Ethical and other conduct guidance for lawyers

This is an extremely important topic. Awareness of these issues will protect your reputation and serve the best interests of your client.

Solicitors Regulation Authority

Standards and Regulations

The “SRA Standards and Regulations” replaced the SRA Handbook on 25 November 2019. Included within this is a new “SRA Code of Conduct for Solicitors, RELs and RFLs” and “SRA Principles”.

Details can be found at: https://www.sra.org.uk/solicitors/standards-regulations

The SRA Principles are:

You act:
1. in a way that upholds the constitutional principle of the rule of law, and the proper administration of justice.
2. in a way that upholds public trust and confidence in the solicitors' profession and in legal services provided by authorised persons.
3. with independence.
4. with honesty.
5. with integrity.
6. in a way that encourages equality, diversity and inclusion.
7. in the best interests of each client.

Information about the client

Paragraph 6.3 and 6.4 of the Code of Conduct relates to ‘Confidentiality and disclosure’.

Paragraph 6.3 sets out the duty of confidentiality (of information about the client), which should be explained to the client at the outset:

You keep the affairs of current and former clients confidential unless disclosure is required or permitted by law or the client consents.

Whether confidentiality can be breached in other circumstances is a grey area:

There are no exceptions to paragraph 6.3 set out within the Code of Conduct.
Instead of rectifying this deficiency in the rules, the SRA published SRA, 'Guidance: Confidentiality of client information' (25/11/19). Before setting out some scenarios, it states: “[I]n the situations described although there will be a breach of your duty, from a disciplinary point of view, the justification will be taken into account and is likely to mitigate against regulatory action by the SRA.” The scenarios are set out under the headings following headings:
- Where a client has indicated their intention to commit suicide or serious self harm.
- Preventing harm to children or vulnerable adults.
- Preventing the commission of a criminal offence.

Some confidential information is protected by legal professional privilege (LPP) if it comes within the definitions of ‘advice privilege’ or ‘litigation privilege’. This information can only be disclosed without client consent if required by statute (there has never been a public duty exception).

If you decide that you must reveal confidential information you should first check to see if the client would consent to this. You should then tell the client that you will reveal the information and find out whether or not the client still wants you to represent him. In any event, you should write to the client explaining your decision.

Providing information to the client

Paragraph 6.4 of the Code of Conduct states:

Where you are acting for a client on a matter, you make the client aware of all information material to the matter of which you have knowledge, except when:

(a) the disclosure of the information is prohibited by legal restrictions imposed in the interests of national security or the prevention of crime;

(b) your client gives informed consent, given or evidenced in writing, to the information not being disclosed to them;

(c) you have reason to believe that serious physical or mental injury will be caused to your client or another if the information is disclosed; or

(d) the information is contained in a privileged document that you have knowledge of only because it has been mistakenly disclosed.

Examples of the above exceptions include:

Paragraph 6.4(a). The previous version of paragraph 6.4(a) was “legal restrictions effectively prohibit you from passing the information to the client, such as the provisions in the money-laundering and anti-terrorism legislation”. The new version does not so clearly cover the tribunal’s power under rule 14 to direct non-disclosure of information, but there is an overlap between paragraph 6.4(c) and the tribunal’s power and obviously it would still be wise to obey the tribunal.
Paragraph 6.4(b). This would allow you to (with the client’s prior written consent) receive medical records on an undertaking not to disclose certain information to the client.
Paragraph 6.4(c). This would be rare but might cover the situation where a victim’s statement goes beyond what it should contain, and to disclose it would cause extreme distress to your client.

Your client and the court

Paragraph 1.4 states:

You do not mislead or attempt to mislead your clients, the court or others, either by your own acts or omissions or allowing or being complicit in the acts or omissions of others (including your client).

Paragraph 2.4 states:

You only make assertions or put forward statements, representations or submissions to the court or others which are properly arguable.

Paragraph 2.7 states:

You draw the court's attention to relevant cases and statutory provisions, or procedural irregularities of which you are aware, and which are likely to have a material effect on the outcome of the proceedings.

The Law Society practice note states: ‘It is highly unlikely that to seek a client’s discharge in accordance with his or her express wishes would not be ‘properly arguable’, even if it is unlikely to succeed.’

These rules cover the situation where a client wants to mislead the tribunal, for instance in relation to medication. An earlier version of the Code specifically mentioned inconsistent statements, which do not necessarily indicate deception.

