PROFESSION
Discussion
A well functioning legal profession, of high integrity, is the bedrock of the rule of
law. That is because courts must be able to rely unquestioningly on the profession
in the administration of justice. Moreover, where the profession calls the state to
account for breach of the rule of law, or to further values like equality before the
law and access to justice, it must be in a context where lawyers have a high probity
for honesty and public service. Otherwise the profession’s message will be buried
in an avalanche of cynical commentary. Thus each member of the profession has a
duty to uphold the integrity and reputation of the profession as a whole.
Principle 4.01(8)
(a) Lawyers must abide by the requirements for practice as a lawyer and the
rules and standards of conduct as prescribed by their professional body.
(b) Lawyers must act fairly, honestly and courteously towards professional
colleagues.
(c) Lawyers must not engage in conduct which is dishonest or otherwise
discreditable to a member of the profession.
(d) Lawyers must not engage either directly or indirectly in any occupation if
such an association may adversely affect the reputation of the legal
profession.
(e) Lawyers have a duty to report to their disciplinary body in the event of
being charged or convicted of a serious criminal offence.
(f) Lawyers have a duty to respond promptly to correspondence and to attend
before any court, tribunal, panel or person if required to do so.
(g) Lawyers must pay promptly any premiums required by the profession in
respect of professional indemnity insurance.
(h) Lawyers must ensure that the administration of their practice is efficient
and that proper records are kept.
(i) Lawyers must cooperate with investigations by the professional body.
49
4.02(1) CONTRACTS FOR LEGAL SERVICES
Discussion
It is important that lawyers do not take advantage of their clients as a result of
superior legal knowledge and expertise. They should make clear to the client the
work which they have agreed to carry out, what obligations they accept in so doing
and the cost or basis of cost on which any future bill will be based. They must
account for client money. Lawyers must also be dispassionate in the advice they
give. Without this, lawyers’ standing with clients will suffer and hence the standing
of the whole profession.
Principle 4.02(1)
Lawyers must:
(a) give information about costs and other matters; and operate a complaints
handling procedure [in accordance with the guidance issued by the
professional body].
In particular they must give the client the best information possible about
the likely overall costs, including a breakdown between fees, taxes and
disbursements and explain to the client how charges are calculated.
Lawyers should also advise the client about any potential liability for
payment of the other party’s costs and should keep the client properly
informed about costs as a matter progresses.
(b) Lawyers must ensure that the client is:
(i)
(ii)
(iii)
given a clear explanation of the issues raised in a matter and is
properly informed about the likely timescale;
given the name and status of the person dealing with the matter and
the name of the principal responsible for its overall supervision;
and
told whom to contact about any problem with the service provided.
(c) Lawyers must account faithfully for any of their client’s money which
comes into their possession and must keep such funds separate from their
own money.
(d) Lawyers must give their clients an unbiased opinion as to the likelihood of
success in their case and must not generate unnecessary work.
Source: LSG, 15.
50
4.02(2) MANAGEMENT AND ADMINISTRATION OF CLIENT’S AFFAIRS
Discussion
At the outset lawyers should always be clear with their clients about what they are
agreeing to do for them. That includes explaining not only their responsibilities
but the client’s responsibilities as well, such as disclosing information relevant to
the matter. Clients have to be given the names and contact details of those who
will be handling their case. Sometimes what steps lawyers can take will be
affected by agreements they have with third parties. An example would be an
agreement that a lawyer has with a trade union or professional association, where
the client is being funded by the association’s legal services scheme in seeking
advice or assistance. Since each of these matters may change during the course of
a lawyer’s relationship with a client, lawyers must inform clients of the changed
circumstances.
In relation to the responsibilities which lawyers take on for a client, clients must be
given a clear explanation of what the issues are and the options available. This
requires lawyers to ask clients to be very clear about their objectives in seeking
legal advice and assistance. At each step in a case, lawyers must inform the client
of progress and then agree the next step to be taken. Since lawyers may delegate
tasks to others in a law firm, they have to ensure that those undertaking the work
are competent to do so. Close supervision of these other persons is required during
the course of a matter
Principle 4.02(2)
(a) At the outset, and as necessary during the course of a matter, lawyers must
(i)
(ii)
(iii)
(iv)
agree an appropriate level of service with a client;
explain their responsibilities;
explain the client’s responsibilities;
explain any constraints or conditions resulting from any
relationship with a third party (for example a funder, fee sharer or
introducer) which may affect the steps which the lawyer will take
on the client’s behalf.
(b) Lawyers must clearly identify the client’s objectives in relation to the work
to be done for the client and give the client a clear explanation of the
issues involved and the options available.
(c) Lawyers must agree with clients each step to be taken and keep them
informed of progress, unless otherwise agreed.
(d) Lawyers must ensure at all times that those tasked with the conduct of the
matter are competent to carry out the tasks allocated to them to ensure that
adequate overall supervision is provided.
51
4.02(3) CONDUCTING LITIGATION
Discussion
Many of the principles already set out, such as integrity and diligence, are directly
applicable when lawyers conduct litigation. However, there are special problems
that arise in particular types of court proceedings for which provision may be
made. Thus criminal proceedings give rise to particular problems, as do civil
proceedings when the other side is unrepresented or when the client is a child or
has some learning or other disability. This principle sets out some more general
requirements of lawyers when they conduct litigation. For example, lawyers acting
as advocates are precisely that: they should never express personal opinions about
the merits of a client’s case or become personally identified with the client for this
can lead them to distort the argument.
Principle 4.02(3)
(a) Lawyers when conducting proceedings in court:
(i)
are personally responsible for the conduct and presentation of their
case and must exercise personal judgment upon the substance and
purpose of statements made and questions asked;
(ii)
must not unless invited to do so by the court or when appearing
before a tribunal where it is their duty to do so assert a personal
opinion of the facts or the law;
(iii)
must ensure that the court is informed of all relevant decisions and
legislative provisions of which they are aware whether the effect is
favourable or unfavourable towards the contention for which they
argue1;
(iv)
must bring any procedural irregularity to the attention of the court
during the hearing and not reserve such matter to be raised on
appeal;
(v)
must not adduce evidence obtained otherwise than from or through
the client or devise facts which will assist in advancing the client’s
case;
(vi)
must not make a submission which they do not consider to be
properly arguable;
(vii) must not make statements or ask questions which are merely
scandalous or intended or calculated only to vilify, insult or annoy
either a witness or some other person;
(viii) must if possible avoid the naming in open court of third parties
whose character would consequently be impugned;
(ix)
must not by assertion in a speech impugn a witness whom they
have had an opportunity to cross-examine unless in crossThis duty may not be required in jurisdictions which follow an “inquisitorial” method of conducting
litigation.
