Professional Conduct, Etiquette and Ethics of Solicitors ...Solicitors in England* Clive D. Wickenden** In our introduction, the point was made that legal practice was not merely a

Professional Conduct, Etiquette and Ethics of Solicitors in England*

Clive D. Wickenden**

In our introduction, the point was made that legal practice was not merely a means of livelihood, but was a way of life. This state- ment goes to the heart of the solicitor's ethic and must now be considered a t some length. That ethic carries with it certain implications which extend far beyond the solicitor's office and far beyond his normal working hours. It differs in certain fundamental respects from that of other professionals, who may command equally high skills derived from equally long training and disciplines-for instance the professional actor or musician, each of whom can discard his professional role when the immediate performance is concluded, and retire into a measure of civic anonymity. Not so the solicitor. His ethic remains a part of his way of life, quite apart from his dealings with his clients, albeit those dealings do require the highest duty of professional care which in turn demands eternal vigilance and supervision, coupled with a high degree of "back-up" efficiency in the office (particularly in the case of cashier and postage proce- dures, records, security, etc. -see chapters VIII and X). It governs such matters as his choice of colleagues, staff and even clients, his dealings with them and with associates outside the office, it colours to some extent his personal life and general outlook. It imposes certain restraints and even certain legal disabilities of which the layman may be totally unaware. Such matters will never be far from the conscious or subconscious mind of the practitioner. They and their implications are something which our novice must graft on to his professional awareness a t an early stage, and they must remain with him throughout his professional life.

It so happens that within the last decade there have in this country been two legislative enquiries affecting, among others, the legal profession which have prompted a scrutiny by the profession of its own standards and methods of work. The findings from these self-imposed examinations have been recorded in Reports, which

* By permission of the author we are publishing Chapter VI of his book The Modern Family Solicitor 76-89 (1975).

* * L.L.B., University of London, Solicitor, London, England; First Vice Chairman, British Legal Association; Former President, West London Law So- ciety.

42 The Journal of the Legal Profession

have had the indirect benefit of reminding the profession, as well as those to whom the reports were addressed, of where the profession stands and what i t stands for in the nation's affairs. On a reference to the National Board for Prices and Incomes in February 1967, the profession was submitted to a searching enquiry about its professional earnings and methods of charging. As if that were not enough, in November of that same year the Board of Trade (as it then was) submitted a request to the Monopolies Commission "for a general report on restrictive practices affecting professional services."

In its powerful submission to the Monopolies Commission on behalf of the profession, the British Legal Association performed a useful service by restating the position of the profession concerning its so-called "privileges" and "monopolies" and its very real disabilities. After dealing with the solicitors' right of audience in the infe- rior courts (which has since been extended to a restricted right of audience in the Crown Courts and, by reason of the transfer of undefended divorce jurisdiction to the county court, a right in effect concurrently with the Bar to appear as advocate in such cases) and the ineligibility for appointment to judicial office (also now modi- fied by the solicitors' right of appointment as a Recorder, carrying with it the possibility that a few may thus ultimately become circuit judges) the B.L.A. commented as follows:

"In return for their privileges, solicitors must accept (a) many years of arduous study and rigorous examinations; (b) the liability to disciplinary proceedings and penalties (including loss of the right to practise) in respect of acts or omissions which in many cases are not contrary to the civil or criminal law of the land, a liability nevertheless willingly accepted because of the peculiar opportunities for moral fraud afforded by the fiduciary relationship of solicitors to their clients; (c) the inability to limit their liability to a figure less than the whole extent of their personal fortunes and those of their partners; (d) the increasing responsibilities inseparable from the administration of a system of law which daily becomes more complex; (e) the necessity of relying upon their own adequacy in their professional and personal lives in order to attract clients; (f) the absolute require- ment to conform to an elaborate and exacting system of ac- counting rules, for the most innocent infringement of which they may be disciplined, fined, suspended from practice or struck from the Roll; (g) the onerous duty of safeguarding the hundreds of millions of pounds which pass through the hands of solicitors in the course of a year; (h) the ever present danger (since nobody is infallible) of being sued for negligent conduct of their clients'

Solicitors in England 43

affairs or of giving advice which in the event proves to have been misconceived.

Solicitors are officers of the Supreme Court and, as such, owe a duty to the Court. For any dereliction of that duty, which is wide of scope and liable to be interpreted according to the judge's individual vagaries, they may receive censure from the Court-quite distinct from any proceedings before the Discipli- nary Committee. Any solicitor who has been publicly censured in open court (to which incidentally he has no right of reply) will not easily forget the occasion."

