SRA to probe solicitor in relationship with client during "shameful" contact battle
A solicitor who is in a relationship with his client while she goes in the best interests of their client is “impaired by a personal relationship”. The solicitor/client relationship has always been a tricky one - and usually barriers there between a lawyer's private and personal conduct. Lord Brougham stated the traditional view of the laivycr's role during his defense of. Queen Caroline: .. client's interests even though lying is personally and professionally of- .. The institutional origin of the lawyer-client relationship is not its.
It is also an area that requires the balancing of two public interests; namely the interest in clients having full confidence in their lawyers, including the protecting of their confidences, and on the other hand, the interest in the freedom of a lawyer to take instructions and for the client to be represented by the lawyer of his or her choice.
The difficult issue is this: Which conflicts, if not resolved, give rise to a breach of professional ethics and which do not? There are four broad areas of potential conflict.Bishop Barron on Having a “Personal Relationship” with Jesus
The first relates to those cases where the lawyer acts for both parties. Acting for both parties It may be that a solicitor who tries to act for both parties puts himself in a position that he must be liable to one or the other whatever he does At the heart of this issue is the fact that the lawyer owes a fiduciary duty to respect the confidences of clients and at the same time to do his or her best for the client. If you have information from one client that is prejudicial to the interests of the other client how can you do your duty to each?
We pause to say that various courts in a number of jurisdictions have decried the practice of the one solicitor acting for both vendor and purchaser It is an undesirable practice and it ought not to be permitted. And it does not seem to make any difference if one member of a firm deals with one client and another member of the same firm deals with the other client. A firm is in no better position than a sole practitioner if it purports to act for separate clients whose interest are in contention.
If it purports to continue to act for both clients by imposing a qualification on the duties of partnership it thereby denies the respective clients the services the clients have sought from the firm, namely the delivery of such professional skill and advice as the partnership is able to provide. In such a circumstance the appearance provided to the public is that the interest of the solicitors as partners are in conflict with, and may be preferred to, the interest of one or both clients. Australia, as is common in most jurisdictions, has developed Model Rules of Professional Practice which are being implemented across all the Australian jurisdictions.
A practitioner who intends to accept instructions from more than one party to any proceedings or transaction must be satisfied, before accepting a retainer to act, that each of the parties is aware that the practitioner is intending to act for the others and consents to the practitioner so acting in the knowledge that the practitioner: If a practitioner, who is acting for more than one party to any proceedings or transaction, determines that the practitioner cannot continue to act for all of the parties without acting in a manner contrary to the interests of one or more of them, the practitioner must thereupon cease to act for all parties.
The question arises as to whether professional rules should preclude the lawyer from acting in any case where he or she is instructed by both parties. The problem that arises in small jurisdictions or country towns or villages cannot be ignored, however perhaps the starting position should be that the lawyer is not to act for both parties unless there is no other suitable practitioner available to take the instructions.
Another requirement might be that the lawyer cannot negotiate with one party unless the other party is present or otherwise represented. There is a wider public interest here than the mere perception of conflict; there is a real risk in these circumstances that both parties might find themselves without representation and put to additional costs, or that a later dispute between the parties will bring the law into disrepute because of its failure to adequately foresee and protect one or both of the parties.
The lawyer, the client and vested interests The general principle espoused in Blackwell's case in terms of competing loyalties to different clients is readily transferred to situations where lawyers borrow from a client or have business dealings with a client and fail to make adequate disclosure to the client, or fail to arrange for the client to receive independent advice. In that case the defendant was a solicitor who was also a director and shareholder in three companies in the business of property investment.
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Over a period of years, clients of the defendant lent money to these companies at the suggestion of the defendant. The investments undertaken by the companies were very high risk and the clients stood to lose substantially in the event of failure.
In some cases the client was only informed that his or her money had been lent to the companies after this had occurred. The investments turned bad and the clients lost money. This was an appeal on the point of whether the professional misconduct of the defendant was serious enough to warrant him being struck from the roll of solicitors.