1
52
(x)
examination they have given the witness an opportunity to answer
the allegation;
must not suggest that a victim, witness or other person is guilty of
crime, fraud or misconduct or make any defamatory aspersion on
the conduct of any other person or attribute to another person the
crime or conduct of which the client is accused unless such
allegations go to a matter in issue (including the credibility of the
witness) which is material to the client’s case and appears to be
supported by reasonable grounds.
(b) Lawyers must always have due regard for the fair conduct of proceedings.
They must not, for example, make contact with the judge without first
informing the lawyer acting for the opposing party. Nor must they submit
exhibits, notes or documents to the judge without communicating them in
good time to the lawyer on the other side unless such steps are permitted
under the relevant rules of procedure. To the extent not prohibited by law
a lawyer must not divulge or submit to the court any proposals for
settlement of the case made by the other party or its lawyer without the
express consent of the other party’s lawyer.
53
4.02(4) REFUSING INSTRUCTIONS
Discussion
One aspect which deserves close attentions is whether a lawyer can refuse to act
for a client. This depends in part on the size of the legal profession in any
jurisdiction. With a large profession the client will have a greater chance of
finding another lawyer to help. English barristers have a strong cab-rank rule,
whereby services cannot be refused because of objections to a client’s cause.
However, other legal professions adopt a more relaxed view. The difficulty with
the relaxed view is that people may be denied legal assistance because their cause
is unacceptable, say, to a powerful government. In the absence of a cab-rank rule,
the legal profession must grapple with the issue of access to justice for those with
unpopular causes, who might otherwise be denied their legal rights.
Principle 4.02(04)
(a) Lawyers cannot withhold professional services if
(i)
(ii)
(iii)
the nature of the case is objectionable to them or any section of the
public;
the opinions or beliefs of a prospective client are unacceptable to
the lawyer;
the area of law is one which the lawyer is competent to handle.
(b) Lawyers may withhold professional services if to do so would cause
professional embarrassment. Such professional embarrassment would
arise:
(i)
(ii)
(iii)
(iv)
(v)
(vi)
if they lack sufficient experience or competence to handle the
work;
if they will be unable to do it or will not have adequate time and
opportunity to prepare that which they are required to do;
if the instructions seek to limit the ordinary authority or discretion
of a lawyer or to require the lawyer to act otherwise than in
conformity with the law;
if it would be difficult to them to maintain professional
independence or the administration of justice might appear to be
prejudiced;
if there appears to be a conflict or risk of conflict either between
the interests of the lawyer and some other person or between the
interests of any one or more clients (unless all relevant persons
consent to the lawyer accepting instructions and/or continuing to
act);
if there is a significant risk that information confidential to a client
or former client might be communicated to or used for the benefit
54
of anyone other than that client or former client without their
consent.
(c) In the event of such professional embarrassment the lawyer must cease to
act and (subject to any lien) return all papers to the client.
Source: BC, 601-604
55
4.02(5) TERMINATING LEGAL SERVICES
Discussion
Lawyers must not terminate their retainer with a client except for good reason and
upon reasonable notice. Termination should also be with reasonable notice, so as
not to leave the client in the lurch (for example, terminating on the eve of a court
hearing).
Principle 4.02(5)
(a) Lawyers must complete the retainer unless they have a good reason for
terminating it. Examples of good reasons include where a lawyer cannot
continue to act without being in breach of the rules or principles of
conduct, or where a lawyer is unable to obtain clear instructions from a
client, where there is a serious breakdown in confidence between them, or
where the client has failed to pay the agreed fees.
(b) Lawyers may only terminate legal services with reasonable notice.
Source: LSG, 12.12.
56
4.03(1) CONDUCT OF WORK: GENERAL DUTIES
Discussion
Lawyers should conduct their work in a professional manner by acting promptly,
conscientiously, diligently, reasonably, competently and efficiently with regard to
expense, court time and fulfilling any other professional engagements they may
have. It is the lawyer’s duty to recognise tasks they are unable to undertake due to
their levels of competency or time pressures, and not to agree to do such tasks that
they are unable to perform properly. Within a reasonable time of accepting work,
if it becomes apparent to a lawyer that they will be unable to fulfil their
professional engagement they must inform their client and return the instructions.
Principle 4.03(1)
Lawyers
(a) must in all their professional activities be courteous and act promptly,
conscientiously, diligently and with reasonable competence and take all
reasonable and practicable steps to avoid unnecessary expense or waste of
time and to ensure that professional engagements are fulfilled;
(b) must not undertake any task which
(i)
(ii)
they know or ought to know they are not competent to handle;
they do not have adequate time and opportunity to prepare for or
perform; or
(iii)they cannot discharge within the time requested or otherwise within a
reasonable time having regard to the pressure of other work;
(c)
must read all instructions delivered to them expeditiously;
(d)
must have regard to any relevant written standards for the conduct of
professional work as issued by that lawyer’s regulatory body;
(e)
must inform their client forthwith and, unless their client instructs them to
the contrary, return the instructions to the client or to another lawyer
acceptable to the client:
(i)
(ii)
if it becomes apparent to them that they will not be able to do the
work within the time requested or within a reasonable time after
receipt of instructions;
if there is an appreciable risk that they may not be able to
undertake the work or fulfil any other professional engagement
which they have accepted;
57
(f) must ensure that adequate records are kept supporting the fees charged or
claimed in a case and must provide their client with such records or details
of the work done as may reasonably be required.
58
4.03(2) DUTY OF COMPETENCE
Discussion
The general law imposes a duty of competence on lawyers. They must be
knowledgeable and exercise the skill they have. Not only is there a potential
liability to clients for negligent service, but there may also be liability to third
parties. To ensure lawyers have a sound knowledge of law, there are prerequisites
to the admission to practice and in many jurisdictions, obligations to participate in
continuing legal education programmes.
The duty of competence takes various specific forms, which are dealt with
elsewhere in this manual. For example, clients must be advised of the legal
consequences of any step which they propose to take, about the alternatives
available, and that any particular step ought to be taken without delay. Lawyers
must not misrepresent their competence. However, lawyers are not business
experts, and although they must advise about the legal aspects of a business
transaction they cannot be expected to offer general business advice. Nor can they
be treated as responsible if the law is unsettled or the court reverses an existing
precedent or interpretation.
Principle 4.03(2)
(a) Lawyers must advise and represent their client promptly, conscientiously
and diligently. They must undertake personal responsibility for the
discharge of the instructions given to them. They must keep their client
informed as to the progress of the matter entrusted to them.