We shall examine in more detail in a later chapter the account- ing rules referred to. So far as concerns any "monopoly" rights which the practitioner may be held to enjoy, these have been ac- corded to solicitors by Parliament (not sought by the profession) and arise out of nationwide experience of the need to safeguard the public against fraud and the activities of unqualified operators of various kinds. A precise analogy exists in the case of safeguards for the s ta tus of the medical and nursing professions. These "monopolies" are therefore statutory monopolies, now set out in the Solicitors' Act 1974 which consolidated the previous legislation. These statutory provisions are sufficiently important to be set out in some detail.

(a) Unqualified Person not to act as Solicitor. By section 20 "(1) No unqualified person shall (a) act as a solicitor, or as such issue any writ or process, or commence, prosecute or defend any action, suit or other proceeding, in his own name or in the name of any other person, in any court of civil or criminal jurisdiction; or (b) act as a solicitor in any cause or matter, civil or criminal, to be heard or determined before any justice or justices or any commissioners of Her Majesty's revenue." Then follow the penalties for contravening subsection (2).

(b) Penalty for Pretending to be a Solicitor. This section (section 21) relates merely to the offence of making a pretence to be qualified, by act or implication, and carries a monetary penalty.

(c) Unqualified Person not to Prepare Certain Instruments, etc. By section 22 "(1) . . . any unqualified person who either directly or indirectly (a) draws or prepares any instrument of transfer or charge for the purposes of the Land Registration Act 1925, or makes any application or lodges any document for registration under that Act of the Registry or (b) draws or prepares any other instrument relating to real or personal estate, or any legal proceeding, shall, unless he-proves that the act was not done for or in


expectation of any fee, gain or reward, be liable on summary conviction to a fine not exceeding L50. 'Subsection (1) does not apply to' (a) a barrister or duly certified notary public; (b) any public officer drawing or preparing instruments or applications in the course of his duty; (c) any person employed merely to engross any instrument, application or proceeding" and then is followed by an exception in the case of wills, agreements under hand, letter or power of attorney and transfer of stock containing no trust or limitation thereof. It may be news to some readers that unqualified persons are permitted to draw wills, but notoriously there are (or were very recently) estate agents who are still preparing contracts for the sale of property and getting purchasers to sign them without being properly advised. The author has come across this practice in Lancashire in particular.

(d) Unqualified Person not to Act in Preparation of Papers for Probate. By section 23 "(1) If any person to whom this subsection applies, directly or as an agent of any other person, whether or not that other person is a person to whom this subsection applies-

(a) takes instructions for a grant of probate or of letters of administration, or

(b ) draws or prepares any papers on which to found or oppose any such grant, he shall, unless he proves that the act was not done for or in expectation of any fee, gain or reward, and without prejudice to any other liability or disability to which he may be subject under this or any other Act, be guilty of an offence and liable on summary conviction to a fine not exceeding L10.

(2) Subsection (1) applies to any unqualified person who is not a barrister or duly certificated notary public."

It will be readily apparent that the above provisions are of practical significance in the public interest. The so-called "conveyancing monopoly" has in fact resulted in a very high degree of protection for the public against actual forgery, of one kind or another, a fact sometimes overlooked even by the practitioners of that art. Furthermore, both that "monopoly" and the parallel one in drawing probate papers afford the State the saving of an enor- mous burden which it would otherwise have to bear of clerical work in coping with homemade or home-processed deeds, documents and forms. As to forgery, conveyancing historians remind us of the prev- alence during the 17th Century on both sides of the Atlantic of fraudulent dealings in land due to the absence of effective control of title transactions at that time. Early conveyancing statutes make


express reference to this state of affairs. The Puritans of New Eng- land were not immune from it, as American research shows.' The fact that this particular kind of fraud is largely a thing of the past (although it can still occur) is due to State intervention with legislative safeguards (culminating in registration either of deeds or title) and in part to the evolution of professional conveyancing practice to make those safeguards work. I t may be recalled that in one noto- rious murder case in the recent past it was in fact discovered that the criminal had succeeded by forgery of documents in transferring to himself the title to a property owned by one of his victims. Such cases are rare, but they remind us that the categories of sophisti- cated crime are never closed.

What are the corresponding restraints or disabilities already referred to? The B.L.A. submission to the Monopolies Commission lists the following:

(1) By reason of the confidential relationship arising from re- tainer a solicitor is bound to give his client disinterested advice and, if he has a personal interest in his client's transaction and is thus deprived of the ability to give such advice the client may (in the absence of full disclosure by the solicitor of his interest) have the transaction set aside. There is often an obligation imposed upon a solicitor to require his client to employ an independent adviser, and, if when acting for more than one party he detects the possibility of a clash of interests, he is under a specific duty to refuse to act further for one or more of the parties. In such circumstances it is of course essential that the independent solicitor be given sufficient information to make his intervention of value.

