ethics

Myers v Elman — Professional Misconduct

Conduct which would reasonably be regarded as disgraceful or dishonourable by attorneys of good repute and competency. The conduct must reflect adversely on the attorney’s fitness to practise.

Mere negligence, even if serious, does not automatically amount to misconduct unless it is sufficiently grave or demonstrates unfitness.

Campbell v Hamlet — Professional Misconduct

Allegations of professional misconduct in disciplinary proceedings must be proved beyond a reasonable doubt. Because of the seriousness of possible sanctions, the criminal standard of proof applies rather than the civil balance of probabilities.

Blyth v Birmingham Waterworks — Professional Negligence

Negligence is the omission to do something which a reasonable person would do, or doing something which a prudent and reasonable person would not do. This objective test is the starting point for determining whether an attorney fell below the required standard of care.

Three requirements for Professional Negligence

To succeed in professional negligence, the claimant must establish:

1. Duty of Care
The attorney must owe a duty to exercise reasonable skill and care in carrying out the retainer. This duty arises from the retainer and the Code obligations of competence and diligence. In will-drafting cases, the duty extends beyond the testator to intended beneficiaries, who may sue in tort despite lack of privity, as established in White v Jones.

2. Breach of Duty
The claimant must show that the attorney fell below the standard of a reasonably competent attorney. The court considers what a reasonably competent attorney would have done in the circumstances, and failure to act with proper skill, care, or promptness may amount to a breach. This standard is illustrated in Midland Bank v Hett, Stubbs & Kemp.

3. Loss (Causation and Damage)
The claimant must prove that actual loss was suffered and that it was caused by the attorney’s breach. The “but for” test applies, meaning the loss would not have occurred but for the breach, and the loss must be reasonably foreseeable. This requirement is reflected in Rankine v Garton Sons Co Ltd.

Part A Rule 21, Part B rule 18- PN/duty of care

1. An attorney-at-law shall always act in the best interests of his client, represent him honestly, competently and zealously and endeavour by all fair and honourable means to obtain for him the benefit of any and every remedy and defence which is authorised by law, steadfastly bearing in mind that the duties and responsibilities of the AAL are to be carried out within and not without the bounds of the law

2. In the performance of his duties an AAL shall not act with inexcusable or undue delay, negligence or neglect

Pritchard Joyce & Hinds v Batcup - PN

Standard of Care
The standard expected of an attorney is that of a reasonably competent practitioner exercising ordinary skill and care. The law does not demand perfection, but it does require the level of competence reasonably expected from members of the profession.

Meadows v Meadows / Standard v Ullithorne — Conveyancing / Professional Negligence

In conveyancing and other non-contentious matters, an attorney has a duty to read legal documents, explain their effect to the client, and ensure the client understands the transaction. Failure to detect restrictive covenants or adverse clauses may amount to negligence. The AAL must explain the client’s obligations, if any that arise. Also applicable to deeds.

Lloyd v Grace Smith & Co- PN

Liability for Agents
A solicitor or attorney may be liable for wrongful acts of a clerk or employee carried out within the scope of authority or employment. Delegating work does not absolve the attorney of responsibility to supervise or review the work properly. Applies to clerks and partners of the AAL.

AAL’s Authority to Settle and Scope of Retainer

The attorney’s authority depends on the scope of the retainer, which defines the extent of the attorney’s authority as the client’s agent. As established in Midland Bank Trust Co Ltd v Hett, Stubbs & Kemp, the retainer governs what the attorney is authorised to do and, by extension, what binds the client. In contentious matters, an attorney may have implied or ostensible authority to take procedural steps, including negotiating and, in some cases, settling a matter, provided this is not contrary to the client’s express instructions.

However, the existence of such authority does not displace the attorney’s duties under the Code. Even where authority may be implied, the attorney must keep the client reasonably informed and obtain instructions on fundamental decisions, particularly settlement, which directly affects the client’s substantive rights. As illustrated in Jennifer Moraldo v Anthony Sandiford, acting within ostensible authority may still amount to a breach of duty where the attorney fails to consult or properly inform the client.

Similarly, in the context of fees and expenses, the attorney must act within the limits of the authority conferred by the client. Where a fee, particularly a substantial or unusual charge, has not been expressly agreed or cannot be clearly implied, the attorney must obtain the client’s informed consent. The authorities of Re Solicitors, Re Taxation of Costs and Re Blyth & Fanshawe emphasise that attorneys are required to inform clients of significant expenses and obtain proper authority, especially where such costs may not be recoverable on an assessment of costs.

Accordingly, while an attorney may bind the client vis-à-vis third parties within the scope of the retainer, acting without proper instructions or authority in relation to significant matters may render the act unauthorised as between attorney and client, expose the attorney to disallowed fees or disciplinary consequences, and constitute a breach of the Code.