Where there is any conflict between the interests of the client and that of the solicitor, the duty of the solicitor is to act in perfect good faith and to make full disclosure of his interest. It must be a conscientious disclosure of all material circumstances, and everything known to him relating to the proposed transaction which might influence the conduct of the client or anybody from whom he might seek advice A solicitor who constantly promotes dealings with various clients clearly misuses his position, and puts it beyond his capacity to observe his primary duty to his clients.
The price of being a member of an honourable profession, whose duty to his client ought not to be prejudiced in any degree, is that a solicitor is denied the freedom to take the benefit of any opportunity to deal with persons whom he has accepted as clients. Therefore, he ought neither to promote, suggest nor encourage a client to deal with him, but rather should take all reasonable steps positively to avoid dealing directly, or indirectly, with his client. The defendant's professional misconduct was serious and sustained involving many clients and large amounts of money.
His conduct was motivated by greed and self interest in deliberate and flagrant disregard of his duty to his clients, and demonstrates that he is unfitted to be a solicitor, or to be employed in a solicitor's office in any capacity, and that his name should be removed from the roll of solicitors.
SRA not planning outright ban on solicitor-client sexual relations
By way of example the Model Rules referred to earlier state: A practitioner must not, in any dealings with a client- i allow the interests of the practitioner or an associate of the practitioner to conflict with those of the client; ii Exercise any undue influence intended to dispose the client to benefit the practitioner in excess of the practitioner's fair remuneration for the legal services provided to the client.
The Rule goes on to note that a practitioner must not accept instructions in relation to any proceedings that would be in conflict with the practitioner's own interest or the interest of an associate.
This Rule is harsher than the Rule concerning acting for both parties in the sense that it prohibits any dealings where the lawyer may have a vested interest, rather than allowing for such interests after the client has been properly informed.
It is also noted that the words 'the interests of the practitioner' should be given a wide interpretation so as to make it clear that this includes the practitioner's spouse or partner or members of the practitioner's family. Opposing a former client To overcome the possibility of compromising the confidences of the former client, firms have used mechanisms such as the quarantining of the former client's information.
These mechanisms are sometimes referred to as 'Chinese walls'. The overriding principle is, of course clear; namely that the relationship between lawyer and client continues after the original instructions have been completed. There will be situations where the use of confidential material obtained during the currency of the earlier matter will be detrimental to the client's interests, if used directly or indirectly against the client in later proceedings.
However, even if there is no opportunity for abuse of a confidence, there is authority for the view that acting against a former client is a breach of the terms of the retainer with the former client and a breach of professional ethics.
Until recently, the common law position concerning the test for disqualification on the basis of a conflict of interest involving a former client was whether there was a reasonable probability of real mischief. Lord Millet noted at I prefer simply to say that the court should intervene unless it is satisfied that there is no risk of disclosure.
It goes without saying that the risk must be a real one, and not merely fanciful or theoretical. But it need not be substantial. In my view no solicitor should, without the consent of his former client, accept instructions unless, viewed objectively, his doing so will not increase the risk that information which is confidential to the former client may come into the possession of a party with an adverse interest.
The Supreme Court of Victoria in accepted these principles and suggested that when a court is determining whether a solicitor should be able to act against a former client, the following questions should be asked: This stricter approach reflects a concern that former clients might otherwise be exposed to potential and avoidable risks to which they had not consented and that former clients could not have sufficient assurance that their confidences would be respected.
However there are gradations of conflicts - some being more likely to cause harm or public concern than others, and perhaps this should be reflected in Codes of Practice or Rules of Conduct. In any case, if there is no harm or disadvantage done to the client, should the fact that there has been a breach of the Rules give rise to disciplinary action? If the purpose of discipline is not to punish but to protect the public interest then arguably, disciplinary action arising out of a conflict of interest should be contingent on there being some harm or damage or disapproval by the client, unless it is a case which involves the community generally.
Confidentiality The duty of confidence which a lawyer owes to a client can be based on various principles of law. It can be regarded as an implied term of the retainer or contract, or it can be based in tort as part of the duty owed by the lawyer to the client, or it may arise in equity.
