Section 1: Ethics and Professional Conduct

Covers; Ethical Behaviour, Regulation of the Profession, and Complaints Handling

1.2 Ethics - Relationship between ethical standards/principles and Solicitors.

• Solicitors are required to follow the same ethical principles applied to everyone else

• However, they are also subject to additional ethical requirements

  • [Law Society (Solicitors Regulation Authority) v Emeana and Others [2013] EWHC 2130, LJ Moses said ‘I do not believe that the public would find it acceptable that those who have behaved this way should be allowed to act as solicitors’]

• Also, general ethical principles may apply differently to solicitors

  • e.g duty to report a crime may be waived if the crime was admitted by a client

• Determining the ethical response/outcome is determined by the consequences of the act - so the ethical approach is the one which produces the best outcome.

1.3 The Solicitors Regulation Authority - Regulatory Mechanisms.

• The SRA Principles

  • Set out the fundamental requirements of ethical behaviour - underpins standards and regulations

• The SRA Code of Conduct

  • Encompasses the Codes of Conduct for both solicitors (and those who fall under this bracket) and firms

  • Sets standards for professionalism

  • States that firms and individuals are responsible for compliance by exercising their own judgement on what abides by these codes

• The SRA Accounts Rules

  • Details the requirements for solicitors when dealing with financial matters

1.4 Complaints - Complaint Handling

• Solicitors must establish and maintain, or participate in, complaint handling procedures relating to their services (para 8.2 CoC)

• (para 8.3 Coc) Solicitors must ensure clients are made aware in writing of

  • (a) Their right to complain about the solicitors services and charges,

  • (b) how complaints can be made and to whom,

  • (c) any right they have to make a complaint to the Legal Ombudsman and when they can make a complaint.

• Also, under SRA transparency rules, certain information about complaints procedures must be published on a firm’s website - or made available on request where there is no website

• Typically complaints will be handled internally, however where this is not to client satisfaction they can take more formal action

• If so, within 8 weeks (Para 8.4 CoC), the solicitor must must ensure that the client is informed in writing;

  • (a) of any right they have to complain to the LO, the timeframe for doing so and full details of how to contact LO,

  • (b) if a complaint has been brought and complaints procedure has been exhausted:

    • (i) that the solicitor cannot settle the complaint

    • (ii) the name and web address of an alternative dispute resolution approved body which would be able to deal with the complaint

    • (iii) whether the solicitor agrees to use the scheme operated by that body

• Finally, complaints must be dealt with promptly, fairly and free of charge (Para 8.5 CoC)

1.5 Legal Ombudsmen - Overview

• LeO is typically the first point of contact for complainants

• Client does not have to suffer a loss to report to LeO, it is enough that a solicitor has provided services that are not of the quality reasonably expected

• Only certain types of clients can report to LeO, including; individuals , ‘micro-enterprises’, charities, clubs and associations with an annual income net of tax > 1 mill, and any personal representatives or beneficiaries of a person’s estate.

• The complaint must relate to the act or omission by a solicitor, and must relate to the services they provided

1.5 Legal Ombudsmen - When the complaint can be brought

• Ordinarily, to bring a complaint to LeO, the solicitor’s own complaints procedure must be used first - however this step can be skipped if;

  • The complaint has not been resolved to the complainant’s satisfaction within 8 weeks of being made to the solicitor; or

  • The LeO considers there are exceptional reasons to consider the complaint sooner

  • The LeO considers that in-house resolution is not possible due to irretrievable breakdown in the relationship between the solicitor and the complainant

• The complaint should be brought no later than;

  • 1 year from the act/omission, or

  • 1 year from when the complainant should reasonably have known there was a cause for complaint

• However, the LeO has discretion to amend these timelines where they see fit.

1.5 Legal Ombudsmen - Determination upon Complaint

• Upon accepting a complaint, the LeO has options on how to resolve, from informal resolutions to investigations where necessary

• Upon hearing, a determination will be sent out to both parties and the SRA - where the complainant then has a time limit to respond accepting or declining (once accepted, this is binding)

• A determination may direct solicitors to;

  • (a) apologise

  • (b) pay compensation (together with interest) for any loss suffered and/or inconvenience/distress caused

  • (c) ensure (and pay for) the putting right of any act/omission

  • (d) take (and pay for) any specified action in the interests of the complainant

  • (e) pay a specified amount for the costs of the complainant in pursuing the complaint

  • (f) limit the solicitor’s fees (including requiring that all or part of any amount paid is refunded, with or without interest, or that all or part of the fees are remitted)