Part B Rule 31

In pecuniary matters an AAL shall be most punctual and dilligent, he shall never mingle funds of others with his own and he shall at all times be able to refund money he holds for others.

Part B Rule 32(1)

Client Accounts
An attorney must keep proper accounting records clearly distinguishing money belonging to clients from money belonging to the attorney. Accurate books, separate client accounts, and transparency are essential professional obligations.

Part B Rule 14

Prompt Payment of Client Money
Money received for a client must not be retained longer than absolutely necessary. Once funds are due to the client, the attorney must account for and transfer them promptly unless there is lawful justification to retain them.

Part B Rule 35(1)

Breach by an AAL of any of the Rules contained in this Part shall constitute professional miconduct and and AAL who commits such a breach shall be liable to any of the penalties which the Disciplinary Committee and/or the Court is empowered to impose.

R v Gray- Contempt

Contempt arises where an attorney’s conduct interferes with the administration of justice or undermines the authority of the court. In a problem question, raise contempt where the AAL insults the judge, disrupts proceedings, refuses to comply with court orders, or misuses the court’s process. Contempt is both a disciplinary issue and a breach of duty to the court.

Restrictions on the AALs authotiry to charge fees- Professional Fees

An attorney-at-law’s ability to charge fees is subject to key restrictions. First, fees are only recoverable for work done in a professional capacity, and non-professional items cannot be included in a bill of costs (Re Shilson, Coode & Co).

Secondly, as a fiduciary, an attorney must not profit from his position, and where acting as a trustee, is generally not entitled to charge for legal work done in administering the trust unless there is an express charging clause (Broughton v Broughton; Clarkson v Robinson).

PQ Use:
If fees are claimed, ask:

• Was the work professional?

• Is the AAL in a fiduciary position (e.g. trustee)?

• Is there an express clause allowing payment?

Broughton v Broughton — Professional Fees

A trustee must not profit from the trust unless expressly authorized by the trust instrument, statute, or all beneficiaries acting with full capacity and knowledge. An attorney acting as trustee is generally not entitled to remuneration for administering the trust unless such authority exists.

Retainer — General Principle

A retainer is the contractual relationship by which a client engages an attorney to provide legal services. Once retained, the attorney owes duties of competence, loyalty, confidentiality, honesty, and proper advice. Breach of these duties may result in civil liability and disciplinary sanctions.

Three Rivers District Council v Bank of England — Legal Professional Privilege

Legal professional privilege is the protection against the revelation in the course of any legal proceedings, of any communication, whether verbal or written, between attorney-at-law and a client/potential client made for the purpose of giving or receiving legal advice. It exists to allow and encourage a client to be open, honest and forthright with his attorney-at-law to obtain the best legal advice possible.

Like confidentiality, LPP survives the retainer.

Where LPP arises, neither the AAL nor his client/potential client can be ordered by a court to disclose communications between them in relation to the giving of legal advice or preparing for litigation: Jonathan Herring, Legal Ethics. However, it should be noted that this only applies in the context of an AAL-client relationship, i.e. the discussion involves the giving and receiving of legal advice.

Privilege in this context only arises for consideration or becomes a live issue when the communication between the attorney-at-law and client/potential client is being sought for the purpose of it being used as evidence in litigation brought by a third party against the client.

Test/Conditions for LPP to apply

1. First, there must be an attorney–client relationship, which arises not only where a retainer exists but also where the attorney is consulted in a professional capacity (Minter v Priest).

2. Secondly, the communication must be “fairly referable” to that relationship, meaning it is made for the purpose of seeking or giving legal advice in the attorney’s professional capacity (Balabel v Air India; Three Rivers District Council v Bank of England (No 6)).

3. Privilege only attaches where the communication falls within either:

• Legal advice privilege — communications between lawyer and client for the purpose of giving or obtaining legal advice (Istil Group v Zahoor); or

• Litigation privilege — communications created for the dominant purpose of pending or contemplated litigation, including communications with third parties (Istil Group v Zahoor; Three Rivers (No 6)).

R v Cox and Railton — Exception to LPP

Legal professional privilege does not apply where communications are made in furtherance of a criminal or fraudulent purpose. Where a document or communication is created for the dominant purpose of assisting, concealing, or facilitating illegality, the privilege is lost because the attorney–client relationship is undermined by the unlawful objective. This principle is illustrated in R v Cox and Railton and reaffirmed in cases such as R v Central Criminal Court ex p Francis & Francis and C v C (Privilege: Criminal Communications). However, privilege is not lost merely because advice relates to potentially unlawful conduct; it is only lost where the purpose is to further the illegality.

Other Exceptions to Legal Professional Privilege

1. Legal professional privilege may also be displaced where the client waives it, as the privilege belongs to the client and may be waived expressly or impliedly, for example by placing the material in issue or disclosing it to third parties (Oxford Gene Technology Ltd v Affymetrix Inc (No 2); Re D (a child)).

