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SOLICITOR (GENERAL PRACTICE)

“Our Risk Outlook 2014 highlighted Failure to act with integrity or ethics: improper or abusive
litigation as one of our priority risks. It is critical that solicitors manage this risk effectively if we are
to ensure that the legal services market operates in a way that serves the needs of consumers and
the public interest.”
‘Walking the line: The balancing of duties in litigation’ March 2015 Solicitors Regulatory Authority
Explain and discuss the above in relation to the SRA Code of Conduct for Solicitors 2019 and the
ethical dilemmas faced by solicitors.

The conduct of litigation, the act of taking cases to court, is a reserved activity under the Legal
Services Act 2007 (LSA). It is a highly visible and very important aspect of legal practice, as it affects
people’s lives, livelihoods and rights [ CITATION Aut18 \l 1034 ]. The lawyers’ profession is based
on trust, this means that they should act with integrity and follow the ethical standard of the
profession[ CITATION Win18 \l 1034 ].

Solicitors owe duties in litigation to multiple parties such as the clients, courts, third parties and the
public interest according to the LSA, which makes clear that legal obligations extend beyond those
owed to the client, prioritizing the rule of law and the administration of justice. Nevertheless, there
are a variety of factors that give rise to improper or abusive litigation and create integrity risks. The
Solicitor Regulation Authority (SRA) has found there are broadly two categories: (i) where the duty
to the court, third parties or to the public interest has been breached in the name of the client; and
(ii) where it is the duty to the client that has been breached in the interests of the solicitor. When
this happens, public confidence in the legal system, which underpins the rule of law, is put at risk
and individuals, many of whom might be vulnerable, could be harmed. [ CITATION Sol18 \l
1034 ]

This essay will first examine the duty of ethical integrity as part of the legal profession. Then, it will
discuss the tensions in balancing the duties to clients and public interest by showing the ethical
dilemmas of the client confidentiality within the framework of the doctrine of the legal professional
privilege and obligation to report inappropriate behaviours to competent authorities. In so doing we
shall ask whether the root of the problem lies in defining the acceptable limits of lawyer control, or
in certain conceptual weaknesses in the established notion of autonomy [ CITATION Don12 \l
1034 ].

The lawyer-client relationship is based on three duties accordance to the ethical

standard[ CITATION Ros96 \l 1034 ]: (i) Secrecy, requires that lawyers keep their clients’
confidences secret – one of the most fundamental ethical duties [ CITATION See \l 1034 ] . There
are distinct sources of this duty the code, the common law, and legal professional privilege. The
widest statement of secrecy can be found in section 1(3)(e) of the LSA 2007 and paragraph 6.3 of the
professional standards in the Codes of Conduct for Solicitors, ("the Codes") [ CITATION Sol192 \l
1034 ]. Its essence is “preserve the confidentiality of his…clients affairs and must not without the
prior consent of his…client or as permitted by law…communicate to any third person…information
which has been entrusted to him in confidence or use such information to his…client's detriment or to
his own or another clients advantage”[ CITATION Pau92 \l 1034 ].

The most frequent criticism of the current position on confidentiality is for lawyers to disclose when
their client is intending to commit a crime of fraud or suspect a crime likely to result in serious bodily
harm might be committed [ CITATION eee \l 1034 ] . For example, in Wingate and Evans v SRA;
SRA V Malins [2018] EWCA Civ 366, when the solicitor made a false representation on behalf of their
client
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or solicitors are complicit in unreasonable pressure to take unfair advantage of a victim or an

unrepresented person on the other side in order to sign a non-disclosure agreement.

This is one of the most difficult ethical dilemmas a solicitor can face [ CITATION Thi \l 1034 ].
The lawyer is torn between his loyalties to the client – Principles 7 SRA- and his duties as an officer of
the court, to act with integrity and honesty – Principles 4 and 5-.

Our primary aim is to evaluate whether the confidentiality duty adequately balances the interest of
clients and lawyers, on the one hand, against those of affected third parties and the solicitors’
integrity. For example, the most frequent criticism of the current position on confidentiality is for
lawyers to disclose when their client is intending to commit a crime of fraud or suspect a crime likely
to result in serious bodily harm might be committed [ CITATION eee \l 1034 ]. For example,
solicitors who are complicit in their client misleading the court through obtained information for use
in their case by illegal means, but helping the client provide a false explanation of where the
evidence came from [ CITATION Thi \l 1034 ].

Criminal defence work can involve a significant risk of conflict between duties where the solicitor
knows or reasonably suspects that their client is in fact guilty, but the client wishes to plead not
guilty. It is the defendant's right to require the state to prove its case. 13 It is in the public interest
that the state be required to do this to the necessary standard before it can make a finding against a
person. Even where a defendant has informed their solicitor that they are guilty, the client cannot be
prevented from pleading not guilty and their discussions with the solicitor are covered by the duty of
confidentiality and by legal professional privilege

In this regard, clients benefit when lawyers bow to professional and legal obligation rather than
follow their personal morality, indeed, clients can use confidentiality as “a device for cover-ups”, for
instance by handing over incriminating documents to lawyers. Even where there is no deliberate
attempt to abuse confidentiality, the duty has been criticised for allowing clients intent, for instance,
on escaping liability for heinous acts or engaging in highly immoral acts of dubious legality to obtain
the legal assistance they need without fear of exposure.

the confidentiality duty exacerbates the dominance of this role. It relieves lawyers of the psychological
pressure of having to weigh up the ethical problems of whether to betray client confidences because of
overriding moral or public interest considerations63 and, as we have seen,64 Justifies excessive zeal
whenever pulling punches would reveal client confidences. Consequently, many regard the
confidentiality duty as being ultimately as much—if not more—about lawyer self-interest 65 than
justice, loyalty, autonomy, and the other high-sounding supporting justifications for the duty offered
by the profession.66 
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, there still remain the non-consequentialist arguments in favour of maintaining secrets discussed
earlier. Combined, they suggest that lawyers should always start from a presumption of
confidentiality. And, while the payment of money can never justify a promise to act immorally, in the
absence of clear proof of such immorality, the fact that clients pay lawyers to act in their interests and
at least implicitly expect that their secrets will not be betrayed establishes a strong argument for
confidentiality. As we accepted in evaluating neutral partisanship, 114 the entire raison d'être of the
lawyer-client relationship would be destroyed if lawyers were routinely to be concerned with interests
other than those of their clients.115

The balancing task could be put in the hands of professional bodies or even the courts. 118 However, in
our view this would be unduly burdensome,119 especially for the courts. It would also be inappropriate
where disclosure must be immediate to be effective, and would undermine the advantages of placing
discretion in the hands of individual lawyers, to which we have frequently referred.

On the other hand, providing lawyers with a disclosure discretion is particularly problematic in the
context of confidentiality.120 From the perspective of those wanting to ensure greater moral activism,
permissive disclosure does not seem to go far enough. As we shall see, in some cases the balance lies
so firmly in favour of disclosure that a discretion would invidiously allow lawyers to succumb to
pressures to place client interests above those of others. It is even possible that lawyers might waive
their right to disclose in return for additional payment by the very clients who can cause the most
widespread harm—powerful repeat players and wealthy one-shelters. Finally, lawyers might eschew
whistle-blowing out of a fear that professionally sanctioned disclosures might nevertheless attract civil
liability. The latter fear is, however, not very realistic given the wider exceptions to the common law
obligation. (p.264) And the concerns about lawyers selling their souls can be met by prohibiting them
from prospectively agreeing to waive the right to disclose.

is an obligation under the core professional principles set out in section 1(3)(e) of the LSA 2007 and
professional standards in the Codes of Conduct for Solicitors, ("the Codes") [ CITATION Sol192 \l
1034 ],-which underline lawyer’s confidentiality- “to keep client's affairs secret and not to disclose
them to anyone”[ CITATION Par69 \l 1034 ]. However, client's confidences can be overridden
“in certain exceptional circumstances” on grounds of public interest in order to avoid unethical
behaviours[ CITATION Att90 \l 1034 ]. For example, when solicitors are complicit in the in their
client misleading the court by trying to convince expert witnesses to alter their reports to the benefit
of their client.