(b) Lawyers must not handle a matter which they know or ought to know they
are not competent to handle, without cooperating with a lawyer who is
competent to handle it.
(c) Lawyers must not accept instructions unless they can discharge those
instructions promptly having regard to the pressure of other work.
Source: CCBE, 3.1.2 – 3.3.3; BC, 7.01
59
4.03(3) CONFIDENTIALITY
Discussion
The duty to maintain confidential information provided to a lawyer by a client is a
fundamental ingredient to the client’s right to proper legal representation. If a
client were concerned that information passed to the lawyer could find its way to
third parties or into the public domain, the lawyer might well in practice receive a
version of events so edited as to prevent proper advice to the client, or so as to
result in advice that was objectively incorrect, not being based on the full facts.
The duty of confidentiality means that lawyers should avoid gossip about a client’s
affairs, repeating information about a client that has been overheard and
speculation about a client. Moreover, lawyers must organise their practice to
insure that confidentiality is maintained and that employees know about its
importance. The duty of confidence also prevents use of any knowledge of a
client’s affairs to the lawyer’s personal advantage.
However, the duty to maintain confidentiality can and in many countries has been
affected by a lawyer’s duty towards the public interest as a whole, normally
particularised in the professional body’s code of conduct. For example, in some
countries a lawyer can be under an obligation to report suspected money
laundering, notwithstanding his duty of confidentiality to that client. Moreover in
many jurisdictions the client may waive the duty of confidence, although that can
only be with full knowledge of the circumstances and in clear terms.
The balance between the duty to the client and the public interest is a difficult one
and a matter for each country to determine.
The matter is relatively
straightforward when a court or tribunal requires disclosure of a matter. Money
laundering is considered below in paragraph 4.03(b) as a specific example, but the
tension arises in many other circumstances. For example, where a client makes a
statement in evidence in court, but the lawyer knows from a confidential
conversation that the client’s statement is inaccurate, should a lawyer’s duty not to
mislead the court trump his duty to maintain the confidentiality? In a legal system
where the proper way for the lawyer to act is to retire from the case, this must
effectively amount to an exception to the duty of confidentiality, since it will
probably be apparent as to what has caused such unusual behaviour on the part of
the lawyer. Many jurisdictions now also permit disclosure in breach of the duty of
confidence when a client’s behaviour threatens death or serious harm.
60
Principle 4.03(3)
(a) Whether or not the relation of lawyer and client continues lawyers must
preserve the confidentiality of a client’s affairs and must not, without the
prior consent of the client, communicate information which has been
entrusted in confidence or use such information to the client’s detriment or
to the lawyer’s or another person’s advantage.
(b) Lawyers must disclose confidential information when required to do so by
a court or tribunal or when obliged to do so by legislation.
(c) Lawyers may disclose confidential information if this is necessary to
prevent an imminent risk of the death or serious harm to an identifiable
person or group but must not disclose more information than is required.
61
4.03(4) CONFLICTS OF INTEREST
Discussion
Avoiding conflicts of interest is necessary to the reputation and integrity of lawyers
and the profession as a whole. This is not easy, because conflicts of interest are
pervasive in legal practice. Avoiding a conflict will often require a lawyer to
relinquish lucrative work although in some cases it may be possible to obtain the
fully informed consent of all parties so the lawyer can continue to act despite the
conflict. Straightforward examples of a conflict are if a lawyer buys for or sells
property to a client, or receives a legacy under a client’s will. The lawyer who acts
for a borrower and a lender, would be in a conflict situation if, say, the lender were
to sue the borrower for repayment. Similarly, the lawyer who has acted for both a
company and its directors in their personal capacity would be in a conflict situation
if there were to be a subsequent dispute between the two. However, especially in
jurisdictions where legal services are scarce, it may be that a joint retainer in the
same matter for more than one client is permissible, until these types of dispute
arise.
In the modern age conflicts may also arise as lawyers change firms or firms
amalgamate and a client now finds their former lawyer is on the other side of a
dispute. In some jurisdictions the view is taken that undertakings by lawyers, or
building Chinese walls within a law firm cannot overcome the conflicts, which
arise where, say, a lawyer working in a firm representing one client moves to a
firm which represents an opponent in litigation or where the different parts of an
amalgamated firm represented opposing clients. Where lawyers move firms
regularly, or firms amalgamate, specific guidance will be necessary. Likewise
specific guidance will be necessary if a jurisdiction permits multidisciplinary
partnerships (MDPs). These are permitted already in several jurisdictions in more
or less restricted ways. Some of these jurisdictions take the view that only a limited
number of other professions have conduct rules that are compatible with those of
lawyers, whereas others believe that, within carefully designed regulatory
structures, a wide variety of other professions and businesses can enter into joint
practice arrangements with lawyers.
Principle 4.03(4)
(a) Lawyers must not act if there is a conflict of interest.
(b) There is a conflict of interest if:
(i) the lawyer or the lawyer’s firm owe separate duties to act in the best
interests of two or more clients in relation to the same or related
matters and those duties conflict, or there is a significant risk that
those duties may conflict; or
62
(j)
the lawyer’s duty to act in the best interests of any client in relation
to a matter conflicts or there is a significant risk that it may conflict
with his or her own interests in relation to that or a related matter.
For these purposes a related matter will always include any other matter
which involves the same assets or liability.
(c) Lawyers or their firm may act for two or more clients in relation to a
matter in situations of conflict or possible conflict if:
(i)
(ii)
the different clients have a substantially common interest in the
matter or a particular aspect of it; and
all the clients have given in writing their informed consent for the
lawyer and the firm to act.
(d) Lawyers must not act against a former client or persons associated with a
former client in the same or a related matter, or if they have obtained
relevant confidential information from when previously retained.
Source:
Rules of 21st Century, Regulation Review Working Party, The Law
Society of England and Wales (April 2004)
63
4.03(5) COMPENSATION FUND
Discussion
The professional body may set up a compensation fund to cover losses incurred by
clients as a result of an act or omission of their lawyer not covered by professional
indemnity insurance, such as where clients or third parties have suffered loss by
reason of the dishonesty of the lawyer or an employee in the practice or in
connection with a trust of which a lawyer is a trustee. Furthermore, grants may
also be made in the event of hardship suffered as a result of a lawyer failing to
account for moneys due. A lawyer may be required by the professional body to
contribute to this fund. Compensation funds require careful management to ensure
perpetual liquidity. In order to ensure liquidity the professional body will have to
retain the right to exercise discretion to put caps on awards made. It is therefore
prudent for the professional body to advertise to the public that the Compensation
Fund may not be able to cover the full loss in each and every case.
