Professional Conduct
Professional Conduct and Regulation
The legal profession and regulating the profession
THE LEGAL PROFESSION
Professional conduct ® Professional conduct is the term that is used to describe the rules, regulations
and requirements with which a solicitor must comply. Solicitors are in a
position of trust, and so a higher standard of behaviour is expected of them
than of members of the public.
Solicitors Regulation Authority ® The SRA regulates solicitors in England and Wales. It also controls such matters
as training and entry into the profession.
The Law Society ® The Law Society is the representative body for solicitors in England and Wales.
Membership is voluntary, but all solicitors (and those who are employed by
them) are bound by the requirements of professional conduct whether or not
they are members of The Law Society.
REGULATING THE LEGAL PROFESSION
SRA ® The SRA publishes and enforces rules and requirements concerning how
solicitors, authorised bodies and their employees behave and conduct their
business. The subject matter of this Part is the SRA Code of Conduct 2011.
Complaints against solicitors ® Every firm must have a complaints handling procedure, and must ensure that
complaints are dealt with promptly, fairly, openly and effectively. If a
complaint cannot be resolved by the firm, the client must be given details of
the Legal Ombudsman.
Legal Ombudsman ® The Legal Ombudsman is the sole point of receipt for complaints concerning
services provided by solicitors and other types of legal practitioner, and refers
any allegations of breaches of the requirements of professional conduct
concerning solicitors to the SRA.
Powers of the Legal ® Where the Legal Ombudsman makes a determination following a complaint, it
Ombudsman has the power to order the firm of solicitors to limit its fees, or to direct that
the firm must compensate the client up to the sum of £50,000 (plus interest)
amongst other sanctions. The Legal Ombudsman cannot pay compensation to
a client itself.
Powers of the SRA – ® Where a finding of professional misconduct is made, the SRA may discipline the
professional misconduct firm or regulated individual by imposing disciplinary sanctions, or referring the
matter to the Solicitors Disciplinary Tribunal. The SRA may also revoke or
suspend authorisation of the firm.
Solicitors Disciplinary Tribunal ® The Solicitors Disciplinary Tribunal hears and determines applications relating
to allegations of professional misconduct. It is independent of the SRA and The
Law Society. It has the power to suspend a solicitor, to fine a solicitor an
unlimited amount and, in the most extreme cases, to strike a solicitor off the roll
– which will effectively end his career.
Negligence ® In addition to or instead of the actions that the SRA may take against a solicitor,
a solicitor may be sued by his client in the tort of negligence. A solicitor owes
his client a duty of care. Where this duty is breached, and the client suffers a
foreseeable loss as a result of that breach, the solicitor may be sued for
negligence. Firms must carry compulsory indemnity insurance against such
actions.
The SRA Compensation Fund ® The SRA Compensation Fund is maintained by the SRA. Payment may be made
from the Fund when a client has suffered loss as a result of a defaulting
practitioner’s act or omission.
1
,Professional Conduct
The principles
The SRA sets out standards and requirements concerning professional conduct.
The starting point for consideration of the SRA Code of Conduct is the 7 principles.
The Principles set out the fundamental requirements which all individuals and firms regulated by the
SRA must satisfy in practice.
• They define the fundamental ethical and professional standards that we expect of all firms and individuals
(including owners who may not be lawyers) when providing legal services.
o You should always have regard to the Principles and use them as your starting point when faced with an
ethical dilemma.
• Where two of more Principles come into conflict, the one which takes precedence is the one which best serves
the public interest in the particular circumstances…
• The principles are mandatory and apply to all individuals and firms regulated by the SRA. Breach of the Principles
may constitute professional misconduct.
WHERE PRINCIPLES CONFLICT: “Where two or more Principles come into conflict, the one which takes precedence is the
one which best serves the public interest in the particular circumstances, especially the public interest in the proper
administration of justice.”
The Principles
Mandatory, apply to all
1. Act in a way that upholds the rule of law and proper administration of justice
2. Act in a way that uphold public trust and confidence in Solicitors profession and in legal services
provided by authorised persons
3. Act with independence
4. Act with honesty
5. Act with integrity
6. Act in a way that encourages equality, diversity and inclusion
7. Act in the best interests of the client
2
,Professional Conduct
Regulators
SRA Legal Ombudsman Solicitor’s Disciplinary
Tribunal
Who can ® The Legal Ombudsman can Only certain types of clients: ® SRA can refer.
bring a refer to the SRA. ® Individuals ® Anybody, except where
® Any client if they consider ® “Micro-enterprises” i.e. enterprises SA 1974 provides
claim?
there has been a breach of with fewer than 10 staff and a otherwise, can refer
the code. turnover or balance sheet value of less without going to the SRA
than £1 million. first.