See further below as to acting for both parties. (2) There are specific restrictions upon the right of a solicitor:

(a) to purchase property from his client; (b) to sell property to his client; (c) to lend money to his client; (d) to borrow money from his client; (e) to accept gifts from his client; (f) to accept bequests and devises from his client; (g) to use confidential information for a purchase from the trustee

in bankruptcy of the property of a former client;

1 . See, e.g., Fiflis, Security and Economy in Land Transactions: Some Suggestions from Scotland and England, 20 HASTINGS L.J. 171 (1968).


(h) to purchase himself property which he is employed by a client to sell;

(i) to purchase himself and resell to his client property which he is employed by the client to purchase;

(j) to purchase property from trustees a t the instance of a trustee who could not sell the property to himself;

(k) to purchase from his client the subject matter of an action which he is conducting for him;

(1) to charge fees for acting as trustee, executor or administrator unless specifically authorised by the trust instrument. It can be seen from the above instances that in the case of the

solicitors' profession more than any other, the law goes beyond the sphere of fraud (strictly so-called) to deal with what amounts to a twilight zone of commercial morality and to preclude the kind of sharp practice which solicitors daily see committed by those in other occupations who are not similarly restricted. The rules (to which almost every solicitor will voluntarily conform) amount simply to rules of fair dealing and they go some distance in safe-guarding what is perhaps the most precious quality of a solicitor's practice-the degree of independence which can permit him to divert a client from an improper course of action and, if the client will not be diverted, to decline to act for him.

We come now to the kind of situations which may give rise to one or more of the sanctions under the threat of which the solicitor carries on his practice. They may be conveniently categorised (perhaps in ascending order of turpitude) as follows bearing in mind that no one category is exclusive; a breach of one may well involve another. (a) A Breach of Professional Etiquette-i.e., a breach of profes-

sional good manners. (b) Unprofessional Conduct-the less serious category of cases

with which the Disciplinary Committee is normally concerned. (c) Professional Misconduct. This may lead to a solicitor being

struck off the Roll. (d) A civil action for negligence a t the suit of an aggrieved client,

seeking damages, and possibly some other remedy. Moral: Take out with a reputable insurance company a professional negligence policy, make sure that it gives a realistic degree of protection, and that it covers every possible claim (including defamation) and that i t covers everybody in the office who may


make a mistake; consider also whether you need staff fidelity coverage for any particular member of the staff (e.g. the cashier or probate manager).

(e) A Breach of the Criminal Law, which perhaps requires no further comment. Since 1960 the profession has had the advantage of the very

readable Guide to the Professional Conduct and Etiquette of Solicitors by Sir Thomas Lund, C.B.E. and we are now promised a new edition of the book in the near future. To attempt further dis- cussion in the same field here, without the benefit of the Law So- ciety's accumulated knowledge and wisdom on the matter, would be pure tautology. It should be said however that it is for the profession to maintain a critical eye on its own "house rules" and to be pre- pared at all times to modify them where they may have ceased to accord with the times. The author feels that in this field too there may well be room for a comparative study with the position obtaining in Western Europe and beyond. What for instance about the continued prohibition on the sharing of fees with other professional persons such as accountants or chartered surveyors?

Any vocational course worthy of the name will have given our trainee some grounding in ethical matters, and one hopes it will have encouraged him to think critically about them. It should certainly have included practical exercises involving problems of professional behaviour. The Guide should be one of the tools of the practitioner's trade, always within arm's length. The following ten- tative thoughts arise out of the present author's own recent experience.

Mention has already been made of cases where instructions received from a client may give rise to questions of professional propriety or public interest. The lawyer as advocate is perhaps more likely to find himself involved in these questions than are other practitioners, and we shall mention examples in chapter XIII.

It would seem that with the increase in dealings with lawyers of other countries, as a result of the Common Market, difficult ethical problems may arise due to differences in professional outlook between the two countries. By way of example, the author is given to understand that there may be an accepted practice in Italy, ap- parently not unconnected with matters of tax, of inserting in a sale contract a figure for the consideration passing which is less than the true figure. If such situations can arise, the profession is certainly going to be in need of guidance and one hopes that this will be found in the new book.


The distinction between tax avoidance and tax evasion has long been clearly understood by the profession, but the increase in the weight and complexity of fiscal burdens brings ever fresh tempta- tions to the citizen, and fresh worry to the practitioner. Capital Gains Tax and Estate Duty are already fields where ethical implications often seem to arise. There can of course be only one standard for a practitioner who finds himself faced with a client who invites him, by a nod or a wink, to be a party to any such manoeuvre. It is to state what the law requires, to warn the client clearly of the consequences of its breach, and of the impossibility of professional people being involved, and to say a word about the means which the Investigation Branch of the Revenue have of uncovering such matters. If a practitioner has had to deal with a few back tax claims, his warnings will be fortified by practical experience of what may befall the fraudulent tax payer. At the same time the practitioner may sometimes be forgiven the private reflection that the State tends to make criminals of us all.