Apart from these legal principles, the duty of confidence also gives rise to an ethical obligation and thus a breach of client confidentiality would be grounds for disciplinary action. There are exceptions, such as where the client consents, or where the lawyer is compelled by law to disclose, or where the wider public interest requires disclosure. This last exception is still inadequately defined.
Furthermore, there remains the issue as to whether the disclosure of a client confidence to the lawyer's spouse or partner should invoke either a common law remedy or the disciplinary machinery for breach of a professional rule.
If harm results from the disclosure then the answer is clear; however should Rules of Conduct be treated as absolutes? The obligation concerning the exercise of competence and care This obligation of course covers a multitude of circumstances.
A failure to exercise competence and care can give rise to an action against the lawyer for damages as well as lead to disciplinary action. Competence and care is all about maintaining professional standards. Practitioners are cautioned to refrain from acting unless they are competent.
It is for this reason that various Law Society's around the world have in place continuing legal education programmes - in some jurisdictions these are compulsory. The minimum standards include It would seem to follow that a solicitor fit to remain on the roll must make reasonable efforts to keep up with current developments in his field of practice.
In a world of rapid change, he must try to keep up to date. In the United States Model Rule 1. A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation. The commentary on this Rule is as follows: In determining whether a lawyer employs the requisite knowledge and skill in a particular matter, relevant factors include the relative complexity and specialized nature of the matter, the lawyer's general experience, the lawyer's training and experience in the field in question, the preparation and study the lawyer is able to give to the matter and whether it is feasible to refer the matter to, or associate or consult with, a lawyer of established competence in the field in question As an aside to the question of competence and care is the question of counsel immunity; that is, that counsel are not liable in negligence for the conduct of a case in court.
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There were a number of policy considerations that were said incorrectly in the authors view to support the doctrine. It is a doctrine that does little to instil public confidence in the law.
In Australia, the High Court bench has changed since Giannarelli v Wraith was decided and perhaps, were the matter to be argued again, so would the law. In England the House of Lords has recently done just that. Lord Hoffman in his judgment said: Members of other professions and the public in general, are bound to view with some scepticism the claims of lawyers that the public interest requires them to have a special immunity from liability for negligence My Lords, the cards are now heavily stacked against maintaining the immunity of advocates.
In this situation, Ms Wallace says the sensible solicitor will talk with colleagues about the matter and if necessary transfer the case to one of them. Nigel Shepherd, a partner at Addleshaw Booth and Co, Manchester, and a member of the national committee of the Solicitors' Family Law Association, admits that relationship do happen and sometimes with nasty effects.
A well-known example is the court case in which a female client's husband announced that she was sleeping with her lawyer. My view is that getting into a relationship in these circumstances one should be extremely aware of the dangers. Though solicitors appear largely edgy about talking about this subject, many appear relaxed about the issue, at least among themselves. As one solicitor points out: Unsurprisingly, the US is most preoccupied with this subject, not just because of the fictional exploits of divorce lawyer Arnie Becker in 'LA Law', who sized up clients for their potential in bed before checking whether they could afford his fees.
The relationship is almost always unequal; thus, a sexual relationship between lawyer and client can involve unfair exploitation of the lawyer's fiduciary role. It also prohibits an organisation's in-house or external lawyers from having a relationship with a member of that organisation who supervises, directs or regularly consults with the lawyer on legal matters.
But it appears that the Law Society is not about to follow this lead. Its standards and guidance committee - now the standards board - investigated the issue a few years ago and found insufficient reason to introduce such a rule. Ed Nally, the board's present chairman and a partner at Bolton-based Fieldings Porter, says little has changed to alter that view. He explains that the US situation is different because of much stricter barriers there between a lawyer's private and personal conduct.
These already outlaw a solicitor taking advantage of a vulnerable client and bring censure if lawyers find that their personal relationships are clouding their ability to provide independent advice. He knows of occasions when lawyers have become involved with clients, but maintains that this is not necessarily a cause for alarm.
A report accompanying the proposal to the House of Delegates explained: The House of Delegates debate was a feisty one, and the rule change only got through by the thinnest of margins.
InNew York adopted conduct rules banning lawyers from making sexual relations a condition of representation.