For examples, solicitors who are complicit in their client misleading the court, or who do so
themselves, risk serious consequences. The courts have made it very clear that they regard this as
"one of the most serious offences that an advocate or litigator can commit

attempting to convince expert witnesses to alter their reports to the benefit of the solicitor’s client.
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when Solicitors who are complicit in their client misleading the court, or who do so themselves, risk
serious consequences. The courts have made it very clear that they regard this as "one of the most
serious offences that an advocate or litigator can commit

For example, solicitors must not disclose the content of a will they have drawn before probate,
except when is required or permitted by law or the client consents. – paragraphs 6.3 and 6.4 of the
Codes-[ CITATION Pau92 \l 1034 ]. [ CITATION Att901 \l 1034 ]

Running along parallel lines with the duty of confidence, but narrower in scope, is lawyer/client
privilege.[ CITATION Ont89 \l 1034 ] Legal professional privilege is an evidential rule which
precludes other parties from obtaining access to communications between a lawyer and client.
[ CITATION Not \l 1034 ] The rationale of the privilege is that it encourages clients to reveal all to
their lawyers, thereby facilitating effective legal advice and assistance.

However, there are several tensions that arise when acting with integrity

Solicitors who are complicit in their client misleading the court, or who do so themselves, risk serious
consequences. The courts have made it very clear that they regard this as "one of the most serious
offences that an advocate or litigator can commit

There is a fine line, however, between the innocent desire to comply with lawful requirements and the
dishonest quest for knowledge as to how to avoid the law. In a valuable decision the Court of Appeal
has held that lawyers realising or suspecting that they have been unwittingly used as a conduit for
fraud may apply to the court for an order that they be at liberty to disclose the fact to the victims. 46

The second duty, diligence, giving a constant and careful attendance and endeavour in his clients'
causes. If a lawyer acts without authority of clients may not only be liable to the client but to third
parties for breach of warranty of authority. [ CITATION Yon101 \l 1034 ] Thirdly, loyalty, is
devotion to the client's interests[ CITATION The19 \l 1034 ]. That demands competence,
commitment and zeal. Moreover, the SRA code says specifically that solicitors must not take unfair
advantage of a client by overcharging [ CITATION LSG84 \l 1034 ]. It is reflected in the SRA’s
principles Principle 2: to upholds public trust and confidence in the solicitors' profession; Principle 3:
Act with independence; Principle 5: Act with Integrity; Principle 7: Act in the best interest of each
clients.[CITATION Sol19 \l 1034 ]

Thus, professional ethics discourse speaks of the duty of loyalty [ CITATION Som \l 1034 ] to put
their clients before all others, subject only to their overriding duty to the public
interest[ CITATION Don00 \l 1034 ].This quate is based on the principles and code of the SRA.
The principles that apply are: Principle 1: to upholds the rule of law, and the proper administration
of justice; Principle 2: to upholds public trust and confidence in the solicitors' profession; Principle 3:
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Act with independence; Principle 5: Act with Integrity; Principle 7: Act in the best interest of each
clients.[CITATION Sol19 \l 1034 ]

Principle 3 and 5 are the easiest to breached through litigation. Also, to note “where two or more
principles conflict, the one which best serves the public interest takes precedent”.

The code of conduct that apply to

s: to act Integrity, Independence and to upholds the rule of law, public trust and confidence in the
solicitors' profession [ CITATION Sol191 \l 1034 ]. Regarding the solicitor’s duties, the SRA Code
of Conduct

This raises major problems because of the harm lawyers may inflict on other persons, the general
public and the environment in representing their clients. But even within the lawyer-client
relationship difficult ethical questions are raised concerning the balance of power and control
between lawyer and client. The key problem is seen as determining the acceptable degree of
(lawyer) paternalism that is permitted in a system that, in theory, privileges the individuals
(essentially the clients) right to autonomy.

Ethicists have long been concerned with the lawyer's ability to control or manipulate clients in ways
that limit their self-determination.

and give rise to improper or abusive behaviours, one must first understand the core principles of
integrity that are fundamental to legal practice. The LSA has created a list of 5 professional
principles. These include:

i. The solicitor’s independence or integrity

ii. The good repute of the solicitor or of the solicitors' profession
iii. The solicitor's duty to act in the best interests of the client
iv. The solicitor's proper standard of work
v. The solicitor's duty to the Court

The principles speak for themselves. The main interest lies in when the principles themselves clash
and it is the realisation that there are those inherent dilemmas which will help student of
professional ethic avoided reading rules of conduct as black letter law. Not infrequently the best
interests of the client will conflict with the solicitor's duty to the court or the reputation of the
profession—the most clear example being where a client has confessed guilt to the solicitor, then
decides to plead not guilty, but wants the solicitor to put forward a defence on false facts.

the solicitor's independence or particularly impartiality can often appear to conflict with the best
interests of the client, although in many of these cases the best interests of the client are
distinguishable from the wishes of the client. It is not uncommon for a solicitor to be prevented from
acting for a client because of a conflict of interests with another (possibly former) client but then to
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be subject to considerable pressure from the client to act. Sometimes the interests of the client—
when calculated in cost or speed terms—clashes with the solicitor's duty in relation to a proper
standard of work. Full discussion and analysis of the principles in Practice Rule 1 and their
interrelationship should certainly equip any trainee solicitor with the thought processes that will
help in the ethical dimension of his or her future professional life.

Again the difficulty is finding the balance between principles that pull in different directions. Looking
at those principles now, deriving as they do from the deregulatory fervour of the mid to late 1980s,
are there any we should change? Is a new moralism creeping through the profession embodying a
reaction against deregulation? In the 1980s, an important part of the profession accepted that we
are businessmen and women. There are signs of a reassertion of traditional professional values. For
instance, in the apparently (p.113) endless debate on multi-disciplinary practice, there seems to be a
hardening of opinion against MDPs, whereas in the mid-1980s there may have been a bare majority
in favour.

They are four core principles set out in the LSA regarding integrity that guide legal practice:
independence, confidentiality, maintaining professional integrity, and avoiding conflicts of interests.

Independence means that “A solicitor is independent of his client and having regard to his wider
responsibilities and the need to maintain the profession's reputation, [they] must and should on
occasion be prepared to say to [their] client 'What you seek to do may be legal but I am not prepared
to help you do it”[ CITATION Sim05 \l 1034 ] according to the Solicitors Disciplinary Tribunal.

A variety of issues have emerged that risk undermining the integrity of the legal profession. These
ethical challenges relate to characteristics that are particular to legal practice, such as: solicitor-client
privilege, the role of lawyers as intermediaries, outsourcing legal counsel, and the globalised nature
of contemporary law firms.

Confidentiality exists as an obligation under both common law and data protection legislation as well
as being one of the core professional principles set out in section 1(3)(e) of the Legal Services Act
2007 and professional standards in our Codes.

Breach of duty to the client

Historically, the principles of ethic on the legal profession have often been the subject of judicial
comment but were not committed to any written or permanent form until the 20 th century when
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The Law Society’s  A Guide to the Professional Conduct and Etiquette of Solicitors was published in
1960 and ran to eight editions before being superseded in large part by the coming into force of the
Law Society’s Code of Conduct in 2007 replaced by The Solicitors Regulation Authority Standards and
Regulations (2019)[ CITATION Hum14 \l 1034 ].

In order to assess the impact of ethical principal specially in the area of litigation it is necessary to
consider the applicability of such principles to particular aspect of abusive or improper litigation.
Improper litigation can take a variety of forms such as breaching client’s duty through the predatory
litigation that we develop as follow.