2. In addition, privilege may be overridden by statute where legislation requires disclosure, as recognised in Parry-Jones v Law Society and R (Morgan Grenfell & Co Ltd) v Special Commissioner of Income Tax.

3. Further, under the Code, disclosure may be permitted in limited circumstances such as disciplinary or regulatory proceedings (Gorstew Ltd v GLC; Brady v GLC).

LPP — Past Conduct vs Ongoing Crime

A distinction is drawn between:

• Past wrongdoing: usually still privileged if disclosed to obtain legal advice;

• Ongoing or future wrongdoing: not privileged where the communication furthers, conceals, or facilitates the unlawful activity.

Prince Jefri Bolkiah v KPMG — Confidentiality

The duty of confidentiality is a fundamental obligation owed by a lawyer to the client. It extends to all information obtained during the professional relationship, whether or not that information is privileged, and survives the end of the retainer.

Confidentiality v Legal Professional Privilege

In a problem question, confidentiality arises where the issue is whether the attorney may voluntarily disclose information. It is a broad ethical duty covering all client information and continues even after the retainer ends, subject to limited exceptions (e.g. crime/fraud, court order, waiver).

Legal professional privilege (LPP) arises where a third party seeks disclosure (e.g. court, discovery, subpoena). It is a legal right of the client to refuse disclosure of protected communications, provided there is an attorney–client relationship and the communication is for legal advice or litigation (Three Rivers District Council v Bank of England (No 6)).

Not all confidential information is privileged, but privileged communications are ordinarily confidential.

Young v Robson Rhodes- Confidentiality

Information barriers are normally made up of the following elements:

 Physical separation (Also consider what a sole practitioner should do)

 Separate records – computer stored information and files of one client must not be

accessible. Physical paper copies should be kept in locked filing cabinets. Use of password

protected computer records.

 Restrictions on communications – AAL and staff should be trained not to communicate

information about cases to their families and even to other members of staff/employees.

 Management control – oversight procedures should be in place to ensure compliance with

on-going training.

Employee Disclosure of Client Information — Professional Responsibility

If staff improperly disclose client information, the employee may personally breach confidentiality, and the attorney or firm may also face responsibility for failing to supervise, train, or maintain proper safeguards. Delegation does not remove professional responsibility.

Retainer — Nature of Relationship

A retainer is the contractual arrangement by which a client engages an attorney to provide legal services. It defines the scope of work, authority to act, payment obligations, and professional duties owed by the attorney. It may be oral, written, express, or implied from conduct.

Express Retainers

An express retainer arises where there is a clear “meeting of the minds” between attorney and client, involving a definite offer and acceptance for legal services. It may be oral, written, or hybrid.

• Oral retainer: Valid where permitted, but risky. The burden of proving the retainer lies on the attorney, and where disputed, courts may prefer the client’s evidence (Griffiths v Evans; Wiggins v Peppin). If no written record exists, the attorney bears the risk (Allen v Bone).

• Written retainer: Best practice and sometimes required by statute. It should clearly set out the scope of work and fee arrangements and be signed by the client.

• Hybrid retainer: Part written, part oral. Written terms prevail in case of conflict, and any amendments should be made in writing.

R (Ford) v Financial Services Authority- Joint Retainer

In a joint retainer, there is no confidentiality between the jointly represented clients, as each client is taken to have consented to the sharing of information with the others. Accordingly, information disclosed by one client may be communicated to the others, and no client can later assert privilege against the other.

D A Starke Pty Ltd v Yard — Joint Retainer

Whether a retainer is joint or several depends on the entirety of the circumstances, including the nature of the clients’ interests and the terms of the engagement. Where a joint retainer is found, the clients may be jointly and severally liable for the attorney’s fees, meaning the attorney may recover the full amount from any one client, subject to that client’s right of contribution against the others.

Client Absconds or Leaves Jurisdiction — Fees

If one jointly liable client cannot be located, has absconded, or is outside the jurisdiction, the attorney may still pursue the remaining jointly liable client(s) for the entire outstanding fee, subject to the terms of the retainer and ordinary debt principles.

Summons to Attorney as Witness — LPP

If an attorney is summoned to give evidence, privilege may be asserted only where the communication is genuinely privileged and no exception applies. If privilege is displaced (for example by the iniquity exception), the attorney may be compelled to testify subject to procedural rules.

Continuing Duty of Confidentiality — After Retainer Ends

A lawyer’s duty of confidentiality continues even after the retainer has ended, the matter has concluded, or the client relationship has broken down. The obligation does not cease merely because representation has terminated. Same as LPP.