® PR’s ® However where an
application is brought
without going to the SRA
first the Tribunal may
refer the matter to the
SRA.
When can ® Where there is a breach of ® Ordinarily must go through the firm’s ® Do not need to go
they be the code. complaints procedure first. through the SRA first.
® Firm has 8 weeks to resolve the
complained
complaint this way.
to? ® Complaints must be brought within 6
years or three years from when the
complainant should reasonably have
known there was cause for complaint.
What May: May order the firm to: ® Strike off a solicitor
powers do ® Make a finding about the ® Apologise ® Suspend a solicitor.
conduct and warn the ® Pay compensation (limited to ® Impose an unlimited
they have? solicitor. £50,000). fine.
® Impose a fine or rebuke. ® Ensure and pay for the putting right of ® Reprimand the solicitor.
® Control how the any error or omission (limited to ® Require the payment by
firm/regulated person £50,000). any party of costs or a
practices i.e. impose ® Take and pay for any specified action contribution towards
conditions on or suspend in the interests of the complainant costs.
their practicing certificate. (limited to £50,000).
® Refer the matter to the ® Pay the costs of the complainant
SDT. pursuing the complaint.
® Intervene into the practice ® Limit the lawyer’s fees.
e.g. close the practice ® They DO NOT HAVE THE POWER TO
® Enter into agreements with FINE.
the firm as to their future
practice.
® Revoke/suspend
authorisation of the
firm/the solicitor.
Other Ø SRA’s powers extends to ® Orders can be enforced through the
non-solicitors employed by High Court and report may be
the licensed body/solicitor. published.
® Claimant is entitled to reject the
Ombudsman’s determination and sue
in negligence.
® LEO will inform the SRA if it finds
professional misconduct.
® O1.10: Clients must be informed n
writing of their write to complain to
the LEO.
3
, Professional Conduct
Conflicts of interest
Chapter 3 The SRA prohibits solicitors from acting where there is a conflict of interests between two
or more clients, except in specified limited circumstances.
There are TWO SITUATIONS where a conflict of interests may arise
Duty not to act if there is a conflict, or significant risk of a conflict, between:
ü you and your client (“OWN INTEREST CONFLICTS”) … 6.1
ü two or more current clients (“CLIENT CONFLICT”) … 6.2
A solicitor can NEVER ACT where there is a conflict between himself and a current client, but there are LIMITED
CIRCUMSTANCES in which a solicitor can act where there is a conflict between two or more current clients.
The OVERRIDING CONSIDERATION will be the best interests of each of the clients concerned,
and in particular whether the benefits to the clients of the solicitor acting for all or both of the
clients outweigh the risks.
Client conflict
ANY SITUATION WHERE:
a) The solicitor or firm owes separate duties to act in the best interests of two or more clients;
b) In relation to the same or related matters; and
c) Those duties conflict, or there is a significant risk that those duties may conflict.
6.2 = provides that a solicitor must not act if there is a client conflict, or a significant risk of a
client conflict, unless the circumstances set out in 6.2(a) OR (b) apply.
Former Clients A conflict of interests may arise only between TWO CURRENT CLIENTS of the firm.
– confidential - Where a client’s retainer has been terminated the firm no longer owes a duty to act in
information that client’s best interests, and so a conflict of interest cannot arise concerning the
affairs of a former client.
- However, a firm may be prevented from acting for a client where it holds confidential
information for the former client which would be material to the work done for the
new client.
Existing clients A CONFLICT MAY ARISE DURING THE RETAINER
- A solicitor must have regard not only to the conflict of interest, but also to the
issues surrounding confidential information. The solicitor may continue to act
for one of the clients but must ensure that his duty of confidentiality is not put
at risk.
Same or related ® Declining to act for clients whose interests are in DIRECT CONFLICT, for example
matters claimant and defendant in litigation
® Declining to act for clients where he may need to NEGOTIATE ON MATTERS OF SUBSTANCE on
their behalf, e.g. residential conveyancing
A matter will be related if it CONCERNS THE SAME ASSET OR LIABILITY.
- You could not sell a new house for one client whilst also acting for another client who is
alleging that a part of the house has been built on his land.
- Where the only conflict between the parties is their wider business interest then this will
not create any conflict of interest issues.