The starting point is the interests of the client. Professional ethics places a good deal of emphasis on
the duty of a solicitor to act in the best interests of his client.

The professional role morality of lawyers which is found in written discourse on professional legal
ethics can be described as ‘neutral partisanship’. 10 This conception contains two interlinking
principles. The principle of partisanship requires lawyers to act as their clients' ‘partisan’. 11 Arguably,
it includes all ditties owed to clients.

Lawyers as professionals have important roles to play in society or what is termed as ‘professional
role morality’. For lawyers, one of their major roles is to act on behalf of their clients and to place
their client's interest above everything else or what is called as the principle of partisanship. The
legal profession has a unique character in that unlike other professions being a good lawyer does not
necessarily mean being a good and moral person in the eyes of others

Implicit in Lord Macauley's rhetorical question is the age old criticism of lawyers that they are
subject to a morality different to that of ordinary citizens; a morality which allows, if not encourages,
them to perform actions on behalf of clients which would, be regarded as immoral if performed by
non-lawyers. Given the importance of serving client interests to the lawyer's role, it thus seems
impossible for ‘a good lawyer [to] be a good person’. 2 The conflict between what can be called
‘ordinary morality’3 and the expectation that lawyers favour client interests over those of particular
or general others is said to arise in three ways.

here are powerful arguments that lawyers should always put client interests over those of affected
others and the general public.

The common view of agency relationships is one in which clients have most of the authority and
responsibility for decision-making67—a view represented by the popular conceptions of lawyers as
the client's ‘mouthpiece’ or ‘hired gun’. 68 According to Bayles, by contrast, this underplays the
professional's own autonomy and independence. 69 Closer analysis, however, reveals that neither
view acknowledges the complexity of the agency model.
First, entailed within the agency model is a recognition that lawyers act as special kinds of agent,
more specifically, as fiduciaries. This implies both that professionals are required to act in ways
consistent with clients' need to trust them and, at the same time, given the inequalities of
knowledge and power between lawyer and client, that clients have a lesser degree of decision-
making power. The fiduciary element of the relationship is commonly said to be emphasised by
lawyers' duties of loyalty,70 confidentiality,71 and even diligence,72 but also by the fact that they are
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generally required only to ensure that clients consent to rather than decide on certain courses of
action.73
Secondly, and closely related to the latter point, the agency relationship does (p.133) provide
lawyers with a legally accepted sphere of autonomy. Like any agent, they have a range of authority
to act on behalf of clients. Lawyers obtain not only express but also implied and usual 74 authority
from the retainer and the circumstances surrounding them. The scope of express authority is, of
course, a matter for agreement, and should properly be confirmed by any written retainer. 75 Such
express instructions will override the lawyers usual or implied authority to act insofar as the latter is
inconsistent with the former.76
Nevertheless, implied authority may be extensive. As Fridman states: ‘Every agent has implied
authority to do everything necessary for, and ordinarily incidental to carrying out his express
authority according to the usual way in which such authority is executed’. 77 In the lawyer-client
relationship, the power to take such major steps as reaching settlements, signing contracts, making
representations regarding loans, giving undertakings and receiving payment under court orders are
all potentially within lawyers' implied or usual authority. 78 Beyond this a lawyer will also have
considerable ostensible authority as against third parties.79

the lawyer has been exhorted to act as ‘a gentleman and man of honour’, or ‘as a man and as a
Christian’, to temper zeal ‘with self-respect’, and not to degrade himself ‘for the purpose of
winning’.29 On the other hand, such exhortations are vacuous to the point of insignificance. 30 One
may wonder how many city lawyers are likely to refrain from zealously helping companies to avoid
environmental laws or to shed costly employees on the grounds that such actions are degrading,
unchristian, or ungentlemanly. And if lawyers were to be given pause for thought by such
considerations, written discourse on professional legal ethics contains a far more specific
countervailing message which states unambiguously that lawyers have no duty towards their
adversaries31 or ‘the world at large’.32

More recently and somewhat less vaguely, lawyers are said to owe allegiance to the ‘higher
cause’33 of truth, justice, and the public interest. 34 Yet closer examination reveals that what is meant
by truth, justice and the public interest are the formalistic concepts of factual truth, the
administration of justice and the public interest in the administration of justice, 35 rather than moral
or political truth,36 substantive justice or the general public interest, respectively. Accordingly, the
content of ‘higher cause’ duties is almost entirely encapsulated by the idea that, as officers of the
court37 or ministers of justice,38 lawyers owe ‘overriding’39 duties to the courts and the
administration of justice, primarily to be truthful and candid, but also to represent their clients by
fair and proper means.40 Moreover, these duties simply entail complying (p.165) with the codes'
rules, which limit the tactics lawyers may use in representing their clients, 41 and which, as we have
seen,42 focus predominantly on ensuring honesty and fairness in litigation, while imposing few
limitations on lawyer behaviour which are likely to protect third parties, the general public or the
environment from the consequences of lawyer zeal.

It thus appears that lawyers are indeed conceived of as ‘hired guns’ 43 or ‘amoral
technicians’44 prepared to do anything for anyone capable of paying their fees. Admittedly, the rules
limiting lawyer zeal mean that they are not the hired guns of the lawless Wild West, but the modern
mercenary operating according to the Hague Convention's ‘civilised’ code of killing. 45 However, these
limitations are either narrowly concerned with the due administration of justice or alternatively too
vague to ensure that lawyers will refrain from pursuing immoral ends or means.

Breach of duties to public interest

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hus professionalism justifies expert intervention on behalf of clients in two ways. The first, as we saw
in section 2.1, seeks to deny the existence of paternalism at all, by deeming that lawyers, once acting
on client instructions, are thereby advancing client autonomy. The second, by contrast, seeks to
legitimate certain forms of paternalism by finding rational justifications for lawyers constraining
client autonomy. Taken together they create an ideology, which suggests that lawyer paternalism is
neither a wholly normalised feature of lawyer-client relations, nor a significant deviation from the
norm. This is a point to which we shall return. First, however, it is also important to distinguish
paternalism from the other types of interference with client autonomy, which we have labelled
egoism and moralism.

Conclusion
problematic because it both underplays the need for aspirational standards, and the separation of
‘ethics’ from matters of ‘mere regulation’, and, given our primary objective of using the codes to
increase lawyers' ethical awareness and in this way hopefully increase the professions' stock of trust,
does not do enough to empower clients and to make lawyers responsible for their actions.
The principles of lawyer independence and integrity are similarly significant. The former primarily
requires lawyers to avoid situations in which their loyalty might be compromised, whereas integrity
requires them to be honest in dealings with clients and others, and offers lawyers an area of moral
autonomy from clients—though at present (as we shall see in the next chapter) largely only in
theory.

