PART 1: THE NATURE OF RULES OF PROFESSIONAL CONDUCT
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
[pic]
London, January 2007
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 .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, Ross Cranston QC,
Chairman of the Bar Council Editor and member of the International Relations Committee of the Bar Council
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
TABLE OF CONTENTS
PART 1. THE NATURE OF RULES OF PROFESSIONAL CONDUCT
1.01 The Lawyer’s Duties Regarding Rules of Professional Conduct
24 Nature of “Public Interest
PART 2 THE PRACTICE OF LAW
2.01 Duties and Responsibilities
2.02 Public Interest
2.02(1) Serving the Interests of Justice
2.02(2) Duty to the Court
2.02(3) Making Legal Services Available
2.03 Advertising and Marketing Legal Services
2.03(1) Advertising
2.03(2) Marketing Legal Services
2.03(3) Advertising Name of Practice
2.04 Competition and Legal Services
2.04(1) Competition and Non-Lawyers
2.04(2) Practices with Lawyers and Non-Lawyers
[2.04(3) Multidisciplinary Practices]
2.04(4) Employed Lawyers
PART 3: Assessing and Maintaining Competence
3.01 Education and Training
3.01(1) Entry Level Requirements for the Legal Profession
3.01(2) Good Character and Standing
3.01(3) Academic Education
3.01(4) Practical Training
3.01(5) 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
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) Duties in Training Lawyers
4.04(2) Duties of Training Principal
4.04(3) The Training Contract
4.04(4) Responsibility of Supervising Lawyers
4.04(5) Responsibilities of Trainees
4.04(6) Monitoring of Training
PART 5. MAINTAINING AND REVIEWING ETHICS AND CONDUCT
01. Establishing Rules of Conduct
02. Status of the Code
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
6.06 Costs
PART 7 COMPLAINTS PROCEDURE
7.01 Complaints Procedure
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
1.01. LAWYERS’ DUTIES REGARDING RULES OF PROFESSIONAL CONDUCT
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)
1.02. NATURE OF 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.
PART 2 THE PRACTICE OF LAW
2.01 Duties and Responsibilities
2.02 Public Interest
2.02(1) Serving the Interests of Justice
2.02(2) Duty to the Court
2.02(3) Making Legal Services Available
2.03 Advertising and Marketing Legal Services
2.03(1) Advertising
2.03(2) Marketing Legal Services
2.03(3) Advertising Name of Practice
2.04 Competition and Legal Services
2.04(1) Competition and Non-Lawyers
2.04(2) Practices with Lawyers and Non-Lawyers
[2.04(3) Multidisciplinary Practices]
2.04(4) Employed Lawyers
2.01 DUTIES AND RESPONSIBILITIES
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
2.02 PUBLIC INTEREST
2.02(1) SERVING THE INTERESTS OF JUSTICE
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
2.02(2) DUTY TO THE COURT
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
2.02(3) MAKING LEGAL SERVICES AVAILABLE
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.
Source: LSUC, 3.04
2.03 ADVERTISING AND MARKETING LEGAL SERVICES
2.03(1) ADVERTISING
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)
2.03(2) MARKETING LEGAL SERVICES
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) photographs or other illustrations of the lawyer;
(ii) statements of rates and methods of charging;
(iii) statements about the nature and extent of the lawyer’s services;
(iv) 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) be inaccurate or likely to mislead;
(ii) be likely to diminish public confidence in the legal profession or the administration of justice or otherwise bring the legal profession into disrepute;
iii) make direct comparisons in terms of quality with or criticisms of other identifiable persons (whether they be lawyers or members of any other profession);
iv) include statements about the lawyer’s success rate;
v) 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;
iv) 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) a current or former client;
ii) another lawyer;
iii) an existing or potential professional or business connection; or
iv) a commercial organisation or public body.
Source: BC, 7.09-7.10; LSG, Annex 11A 1(d)
2.03(3) ADVERTISING NAME OF PRACTICE
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 non-partners 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)
2.04 COMPETITION AND LEGAL SERVICES
2.04(1) COMPETITION AND NON-LAWYERS
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.]