Wills Retainer — Duty of Urgency

Where a client seeks preparation of a will and urgency is communicated (for example illness, age, or imminent risk), the attorney must act promptly and diligently. If unable to do so, the attorney should decline the retainer or make immediate alternative arrangements. Delay may amount to negligence.

Will Drafting— Professional Negligence

In will-drafting cases, an attorney’s negligence may cause loss not only to the estate but also to intended beneficiaries who are deprived of gifts due to delay, omission, or defective drafting. Where such loss is reasonably foreseeable and arises from a failure to give effect to the testator’s intentions, courts may recognise claims by those beneficiaries.

R&T Thew v Reeves- PN

An attorney cannot rely on workload pressure as a defence to negligence. Once a retainer is accepted, the attorney must act with reasonable skill and diligence, and failure to manage workload so as to meet essential obligations, such as deadlines, may amount to inexcusable negligence

Officer of the Court — Suspicious Documents

Where an attorney knows or reasonably suspects documents may be forged, altered, backdated, or misleading, the attorney must not blindly rely on them. Proper steps include investigation, seeking clarification, refusing to deploy false material, or withdrawing if necessary.

Part B Rule 2

An AAL shall never knowingly mislead the Court.

A lawyer’s duty to the court overrides the duty to advance the client’s case. The attorney must not knowingly or recklessly assist in presenting false evidence, misleading documents, or dishonest factual assertions.

Reckless Indifference — Professional Misconduct

Even without actual knowledge of fraud, an attorney who ignores obvious warning signs or proceeds with reckless indifference to the truth may face disciplinary consequences. Wilful blindness can be treated seriously in professional ethics.

Pleadings Based on False Material — Ethics

Filing pleadings or advancing a defence founded on documents known or suspected to be false may breach ethical duties, expose the client to sanctions, and place the attorney at risk of disciplinary proceedings or adverse judicial findings.

Re Blyth & Fanshawe

An attorney-at-law may only recover disbursements that are reasonably incurred and properly authorised. In Re Solicitors, Re Taxation of Costs [1982], it was established that attorneys must inform clients of unusual expenses, express authority is required for such costs. Accordingly, personal or unauthorised expenses may be disallowed on taxation.

Internal Consultation Charges — Billing Ethics

Charging a client for consultation with another lawyer within the same firm may be permissible only if reasonable, necessary, accurately recorded, and consistent with the retainer terms. Hidden mark-ups or unnecessary internal charges may be improper.

Bill of Costs/Invoice

An itemised written statement issued by an attorney-at-law setting out, in sufficient detail, the fees, charges, and disbursements claimed for legal services rendered to a client. It provides a breakdown of the work done and the amounts charged in an itemised form, including a summary of the services performed, any payments already received, and the balance due. The purpose of an itemised bill of costs is to give the client adequate information to assess the fairness and reasonableness of the charges and to enable a court, where necessary, to review the propriety of each item claimed.

When does Conflict of Interest arise

An attorney-at-law must ensure that his client’s interests do not conflict with:

(1) his own interests: Spector v Ageda, Clarke Boyce v Mouat

(2) interests of another existing client of the AAL: Clarke Boyce v Mouat

The law adopts a strict approach. In Bolkiah v KPMG (a firm), the court emphasised the importance of preserving client loyalty and confidentiality, and that even the risk of conflict may be sufficient to disqualify an attorney from acting. Similarly, in Hilton v Barker Booth & Helliwell, it was held that where a conflict is significant, the attorney should not act at all. Although an attorney may proceed where there is full disclosure and informed consent, as recognised in Clarke Boyce v Mouat, this is only permissible where the conflict is manageable and does not impair the attorney’s ability to act in the client’s best interests.

Accordingly, the proper approach is to consider whether there is a real risk that the attorney’s loyalty to the client may be divided. If such a risk exists and cannot be adequately managed through disclosure and consent, the attorney must decline or terminate the retainer.

Law Firm Shareholding in Opposing Party — Conflict

If an attorney or law firm has a significant financial stake in a party adverse to the client, acting against that entity may create a serious conflict because the firm’s financial interests may diverge from the client’s best interests.

Conflict of Interest — Informed Consent & When AAL Must Cease Acting

A conflict arises where an attorney-at-law owes separate fiduciary duties of loyalty to two or more clients whose interests conflict in the same or a related matter. As a general rule, an AAL should not act for multiple clients unless he can act in the best interests of each as if each were his only client.

Where a potential or likely conflict arises, the AAL may continue to act only if he obtains the informed consent of all clients after full disclosure of all material facts, as explained in Clarke Boyce v Mouat. Informed consent means the clients understand that the AAL may be unable to disclose all information to each party or give advice favouring one over the other, and they agree to proceed on that basis.