Capacity

Questions of capacity are linked with these many of these ethical questions. See:

The Mental Capacity Act 2005 generally (11.1 above).
Representatives (13.5.4 below).
Capacity to make an application (14.4.1 below).
Capacity to appoint a representative and to give instructions (14.4.2 below).

What not to do

An example of bad practice, and of the SRA’s jurisdiction over non-qualified staff, can be found in SRA decision: Billy Chucks of Chris Solicitors [2013] MHLO 22 (SRA). There was evidence that he:

Failed to comply with restrictions on his attendance imposed by a number of hospital trusts: on one occasion the police were called when he ignored a ban prohibiting his attendance.
Prepared a ‘consent to disclosure’ request at a hospital for a client who subsequently confirmed that he had not instructed Mr Chucks to act on his behalf.
Improperly removed clients’ files/documentation without authority from a former employer, and had not honoured an assurance that he would return them.

The effect of the SRA’s order was that he could no longer be employed in legal practice without prior approval of the SRA.

In Lord Chancellor v John Blavo [2016] EWHC 126 (QB)^M, [2016] MHLO 6 the judge decided that there was a strongly arguable case that John Blavo was party to an arrangement whereby false claims were submitted to the LAA in many thousands of cases, there was evidence of a less than scrupulous approach to his duty of disclosure to the Court, and evidence of a recent attempt improperly to put property beyond the reach of the Lord Chancellor. The precursor to the official investigation was an audit during which 49 files were passed to the LAA's counter-fraud team, whose conclusions included:

In respect of 42 of these 49 files HMCTS have confirmed that they have no record of there having been tribunal proceedings either in respect of the individual client or on the date when the file indicates... Following this, the LAA made inquiries of the NHS on a selection of files among the 42 that had no tribunal hearing and the NHS confirmed that they have no records relating to 16 of the clients... After completing this analysis the Applicant undertook a further comparison of all mental health tribunal claims against the HMCTS system. As a result of this analysis, it was found that the Company had submitted a total of 24,658 claims for attendance at tribunals of which 1485 (6%) tribunals were recorded by HMCTS as having taken place... After visiting the Company's Head Office and requesting documentation from the Company and the Respondent, the LAA team used an electronic sampling tool to randomly select 144 cases for further investigation, across the last three complete financial years. Only 3% could be evidenced from HMCTS records...

Subsequently, John Blavo was personally ordered to pay £22,136,001.71 of Legal Aid claims (Lord Chancellor v Blavo and Co Solictors Ltd [2018] EWHC 3556 (QB)^M) and £795,305.47 costs of the SRA’s intervention (John Blavo v Law Society [2018] EWCA Civ 2250^M).

In Lucia Benyu (strike off) and Ronnie Benyu (section 43 order) [2014] MHLO 138 (SDT) Lucia Benyu of Peters & Co was struck off for the dishonest misappropriation of £240,000 of a vulnerable client’s funds. The Solicitors Disciplinary Tribunal concluded that:

The First Respondent had admitted a lack of integrity and had had several allegations of dishonesty proved against her. The Tribunal had heard a litany of the most ruthless exploitation of an obviously vulnerable individual and had disbelieved much of what the First Respondent had to say whilst giving evidence on oath. In cases where dishonest misappropriation of client’s funds had been found then it was well-established that that would invariably lead to strike off. There were no circumstances put before the Tribunal that might lead it to mitigate that penalty. The First Respondent would be struck off the Roll of Solicitors. Indeed, the seriousness of her misconduct was such that this would have been the appropriate sanction even if she had not been found to be dishonest.

In 2016 Victoria Wadsworth was struck off (Victoria Wadsworth (strike off) [2016] MHLO 58 (SDT)). Since 2007 she had been in charge of a law firm's mental health department, and had invented another firm called “Healthy Minds” to pretend to write medical reports for clients at the Legal Services Commission's expense. In the Crown Court she had admitted to obtaining £25,000 between 2007 and 2012 (though the law firm stated it had repaid £181,887.72, and the Legal Aid Agency statement referred to a value exceeding £134,000 being repaid). She was sentenced to three years (reduced to two on appeal) for fraud.