Principle 4.03(5)
Lawyers must contribute to any fund maintained by the professional body to
compensate those who have suffered loss by reason of the dishonesty of a lawyer or
an employee of a lawyer in connection with the lawyer’s practice, or in connection
with a trust of which the lawyer is trustee.
Source: LSG, Annex 30B, 30.08
64
4.03(6) MONEY LAUNDERING
Discussion
Lawyers, like all citizens, must act within the law. As financial crime has
increased across the world so has the risk of lawyers being used as vehicles for
money laundering. In some countries there are, in addition to money laundering
offences that may be committed by any citizens, certain offences that are specific
to professional advisers, including lawyers. Further there are requirements upon
certain advisers, including lawyers, to report to law enforcement agencies any
suspicion that a client may have been involved in money-laundering activity. The
Code could include a requirement on lawyers to ensure that they are familiar with
the legislation that applies to them, and that they comply with it. Guidance could
be given to lawyers by the professional body as to what the legislation entails
(coupled with what might be relevant from other sources such as the Financial
Action Task Force) and as to the need for proper systems to secure compliance by
lawyers and their employees. Further guidance could also be given to lawyers
regarding the appropriate behaviour where there may be a conflict between their
obligations under the statute and their duty to their client.
Principle 4.03(6)
(a) Lawyers must ensure that they comply with all money laundering
legislation that applies to them and that they develop appropriate working
practices to ensure compliance.
(b) Lawyers must also ensure that they have in place effective systems of
training and education to ensure that all relevant employees understand the
legislation and comply with it.
65
4.04(1) DUTIES IN TRAINING LAWYERS
Discussion
The principles in 4.04 are meant to supplement the rule relating to apprenticeship
within principle 3.01 which provides a model for the duration of apprenticeship
and a minimum requirement for supervisors. This principle provides further
proposals regarding the requirements of apprenticeship or training and guidance
regarding the duties of trainees and their trainers.
The terminology used here does suggest a bias to the training contract model
whereby prospective lawyers work as trainees for a lengthy period of time
following the completion of their academic education and practical training. Only
at the end of the training contract do trainees become fully-fledged lawyers.
However, the requirements and duties expressed below ought to prove equally
useful to jurisdictions with other models of apprenticeship.
The purpose of the training contract is to give trainees supervised experience in
legal practice through which they can refine and develop their professional skills.
The training contract is the final stage of the process of qualification as a lawyer.
Trainee solicitors gain practical experience in a legal environment such as a
solicitor’s firm, a local authority or an in-house legal department.
The professional body determines the standards that must be met by trainees and
the organisations that train them. Organisations intending to provide training must
agree to meet the mandatory standards before they are authorised as training
establishments and before they offer training contracts.
In order to qualify as lawyers, trainees must be properly supervised and must
experience a certain breadth of work as well as being trained to proper standard.
Law firms must therefore adhere to certain minimum standards to ensure that
professional standards are maintained. Specialist practises may need to send their
trainees on secondment for a period of their training to ensure that the necessary
breadth of experience is obtained.
It is also important that the legal profession is a career path available to all. Law
firms need to operate an equal opportunities policy or implement the policy set
down by the professional body. Access to the legal profession may be further
widened, in particular to mature students, through allowing training contracts to be
completed part time and in some cases at the same time as vocational training.
Principle 4.04 (1)
A law firm that wishes to employ trainees must:
66
(a) appoint a training principal.
(b) provide trainees with experience in at least [three] distinct areas of law in
contentious and non-contentious work.
(c) provide trainees with sufficient opportunities to develop the skills they will
need in practice.
(d) provide trainees with regular feedback and appraisals during the training
contract.
(e) pay their trainees a salary within the guidelines set by the professional
body.
(f) provide [paid] study leave to enable trainees to complete any further
professional skills course as required by the professional body.
(g) implement the professional body’s policy on equal opportunities.
Source: “Training Trainee Solicitors, The Law Society Requirements”, The Law
Society of England and Wales
67
4.04(2) DUTIES OF A TRAINING PRINCIPAL
Discussion
Eligibility to be a training principal is dealt with in Principle 3.01. The focus here
is on the duties and obligations of any training principal.
The training principal is the individual within a law firm who has overall
responsibility for training. Each trainee will probably be assigned to an individual
supervisor who will oversee training on a day-to-day basis. However, the training
principal is responsible for training as a whole. He or she must ensure that both
trainees and their supervisors maintain standards and that trainees keep proper
records and receive all necessary feedback and support.
Principle 4.04 (2)
(a) A law firm must appoint a training principal who has responsibility for the
training of trainees within a law firm.
(b) The training principal must ensure that:
(i) anyone involved in the supervision of trainees has adequate legal
knowledge and supervisory experience or training.
(ii) trainees maintain an adequate training contract record.
(iii)trainees receive regular feedback and performance reviews including at
least [three] appraisals during the training contract.
(iv) there are suitable pastoral arrangements for trainees.
(c) At the end of the training contract period, the training principal must
certify that the trainee has met the standards required by the professional
body.
Source: “Training Trainee Solicitors, The Law Society Requirements”, The Law
Society of England and Wales
68
4.04(3) THE TRAINING CONTRACT
Discussion
This may seem beyond the scope of these rules but it is important that all parties
are clear from the outset as to the terms of that employment to protect the welfare
of trainee lawyers. They are in a vulnerable position as they are keen to impress so
they will be kept on by the firm after their training has come to an end. Setting out
in clear terms the level of remuneration and other entitlements such as holidays and
sickness benefit is very important to ensure that exploitation of trainees is avoided.
The written offer to prospective trainees should include the principal terms of the
training contract, which are likely to include:






Start and end dates.
Starting salary (including any fees).
How training will be organised; whether trainees will work in separate
departments; details of secondments, etc.
Any other benefits in kind, sickness benefit and holidays.
Office hours and hours of work.
Arrangements for continuing employment upon completion of training.
Each professional body will no doubt make detailed regulations about the practical
training that should take place during a training contract. It is suggested that the
following are important elements of all training contracts:

An induction period at the start of the training contract.

A proper breadth of experience (at least [three] distinct areas in contentious and
non-contentious work) normally through the trainee occupying seats in
different departments for several months at a time.

A focus on the trainee achieving competence according to the professional
body’s practice skills standards.

The trainee should keep a training contract record and the supervisor should
conduct regular performance reviews and appraisals.

Each trainee should have access to proper support services. This is as mundane
as ensuring a trainee has a desk, appropriate secretarial support and access to a
library and all necessary research materials.