Nevertheless, we have argued that, even within the confines of the lawyer-client relationship, the
lawyers' duties do not go far enough to ensure that all clients are given sufficient information to
make informed choices about the work being undertaken in their name. 239 This, together with our
concerns about the ways in which lawyers represent themselves and their competence, indicates a
need for a general principle of candour. Clients are entitled to expect lawyers who are frank and
open both as regards their own capacities to take on cases, and in the advice and information they
give has a variant on the Kantian Principle of Universality, 240 Menkel-Meadow241 has argued that
‘lawyers should reveal to their clients that which they (p.158) would want revealed to them if they
were clients’.242 The standard has much to commend it. It is simple, understandable and can be
easily applied. It is context-sensitive and wide enough to encompass acts of both strategic (client-
interested) and self-interested deception by lawyers. It is even, at least in Menkel-Meadow's vision,
capable of some kind of relational turn. 243 On the other hand, given the evidence we have about the
assumptions lawyers make about client needs or desire for information, it may still leave the door
too open to lawyer paternalism. For example, empatliic lawyers may feel so in tune with their
clients' wants and needs that they regard it as redundant to ask for consent. In the light of Axelrod's
work,244 one might also doubt the efficacy of a duty of candour framed as a ‘golden rule’, since this
demands a purely altruistic approach that may be hard to achieve within the pragmatic context of
professional relations. At the very least, we suggest that there is a need for a more explicitly
reciprocal expectation of candour. This has the obvious merit of giving lawyers the option of
withdrawal in cases where clients have sought to mislead them in some material respect.
As a final principle governing the lawyer-client relationship, we have suggested that lawyers need to
be subject to a principle of informed consent. Its applicability should be assessed in each retainer
according to whether the information given reaches the standard required to enable that client to
achieve critical autonomy and should extend to a duty to consult over means as well as ends. This is
not inconsistent with existing binary obligations under contract or tort. For example, evidence of
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informed consent would also protect lawyers by providing them with a volenti 245 or contributory
negligence defence. Moreover, as Spiegel points out, informed consent may enable clients to better
police the progress of cases and, hence, the lawyer's performance. 246 Although client-sanctioned
paternalism, as we have defined it, is not inconsistent with these principles, good faith should
preclude lawyers from seeking to establish, at the time of entering the retainer, a blanket waiver on
client decision-making authority.247 In many transactions, clients are unlikely to be able confidently
to determine all their potential objectives at that stage. Such a waiver would thus act as a serious
barrier to client autonomy.
The emphasis on broad principles of trust and good faith, backed up by more specific (but still
generalised) expectations of loyalty, etc., potentially provides both an aspirational and contextually
sensitive framework for lawyer-client relations. At the same time, while our main aim is not to offer
an exact blueprint for reform, we recognise that it is essential to provide a codified structure that
offers standards which are sufficiently meaningful to offer some guidance, rather than just pious
hopes. General principles of the type we have described are unlikely to be enough to
increase (p.159) the potential for the normalisation of a relational ethics. Consequently, we suggest
two possible ways of achieving this goal.
One involves rethinking the retainer so as to create a framework for relationships that are in certain
key respects less flexible and more transparent as to the obligations involved (particularly those
which may be implied), while perhaps also more flexible as to their duration and scope. There are a
number of specific principles within the scope of retainers that our analysis has brought to the fore,
and which ought to be considered. For example, it might be desirable to tighten up the rules on
continuity248 and withdrawal of representation. Much also remains to be achieved under the
maligned title of ‘client care’: improved systems for information exchange; greater transparency in
billing practices; visible and effective complaints mechanisms and so on. Here, as our analysis
suggests, there may be a case for both greater rather than less prescriptive regulation, and more
efficient use of professional sanctions, as well as some sensitive positive reinforcement to overcome
the substantial cultural resistance to regulation apparent in local professional arenas. 249
A second means involves building upon the approach to codes we proposed in the last chapter and
our general argument about the importance of context to professional legal ethics. More specifically,
we suggest that application of the general principles governing the lawyer-client relationship should
be dependent on consideration of a number of contextual factors, which will guide but not
determine the way in which lawyers treat clients. Consideration of such factors will be particularly
relevant to questions such as identifying the information needs and objectives of clients, the degree
of control lawyers exercise over clients and the extent to which they should consult clients as to
means and ends, and whether lawyers undertake, continue or withdraw from representation. Based
upon the discussion in this chapter, we can list these factors as: the client's status (individual or
corporate), knowledge and abilities, vulnerability and decision-making competence; whether the
lawyer has an ongoing professional relationship with the client, or is a ‘one-shotter’ or simply meets
the lawyer on a referral basis;250 the extent to which mutual expectations of honesty and candour
have been met in the relationship, and particularly the aspects of the case which should be
considered ‘material’ under the candour principle; and what steps in the process of representation
are likely to be sufficiently ‘major’ to require the clients informed consent. This list should not,
however, be regarded as exhaustive. No doubt other relevant factors would emerge were our
relational and contextual approach to the retainer to be adopted.
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Integrity as "consistency between beliefs, decisions and actions, and continued adherence to values
and principles" (Malan, 2007, p. 278). Different from integrity and ethics, law is a system of rules
recognized by society and enforced via sanctions of some sort.

"Ethics" are principles that guide behaviour, while "integrity" suggests that we should carry out
ethical principles in our daily lives and activities, rather than espousing an ideal and then doing
something contradictory. Discussions of integrity frequently raise the issue of honesty because if
someone advocates an ideal that he or she does not uphold, this can be viewed as a kind of
dishonesty1. 

Several years after the regulation of solicitors had been devolved to the Solicitors Regulation
Authority (“SRA”) there was a more determined move in the same direction, a further move away
from the burdens of written rules towards a more free-style system of “outcomes focused
regulation”. This has now become the style of regulation most favoured by the regulators of the

1
https://www.unodc.org/e4j/en/integrity-ethics/module-12/key-issues.html
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legal profession –a “less is more” approach to regulation that concentrates not so much on rules and
their contravention but on the purpose behind the rules and how their breach can be prevented.

n some ways a return to fundamental notions of ethics such as honesty, judgment, courage,
sincerity, humanity and industry would be the supreme achievement for the architects of outcomes
focused regulation. But in the complex world in which lawyers practise in the 21st century it is
probably insufficient guidance, whether for the lawyer or for his client or for third parties affected by
the lawyer’s actions, simply to require the lawyer to rely upon his innate sense of honour. For
example, it has been said that, if it seems right, it probably is right; but if it feels wrong, it is probably
unethical.2 No doubt this is sound advice; but when it comes to legally and technically complex
matters such as the intricacies of the contractual relationships between lawyers, clients and
litigation funders, it is unlikely that general observations as to right and wrong will be capable of
resolving every area of ethical controversy

In order to assess the impact of ethical principal specially in the area of litigation it is necessary to
consider the applicability of such principles to particular aspect of abusive or improper litigation.
Improper litigation can take a variety of forms.

and those duties can limit their right to pursue the client’s case however the client wishes. It states,
"you provide services to your clients in a manner which protects their interests in their matter,
subject to the proper administration of justice"

Principles (a) and (d) emphasise the importance of the independence of lawyers, including their
"duty to the court to act with independence in the interests of justice". Independence, in this
context, clearly includes independence from the client. This has been set out clearly by the Solicitors
Disciplinary Tribunal (SDT), as follows: "A solicitor is independent of his client and having regard to
his wider responsibilities and the need to maintain the profession's reputation, [they] must and
should on occasion be prepared to say to [their] client 'What you seek to do may be legal but I am
not prepared to help you do it'."1 It is essential to the public interest in justice, in an adversarial legal
system, that solicitors must be able to take cases forward fearlessly and effectivel
 0319487

The conduct of litigation, the act of taking cases to court, is a reserved activity under the Legal
Services Act 2007 (LSA). It is a highly visible and very important aspect of legal practice, as it affects
people’s lives, livelihoods and rights [ CITATION Aut18 \l 1034 ]. The lawyers’ profession is based
on trust, this means that they should act with integrity and following the ethical standard of the
profession[ CITATION Win18 \l 1034 ]. Solicitors are officers of the court and their legal
obligations extend beyond those owed to the client [CITATION Jor08 \l 1034 ].

Solicitors must advance their clients’ cases in accordance with the client’s instructions and interests
but it does not mean that they should become “hired guns” whose only duty is to their client,
inasmuch as they could

owe duties to clients, courts, third parties and to the public interest, but in particular to the rule of
law and the administration of justice.

can affect large numbers of people and can harm public confidence in the whole legal system.

Solicitors owe duties

Solicitors must advance their clients’ cases in accordance with the client’s instructions and interests
but it does not mean that they should become “hired guns” whose only duty is to their client,
inasmuch as they could

solicitor improperly prioritising the client's interest over their other duties

by contrary they owe their duties to the courts, third parties and to the public interest [CITATION
Jor08 \l 1034 ]. Breach of those duties can create potential conflicts of interest.

