ETHICS AND PROFESSIONAL CONDUCT NOTES
Ethics and Regulation ..............................................................................................................................................2
SRA Principles .........................................................................................................................................................6
Obtaining Instructions ..............................................................................................................................................9
The Retainer ........................................................................................................................................................... 11
Client Care and Costs .............................................................................................................................................15
Confidentiality .......................................................................................................................................................19
Conflict...................................................................................................................................................................21
Undertakings ..........................................................................................................................................................23
Duties to the Court and Third Parties .....................................................................................................................25
Duties to the SRA and Compliance........................................................................................................................27
,Ethics and Regulation
Ethics
• Accepted that lawyers are subject to additional ethical obligations (Law Society v Emeana and others)
• Ethical principles apply differently
o E.g., defending a perpetrator in court
• Solicitors have a special relationship with clients and with the justice system
• As the Solicitors’ Regulation Authority says, ‘As well as making sure solicitors are competent, we want to
promote a culture where ethical values and behaviours are embedded’
The Solicitor’s Regulatory Authority (SRA)
• SRA complies with the SRA Standards and Regulations and may exercise powers to take action against
those who fail to do so
• SRA Principles – fundamentals upheld by will regulated by SRA
• SRA Code of Conduct for Solicitors/RELs/RFLs – standards for individuals, personal accountability to the
Codes, exercise own judgement
• SRA Code of Conduct for Firms – standards for firms, can be action against the firms as a body, even if
individual within breaches
• SRA Accounts Rules – requirements for solicitors in financial matters, e.g., dealing with client money
• SRA Glossary – contains all defined terms
• SRA Enforcement Strategy underpins Standards and Regulation
• Focus is on investigating/sanctioning behaviour that is ‘serious’
• The Law Society – representative body for solicitors in England and Wales
Complaints
• Para 8.2, solicitor must establish, maintain, participate in procedure for complaints handling relating to
services provided
• Para 8.3, clients informed at time of engagement about
o (a) Right to complain about services and charges
o (b) How complaints may be made and to whom
o (c) Right have to Legal Ombudsman and when can make a complaint
• Certain complaints procedures much be on firm website/available on request in absence of website, SRA
Transparency Rules
• Use firm’s own complaints procedure before taking more formal action
• If not resolved in eight weeks, need to ensure (para 8.4):
o (a) right to complain to Legal Obudsman, timeframe for doing so and full details of how to contact
o (b) if complaint brought and complaints procedure exhausted
§ (i) solicitor cannot settle the complaint
§ (ii) name and website address of alternative dispute resolution (ADR) approved body,
competent to deal with the complaint
§ (iii) whether the solicitor agrees to use the scheme operated by the body
• Charters Trading Standards Institute has approve ADR entities able to provide ADR services
• Client not required to submit complaint to ADR body unless they wish to
• Para 8.5, complaints dealt with promptly, fairly and free of charge
Legal Ombudsman
• Deals with complaints made against solicitors, barristers, legal executives, licensed conveyancers, notaries,
patent attorneys
• No loss suffered to LeO – subpar legal service is enough
• Types of client able to complain – individuals, ‘micro-enterprises’ (>10 staff, turnover/balance sheet value
not exceeding €2mil), charities, clubs and associations (annual income net of tax >£1mil), personal
representatives/beneficiaries
• Complaints must be of an act or omission of a solicitor
• Complaints must relate to the services a solicitor provided, offered or refused to provide
• Ordinarily, cannot use LeO unless solicitor’s own complaints procedure used BUT exceptions
o Complaint not resolved to complainant’s satisfaction within eight weeks
o LeO considered exceptional reasons to consider complaint sooner/without made to solicitor
o LeO considers in-house resolution not possible – irretrievable breakdown in relationship between
solicitor and complainant
• Complaint brought no later than
, o One year from act/omission
o One year from knowledge of cause for complaint
• LeO resolutions in most appropriate form – including informal resolution
• In investigations – both parties make representations
• Hearing held only when LeO considers no fair alternative
o ‘determination’ made after – sent to parties and SRA as approved regulator
o Time-limit for response by complainant – accept/reject/fails to respond
o SRA notified of outcome
• Potential resolutions (can be one or more):
o (a) apologies
o (b) pay compensation (+ interest) for loss/inconvenience/distress
o (c) ensure/pay for amending errors
o (d) take/pay for specified action in interest of complainant
o (e) pay specified amount for costs of complainant in pursuing complaint
o (f) limit solicitor’s fees – refund or full/partial remittance
§ Limit of £50,000 on total value awarded – compensation and costs – for (c)/(d)
§ No limit on (a)/(e)/(f)
• Acceptance = binding on the parties and final – cannot start/continue legal proceedings on the subject
matter of the complaint
o Can be enforced by High Court or county court by complainant
o Report can be published
• Rejection = both parties free to pursue other legal remedies (e.g., suing for negligence)
• LeO can refer legal questions within complaints to a court
• Complaints involving professional misconduct – LeO informs SRA
Breach of Professional Conduct
• Professional misconduct – breaches of SRA Principles/Codes of Conduct
• SRA deals with breaches
• SRA role is to protect the public
• Will decide whether to/not carry out an investigation – three step Assessment Threshold Test
o (1) has there been a breach
o (2) is breach sufficiently serious and capable of regulatory action
o (3) is the breach capable of proof?