2.04(2) Practices with lawyers and non-lawyers
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
2.04(3) MULTIDISCIPLINARY PRACTICE
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
2.04(4) employed lawyers
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;
ii) a lawyer employed by [the Legal Aid body] may supply legal services to members of the public;
iii) a lawyer employed by or at a legal advice centre may supply legal services to clients of the legal advice centre;
iv) any employed lawyer may supply legal services to members of the public free of charge.
[(c) 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
PART 3: Assessing and Maintaining Competence
3.01 Education and Training
3.01(1) Entry Level Requirements for the Legal Profession
3.01(2) Good Character and Standing
3.01(3) Academic Education
3.01(4) Practical Training
3.01(5) 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
3.01 EDUCATION AND TRAINING
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) be of appropriate character and suitability and
ii) have completed academic education, practical training and apprenticeship.
Source: LSUC and Law Society England and Wales
3.01(2) GOOD CHARACTER AND STANDING
Principle 3.01 (2)
(i) 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.
(ii) 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
3.01(3) ACADEMIC EDUCATION
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
3.01(4) PRACTICAL TRAINING
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
3.01(5) APPRENTICESHIP
Principle 3.01 (5)
a) An applicant who intends to practice as a lawyer is required:
i) to train as an apprentice under the supervision of a principal for an aggregate period of not less than [12 months]; and
ii) 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
3.02 PRACTISING CERTIFICATES AND INDEMNITY INSURANCE
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
3.03 SHELTERED PRACTICE: THE FIRST FEW YEARS OF PRACTICE
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
04. CONTINUING EDUCATION
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.
3.05 SPECIALIST PANELS
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) hold a current practising certificate;
ii) have practised for five years on a full-time basis, or equivalent; and
iii) 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
3.06 QUALITY STANDARDS
Principle 3.06
Lawyers must demonstrate their adherence to practice management quality standards in the following ways: […]
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) Duties in Training Lawyers
4.04(2) Duties of Training Principal
4.04(3) The Training Contract
4.04(4) Responsibility of Supervising Lawyers
4.04(5) Responsibilities of Trainees
4.04(6) Monitoring of Training
FUNDAMENTAL PRINCIPLES
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) the lawyer’s independence or integrity;
ii) the lawyer’s duty to the court;
iii) the good repute of the lawyer or of the legal profession;
iv) a person’s freedom to instruct a lawyer of his or her choice;
v) the lawyer’s duty to act in the best interests of the client;
vi) the lawyer’s proper standard of work.
Source: LSG, 1.01
4.01(2) INTEGRITY AND HONESTY
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) dishonest or otherwise discreditable;
ii) prejudicial to the administration of justice; or
iii) likely to diminish public confidence in the legal profession or the administration of justice or otherwise bring the legal profession into disrepute.
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.
4.01(3) DUTY TO THE COURT
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.
4.01(4) DUTY TO CLIENT
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.
4.01(5) DUTY TO OTHER PARTIES
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.
4.01(6) DUTY TO PARTNERS
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.
4.01(7) DUTY NOT TO DISCRIMINATE
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.
4.01(8) INTEGRITY OF THE PROFESSION
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.
4.02(1) CONTRACTS FOR LEGAL SERVICES
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) given a clear explanation of the issues raised in a matter and is properly informed about the likely timescale;
ii) given the name and status of the person dealing with the matter and the name of the principal responsible for its overall supervision; and
iii) 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.
4.02(2) MANAGEMENT AND ADMINISTRATION OF CLIENT’S AFFAIRS
Principle 4.02(2)
(a) At the outset, and as necessary during the course of a matter, lawyers must
i) agree an appropriate level of service with a client;
ii) explain their responsibilities;
iii) explain the client’s responsibilities;
iv) 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.
4.02(3) CONDUCTING LITIGATION
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 argue[1];
(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 cross-examination they have given the witness an opportunity to answer the allegation;
x) 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.
4.02(4) REFUSING INSTRUCTIONS
Principle 4.02(04)
(a) Lawyers cannot withhold professional services if
(i) the nature of the case is objectionable to them or any section of the public;
(ii) the opinions or beliefs of a prospective client are unacceptable to the lawyer;
(iii) 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) if they lack sufficient experience or competence to handle the work;
(ii) 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;
(iii) 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;
(iv) if it would be difficult to them to maintain professional independence or the administration of justice might appear to be prejudiced;
(v) 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);
(vi) if there is a significant risk that information confidential to a client or former client might be communicated to or used for the benefit 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
4.02(5) TERMINATING LEGAL SERVICES
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.