4
Professional Conduct and Regulation
The legal profession and regulating the profession
THE LEGAL PROFESSION
Professional conduct ® Professional conduct is the term that is used to describe the rules, regulations
and requirements with which a solicitor must comply. Solicitors are in a
position of trust, and so a higher standard of behaviour is expected of them
than of members of the public.
Solicitors Regulation Authority ® The SRA regulates solicitors in England and Wales. It also controls such matters
as training and entry into the profession.
The Law Society ® The Law Society is the representative body for solicitors in England and Wales.
Membership is voluntary, but all solicitors (and those who are employed by
them) are bound by the requirements of professional conduct whether or not
they are members of The Law Society.
REGULATING THE LEGAL PROFESSION
SRA ® The SRA publishes and enforces rules and requirements concerning how
solicitors, authorised bodies and their employees behave and conduct their
business. The subject matter of this Part is the SRA Code of Conduct 2011.
Complaints against solicitors ® Every firm must have a complaints handling procedure, and must ensure that
complaints are dealt with promptly, fairly, openly and effectively. If a
complaint cannot be resolved by the firm, the client must be given details of
the Legal Ombudsman.
Legal Ombudsman ® The Legal Ombudsman is the sole point of receipt for complaints concerning
services provided by solicitors and other types of legal practitioner, and refers
any allegations of breaches of the requirements of professional conduct
concerning solicitors to the SRA.
Powers of the Legal ® Where the Legal Ombudsman makes a determination following a complaint, it
Ombudsman has the power to order the firm of solicitors to limit its fees, or to direct that
the firm must compensate the client up to the sum of £50,000 (plus interest)
amongst other sanctions. The Legal Ombudsman cannot pay compensation to
a client itself.
Powers of the SRA – ® Where a finding of professional misconduct is made, the SRA may discipline the
professional misconduct firm or regulated individual by imposing disciplinary sanctions, or referring the
matter to the Solicitors Disciplinary Tribunal. The SRA may also revoke or
suspend authorisation of the firm.
Solicitors Disciplinary Tribunal ® The Solicitors Disciplinary Tribunal hears and determines applications relating
to allegations of professional misconduct. It is independent of the SRA and The
Law Society. It has the power to suspend a solicitor, to fine a solicitor an
unlimited amount and, in the most extreme cases, to strike a solicitor off the roll
– which will effectively end his career.
Negligence ® In addition to or instead of the actions that the SRA may take against a solicitor,
a solicitor may be sued by his client in the tort of negligence. A solicitor owes
his client a duty of care. Where this duty is breached, and the client suffers a
foreseeable loss as a result of that breach, the solicitor may be sued for
negligence. Firms must carry compulsory indemnity insurance against such
actions.
The SRA Compensation Fund ® The SRA Compensation Fund is maintained by the SRA. Payment may be made
from the Fund when a client has suffered loss as a result of a defaulting
practitioner’s act or omission.
1
,Professional Conduct
The principles
The SRA sets out standards and requirements concerning professional conduct.
The starting point for consideration of the SRA Code of Conduct is the 7 principles.
The Principles set out the fundamental requirements which all individuals and firms regulated by the
SRA must satisfy in practice.
• They define the fundamental ethical and professional standards that we expect of all firms and individuals
(including owners who may not be lawyers) when providing legal services.
o You should always have regard to the Principles and use them as your starting point when faced with an
ethical dilemma.
• Where two of more Principles come into conflict, the one which takes precedence is the one which best serves
the public interest in the particular circumstances…
• The principles are mandatory and apply to all individuals and firms regulated by the SRA. Breach of the Principles
may constitute professional misconduct.
WHERE PRINCIPLES CONFLICT: “Where two or more Principles come into conflict, the one which takes precedence is the
one which best serves the public interest in the particular circumstances, especially the public interest in the proper
administration of justice.”
The Principles
Mandatory, apply to all
1. Act in a way that upholds the rule of law and proper administration of justice
2. Act in a way that uphold public trust and confidence in Solicitors profession and in legal services
provided by authorised persons
3. Act with independence
4. Act with honesty
5. Act with integrity
6. Act in a way that encourages equality, diversity and inclusion
7. Act in the best interests of the client
2
,Professional Conduct
Regulators
SRA Legal Ombudsman Solicitor’s Disciplinary
Tribunal
Who can ® The Legal Ombudsman can Only certain types of clients: ® SRA can refer.
bring a refer to the SRA. ® Individuals ® Anybody, except where
® Any client if they consider ® “Micro-enterprises” i.e. enterprises SA 1974 provides
claim?
there has been a breach of with fewer than 10 staff and a otherwise, can refer
the code. turnover or balance sheet value of less without going to the SRA
than £1 million. first.