• There is a £50,000 limit on total value that may be awarded as compensation and the costs of (c) and (d)

• The limit does not apply to (a), (e), or (f), or to the interest of any compensation suffered

• If resolution requires legal questions, the LeO may refer the complainant to a court

• Where the LeO receives a complaint which addresses alleged professional misconduct of a solicitor it will inform the SRA

1.6 Breach of Professional Conduct - Addressing this

• Although public complaints go through the LeO issues regarding breach of professional conduct go through the SRA

• Upon receiving the complaint, the SRA will decide whether to carry out an investigation by considering its 3 step Assessment Threshold Test;

  • 1. Has there been a potential breach of the SRA Standards and Regulations based on the allegations made

  • 2. Is the potential breach sufficiently serious that, if proved, is capable of regulatory action

  • 3. Is the breach capable of proof?

• If the test is satisfied, then the SRA will send notice to the individual or firm being investigated of the allegation and invitation to respond with written recommendations

• During investigations, the SRA can (under s 44B Solicitors Act 1974) require the solicitor to deliver files or documents in their possession to the SRA - and Para 7.4 CoC requires solicitors respond to this promptly

1.6 Breach of Professional Conduct - Finding Misconduct

• Upon finding misconduct the SRA can impose;

  • Sanctions (intended to discipline the individual)

  • Controls (intended to protect the public)

• Examples of the actions the SRA could take after investigation;

  • To take no further action, with or without issuing advice or a warning about future conduct

  • Impose a financial penalty or written rebuke

  • Control how a solicitor practices

  • Refer the matter to the Solicitors Disciplinary Tribunal - if they believe their powers are not sufficient

1.7 Solicitors Disciplinary Tribunal - Cases coming before the SDT

• The SDT can make rules governing its own procedure and rules - rules made with concurrence of Master of the Rolls

• The SRA collates a panel of solicitors in private practice who prosecute applications before the SDT on its behalf

• The SDT does not have investigative powers, nor will it collect evidence itself

• Applications must be made in prescribed form and supported by evidence

• The SDT will consider the case, and if they feel there is a sufficient case will set a hearing date - where either party can be represented by a solicitor or counsel

• Upon hearing the SDT will make a decision; either a Judgement or Order

• An Order contains the reasons for the decision, takes effect once filed with the Law Society and is made available at the end of the hearing

• A Judgement contains detailed reasons, findings and repeats the Order - this is sent to the parties, the Law Society and published on the SDT website after the hearing

• If the application is made directly to the SDT, which is unusual, they may refer the case to the SRA to investigate before they make a finding

1.7 Solicitors Disciplinary Tribunal - Powers

• s 47 Solicitors Act 1974 gives the SDT the powers to make an order in any way they see fit, using their discretion some of these powers include the following;

  • Striking a solicitor off the roll

  • Suspending a solicitor from practice or imposing restrictions upon the way in which they can practice

  • imposing an unlimited fine payable to HM Treasury

  • Reprimanding the solicitor

  • Requiring the payment by any party of costs or a contribution towards costs.

• Any appeals are made to the Administrative Court

1.9 Negligence - Overlap

• A solicitor owes a duty of care to the client in the law of Tort, therefore if this duty is breached then the solicitor can also be sued for negligence

• LeO and the SRA have no power to adjudicate upon issues of negligence as they are not courts so do not have the authority

• However there is often overlap between Tort Negligence and complaints about professional conduct

• Therefore in addition to any actions taken by the SRA or LeO, a solicitor may also be sued by their client

• The SRA can even require solicitors to investigate any potential claims against themselves, provide the SRA with a report on the outcome and notify any relevant persons

• Often there is the issue of conflict, and therefore the complainant is advised to seek independent advise, for which the initial solicitor must hand over relevant documents to the independent advisor

1.10 SRA Compensation Fund - What is it?

• Maintained by the SRA, the fund exists as a last resort for grants to persons who has had money stolen or unaccounted for by a person regulated by the SRA

• Funded by mandatory contributions by all solicitors and SRA authorised bodies

• Eligibility Criteria is set out in the SRA Compensation Fund Rules - individuals are not automatically entitled to grants, they must apply

• The fund will not pay out more than £2 million per claim, unless the SRA sees exceptional circumstances in the public interest to justify a higher amount

• Where there are multiple connected claims, the SRA may impose a cap of £5 million

• Where payments are made, the SRA can take proceedings against the solicitor to recover this

• The client may be asked though to exhaust any legal remedies available before applying to the fund