4.03(1) CONDUCT OF WORK: GENERAL DUTIES
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) they know or ought to know they are not competent to handle;
(ii) 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) 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;
(ii) 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;
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.
4.03(2) DUTY OF COMPETENCE
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
4.03(3) CONFIDENTIALITY
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.
4.03(4) CONFLICTS OF INTEREST
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
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) the different clients have a substantially common interest in the matter or a particular aspect of it; and
ii) 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)
4.03(5) COMPENSATION FUND
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
4.03(6) MONEY LAUNDERING
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.
4.04(1) DUTIES IN TRAINING LAWYERS
Principle 4.04 (1)
A law firm that wishes to employ trainees must:
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
4.04(2) DUTIES OF A TRAINING PRINCIPAL
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
4.04(3) THE TRAINING CONTRACT
Principal 4.04 (3)
When offering trainee contracts lawyers must send applicants a written offer detailing all the principal terms of the training contract.
a) Before the start of training the trainee and training supervisor must sign the training contract.
b) Each training contract must be lodged with the professional body no later than 28 days after the start of the contract.
c) The content of each training contract must comply with the regulations set down by the professional body.
4.04(4) RESPONSIBILITY OF SUPERVISING LAWYERS
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
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
4.04(5) RESPONSIBILITIES OF TRAINEES
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
4.04(6) MONITORING OF TRAINING
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
PART 5. MAINTAINING AND REVIEWING ETHICS AND CONDUCT
04. Establishing Rules of Conduct
05. Status of the Codes
06. General Areas Covered by the Codes
5.04 Making the Rules
5.05 Waivers
5.06 Training in Ethics
5.01 ESTABLISHING RULES OF CONDUCT
Principle 5.01
A Code of Conduct must be
i) free from political interference;
ii) owned by the profession; and
iii) subject to outside supervision and control in the public interest through the courts and other comparable mechanisms, independent of Government.
5.02 STATUS OF THE CODES
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.]
5.03 GENERAL AREAS COVERED BY THE CODES
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
5.04 MAKING THE RULES
5.05 WAIVERS
Principle 5.05
Waivers under the Code provisions must be granted in a principled, reasoned and transparent manner.
5.06 TRAINING IN ETHICS
Principle 5.06
Training in ethics must be a compulsory part of the education, training and continuing professional development for all lawyers.
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
06. Costs
6.01 SANCTIONS FOR BREACH OF RULES
Principle 6.01
(1) The following sanctions may be imposed on lawyers in breach of the rules:
a) disbarment
b) suspension;
c) a fine;
d) a reprimand; or
e) to issue an apology.
(2) As a sanction a lawyer may be ordered
a) to work with another lawyer;
b) not to undertake training;
c) to be deprived of any publicly funded work;
d) to undertake remedial training; or
e) to pay compensation to the client, to reduce the fee or not to impose a fee at all.
(3) Any one or a combination of the sanctions set out may be imposed.
6.02 TEMPORARY SUSPENSION
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.
6.03 SUSPENSION AND FITNESS TO PRACTICE IN CASES OF ILL HEALTH OR MENTAL ILLNESS
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.
6.04 POWERS OF INVESTIGATION
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.
6.05 ENFORCEMENT
Principle 6.05
Failure to comply with a disciplinary order is itself misconduct under the Code.
6.06 COSTS
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.]
PART 7 COMPLAINTS PROCEDURE
01. Complaints Procedure
7.01 COMPLAINTS PROCEDURE
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.
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[1] This duty may not be required in jurisdictions which follow an “inquisitorial” method of conducting litigation.
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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.
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.
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.
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) the client;
b) the courts and other authorities before whom the lawyer acts;
c) the legal profession;
d) 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.
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.
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”.
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.
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.
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”.
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.
Illustrative areas where the issue will need to be addressed, possibly by legislation, are:
d) 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.
e) 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.
f) “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.
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.
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.
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)).
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
c)
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.
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.
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.
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).
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.
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.
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.
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.
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.
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
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.
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.
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).
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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) a copy to be provided to the government’s senior law officer for any comments.
b) 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.
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) 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.
b) 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.
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.
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).
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.
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.
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.
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.
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.
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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