® PR’s ® However where an
application is brought
without going to the SRA
first the Tribunal may
refer the matter to the
SRA.
When can ® Where there is a breach of ® Ordinarily must go through the firm’s ® Do not need to go
they be the code. complaints procedure first. through the SRA first.
® Firm has 8 weeks to resolve the
complained
complaint this way.
to? ® Complaints must be brought within 6
years or three years from when the
complainant should reasonably have
known there was cause for complaint.
What May: May order the firm to: ® Strike off a solicitor
powers do ® Make a finding about the ® Apologise ® Suspend a solicitor.
conduct and warn the ® Pay compensation (limited to ® Impose an unlimited
they have? solicitor. £50,000). fine.
® Impose a fine or rebuke. ® Ensure and pay for the putting right of ® Reprimand the solicitor.
® Control how the any error or omission (limited to ® Require the payment by
firm/regulated person £50,000). any party of costs or a
practices i.e. impose ® Take and pay for any specified action contribution towards
conditions on or suspend in the interests of the complainant costs.
their practicing certificate. (limited to £50,000).
® Refer the matter to the ® Pay the costs of the complainant
SDT. pursuing the complaint.
® Intervene into the practice ® Limit the lawyer’s fees.
e.g. close the practice ® They DO NOT HAVE THE POWER TO
® Enter into agreements with FINE.
the firm as to their future
practice.
® Revoke/suspend
authorisation of the
firm/the solicitor.
Other Ø SRA’s powers extends to ® Orders can be enforced through the
non-solicitors employed by High Court and report may be
the licensed body/solicitor. published.
® Claimant is entitled to reject the
Ombudsman’s determination and sue
in negligence.
® LEO will inform the SRA if it finds
professional misconduct.
® O1.10: Clients must be informed n
writing of their write to complain to
the LEO.
3
, Professional Conduct
Conflicts of interest
Chapter 3 The SRA prohibits solicitors from acting where there is a conflict of interests between two
or more clients, except in specified limited circumstances.
There are TWO SITUATIONS where a conflict of interests may arise
Duty not to act if there is a conflict, or significant risk of a conflict, between:
ü you and your client (“OWN INTEREST CONFLICTS”) … 6.1
ü two or more current clients (“CLIENT CONFLICT”) … 6.2
A solicitor can NEVER ACT where there is a conflict between himself and a current client, but there are LIMITED
CIRCUMSTANCES in which a solicitor can act where there is a conflict between two or more current clients.
The OVERRIDING CONSIDERATION will be the best interests of each of the clients concerned,
and in particular whether the benefits to the clients of the solicitor acting for all or both of the
clients outweigh the risks.
Client conflict
ANY SITUATION WHERE:
a) The solicitor or firm owes separate duties to act in the best interests of two or more clients;
b) In relation to the same or related matters; and
c) Those duties conflict, or there is a significant risk that those duties may conflict.
6.2 = provides that a solicitor must not act if there is a client conflict, or a significant risk of a
client conflict, unless the circumstances set out in 6.2(a) OR (b) apply.
Former Clients A conflict of interests may arise only between TWO CURRENT CLIENTS of the firm.
– confidential - Where a client’s retainer has been terminated the firm no longer owes a duty to act in
information that client’s best interests, and so a conflict of interest cannot arise concerning the
affairs of a former client.
- However, a firm may be prevented from acting for a client where it holds confidential
information for the former client which would be material to the work done for the
new client.
Existing clients A CONFLICT MAY ARISE DURING THE RETAINER
- A solicitor must have regard not only to the conflict of interest, but also to the
issues surrounding confidential information. The solicitor may continue to act
for one of the clients but must ensure that his duty of confidentiality is not put
at risk.
Same or related ® Declining to act for clients whose interests are in DIRECT CONFLICT, for example
matters claimant and defendant in litigation
® Declining to act for clients where he may need to NEGOTIATE ON MATTERS OF SUBSTANCE on
their behalf, e.g. residential conveyancing
A matter will be related if it CONCERNS THE SAME ASSET OR LIABILITY.
- You could not sell a new house for one client whilst also acting for another client who is
alleging that a part of the house has been built on his land.
- Where the only conflict between the parties is their wider business interest then this will
not create any conflict of interest issues.
4