However, where there is a clear or actual conflict, particularly where the clients’ interests are incompatible or opposed (e.g. litigation), the AAL must not accept the retainer. If the conflict arises after the retainer has begun, the AAL must cease acting for both clients, since he cannot use confidential information to the detriment of either.

PQ USE

1. Identify whether there is a conflict between current clients

2. Determine if it is potential or actual

3. Ask whether informed consent was obtained

4. Assess if the conflict is manageable

5. If not → AAL must withdraw from both clients

Independent Judgment — Core Duty

An attorney must exercise independent professional judgment solely for the client’s lawful interests. Any relationship, investment, pressure, or divided loyalty that compromises that independence threatens professional obligations.

Declining a Retainer — When Necessary

An attorney should decline instructions where they lack time, competence, independence, or ability to act properly. Accepting a matter that cannot be handled responsibly may itself be negligent or unethical.

Cumulative Misconduct- PM

While an isolated lapse may be explained as error, repeated or cumulative breaches (e.g. negligence, improper billing, conflicts, or dishonesty risks) may demonstrate that an attorney is unfit to practise and justify disciplinary action. The court assesses the overall pattern of conduct, not just individual incidents.

The primary objective is the protection of the public and maintenance of confidence in the profession, and where conduct shows lack of integrity or persistent disregard of professional standards, more severe sanctions may be imposed (Bolton v Law Society).

PQ Use:

• One mistake → may not be misconduct

• Pattern of failures → supports finding of misconduct/unfitness

Legal Aid — Duty After Acceptance

Once an attorney accepts a brief, whether privately funded or under legal aid, he owes the same duties of competence, diligence, loyalty, and proper representation. The nature of the case or its unpopularity does not reduce professional obligations.

This reflects the principle that an attorney must act independently and fearlessly in representing the client, regardless of public opinion or pressure, as recognised in Rondel v Worsley.

PQ Use:

• AAL cannot:

  • do a “lesser job” because client is unpopular

  • withdraw improperly due to pressure

• Same standard applies in all cases

Public Hostility to Client — Professional Duty

Public anger, media pressure, or community outrage must not influence counsel’s performance. Attorneys are required to remain independent and uphold the accused’s right to a fair trial even in notorious or emotionally charged cases.

Courtesy Between Counsel — Professional Conduct

Attorneys owe one another professional courtesy and respect. Bullying, intimidation, mockery, or attempts to exploit an opponent’s inexperience are inconsistent with proper standards of advocacy and may amount to misconduct.

Contempt in the Face of the Court — Problem Triggers

Contempt in the face of the court occurs where misconduct happens in court or its precincts and affects proceedings. Key triggers:

• insulting or accusing the judge of bias (R v Gray)

• aggressive/violent behaviour (Re Johnson)

• arguing after ruling / ignoring judge’s warning

• disrupting proceedings

Criminal Contempt

Criminal contempt arises where conduct interferes with the administration of justice or lowers the authority of the court, whether inside or outside the courtroom. The test is whether there is a clear and unequivocal interference with proceedings (R v Gray; Izoura v R).

Use in problem questions where the AAL:

• insults or challenges the judge’s integrity

• disrupts proceedings / behaves aggressively

• publishes statements undermining the court

• fails to attend court after proper notice (Weston v CCC Administrator)

Civil (Procedural) Contempt

Civil contempt arises where there is disobedience of a court order. To establish contempt, it must be shown that:

• the order was clear and unequivocal

• the AAL had notice of the order

• there was a breach

Courts emphasise that orders must be obeyed unless set aside (TT: Glanville v Heller; Alloy Wong).

Use in problem questions where the AAL:

• fails to comply with an order

• ignores court directions

• does not perform a required act

Summary Committal (Criminal Contempt Only)

Summary committal (immediate punishment) is only used in exceptional cases of criminal contempt where:

• the conduct is clear and serious

• immediate action is needed to maintain order

Authority: Balogh v St Albans Crown Court

In exams: usually conclude

• contempt exists

• BUT summary committal not appropriate unless urgent

Balogh v St Albans — Use of Summary Contempt Power

Summary contempt powers should be used only where immediate intervention is truly necessary. If the crisis has passed and order is restored, ordinary procedures are generally preferable.

Penalties for Contempt (Civil & Criminal)

Where contempt is established, the court may impose sanctions including committal (imprisonment), fines, costs orders, or orders compelling compliance. In civil contempt, the court will usually first order the party to comply with the original order, and only impose committal if disobedience continues. In criminal contempt, sanctions are imposed to punish and uphold the authority of the court, including fines or imprisonment (R v Odhams Press). In problem questions, always conclude:

• contempt is established

• court may impose fine, committal, or compliance order

• committal is usually last resort in civil contempt

Contempt additional info

Before finding contempt, the court applies a high threshold: the conduct must be serious and interfere with the administration of justice, not mere rudeness or discourtesy (Balogh v St Albans Crown Court).