Each professional body will no doubt make detailed regulations about what the
practical skills trainees are expected to learn. The following is a suggested list of
headings: advocacy and oral presentation; case and transaction management; client
care and practice support; communication skills; dispute resolution; drafting;
interviewing and advising; legal research; and negotiation.
69
Principal 4.04 (3)
(a) When offering trainee contracts lawyers must send applicants a written
offer detailing all the principal terms of the training contract.
(b) Before the start of training the trainee and training supervisor must sign the
training contract.
(c) Each training contract must be lodged with the professional body no later
than 28 days after the start of the contract.
(d) The content of each training contract must comply with the regulations set
down by the professional body.
70
4.04(4) RESPONSIBILITY OF SUPERVISING LAWYERS
Discussion
Most organisations employ trainees anticipating that they will contribute to the
future development of the business. Good training demands significant time and
resources . Good supervision is vital to ensure that trainees make a worthwhile
contribution during their training and remain motivated and committed.
The supervisor’s role in training should not be underestimated; the supervisor is
responsible for providing practical day-to-day training and for giving trainees
appropriate opportunities to develop their legal skills and knowledge.
On a day-to-day basis and throughout the training contract, trainees may be
supervised by a number of different people within the law firm – including lawyers
or experienced legal executives. The training principal must ensure that anyone
who supervises trainees has the appropriate legal knowledge and supervisory
experience or training to perform the role effectively. Supervisors must be
allocated adequate time and resources, and they must demonstrate a sound
understanding both of the training requirements and of all that is expected of them
as supervisors.
Principle 4.04 (4)
Every lawyer supervising trainee lawyers must:
(a) allocate work and tasks of an appropriate level, gradually increasing the
level and the complexity of the work over time, while encouraging the
trainee to suggest solutions independently
(b) provide a balance between substantive and procedural tasks that – as a
whole –demands the use of a broad range of skills
(c) provide clear instructions and ensure that they have been understood
(d) offer advice and guidance on appropriate research methods and materials
along with sufficient information and factual background about a case or
matter
(e) set a realistic time-scale for work to be completed and answer questions as
they arise, within a supportive environment that does not deter the trainee
from asking questions in the future
(f) monitor the trainee’s workload to ensure they have a sufficient but not an
excessive amount of work
71
(g) ensure that the trainee maintains an up-to-date training record that
identifies the work they have performed and the skills they have deployed
(h) review the training contract record regularly to ensure that an appropriate
balance of work and skills is struck
(i) give regular feedback to the trainee regarding their performance,
recognising achievements and improvements, and constructively
addressing areas that require further effort
(j) conduct or participate in formal appraisals of the trainee
(k) provide an environment that encourages the trainee to take responsibility
for their own development
Source: “Training Trainee Solicitors, The Law Society Requirements”, The Law
Society of England and Wales
72
4.04(5) RESPONSIBILITIES OF TRAINEES
Discussion
Training is not a one-way process; trainees have responsibilities and obligations
under the training contract. Trainees must ensure they understand their duties under
the training contract, that they are familiar with the training requirements and that
they know what they are expected to achieve during the training.
The responsibilities below are the additional responsibilities of trainees. The duties
of all lawyers in relation to confidentiality and conflicts of interest etc apply
equally to trainees and they should be expected to consult with their supervisors if
they run into any ethical difficulties in these areas.
Principle 4.04 (5)
Each trainee lawyer must:
(a) maintain an up-to-date training record of the work they have done linked
to the skills standards.
(b) develop good working practices by managing their time, effort and
resources effectively.
(c) raise any concerns with their training principal (for example, if they are
not being given the necessary breadth of training in [three] areas of law).
(d) seek clarification from their supervisor if they are unsure about the work
they have been given.
(e) inform their supervisor if they are given too much or too little work or if
the work given is too challenging, not challenging enough or not varied.
(f) inform their supervisor as soon as possible if they make a mistake
(g) be open and honest when they are given feedback on their work and during
performance reviews.
(h) satisfactorily complete any additional courses as required by the
professional body before the end of the training contract and before they
apply for admission.
Source: “Training Trainee Solicitors, The Law Society Requirements”, The Law
Society of England and Wales
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4.04(6) MONITORING OF TRAINING
Discussion
The professional body ought to monitor training establishments to ensure that they
are providing adequate training. The purpose of a monitoring scheme is to identify
and recognise best practice and, where necessary, to provide guidance and advice
on training improvements.
Training principals and trainees could be asked to complete questionnaires
detailing how the training requirements are being satisfied. Thereafter the
professional body could select certain organisations and firms for a monitoring
visit. A qualified lawyer with experience of training and the training requirements
would undertake the visit. During the visit, the monitor could discuss the training
provision with the training principal and trainees and with others involved in
training. At the end of the visit, the monitor would meet with the training principal
to discuss areas of best practice and to agree any actions that may be needed for
improvement. A monitoring report would be sent after the visit to the training
principal and the trainees interviewed.
Principal 4.04 (6)
The professional body shall formulate regulations to provide for the auditing /
monitoring of the training provided to trainees in order to maintain professional
standards and promulgate best practice.
Source: “Training Trainee Solicitors, The Law Society Requirements”, The Law
Society of England and Wales
74
PART 5. MAINTAINING AND REVIEWING ETHICS AND CONDUCT
5.04 Establishing Rules of Conduct
5.05 Status of the Codes
5.06 General Areas Covered by the Codes
5.04 Making the Rules
5.05 Waivers
5.06 Training in Ethics
75
5.01 ESTABLISHING RULES OF CONDUCT
Discussion
There is nothing, in principle, to prevent a Code of Conduct from being enshrined
in statute. It might better ensure that the profession adhered to the Code and that
there were real sanctions where there had been a breach of the Code. Without
statutory backing membership of the professional body of lawyers enforcing the
Code needs to be compulsory for it to be effective. However, there is an argument
that a Code of Conduct should not form part of legislation:
(a) A government in the future may wish to interfere with the freedom of
the profession and could amend the Code of Conduct to limit the
independence of lawyers.
(b) A member of the profession who does not support the government that
enacts the Code may feel less willing to comply with it.
(c) The profession loses control of its own regulation.
(d) The statute may be open to endless appeals, which would bring it into
disrepute.
(e) Responsibility for framing the Code of Conduct will be in the hands of
people who may not understand some of the complexities of practice.
This may lead to unworkable or unjust rules being forced on the
profession.
(f) If amendments to the Code were considered necessary by the
profession, they may be long delayed by the legislature, which may
have more important issues on which to legislate.
A more balanced solution may be for the Code of Conduct to be given legislative
authority by a statutory framework being laid out for the regulation of the
profession and for the creation of and amendment of the Codes administered by the
profession.