The solicitors’ profession is based on integrity, however when solicitors improperly prioritising the
client’s interest difficulties are driven by a lack of integrity, or a failure t

Whether difficulties are driven by a lack of integrity, or a failure to balance duties effectively will

we have found there are broadly two categories of improper or abusive litigation:

- where the duty to the court, third parties or to the public interest has been breached in the
name of another interest, usually that of the client
- where it is the duty to the client that has been breached in the interests of another party,
usually the solicitor.
 0319487

By showing the ways in which the risk of improper or abusive litigation tends to occur, this report
discusses how individuals and firms must balance the interests of their client with their duties to the
court, third parties and the wider public interest

The notes to the principles explain that it is the public interest - especially the public interest in the
proper administration of justice - that should prevail where these duties conflict. However, it is not
always straightforward to navigate this. Solicitors must use their professional judgment and
experience to recognise any conflict and find the correct course of action for the specific situation

Que pasa

This essay will examine the difficulties are driven by a lack of integrity, or a failure to balance duties
effectively will always depend on the facts of each case.

discuss the tensions between the differing duties owed in litigation within the framework of SRA
Code of Conduct by touching on the following subject:

This essay will discuss the tensions between the differing duties owed in litigation within the
framework of SRA Code of Conduct by touching on the following subject:

(i) Integrity and ethics in litigation; (ii) Balancing duties in litigation

lawyer client relationship; (ii) confidentiality; (iii) conflict of interest; (iv) litigation (v) third party; (vi)
lawyer social responsibility. Likewise,
and analysis ethical dilemmas around issues of client c

 Predatory litigation against third parties: the solicitor, in the interest of the client, threatens
litigation to obtain settlement, often from several opponents. The cases sometimes have no
real merit, but the cost of settlement is less than the financial, emotional or reputational
cost of fighting the claim.
 vPredatory litigation: where clients are encouraged to proceed with litigation where there is
little or no legal merit, or where litigation is not actually required. For example, by touting
for claimants in government-backed compensation schemes that do not need the claimant
to have legal advice, such as payment protection insurance (PPI) compensation, or the
mineworkers’ compensation scheme

 Abuse of the litigation process: the solicitor uses the courts or general litigation process for
purposes that are not directly connected to resolving a specific dispute, for example by
incurring unmanageable costs for a commercial rival of a client.
 Taking unfair advantage of an unrepresented third party: for example, by exploiting another
party's procedural errors or their lack of legal knowledge in certain circumstances. This
includes using overbearing techniques such as sending threatening or legalistic letters
directly to people, including those who might be vulnerable
 0319487

Analysis two ethical dilemmas around issues of client confidentiality and obligation towards wider
society arising in the context of tax avoidance and corporate misconduct reveals complexities within
the lawyer’s position; this stems also from both ambiguities within the codes and from at times the
lawyer being conflicted between actions that promote the interests of a client whilst also having
societal ramifications.
Abuse of litigation process. An example given is incurring unmanageable costs for a commercial rival
of the client.
Misleading the Court. Where the solicitor knowingly or recklessly gives false information or permits
it to be given

TAKING UNFAIR ADVANTAGE

“In advancing a client’s interests, solicitors must be careful not to take unfair advantage of the
opponent or other third parties such as witnesses. Special care is needed where the opponent is
unrepresented. Solicitors need to consider this duty when faced with a party showing a simple lack
of legal knowledge or obvious procedural misunderstandings.
Client: confidentialy

Lawyers adhering to the standard conception are directed to seek to protect or advance the legal
rights of their clients—partisanship; not to consider their own views of the moral merits of their
clients’ positions—neutrality; and to rest assured that they will not be subject to justified moral
criticism by observers—non-accountability.2
rule of law, and public confidence in a trustworthy solicitors' profession and a safe and effective
market for regulated legal services)

History part
The solicitor's duties in litigation are clearly set out in the LSA, which makes clear that legal
obligations extend beyond those owed to the client.

The professional principles emphasise the importance of the independence and integrity of lawyers,
including their “duty to the court to act with independence in the interests of justice and protecting
and promoting the public interest”[ CITATION Leg07 \l 1034 ]

Independence, in this context, clearly includes independence from the client. This has been set out
clearly by the Solicitors Disciplinary Tribunal (SDT), as follows: "A solicitor is independent of his client
and having regard to his wider responsibilities and the need to maintain the profession's reputation,
[they] must and should on occasion be prepared to say to [their] client 'What you seek to do may be
legal but I am not prepared to help you do it”. [ CITATION Placeholder1 \l 1034 ]

2
B. Wendel, ‘Three concepts of roles’ (2011) 48 San Diego Law Review 547, 548.
 0319487

Duties to the Client: Autonomy and Control in the Lawyer-Client Relationship

1.
2. Underlying these questions is a set of fundamental tensions between lawyer and client
autonomy. The aim of this chapter is to try to expose these tensions chiefly through an
analysis of power and control in lawyer-client relations. 3
Third parties
Pro contras
There are some who argue that the sole in their dealings with third parties, lawyers
responsibility of a lawyer is to advance the must comply with the general law
interests of the client.1 So lawyers owe the same duties to third parties
Such an approach would suggest that no special not to commit crimes against them and not to
obligations are owed to third parties beyond commit wrongs under the civil law as does
the normal laws that apply to anyone. As we anyone else. Here, however, we are primarily
shall see, that view is not really tenable, and interested in when an obligation is owed to a
there are certainly situations in which lawyers third party by the lawyer as a lawyer, and how
have extra obligations to third parties, although he or she is to balance the claims of third
the extent of these is controversial. parties and those of the client.

Solicitors must put the interests of their clients However, the codes also make it clear that
first. The professional codes make that clear. solicitors do owe some duties to third parties.

1. Principles 7 in the best interests of

each client.

A solicitor cannot seek to promote the client’s

interests in a way that takes unfair advantage
of others. This obligation is stricter than the
basic law. It means that a solicitor should not
follow a client’s instructions to mislead others,
even if technically that is not fraud.

6.5 You do not act for a client in a matter where

that client has an interest adverse to the
interest of another current or former client of
you or your business or employer, for whom
you or your business or employer holds

confidential information which is material to

that matter, unless:
1. effective measures have been taken
which result in there being no real risk of
disclosure of the confidential information; or
3
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9780198764717-chapter-5
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2. the current or former client whose

information you or your business or employer
holds has given informed consent, given or
evidenced in writing, to you acting, including to
any measures taken to protect their
information.
1. 1.2 You do not abuse your position by
taking unfair advantage of clients or others.

The SRA's core regulatory requirements in This is a general duty applying to solicitors in
relation to introductions to third parties are the course of their professional activities. It is
found in the two Codes of Conduct (the Code an important limitation on the relationship
for Individuals 2019 and Code for Firms 2019), between client and solicitor. A solicitor cannot
which should be read in the context of the SRA seek to promote the client’s interests in a way
Principles 2019. that takes unfair advantage of others. This
obligation is stricter than the basic law. It
You should not, however, assume that the means that a solicitor should not follow a
pared-down requirements in the 2019 Code client’s instructions to mislead others, even if
represent a relaxation of the SRA’s expectations technically that is not fraud.
on introductions to third parties. Generally, the
omitted items can be mapped across to one or
more obligation in the 2019 Principles. Firms
should also consider their obligations under the
SRA Financial Services (Scope) Rules and SRA
Financial Services (Conduct of Business) Rules in
relation to financial services, consumer credit
or insurance distribution activities.

The SRA Code gives the following as an example

of unethical behaviour:
IB(11.9) using your professional status or
qualification to take unfair advantage of
another person in order to advance your
personal interests;

Undertakings
An undertaking is a special binding promise that
a solicitor can make.8 Usually, undertakings are
made to other lawyers, other professionals, or
respected third parties. Undertakings are taken
extremely seriously within the legal profession
and breach of an undertaking is always a
serious matter.