Key problem triggers include:

• Scandalising the court (outside court): attacking a judge’s integrity or impartiality amounts to contempt, but fair criticism is allowed (Ambard v Attorney-General).

• Failure to attend court: only contempt where there is proper official notice and no justification (Weston v CCC Administrator).

• Abuse of process: misuse of court procedures (e.g. false pleadings, delay tactics, forged documents) (Re Weisz ex p McDonald).

• Breach of undertakings: breaking a professional promise may amount to civil contempt and misconduct (Udall v Capri Lighting; Re A Solicitor).

Even where contempt is made out, the AAL must be afforded procedural fairness (notice of the charge and opportunity to respond) (Wayne Sturge v DPP and AG of Trinidad and Tobago). Contempt may also constitute professional misconduct (Weston v CCC Administrator).

Judicial Control of Courtroom — Core Principle

Judges have inherent authority to control proceedings, maintain decorum, protect participants, and ensure cases are heard fairly. This includes responding to misconduct, but responses must remain lawful and procedurally fair.

Starting a Law Practice — Shared Professional Responsibility

Attorneys practising together should implement systems for ethics compliance, supervision, file management, confidentiality, conflicts checks, billing controls, and support for junior advocates to reduce professional risk.

Royal Bank of Scotland v Etridge (No 2)

Transaction Calls for Explanation
Back: A transaction “calls for explanation” where it is not readily explicable by ordinary motives between parties dealing at arm’s length. If the transaction appears unusual, improvident, or arises from a relationship of trust, equity may require the benefiting party to justify it.

Presumed Undue Influence — Definition & Test

Qhere a relationship exists in which one party has acquired influence over another and a transaction occurs that appears to be the result of that influence rather than the free will of the weaker party. In the attorney–client relationship, this influence is presumed as a matter of law.

The test, as applied in Royal Bank of Scotland v Etridge (No 2) and Nature Resorts Ltd v First Citizens Bank Ltd, requires

(i) a relationship of influence and

(ii) a transaction that is not readily explicable on ordinary motives. Once these are established, undue influence is presumed and the evidential burden shifts to the attorney to rebut it.

Fiduciary- Bristol and West Building Society v Mothew

The relationship of attorney-at-law and client is a fiduciary one. Special obligations arise from the fiduciary relationship between the attorney-at-law and his client, among them is the requirement for the attorney-at-law to exercise the utmost good faith in his dealing with his client.

“A fiduciary is someone who has undertaken to act for and on behalf of another in a particular matter in circumstances which give rise to a relationship of trust and confidence…A fiduciary must act in good faith; he must not make a profit out of his trust; he must not place himself in a position where his duty and his interest may conflict; he may not act for his own benefit or the benefit of a third person without the informed consent of his principal. This is not intended to be an exhaustive list, but it is sufficient to indicate the nature of the fiduciary obligations.”

The main fiduciary obligations are the duty not to make a profit, avoiding situations giving rise to undue influence and conflicts of interests and adhering to the duty of confidentiality.

Boundary Between Professional and Personal Relationship

Attorneys must maintain clear boundaries with clients. Personal pursuit of a client, especially during an active retainer, may create exploitation risks, impair independence, and damage trust in the professional relationship.

Harassment of Client — Aggravated Misconduct

Misconduct is particularly serious where the target is a current or recent client because the attorney may be abusing knowledge, access, or influence gained through the professional relationship.

Who can initiate disciplinary proceedings + jurisdiction (TT)

In Trinidad and Tobago, disciplinary proceedings may be initiated by any aggrieved person, not limited to a client, by complaint to the Disciplinary Committee under the Legal Profession Act (LPA). The court also retains inherent jurisdiction over attorneys as its officers and may discipline them directly or refer matters to the disciplinary body. This jurisdiction exists to enforce proper professional conduct and is independent of private rights: R v Grey. See also TT authority: Hosein v Ramnarine-Hill.

Following or Monitoring a Person — Ethical Risk

Repeatedly following, watching, or tracking a person without consent may evidence harassment, intimidation, or obsessive conduct. For an attorney, such behaviour may undermine public confidence and support disciplinary findings.

Head of Chambers / Supervisory Responsibility

Where serious concerns arise about a practitioner’s conduct, those in supervisory or leadership roles within chambers should address the matter promptly, protect clients where necessary, and consider reporting or internal management steps consistent with professional obligations.

Part B Rule 5+ 6

5- An Attorney-at-law shall not in the carrying on of his practice or otherwise permit any act or thing which is likely or is intended to attract business unfairly or can reasonably be regarded as touting or advertising.