To ensure both public acceptance and a degree of control, a
requirement that a senior judge agrees the Code of Conduct and any amendments
(the Chief Justice or equivalent within the jurisdiction in which the Code is to
apply, or a delegated senior judge) is a possible safeguard. If the senior judiciary
are split into heads of different parts (e.g. court of appeal, trial courts), then it may
be wise to seek agreement from each of the judges who head each of the parts.
This also ensures that the judiciary are more likely to accept it as an authoritative
Code on the strength of which they may feel able to make complaints to the
governing body of the profession in respect of a lawyer’s behaviour in court. If
there is a way of bridging the potential gap between the legislature and the
profession, it should be considered. By way of example, there may be an
independent Attorney General. This means that the Attorney General can be a
channel whereby any disquiet could be made known, for instance, the drafting of a
Code of Conduct or any amendment to it. What must not be permitted is for the
government to interfere with professional standards for political reasons.
76
Principle 5.01
A Code of Conduct must be
(i)
(ii)
(iii)
free from political interference;
owned by the profession; and
subject to outside supervision and control in the public interest
through the courts and other comparable mechanisms, independent
of Government.
77
5.02 STATUS OF THE CODES
Discussion
Because there need to be sanctions for breaches of the Code of Conduct, the Code
must be both accepted and respected by the profession. The most effective way to
ensure this if the Code is not subject to statute or, alternatively, some form of
subordinate legislation, is to make membership of the profession subject to
acceptance of the Code of Conduct and the disciplinary bodies that enforce the
Code. In some countries, the lawyer will be required to swear an oath before a
senior judge. In such a situation the oath could contain a statement that the lawyer
will be bound by the Code of Conduct. Whilst such a system could be criticised as
amounting to no more than “club rules”, the fact that lawyers bind themselves to
abiding by the Code of Conduct, together with the serious effect on their ability to
practice if they transgress the Code, should be sufficient to ensure that the Code is
respected by the profession and that the public accept it as a disciplinary code
which must be obeyed by members of the profession.
Principle 5.02
[A Code of Conduct must be enforceable as a matter of legal obligation or by other
mechanisms such as an undertaking to the court or the professional body.
This means that the professional body is given the right to award and – as the ultimate
disciplinary sanction – take away the lawyer’s professional title. To make that
sanction effective it may be necessary to create an offence which punishes anyone
who holds himself or herself out under the professional title without the permission of
the professional body. See also 6.05 below.]
78
5.03 GENERAL AREAS COVERED BY THE CODES
Discussion
Decisions need to be taken as to how far reaching the Code of Conduct will be. By
way of example, will it regulate both professional misconduct and personal
misconduct, which is likely to bring the profession into disrepute? Will it extend
to behaviour out of the jurisdiction?
Decisions will need also to be made as to whether the rules are to be specific in
nature and, perhaps, as a result long and complex in terms of drafting, or are they
to be general rules of conduct which can apply to a wide variety of different
situations. To what extent should mandatory rules be coupled with aspirational
standards? Should the Code of Conduct also provide subsidiary guidance to the
profession against which to decide whether there has been a breach of the Code?
Because there are an infinite variety of situations that lawyers can face in
professional practice, and the possibility that an act, which may plainly amount to
misconduct in one set of circumstances may be excusable in other circumstances,
there are arguments for laying down principles within the Code of Conduct, the
breach of which will amount to misconduct. Specific acts should amount to
misconduct only where this is necessary, e.g. a failure to carry insurance.
In addition to the sections of the Code it may be helpful to provide guidance as to
what is good practice. The guidance can cover specific areas such as international
practice rules or rules for criminal or family practice. This system, whereby
fundamental principles are coupled to general guidance, provides the following
benefits:




Lawyers feel that they are receiving guidance within the Code as to how
they are to avoid breaching them.
Lawyers have fewer specific rules to retain in their mind.
It is less likely that amendments will need to be made to the fundamental
principles. The guidance could be varied to suit novel situations without
affecting the general principles.
Non-mandatory guidance which lawyers must have regard to imposes on
lawyers an obligation to have a good reason to ignore it.
79
Principle 5.03
A lawyer may be disciplined for professional misconduct and for conduct
unbecoming a lawyer, wherever occurring.
“Conduct unbecoming a lawyer” means conduct in a lawyer’s personal or
private capacity that tends to bring discredit upon the legal profession
including, for example:
(a) committing a criminal act that reflects adversely on the lawyer’s honesty,
trustworthiness, or fitness as a lawyer;
(b) taking improper advantage of the youth, inexperience, lack of education, a
lack of sophistication, ill health, or un-businesslike habits of another; or
(c) engaging in conduct involving dishonesty.
Source: LSUC, §§1.02, 6.11
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5.04 MAKING THE RULES
Discussion
Drafting rules of conduct is difficult and time-consuming work. It ought to be
delegated, initially, to a committee of the governing body of the profession. That
committee should become a permanent committee to suggest and draft
amendments to be considered from time to time.
That committee will need to be made up principally of practising lawyers who
specialise in a wide range of different areas of law. In order to maintain public
confidence in the ability of the profession to regulate itself, it is good practice to
have lay members on the panel. Experience has shown that very often it is the lay
members who spot the lacunae in what is proposed and who are better attuned to
the public acceptability of the Code than the lawyer members of the committee.
Similarly, if the judiciary are willing to be represented on such a committee, their
experience and their perception as judges in front of whom lawyers appear may
enhance the drafting of the Code. Finally, consideration needs to be given to
whether the government should have a representative on the committee.
Once the rules or any amendments have been drafted, they should be presented to
the profession generally for debate and further amendment. Once in their final
form, the following further steps may be taken before they are adopted and become
effective:
(a)
(b)
a copy to be provided to the government’s senior law officer for any
comments.
a copy to be provided to the senior judge within the jurisdiction for any
comments.
The process of amending the Code of Conduct should be kept as free from
technicalities as possible. Any suggestions for amendment can either come from
the delegated committee or be sent to them for draft amendments. The process for
adoption should be the same as for the drafting of the original Code.
There are certain areas of the Code which may be affected by laws already existing
and which it is important to ensure that the Code does not breach. By way of
example, the profession will need to have in mind that the Code should not breach
any enactments in respect of unfair competition, or that any rules are not
inadvertently contrary to laws preventing discrimination. In such circumstances, it
is a wise precaution to involve any public or private bodies, which have specific
responsibility for monitoring or controlling such practices before adopting a rule
which may afterwards be found to contravene legislation or good practice.