It will be recalled that, generally, a lawyer does
not owe a duty to a third party, but that,
following White v Jones,31 if a lawyer is
instructed by a client to do an act that is
intended to benefit an identified third party,
A solicitor does not owe a duty of care to any
third party to whom he or she negligently
causes harm. The White v Jones duty arises only
where the third party is identified and it is clear
to the solicitor that the client is instructing him

fails to act appropriately, and the third party
suffers a foreseeable loss as a result, that third
party may be able to sue for the loss that has
occurred.  lawyer–client relationship. In White v Jones, the
Lawyers’ social responsibilities
Pro
 lawyer’s primary duty is to the client and that
the lawyer must promote the interests of the
client with utmost zeal. These people would
argue strongly (p. 392) against the idea that
lawyers owe a general duty to the general
good. 
0319487
or her to act primarily in order to benefit the
third party.
Second, the duty of care is parasitic on the
argument that won the day in the House of
Lords was that it would be unjust if a lawyer
could breach a contract with a client, cause
loss, and yet not be liable in law. The claim
could be brought only because the executors
could not bring a claim for breach of contract.
Indeed, where the client can bring a claim, the
third party cannot.32
Only very occasionally will the duty be owed to
a third party independently of the interests of
the client.
Al-Kandari v Brown [1988] 1 All ER 833
The case involved a bitter family dispute. The
father wanted to see his children, but the
mother objected, concerned that he would
remove the children from the country. The
solicitor for the husband undertook to keep the
husband’s passport and not give it to him.
Relying on that, the mother allowed the father
to see the children. However, owing to the
negligence of the solicitor, the father was given
his passport and removed the children.
The father’s solicitors were sued by the mother
and she succeeded. The normal principle that
solicitors do not owe special duties of care to
non-clients could be departed from in this case.
In giving the undertaking, the solicitors had
‘stepped outside their role as solicitors for their
client and accepted responsibilities towards
both their client and the plaintiff and the
children’.33
The next case reflects the more common line
that lawyers do not owe duties to third parties.
Contra
People say some nasty things about lawyers.
Rodell once alleged: ‘It is pretty hard to find a
group less concerned with serving society and
more concerned with serving themselves than
the lawyers.’1
 0319487

Rakesh Anand argues that lawyers have a
special place in society.3
Bradley Wendel argues, some would say that
lawyers should promote societal good, but that
they should do this by promoting the interests
of their clients with zeal. 2 Others yet will argue
that lawyers owe a duty to society by virtue of
their role as officers of the court and their place
in the social justice system.

this leads to a strong focus by lawyers on the rule of law. It assumes that the legal system
protecting the legal interests of their clients. and society in question does indeed treat
She rejects ‘cause lawyering’ (under which everyone equally and respects the rule of law.
lawyers seek only to represent clients of whom One of the arguments that cause lawyers often
they approve) and asserts that lawyers must make is that they represent groups whose
not select clients. To her, the rule of law is rights are typically ignored by the courts or
about the same law applying equally to all, and society.
the lawyer has an important role in that regard
by ensuring that the best legal advice and
representation is accessible by every client. In
this way, Anand argues, as have others, that
lawyers do have a duty to society, but that this
duty requires them to focus on providing the
best representation for their clients.

his argument will appeal to some, but has its

difficulties. One problem is that it idealises the
rule of law. It assumes that the legal system
and society in question does indeed treat
everyone equally and respects the rule of law.
One of the arguments that cause lawyers often
make is that they represent groups whose
rights are typically ignored by the courts or
society. They are, if anything, upholding the
rule of law by supporting these groups. More
cynically, it might be said that lawyers need to
recognise their role as based not in an idealised
system that promotes the rule of law, but in a
flawed system that often privileges the rights of
the rich and reinforces the advantages of the
powerful. Their role does not therefore
promote the rule of law, but rather challenges
the existing status quo

The Solicitors Regulation Authority (SRA)

Handbook has, as the first three of its ten
Principles, not duties owed to clients, but
rather duties to the broader good.

These may also be seen to involve an obligation  are changed so that the proceeds appear to
to act in the public interest. But notice that come from a legitimate source. Under [the
they are presented as a requirement to protect Proceeds of Crime Act 2002], the (p.

the profession of barristers, rather than the
interests of the public as a whole. These are not
the same thing at all!
There are further requirements under the
Money Laundering Regulations 2007 covering
firms acting under the Financial Services Act
2012
Tax avoidance
lawyers have special obligations is tax
avoidance. Illegal tax evasion is unlawful and, of
course, a lawyer must not be involved in it.
However, tax avoidance, which involves seeking
to make financial arrangements so that tax
does not need to be paid or so that less tax is
paid than might otherwise be the case, is
lawful.
Nevertheless, there is a duty under the Finance
Act 2004 to disclose the details to HM Revenue
and Customs (HMRC) of ‘schemes or
arrangements’ that are not routine tax advice
and which are promoted or used by a
professional to avoid tax
Duty to the court
the professional codes emphasise the duty of
the lawyers to the court. However, quite what
this means is not clear. In Copeland v
Smith,20 Brooke LJ noted that the court system
is dependent on the assistance of advocates to
the judiciary and that their assistance avoids
‘having to incur the cost of legal assistance for
judges’. Andrew Boon and Jennifer Levin
somewhat acerbically comment: ‘This particular
collective duty therefore imposes
responsibility on clients to save the state
money by paying their lawyers to inform the
courts of its own laws!’21
Duties to the public
lawyers owe a duty to the state more widely.
Three approaches may be taken in such a case.
0319487
396) definition is broader and more subtle.
Money laundering can arise from small profits
and savings from relatively minor crimes, such
as regulatory breaches, minor tax evasion or
benefit fraud. A deliberate attempt to obscure
the ownership of illegitimate funds is not
necessary
Because money laundering is a serious criminal
offence, you are always safest reporting
suspicious activity. Remember that you will be
judged in hindsight. What might appear simply
a little odd in the moment might, in hindsight,
appear to be an obvious case of money
laundering.
A rather odd aspect of the Finance Act 2004
requirements is that although section 314
states that the duty to disclose trumps the rules
of confidentiality, this does not include
privileged advice. It is arguable therefore that if
the scheme could fall within professional
privilege, which it probably would, it may not
need to be disclosed. That interpretation, if
correct, would rather negate the point of the
legislation, at least as it applies to lawyers.
a
As Gordon argues, it is surprising that lawyers
want to see themselves as simply ‘private
agents for private parties’. 23 Their loyalty to
 0319487

1. 1. The principle of loyalty to the
client and confidentiality mean that
you must not disclose the risk to anyone
without the client’s permission.
2. 2. The significant public interest in
disclosure provides a reason why
you may, if you wish, breach confidence
and disclose.
3. 3. The lawyer’s duty to society
generally means that you must disclose
the serious risk to public well-being.
clients need not be absolute and undivided.
However, lawyers are paid, very well, by their
clients and will want to present themselves as
unswervingly dedicated to promoting their
clients’ interests, even where—perhaps
especially where—that ignores conceptions of
the public good.

his argument is developed further by Vivien Kershaw and Moorhead argue that more
Holmes and Simon Rice, who argue that should be done to challenge lawyers whose
lawyers need to appreciate that the world is advice could be used to help illegal
increasingly interconnected: activity.27 They suggest that:
The world is connected as never before, and In our view the SRA should amend the SRA
humanity’s future is challenged as never Handbook to include a provision requiring
before. In this context, the world needs lawyers lawyers not to assist a client where that
to recognize the global effect of their conduct, assistance creates a foreseeable likelihood of
and to take responsibility for it. This need wrongdoing by that client. Wrongfulness would
becomes greater as legal practice increasingly be defined by reference to any breach of
operates away from, or outside, both formal criminal law, civil law or regulation.28
regulation and ‘rule of law’ legal institutions.
While an ethic of neutral partnership allows
lawyers to avoid taking this responsibility, a
contextual approach to legal ethics preserves
and respects the lawyer–client relationship
while requiring lawyers to take moral
responsibility for the consequence of their
work. The world cannot afford lawyers to do
otherwise.26