6- An attorney-at-law must not engage in advertising or publicity that is likely to bring the profession into disrepute or undermine its dignity. The rule reflects the principle that legal practice is not a trade, and promotion of services must not involve touting, self-laudation, or improper solicitation of clients. flashy/self-promoting ads → breach of Rule 6

• solicitation of clients → breach

• exaggerated claims → breach (Rule 6 + Rule

Implied Retainer — Adams v London Improved Motor Coach Builders

A retainer may arise without formal agreement where conduct shows mutual intention for legal services to be provided. If a client requests legal assistance and the attorney acts with knowledge and acquiescence, an implied obligation to pay reasonable fees arises.

Contingency Fees — Strict Prohibition in Contentious Matters

Contingency fee arrangements in ordinary contentious litigation are generally prohibited unless narrowly permitted by law. Agreements giving a percentage of recovery risk compromising independence and encouraging conflict between duty to client and financial interest.

Settlement Without Authority + Misstatement of Funds — Professional Misconduct

An attorney must not compromise or settle a matter without the client’s authority, as decisions relating to settlement are reserved exclusively to the client. Acting without instructions constitutes a serious breach of duty and may amount to professional misconduct. This is compounded where the attorney intentionally misrepresents the settlement amount to the client, which amounts to dishonesty and a fundamental breach of trust, as settlement funds belong to the client subject only to agreed fees. Such conduct may justify disciplinary action, including suspension or striking off, particularly where dishonesty is involved (see Bolton v Law Society on integrity and sanction).

Client Funds — Integrity Requirement

Any interference with money belonging to a client, especially retention or diversion for personal use, is treated as one of the gravest forms of professional misconduct, regardless of later repayment.

Confidential Information- Social Media Disclosure

Disclosing case outcomes or client details in informal digital communication (e.g., group chats) without consent breaches confidentiality obligations, even if the platform is informal or semi-public.

Dishonesty in Practice — Disciplinary Severity

Othneil Sylvester v Frederick Bruce-Lyle and Kenneth Benjamin- Where misconduct involves deliberate dishonesty, disciplinary bodies generally treat striking off as the starting point sanction, reflecting the need to maintain public confidence in the integrity of the profession.

Effect on Disciplinary Sanctions

Genuine remorse may be considered in mitigation, but it does not usually prevent severe sanction where dishonesty or serious breaches of trust are established.

Aggravating Factor- Multiplicity of Breaches

A pattern of multiple ethical breaches (advertising, conflict, fees, confidentiality, dishonesty) is treated as aggravating, showing systemic disregard for professional standards rather than an isolated lapse.

Estoppel- Retainer

Estoppel prevents a party from going back on a representation (by words or conduct) where another party has relied on it to their detriment. It operates as an umbrella equitable principle and may be used alone or alongside other grounds (e.g. misrepresentation, waiver).

The core idea is that where one party induces a belief as to a state of affairs, and the other acts on that belief, it would be unjust to allow the first party to deny it (Blyth v Fladgate).

PQ Use:

• Where a party promises or represents something informally

• Other party acts based on it (e.g. spends money, changes position)

• First party later tries to deny or withdraw

Danish Mercantile Co. Ltd. v Beaumont- Retainer

Ratification- Where an attorney-at-law acts without authority or under an erroneous assumption as to his authority to act and the other party, fully aware that no obligation is imposed on him, then gives his formal consent to the unauthorised acts of the attorney-at-law that renders it impossible for the party to dispute the existence of a retainer between himself and the attorney-at-law.

Pre-Retainer Instructions — Formation of Attorney-Client Relationship

An attorney-client relationship may arise informally where a client provides instructions, submits documents, and allows legal steps to be taken on their behalf, even before formal documentation is executed.

Formal Retainer as Evidence, Not Requirement

A written engagement letter is strong evidence of a retainer but is not strictly necessary for liability to arise; courts focus on conduct and mutual intention rather than formality.

Continuing Work Without Signed Agreement — Ethical Risk

Proceeding with substantive legal work before securing a written retainer may expose an attorney to disputes over fees, scope of authority, and professional accountability.

Conflict Risk From AAL’S Spouse

A conflict may arise where an attorney’s spouse works within the opposing party’s organisation, creating a risk of perceived influence or compromised independence requiring disclosure.

Conflict — Client’s Right to Decide

The significance of a conflict is assessed by whether a reasonable client would want to know the information before continuing the retainer; failure to disclose deprives the client of that choice.

Mitigation- Unfitness to Practise

Mitigation such as remorse or first-time offending does not prevent severe sanctions where the conduct shows a fundamental breach of integrity or fiduciary responsibility.

Powers of court + penalties (TT)

Under section 41 of the Legal Profession Act (TT), the High Court has statutory power, in addition to its inherent jurisdiction, to discipline attorneys for professional misconduct. The Court may strike off, suspend, make costs orders, or any other appropriate order. It must sit as a Full Court of three judges, and the attorney has a right of appeal to the Court of Appeal. The Disciplinary Committee also imposes sanctions such as reprimand, fine, suspension, or striking off.