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5.05 WAIVERS
Discussion
Any system, which sets down a set of rules for general use by the profession, is
bound to face occasions where their implementation may cause real hardship or
unfairness in a specific case. Of course the more prescriptive a code is the more
the need for waivers. By way of example the requirements laid down in respect of
completion of traineeship before being permitted to practice may not apply
satisfactorily in every case. Is it, for instance, fair to expect a mature and highly
regarded professor of law, who has not until now professionally qualified, to
complete the same period of training as a newly qualified student?
In order to avoid hardship in individual cases, the Code may permit applications to
be made for a “waiver” to be granted in exceptional circumstances. At least two
issues arise:
(a)
(b)
An appropriate committee needs to function and meet regularly to
consider such applications. A decision has to be made as to whether the
appropriate committee is the committee which is responsible for
drafting amendments to the Code and who may be considered the
specialists in interpreting the Code and the effect of any waiver on
general principles, or whether it should be the body that is entrusted
with deciding in what circumstances a lawyer ought to be prosecuted
for a potential breach of the Code. In either case the committee ought
to act transparently.
Waivers ought not to be used for circumventing particular sections of
the Code but only where the particular circumstances of the individual
require in fairness a waiver to be granted. Waivers must be justified
and reasoned. In any other situation, it will be for the committee
responsible for suggesting amendments to the Code to consider whether
the Code itself needs to be changed.
Principle 5.05
Waivers under the Code provisions must be granted in a principled, reasoned and
transparent manner.
82
5.06 TRAINING IN ETHICS
Discussion
Whilst, if the Code is well drafted and realistic in its aims, most potential problems
faced by members of the profession will be determined by their own good sense,
there is a requirement to provide training in ethics and familiarity with the Code
from an early stage.
Ideally, training in ethics should form a part of the training and examinations
undertaken before a person is called to the bar. Thereafter a requirement of a
certain number of hours training in ethics conducted by law teachers and by
practising members of the profession who themselves encounter ethical problems
should be a requirement. Such a system can be developed by the requirement for
lawyers to complete a stated number of hours training in ethics during each of their
first few years in practice. Many jurisdictions have made it a requirement of
professional practice that every member of the profession complete a certain
number of hours of Continuing Professional Development in a wide range of
subjects each year, high in the first years of practice and possibly reducing after a
number of years. Failure to complete the hours is professional misconduct and
prevents lawyers obtaining their annual certificate to practice. Professional
conduct should be part of this CPD.
Principle 5.06
Training in ethics must be a compulsory part of the education, training and continuing
professional development for all lawyers.
83
PART 6. ENFORCEMENT
6.01 Sanctions for Breach of Rules
6.02 Temporary Suspension
6.03 Suspension and Fitness to Practice in Cases of Ill Health or Mental
Illness
6.04 Powers of Investigation
6.05 Enforcement
6.06 Costs
84
6.01 SANCTIONS FOR BREACH OF RULES
Discussion
It is important to provide a full range of options to a tribunal or other body which
has to deal with a lawyer who has been found guilty of professional misconduct.
Because professional misconduct may encompass a wide range of wrongdoing,
from the almost technical to the very grave, it is essential that there is a similarly
wide range of penalties. Each penalty can be used independently or in conjunction
with other penalties. The main penalties are:
Disbarment:
Loss of the right to practice for life. It may be appropriate to
provide for an application after a stated period for re-admittance to
the profession.
Suspension:
Suspension from practice for a set period.
Restrictions on Practice: Power to require a lawyer to work with another lawyer,
or to work in only a particular way, for example not to undertake
training or to be deprived of publicly funded work.
Fine:
Payable to the professional body.
Fees:
A lawyer may be ordered to reduce the fees charged to a client or to
waive any fees.
Compensation: Payment to the client where the client is the complainant.
Reprimand:
Warning or reprimand from the tribunal as to how the lawyer ought
to behave in the future which remains on their record and which
would become relevant if they committed an offence of misconduct
in the future.
Remedial Training: A requirement that the lawyer attend further courses of
Continuing Professional Development training in an area of weakness.
Apology: To the client or other aggrieved individual (perhaps a judge or other
lawyer) in writing.
Attendance:
To attend the court, the president of the professional body or, if
delegated, the professional conduct committee.
Different powers may be available depending on the level of disciplinary body
trying the accused lawyer (and, in theory, therefore, the nature of the misconduct
alleged). All options could be open to those tribunals trying the most serious
complaints (e.g. the court) but, if there is to be a second, lower, tier of tribunal (a
summary tribunal), the most grave sanction of disbarment would not be available
and the period of suspension available as a sanction would be limited (say, to six
months).
85
Principle 6.01
(1)
The following sanctions may be imposed on lawyers in breach of the rules:
(a)
(b)
(c)
(d)
(e)
(2)
As a sanction a lawyer may be ordered
(a)
(b)
(c)
(d)
(e)
(3)
disbarment
suspension;
a fine;
a reprimand; or
to issue an apology.
to work with another lawyer;
not to undertake training;
to be deprived of any publicly funded work;
to undertake remedial training; or
to pay compensation to the client, to reduce the fee or not to impose a
fee at all.
Any one or a combination of the sanctions set out may be imposed.
86
6.02 TEMPORARY SUSPENSION
Discussion
Where the alleged misconduct is very serious it is worthwhile providing the power
to suspend the lawyer from practice pending the outcome of the disciplinary
proceedings. To take an example, if a lawyer practising criminal law is prosecuted
for rape of a young child, the public may feel disquiet if he was able theoretically
to continue to accept instructions to prosecute or defend in cases where a similar
allegation is tried. The relevant disciplinary body could either suspend the lawyer
from practice until the hearing has been concluded, or, in appropriate cases, restrict
the type of work the lawyer may undertake.
Principle 6.02
In serious cases the relevant disciplinary body may make interim orders pending a full
hearing suspending a lawyer from practice or restricting the work undertaken.
87
6.03 SUSPENSION AND FITNESS TO PRACTICE IN CASES OF ILL
HEALTH OR MENTAL ILLNESS
Discussion
It is necessary to provide for a power to suspend a lawyer from practice on grounds
of health or mental infirmity. Because of the potential hardship to the lawyer of
the loss of livelihood, it is an appropriate safeguard that there be a medically
qualified member of the panel who specialises in the relevant field of expertise.
There needs thereafter to be a hearing when it is thought that the disability may
prevent the lawyer from practising long term. As with disbarment, there should be
a right to apply to be re-instated if the lawyer recovers from the illness that has
prevented practice.
Principle 6.03
The relevant disciplinary body may suspend a lawyer from practice on grounds of ill
health or mental infirmity, and may reinstate the lawyer once having recovered.