Pro bono
If you were seeking to argue that
lawyers do recognise the importance of
working for the greater good, you could well
point to the significant amount of pro
bono work that lawyers do. This is typically
presented as work for the poor or
disadvantaged, who would not otherwise be
able to afford a lawyer, or work for charitable
organisations, undertaken without pay.
It might be thought that pro bono work is so
obviously good that no one could oppose it.
However, it has raised a number of concerns.
First, there is a problem in that some lawyers
fear that, in their pro bono work, their duties
may conflict with the interests of actual (or
perspective) paying clients. This can impact on
the kinds of pro bono work that lawyers are
willing to undertake—the kind that current or
future clients may find unobjectionable. 40
LITIGATION
Pro
achieve its goal of producing an ordered society
only if it is seen to be fair. Neil Andrews
suggests four pillars of a good civil justice
system:
• access to legal advice and dispute
resolution systems;
• equality and fairness between the
0319487
Pro bono work provides the opportunity for the
legal profession to show that its sense of social
obligation is not lost. Indeed, it is notable that
while pro bono work used to be seen as a
matter of individual conscience, it has become
increasingly well organised,37 with the Law
Society and Bar Council playing legal roles in
pro bono work, suggesting that there is an
acceptance that pro bono work is important for
the public reputation and self-perception of the
profession. As Lucy Scott-Moncrieff, President
of the Law Society, has acknowledged:
Pro bono is good for solicitors and enables
them to show that they are genuinely
committed to access to justice. It can build
skills, experience, confidence and self-esteem.
It brings lawyers into contact with many clients
that they wouldn’t otherwise meet and enables
them to use their unique professional skills to
make a high value contribution to helping
others.38
Second, there is a concern that government
encourages pro bono as an ideal simply to
justify its restrictions on legal aid. 41 Certainly,
there has been an increase in the amount of
pro bono work being done since the cutbacks in
legal aid, with some of the pro bono work being
for clients who might previously have gained
legal aid.
Third, cynics argue that lawyers are simply
acting in self-interest and in an attempt to
improve their public image, especially in the
case of large commercial firms. That public
image is used to justify excessive salaries and
profits. It creates a positive vibe among
employees, assists in recruitment, and even is a
form of advertising to encourage clients to use
the firm.42 
Contra
 0319487

parties;
• a focused and speedy process; and
• adjudicators of integrity.2

In England and Wales, the adversarial system is

at the heart of litigation. Under this approach,
each party finds the evidence to support its
case and presents it to the court; the judge
then decides who wins based on the issues
raised.13 In fact, we are so familiar with this
form of litigation that it is easy to forget that
other jurisdictions have a very different
approach to legal disputes.
Supporters of the adversarial system of
litigation tend to justify this approach by means
of two arguments.14
1. 1. The best way in which to discover
the truth is to hear the best evidence and
the best arguments that either side can
bring, and then to decide between them.
2. 2. Each litigant has freedom to
choose how to present his or her case
and what evidence to bring. That is part
of his or her freedom of autonomy.

cola

In part, this is recognition that legal aid regulations now greatly restrict the freedom that a client has
over choice of solicitor. Clients can use only those approved by the Legal Aid Agency as experts in
the field. Similarly, those with legal expenses insurance can face restrictions on which solicitors they
are able to use. Most obviously, the rate of fees charged by solicitors will mean that many clients
cannot afford them. The conflict of interest rules also limit choice. In short, there are now so many
restrictions on freedom of choice that it seems inappropriate to claim it as a grand principle.
 0319487

New SRA Principles

5. There are to be only 7 Principles comprising the fundamental tenets of ethical behaviour
that the SRA expects all those it regulates to uphold, both individuals and firms. This is a
reduction from the present 10.
6. Four of the existing Principles have been removed: 5 (providing a proper standard of service)
7 (complying with legal and regulatory obligations), 8 (running businesses in accordance with
proper governance etc) and 10 (protection of client money). It may be said that none of
these ever needed to be elevated to the status of principles. Further, in the case of Principle
8, the creation of two codes (see below) makes its removal logical.
7. However, the removal of 4 Principles is counterbalanced by the addition of a new Principle
requiring solicitors and firms to act honestly. This is in addition to the existing and retained
obligation to act with integrity. The separate treatment of honesty and integrity in the new
regime reflects the distinct meaning of these terms confirmed in Wingate v SRA and SRA v
Malins  [2018] EWCA Civ 366; [2018] 1 WLR 3969 (CA).

https://uk.practicallaw.thomsonreuters.com/0-367-0983?
originationContext=document&transitionType=DocumentItem&contextData=(sc.Default)&comp=plu
k&firstPage=true

The legislative framework for the regulation of legal services in England and Wales is set out in the
Legal Services Act 2007 (LSA)

Introduction:
 Litigation
o Litigation is a reserved legal activity. It is a highly visible and very important aspect of
legal practice, as it affects people’s lives, livelihoods and rights.
 Integrity
 Duty for: client, court a public
 Definition of balancing of duties in litigation- ethical dilemmas for solicitors in relation to
Solicitors Regulation Authority.       
 0319487

o acting in the best interests of each client and other, often higher-priority principles,
such as acting with integrity or upholding the rule of law and proper administration
of justice.
o They also owe duties to the courts, third parties and to the public interest.
o
o
 quote
 The above quote by Mena Ruparel and Richard Burnham will be discussed in this essay in
comparison with SRA Code of Conduct by touching on the following subjects: social media in
the legal profession, how ethics applies to social media and the SRA Code of Conduct.

discusses the differing duties owed by solicitors in litigation and examines the ways in which
misconduct can arise

with examples of the challenges faced when balancing these duties

“Our Risk Outlook 2014 highlighted Failure to act with integrity or ethics: improper or abusive
litigation as one of our priority risks. It is critical that solicitors manage this risk effectively if we are
to ensure that the legal services market operates in a way that serves the needs of consumers and
the public interest.”

‘Walking the line: The balancing of duties in litigation’ March 2015 Solicitors Regulatory Authority

By showing the ways in which the risk of improper or abusive litigation tends to occur, this report
discusses how individuals and firms must balance the interests of their client with their duties to the
court, third parties and the wider public interest.

Integrity and ethics in litigation

The principles include the duties: • to act in the best interests of each client • not to allow
independence to be compromised • to uphold the rule of law and the proper administration of
justice.

Balancing duties in litigation

Whether difficulties are driven by a lack of integrity, or a failure to balance duties effectively will
always depend on the facts of each case.

ETHICAL THEORIES
the special position that lawyers have in relation to their clients, and in relation to society more
generally. In relation to their clients, lawyers have a special relationship of trust. People will disclose
to their lawyers highly personal information and give them highly valued property. There need to be
legal and ethical obligations that protect those who put such trust in lawyers. This is important for
clients, but also for lawyers: if lawyers were to cease to be trustworthy, people would no longer use
 0319487

lawyers in relation to their sensitive matters. This would be disastrous both for lawyers, who would
lose business, but also for society more generally, because people would not seek advice when they
found themselves in trouble. It is widely thought to be beneficial that people can seek legal advice
and engage in legal transactions. If people cannot find out what the law is and have no access to
legal services to enforce their legal rights, the rule of law will break down.

But there is a balance here. While we want people to have trust in their lawyers and to have an
advocate who will represent them in legal proceedings, lawyers also have a special duty to courts
and the justice system generally. If lawyers are seen to act immorally and to undermine the
principles of justice underpinning the legal system, the legal system will fall into disrepute.

many of the most difficult ethical issues for lawyers arise when there is a clash between their duties
to their clients and their broader duties to the justice system, and to society more generally.