• Upon carrying out investigation, will inform
o Individual or firm who allegation is about
o And their employer (when applicable)
• Notice given to individual/firm setting out allegation and facts in support/other relevant information
• Will invite them to respond with written recommendations, within a specified period
• S 44B Solicitors Act, SRA has power to serve notice requiring delivery of file/documents
o Para 7.4, obligation to respond promptly to the SRA and provide
• SRA Enforcement Strategy – approach to imposing sanctions, examples of sanctions:
o (a) Take no further action with/out issuing further advice/a warning about future conduct
§ Advice = a warning
§ Appropriate to a minor regulatory breach:
• No action to protect public/public interest
• Not serious to require action to restrict ability to practice or a financial rebuke
o (b) Impose financial penalty or written rebuke
§ Maximum is £25,000
§ Fixed penalty scheme for specified breaches by firms
• £750 penalty for first breach, £1,500 for continuation
o (c) Control how the solicitor practises
§ Impose conditions on/suspend solicitor’s practicing certificate
§ Make an order to control activities in connection to legal practise
§ Can also impose conditions on, revoke or suspend terms and conditions of authorisation
of a firm
o (d) Refer matter to Solicitors Disciplinary Tribunal
§ SRA refers to
§ SDT responsible for prosecuting the matter
§ When SRA considers own powers not sufficient to deal with the matter
Ethics and Regulation ..............................................................................................................................................2
SRA Principles .........................................................................................................................................................6
Obtaining Instructions ..............................................................................................................................................9
The Retainer ........................................................................................................................................................... 11
Client Care and Costs .............................................................................................................................................15
Confidentiality .......................................................................................................................................................19
Conflict...................................................................................................................................................................21
Undertakings ..........................................................................................................................................................23
Duties to the Court and Third Parties .....................................................................................................................25
Duties to the SRA and Compliance........................................................................................................................27
,Ethics and Regulation
Ethics
• Accepted that lawyers are subject to additional ethical obligations (Law Society v Emeana and others)
• Ethical principles apply differently
o E.g., defending a perpetrator in court
• Solicitors have a special relationship with clients and with the justice system
• As the Solicitors’ Regulation Authority says, ‘As well as making sure solicitors are competent, we want to
promote a culture where ethical values and behaviours are embedded’
The Solicitor’s Regulatory Authority (SRA)
• SRA complies with the SRA Standards and Regulations and may exercise powers to take action against
those who fail to do so
• SRA Principles – fundamentals upheld by will regulated by SRA
• SRA Code of Conduct for Solicitors/RELs/RFLs – standards for individuals, personal accountability to the
Codes, exercise own judgement
• SRA Code of Conduct for Firms – standards for firms, can be action against the firms as a body, even if
individual within breaches
• SRA Accounts Rules – requirements for solicitors in financial matters, e.g., dealing with client money
• SRA Glossary – contains all defined terms
• SRA Enforcement Strategy underpins Standards and Regulation
• Focus is on investigating/sanctioning behaviour that is ‘serious’
• The Law Society – representative body for solicitors in England and Wales
Complaints
• Para 8.2, solicitor must establish, maintain, participate in procedure for complaints handling relating to
services provided
• Para 8.3, clients informed at time of engagement about
o (a) Right to complain about services and charges
o (b) How complaints may be made and to whom
o (c) Right have to Legal Ombudsman and when can make a complaint
• Certain complaints procedures much be on firm website/available on request in absence of website, SRA
Transparency Rules