88
6.04 POWERS OF INVESTIGATION
Discussion
There must be powers to aid the investigation of alleged misconduct and to protect
the public. Those powers ought to include:
(a) A requirement to respond to a complaint or inquiry within a set period
[14 or 28 days]. This power must be exercisable not only against the
lawyer under investigation but any member of the profession from
whom the body dealing with the matter needs relevant information.
(b) A power to inspect professional premises. A number of complaints
may arise into aspects of the way a practice is run and administered.
There needs to be a power to require a lawyer to permit those
investigating a complaint to attend the offices and see such records as
are required as part of the investigation. Documents to which legal
professional privilege may apply could not be inspected without the
leave of the client, who is entitled to waive privilege.
(c) A power to request copies of documents relevant to a complaint being
investigated.
(d) A power to call for copies of accounting records, insurance particulars,
records of continuing professional development hours and other
documents which may be relevant to whether the lawyer is complying
with professional duties under the Code of Conduct.
(e) A power to intervene in a professional practice which results in bank
accounts being frozen, another lawyer being appointed to carry on the
practice [in relation to urgent matters], and sale of the practice.
Every power requires a sanction; failure to comply with such requests
should in itself be misconduct.
Principle 6.04
Lawyers must cooperate with the body investigating professional misconduct. That
body must have powers to require the production of information, the answering of
questions, the copying of any documents not covered by legal professional privilege
and the inspection of professional premises. Failure to cooperate is itself misconduct.
89
6.05 ENFORCEMENT
Discussion
In the case of a disbarred or suspended lawyer attempting to continue in practice, it
ought not to be hard to dissuade any professional client from making use of their
services. In addition, the courts will not be willing to hear a lawyer who had been
disbarred or suspended. However, there should be a reserve power to involve the
courts in the enforcement of orders.
In relation to lesser penalties, by making a failure to comply with an order itself
professional misconduct it would be possible to impose a heavier sanction,
including disbarment, on a lawyer who failed to comply with the order of the body
which found him guilty of professional misconduct.
Principle 6.05
Failure to comply with a disciplinary order is itself misconduct under the Code.
90
6.06 COSTS
Discussion
An issue, which has caused considerable controversy in some jurisdictions, has
been the issue of applying for costs against a lawyer who has been found guilty of
professional misconduct and the award of costs against the tribunal where the
lawyer has successfully defended a complaint of misconduct.
Hearings before the tribunal may be conducted by lawyers appearing pro bono for
the accused lawyer and the profession. However, with the complexity of some
complaints, lawyers’ accused of misconduct may choose to instruct other lawyers.
The costs can become very substantial and it may work unfairly to acquitted
lawyers if they cannot claim costs from the other side. Similarly, there is an
argument that honest and hardworking lawyers should not have to pay higher
subscriptions in order that dishonest or disreputable lawyers should be prosecuted
for misconduct without those lawyers being asked to pay for or contribute to the
costs of the proceedings. Consequently, the position may be that the tribunal does
not have power to award costs against either side and the costs lie where they fall.
On the other hand, the professional body may make rules on the basis of a “polluter
pays” principle.
Principle 6.06
[Costs of any proceedings under this part are to be paid for by the parties themselves.
OR:
The Tribunal shall have powers to make such orders for costs, whether against or in
favour of the defendant as it shall think fit.]
91
PART 7 COMPLAINTS PROCEDURE
7.01
Complaints Procedure
92
7.01 COMPLAINTS PROCEDURE
Discussion
The profession will need to have a complaints procedure for members of the
public. Ultimately that needs to be coupled with an insurance fund when a client
has suffered loss. Complaints may be resolvable between a lawyer and client
without any suggestion of professional misconduct. For example, if the complaint
is about overcharging, intervention by the professional body may lead to a
reduction in the fee. Sometimes, however, a complaint will uncover misconduct
on the part of the lawyer that demands investigation by the professional body and
possibly formal proceedings and sanctions against the lawyer.
Unless a client suspects serious unethical or unprofessional conduct the first step
will be for the client to discuss the matter with the lawyer. Only where the matter
cannot be resolved in an amicable manner will the professional body be involved.
The procedures should be set out in the rules or otherwise easily available. They
must be simple and understandable. A complaint form will draw a complainant’s
attention to the information that is required for the matter to be taken forward.
Complainants have a right to be treated professionally, and with courtesy and
candour. The professional body must acknowledge complaints when they are
lodged and keep the complainant regularly informed about progress of the matter.
The majority of complaints will probably be about the level of service provided by
the lawyer to a client and should be resolvable once the professional body
intervenes. In the case of misconduct, however, the matter will be referred to an
investigation department for possible hearing before a disciplinary tribunal.
Ultimately bodies independent of the professional association will be necessary.
First, there is a strong argument for an independent ombudsman to investigate
where a complainant is unhappy with the outcome of any resolution achieved or
the dismissal of a complaint. That ombudsman should have the power of
independent inquiry or the capacity to require a matter to be reinvestigated.
Secondly, there needs to be a tribunal, independent of the professional body, to
hear allegations of misconduct. From the point of view of complainants, they need
to be kept informed of progress, especially if a matter is withdrawn or dismissed.
The reasonsof the tribunal may be adequate for this purpose. The tribunal will
comprise lawyers, with lay representation, or an ordinary existing court may
perform the function of the tribunal. In any event, the tribunal or court will need to
develop a procedural code for the hearing of any misconduct allegation.
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Principle 7.01
(1)
Any member of the public, another lawyer or a judicial officer can make a
complaint about a lawyer (hereafter called the “complainant”).
(2)
A complainant should at all times be treated professionally and with courtesy,
respect and candour by staff of the professional body, and should be provided
with full information about the processes. Communications should be in
“plain language” and readily understandable.
(3)
The professional body shall assist a complainant, where necessary, in making
a complaint about a lawyer and must keep the complainant regularly informed
of progress on the complaint every [60] days.
(4)
When a complaint is dismissed, or where disciplinary action has been taken
but then is withdrawn once it is before the tribunal or court, the reasons for
this must be explained to the complainant.
(5)
Complainants unhappy with the way a complaint is handled may complain to
[the independent complaints ombudsman], who can order a reinvestigation of
the matter.
(6)
A tribunal to consider allegations of lawyer misconduct must be independent
of the professional body of lawyers. It can be constituted of [3] persons acting
in a quasi-judicial capacity. If so there must be at least [1] lay representative.
Otherwise the court can perform the function of tribunal [for serious cases].
The case against the lawyer will be brought on behalf of the professional body.
[Generally, hearings of the tribunal should be open to the public.] The
tribunal must give reasons for a decision, which must be publicly available.
94