Attorney Encouraging Destruction of Evidence — Misconduct Boundary

Where an attorney goes beyond passive receipt of information and affirmatively encourages or suggests that a client remove or destroy evidence relevant to criminal proceedings, the conduct may amount to participation in obstruction of justice. This crosses the boundary between legitimate defence strategy and unlawful facilitation, exposing the attorney to both disciplinary liability and potential criminal responsibility.

exception to LPP

The crime/fraud exception to Legal Professional Privilege applies where communications are directed toward planning or facilitating future unlawful acts (e.g. destruction of documents or evasion of prosecution). In such cases, privilege is completely displaced because the legal system does not protect communications aimed at undermining the administration of justice.

Attorney Liability for Client’s Independent Criminal Act

An attorney may still be exposed to liability where their advice or encouragement materially contributes to a client’s later unlawful conduct, even if the client executes the act independently. The key issue is whether the attorney’s conduct was a significant contributing factor in enabling or influencing the wrongdoing.

Perverting the Course of Justice — Mental Element

The offence of attempting to pervert the course of justice does not require that the obstruction succeeds. Liability arises where there is an intention to interfere with the administration of justice, including actions such as advising concealment or destruction of evidence or assisting evasion of arrest.

Disciplinary Proceedings — Independent Trigger

Disciplinary proceedings under the Legal Profession Act may be initiated not only upon a client’s complaint but also independently by the court or Disciplinary Committee where evidence of professional misconduct emerges. A complaint merely acts as one triggering mechanism rather than a prerequisite.

Legal Advice vs Criminal Facilitation — Key Distinction

Legitimate legal advice involves assisting a client in understanding legal risks, defences, or procedural strategy. It becomes misconduct where the advice shifts into facilitating illegality, such as advising suppression, destruction, or concealment of evidence. The determining factor is whether the purpose is to uphold or undermine the administration of justice.

Joint Retainer – Consequences for Settlement Authority

In a joint retainer, settlement of a claim is a fundamental decision affecting both clients’ substantive rights and cannot be made by the attorney alone. Each client must consent to any compromise because settlement extinguishes legal rights. Acting on instructions from only one joint client or without consulting both constitutes breach of duty, even if the attorney believes the outcome is beneficial.

Unauthorised Settlement – Breach of Authority

An attorney has no implied authority to settle or compromise a claim without the client’s express instructions. Settlement is not a procedural step but a final disposal of rights. Accepting a settlement without consulting the client constitutes acting outside the scope of the retainer and is a breach of both common law duty and professional ethical obligations under the Code requiring adherence to instructions and keeping the client informed.

Professional Negligence – Litigation Attorney Standard

In professional negligence, the attorney is judged by the standard of a reasonably competent practitioner (Pritchard Joyce & Hinds v Batcup; Midland Bank v Hett Stubbs & Kemp). Liability requires duty, breach, and causation of loss. In litigation conduct, negligence may arise where an attorney settles, advises, or acts without proper instructions, leading to a worse financial outcome for the client.

Causation in Legal Malpractice Claims

To succeed in negligence, the client must prove that but for the attorney’s breach, a better outcome would have been achieved. This includes showing that the client would not have accepted the settlement or would likely have obtained a higher award at trial or through negotiation. Without proof of a better alternative outcome, damages will fail even if breach is established.

Reasonableness of Legal Fees – Disbursements

Attorneys may only charge disbursements that are necessary, reasonable, and authorised by the client. Personal expenses or convenience costs (such as travel undertaken for the attorney’s own benefit) cannot be passed to the client without prior agreement. Even where work is properly done, excessive or unapproved expenses may be disallowed on taxation or assessment of costs.

Disbursements are out-of-pocket expenses paid by the attorney on behalf of the client in the course of handling a matter.

Remedies for Clients Against Attorney Misconduct

A dissatisfied client may pursue multiple remedies simultaneously: (1) complaint to the Disciplinary Committee under s.37 Legal Profession Act; (2) taxation or assessment of the attorney’s bill; and (3) a civil negligence claim for loss suffered. These remedies operate independently, and disciplinary proceedings do not bar civil liability.

Rebutting Presumed Undue Influence

Once undue influence is presumed, the burden shifts to the attorney to prove that the client acted freely and independently.

This may be done by demonstrating that the transaction was fair and that the client’s interests were protected, including showing full disclosure of all relevant information, acting with complete good faith, ensuring the client had the opportunity to obtain independent legal advice, and, where applicable, that the transaction was at a fair value.

Independent advice is the most significant factor in rebutting the presumption, as recognised in Royal Bank of Scotland v Etridge (No 2) and Demerara Bauxite Co Ltd v Hubbard.