• Use firm’s own complaints procedure before taking more formal action
• If not resolved in eight weeks, need to ensure (para 8.4):
o (a) right to complain to Legal Obudsman, timeframe for doing so and full details of how to contact
o (b) if complaint brought and complaints procedure exhausted
§ (i) solicitor cannot settle the complaint
§ (ii) name and website address of alternative dispute resolution (ADR) approved body,
competent to deal with the complaint
§ (iii) whether the solicitor agrees to use the scheme operated by the body
• Charters Trading Standards Institute has approve ADR entities able to provide ADR services
• Client not required to submit complaint to ADR body unless they wish to
• Para 8.5, complaints dealt with promptly, fairly and free of charge
Legal Ombudsman
• Deals with complaints made against solicitors, barristers, legal executives, licensed conveyancers, notaries,
patent attorneys
• No loss suffered to LeO – subpar legal service is enough
• Types of client able to complain – individuals, ‘micro-enterprises’ (>10 staff, turnover/balance sheet value
not exceeding €2mil), charities, clubs and associations (annual income net of tax >£1mil), personal
representatives/beneficiaries
• Complaints must be of an act or omission of a solicitor
• Complaints must relate to the services a solicitor provided, offered or refused to provide
• Ordinarily, cannot use LeO unless solicitor’s own complaints procedure used BUT exceptions
o Complaint not resolved to complainant’s satisfaction within eight weeks
o LeO considered exceptional reasons to consider complaint sooner/without made to solicitor
o LeO considers in-house resolution not possible – irretrievable breakdown in relationship between
solicitor and complainant
• Complaint brought no later than
, o One year from act/omission
o One year from knowledge of cause for complaint
• LeO resolutions in most appropriate form – including informal resolution
• In investigations – both parties make representations
• Hearing held only when LeO considers no fair alternative
o ‘determination’ made after – sent to parties and SRA as approved regulator
o Time-limit for response by complainant – accept/reject/fails to respond
o SRA notified of outcome
• Potential resolutions (can be one or more):
o (a) apologies
o (b) pay compensation (+ interest) for loss/inconvenience/distress
o (c) ensure/pay for amending errors
o (d) take/pay for specified action in interest of complainant
o (e) pay specified amount for costs of complainant in pursuing complaint
o (f) limit solicitor’s fees – refund or full/partial remittance
§ Limit of £50,000 on total value awarded – compensation and costs – for (c)/(d)
§ No limit on (a)/(e)/(f)
• Acceptance = binding on the parties and final – cannot start/continue legal proceedings on the subject
matter of the complaint
o Can be enforced by High Court or county court by complainant
o Report can be published
• Rejection = both parties free to pursue other legal remedies (e.g., suing for negligence)
• LeO can refer legal questions within complaints to a court
• Complaints involving professional misconduct – LeO informs SRA
Breach of Professional Conduct
• Professional misconduct – breaches of SRA Principles/Codes of Conduct
• SRA deals with breaches
• SRA role is to protect the public
• Will decide whether to/not carry out an investigation – three step Assessment Threshold Test
o (1) has there been a breach
o (2) is breach sufficiently serious and capable of regulatory action
o (3) is the breach capable of proof?
• Upon carrying out investigation, will inform
o Individual or firm who allegation is about
o And their employer (when applicable)
• Notice given to individual/firm setting out allegation and facts in support/other relevant information
• Will invite them to respond with written recommendations, within a specified period
• S 44B Solicitors Act, SRA has power to serve notice requiring delivery of file/documents
o Para 7.4, obligation to respond promptly to the SRA and provide
• SRA Enforcement Strategy – approach to imposing sanctions, examples of sanctions:
o (a) Take no further action with/out issuing further advice/a warning about future conduct
§ Advice = a warning
§ Appropriate to a minor regulatory breach:
• No action to protect public/public interest
• Not serious to require action to restrict ability to practice or a financial rebuke
o (b) Impose financial penalty or written rebuke
§ Maximum is £25,000
§ Fixed penalty scheme for specified breaches by firms
• £750 penalty for first breach, £1,500 for continuation
o (c) Control how the solicitor practises
§ Impose conditions on/suspend solicitor’s practicing certificate
§ Make an order to control activities in connection to legal practise
§ Can also impose conditions on, revoke or suspend terms and conditions of authorisation
of a firm
o (d) Refer matter to Solicitors Disciplinary Tribunal
§ SRA refers to
§ SDT responsible for prosecuting the matter
§ When SRA considers own powers not sufficient to deal with the matter