The overarching approach

Rule-based approaches
Outcome-based approaches
Character-based approaches

Alice Woolley disagrees: ‘[L]egal ethics should never be concerned with the morality of lawyers or
of clients; rather it should be concerned only with the morality of the acts lawyers or clients do (or
propose to do).’7

General ethical principles

Consequentialism determines whether an act is morally justified or not, depending on whether it
produces good or bad consequences overall.

the action is right if, all (p. 10) things considered, the consequences are good; the action is wrong if,
all things considered, its consequences are bad. This approach therefore tends to reject firm rules
for ethics, such as ‘Do not lie’ or ‘Do not kill’, because it all depends on the circumstances. So if, in a
particular situation, lying is going to produce an outcome that is more good than bad, then it is
legitimate to lie.

You are acting for the prosecution of a man accused of murder. Conclusive DNA evidence has shown
that he has committed the crime, but, owing to a technical violation of the rules, you cannot rely on
that evidence and a conviction cannot be secured without it. A police officer offers to plant some
incriminating evidence.
If you were a consequentialist, you might decide that the good of ensuring a conviction of a guilty
person justifies planting the evidence. However, that might not follow if the legal system would fall
into disrepute if it were to become known what you had done and if juries were to refuse to convict
people.
Problems with consequentialism
One is that it places no weight on motivations. The act is justified under consequentialism if it
produces good results, even if it is badly motivated. If a judge decides to acquit an innocent
defendant because he finds her attractive, is that ethical? The result is good: the innocent defendant
goes free, but has the judge acted ethically?

For others, the problem with utilitarianism is that it leads to unacceptable results. Imagine that a
judge sentences an innocent, but unpopular, politician to prison for ten years. A utilitarian
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calculation might suggest that the joy caused to the public by the imprisonment is greater than the
harm done to the politician and that the wrongful imprisonment is therefore justified. But is that
right? Can good consequences (the happiness to the public) really justify injustice? Can a lawyer who
runs off with his millionaire client’s money really try to justify this by saying that he derived far more
pleasure from the money than the millionaire would have done, and so has acted ethically?! Surely,
the good consequences do not always justify the means?

Deontology
states that there are certain moral rules that must be followed, regardless of the circumstances
It is, they say, right to tell the truth not because doing so makes people happy or because of other
good consequences, but simply because telling the truth is a good. Immanuel Kant is widely seen as
a leading proponent of this approach. One of his fundamental principles is well known: you should
never use someone simply as a means to an end. This is important for lawyers because it shows that
lawyers should not use clients to achieve their own goals, even if they believe that doing so will
create more good.

One of the great benefits of deontology is its clarity—at least as long as the rules are clear! There is
no need to worry yourself about the consequences of your action; you simply follow the rule, come
what may. Lawyers may be drawn to this approach because they are familiar with statutes or
contracts setting out requirements that must be followed.

The new SRA Code takes a particular stance over ethical issues, from which the following themes
might be drawn out.
 • The Code supports the use of general principles. There is therefore a degree of principlism
indicated in the Code. However, these principles are mostly not abstract, but applied.
 • The Code acknowledges that the application of principles might work out differently in
different contexts. There is therefore an acceptance that the ethical approach must involve a careful
appreciation of the particular set of facts. This might suggest support for those ethical approaches,
such as the ethics of care, which seek to tailor the ethical solution to the facts of the particular case.
However, there is a limit to that. The mandatory principles show that there are some bright lines
that must not be crossed.
 • The Code, interestingly, accepts that there is a degree of judgement involved in the
application of the principles. This suggests that there is, in some cases, a range of acceptable views
about what might be an ethical approach in a context and that the SRA will respect that. That is
hardly full-blown relativism, but an acknowledgement that there is not always a single correct
solution in ethically complex issues.
 • The Code acknowledges that small firms and large firms, or solicitors with different kinds
of clients, may respond differently to an ethical dilemma.

4. The lawyer–client relationship

what kind of relationship will a good lawyer try to have with his or her client? Is the lawyer to be a
friend? An adviser? Or is the lawyer to be the most dedicated servant doing everything possible to
help the client?

the relationship between the lawyer and the client is marked by the notion of ‘partisanship’. A
lawyer is not meant to be neutral, ensuring there is a fair outcome; rather, he or she is meant to
represent the client’s case and ensure that the client gets the best outcome possible. A lawyer is not
meant to use cases to pursue his or her own agenda, but to enable the client to do what he or she
wants. As we shall see, however, not everyone agrees that the lawyer should be simply a ‘hired gun’
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doing everything that he or she can in order to achieve what the client wants. Some argue that
lawyers do have obligations to the greater good and to the justice system generally.

T he Solicitors Regulation Authority (SRA) Code of Conduct puts the promotion of the interests of the
client at the heart of a lawyer’s ethical responsibilities.
SRA Code of Conduct, Outcome 1.2, reads:
O(1.2) you provide services to your clients in a manner which protects their interests in their matter,
subject to the proper administration of justice;

Solicitors must therefore put the clients’ interests before their own. Of course, that is not quite as
altruistic as it might at first appear: doing well for a client will result in fees being paid and new work
arriving.

The principle of autonomy could be used to say that it is not the job of the lawyer to impose on the
client the lawyer’s view of what is best. The job of the lawyer is to give the necessary information to
the client and enable the client to decide. So, in the example of the client buying an undesirable
house, the lawyer might properly point out to the client the problems with the property, but the
lawyer should recognise that whether or not to buy is a decision for the client and should seek to
implement the client’s wishes.

Paul Philip, SRA Chief Executive, said: “Maintaining the correct balance between duties is not simple
and all matters must be decided on the facts. Solicitors should of course advance their clients' cases,
but they are not ’hired guns’ whose only duty is to that client.

The wellspring of this approach is the decision of Sir Thomas Bingham in Bolton v Law Society [1994]
1 WLR 512. Lord Bingham’s reasoning is hard to fault. If a solicitor acts with anything less than
complete integrity, probity and trustworthiness, he must expect severe sanctions. Lapses may be of
varying degrees but proven dishonesty is the most serious. There is a need for punishment and
deterrence. The sanction is to ensure that solicitor cannot reoffend. Most fundamental of all, the
reputation of the profession as trustworthy must be preserved.
Bolton has come to be thought of as containing a single simple proposition – if a solicitor behaves
dishonestly he will almost always be struck off because otherwise solicitors generally would be
considered untrustworthy. Actually the judgment sets out a rational framework at the heart of
which is the need for integrity, probity and trustworthiness. It acknowledges that lapses may be of
varying degrees and correctly identifies the central importance of the profession’s reputation.
It is right that solicitors are held to a higher standard of integrity than simply being honest. A
solicitor’s failure to meet even the ethical standard required by the criminal law of ordinary people is
particularly bad, but it does not follow that the objectives identified by Lord Bingham necessarily
require an approach in which honesty is the test and the circumstances are only really relevant in a
usually fruitless search for exception

Biography
Primary Sources
 Unattributed Sources
 Table of Cases
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o Bolton v Law Society [1994] 1 WLR 512

 Legislation

Secondary sources
 Books
 Journal articles
 Articles
o Regulation of the legal profession in the UK (England and Wales): overview
Professional structures https://uk.practicallaw.thomsonreuters.com/7-633-7078?
transitionType=Default&contextData=(sc.Default)&firstPage=true
 Websites
o SDT should take an integrity-based approach - By John Gould- 19 November 2018
o https://www.lawgazette.co.uk/commentary-and-opinion/sdt-should-take-an-
integrity-based-approach/5068365.article
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¡Hola Andy!

Adjunto el reporte junto con los soportes del último trimestre del año sobre:  (i) política de
paz con legalidad; (ii) crisis migratoria venezolana y (iii) asuntos culturales.
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 Cordialmente,
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