SRA – Professional Ethics Helpline

The Solicitors Regulation Authority operates a Professional Ethics helpline which is available on 0870 606 2577 from 9am to 12pm, and 2pm to 4pm on weekdays. If you have any ethical dilemmas it is wise to call them and keep a detailed attendance note of the conversation on the file. Although the helpline should be called, it may be more useful to consult a trusted colleague or your supervisor.

Legal Aid Agency – the contract

As a matter of contract law we must abide by the various LAA rules.

Dishonestly breaching the contract for financial gain is fraud. The LAA have a fraud investigation department who should be informed if you come across suspicious practice.

Mental Health Lawyers Association

The Mental Health Lawyers Association have published a MHLA Code of Conduct for Representatives which members must follow:

In representing hospital inpatients, particularly those detained by the state against their will, legal representatives carry out an important function for a civilised society. It is therefore important that the highest ethical and professional standards are adhered to.
Status of this Code
The committee of the Mental Health Lawyers Association have adopted this Code of Conduct. Annual renewal of membership, from January 2008, will require an undertaking that the Code will be followed.
This Code is in addition to the general Codes of Conduct made by the Solicitors Regulation Authority and the Institute of Legal Executives. The MHLA is a representative body rather than a regulatory body but, where appropriate, encourages complaints to be made to the SRA and/or ILEX.
Quality of service
1. Representatives should be members of the SRA’s Mental Health Review Tribunal accreditation scheme, or actively seeking membership. The scheme is designed to demonstrate legal knowledge (through the accreditation process) and suitability (including a Criminal Records Bureau check). Unqualified representatives and/or those not on the panel must be closely supervised by a member of the scheme.
2. Representatives should always conduct themselves professionally and courteously, and strive to provide a high standard of work in both advice and representation.
Making appointments
3. Except in exceptional circumstances, representatives should contact ward staff to arrange prior appointments with clients and should arrive punctually. Ward staff should be asked to ensure that a private room will be booked.
Behaviour on the ward
4. The representative should report to ward staff on arrival, and then go straight to the appointment with his client.
5. Unplanned meetings with other existing clients should be arranged via the ward staff.
6. The representative should not loiter on the ward, hand out business cards except where requested, or otherwise approach patients who are not existing clients.
7. If approached by a patient who is not a client, the representative may give a business card for an appointment to be made, but should inform ward staff and, unless there is good reason to do so, should not accept instructions from a client who already has legal representation. The representative should consider contacting the existing solicitors to invite them to contact the patient again.
Disputes over representation
8. If there is a dispute over which firm should represent a patient, then this should be resolved via an independent third party rather than by revisiting the patient, as usually it is the more impressionable and vulnerable patients who find themselves in this situation. Seeking clients
9. No representative is to place posters in the hospital to advertise his firm; only standard hospital/Trust/national posters are allowed. Representatives should instead ensure that they are on the hospital’s list of firms and/or representatives.
Gifts
10. No gifts of any description should be given to hospital staff, including MHA administrators and nurses, or to clients or other patients. Hospital procedures
11. Representatives will comply with any lawful hospital procedures such as those relating to searches, identification, protected meal times, and access to medical records.
Dress Code
12. Appropriate attire and footwear should be worn by legal representatives and should be consistent with presenting a professional image. Those representing mental health clients should be sensitive to their client’s environment and bear in mind issues of risk at all times. General
The word ‘representative’ in this Code includes solicitors, legal executives, and any solicitors’ staff who represent clients.
Contact admin@mhla.co.uk with any queries or feedback.
Version 2, June 2013

Law Society – complaints guidance

The Law Society has published advice on ‘How to complain about legal professionals who work for people with mental health problems’ which is available at http://www.lawsociety.org.uk/for-the-public/faqs/complaining-about-a-solicitor/ It covers complaints to the Legal Ombudsman, SRA, BSB, LAA and Law Society.

Hospitals and Trusts

Some hospitals and Trusts have also published their own codes of conduct, which are circulated periodically following particularly egregious conduct by a minority of legal representatives.

Legal Ombudsman

Clients may complain to the Legal Ombudsman if they have first given the firm 8 weeks to revolve their complaint.

Further information is on their website at www.legalombudsman.org.uk

Information Commissioner’s Office

The ICO is responsible for enforcement of the Data Protection Act 1998 and the General Data Protection Regulation (EU) 2016/679.

Further information is on their website at www.ico.org.uk

Other guidance

See:

The Legal Aid Agency’s peer review system
Law Society, 'Practice note: Representation before mental health tribunals' (12/12/19)

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