Similar considerations arise all too often where clients ask for guidance in the completion of legal aid or advice applications where the Assessment of Resources Regulations are seen to be permanently some distance behind the rise in the cost of living. Dare one hope that the full enquiry into the working of the Legal Aid Scheme on which the Lord Chancellor's Advisory Committee is said to have embarked will take account of this situation and of the very real problems i t presents for the client and the adviser. What for instance is one to say to a client who needs to know what value to insert in the form for his house? It appears that the assessing au- thority has some discretion in the matter, but what the extent of that discretion is and what guidelines are laid down for its exer- cise we are not told. Yet such matters go to the very root of the availability of legal services in this country.

Such matters as solicitors' undertakings will soon become fairly well worn territory for the trainee. Giving and acceptance of undertakings either between solicitors or by a solicitor to a bank, building society or insurance company are a vital part of the currency of everyday practice. Their importance has grown because the solicitor's word is known to be his bond. It is perhaps unnecessary to say that even though in law an undertaking seen on the face of it to be given on behalf of a client binds the client, it may for the purposes of this chapter bind the solicitor personally, and be so interpreted by the Disciplinary Committee, unless indeed the undertaking is so


worded as expressly to exclude the liability of the solicitor. There- fore, he should give no unqualified undertaking unless it is within his power to implement it, and similar caution should apply to the giving of references. In the wording of undertakings, there might well be an office rule that they should be referred to a partner for approval before being signed. As for references, if the practitioner is not aware from his own knowledge of the financial status of the referee, let him say so and let him add some such rider as "I make i t an invariable rule when writing letters of this kind to exclude my personal liability in the matter, and I can of course make no exception in this case."

Some reliable system must be devised in every office for ensur- ing that the existence of an outstanding undertaking is not overlooked, and the author himself marks every file containing an outstanding undertaking with a large red wafer seal. Both he and his secretary, despite increasing shortsightedness, have so far been able to recognize that, and sometimes even to recall what it was intended to signify. Other practitioners may have other methods, such as placing a file in a different part of the cabinet or having some cross reference with the cashier, or some separate record of outstanding undertakings.

Two further matters which have recently been the subject of amendments to the Solicitors' Practice Rules, 193611972, will be mentioned, as both involve changes in what was formerly the position, one change involving more liberty for the practitioner and the other one involving very considerably less.

So far as concerns professional rules about forms of advertising or attracting business which might be thought to be unfair, the Council of the Law Society have decided "in the light of present day conditions, the climate of opinion in the profession and public opinion thereon" to relax somewhat rules about publications, broadcasts and appearances by solicitors, and the extent to which they may be identified by name, profession and town, etc. The details are given in the Law Society's Gazette for July 1968.

The other change concerned the formerly controversial matter of one solicitor or firm acting for both vendor and purchaser on a transfer of land for value a t arm's length, or for both lessor and lessee on the grant of a lease for value a t arm's length. Judicial comment on the matter was not unknown. The decision to prohibit this practice under Rule 2 has not been received without some criti- cism. It appears that the profession in Scotland gets on reasonably well without this prohibition. It is nevertheless now a practice Rule


in England and Wales, subject to the exceptions set out in sub- paragraph (2) of the Rule, and the matter is of such importance that the Rule will now be set out in extenso:

Rule 2

(1) A solicitor or two or more solicitors practising in partnership or association shall not act for both vendor and purchaser on a transfer of land for value at arm's length or for both lessor and lessee on the grant of a lease for value a t arm's length. (2) Provided no conflict of interest appears and the vendor or lessor is not a builder or developer selling or leasing as such this rule shall not apply if: (a) the parties are associated companies; or (b) the parties are related by blood, adoption or marriage; or (c) both parties are established clients (which expression shall in-

clude persons related by blood, adoption or marriage to established clients); or

(d) on a transfer of land the consideration is less than f 1,000; or (e) there are no other solicitors in the vicinity whom the client can

reasonably be expected to consult; or (f) two associated firms or two offices of the same firm are respec-

tively acting for the parties, provided that: (i) the respective firms or offices are in different localities, and (ii) neither party was referred to the firm or office acting for him from an associated firm or from another office of the same firm and (iii) the transaction is dealt with or supervised by a different solicitor in full-time attendance a t each firm or office. One footnote, and an important one, must be added to the

formidable account given in this chapter of the ethical burdens under which the family practitioner labours. What happens to him if he does fall foul of the formidable disciplinary machine? Who looks after him? Or is he on his own? The investigatory powers of the Law Society are quite rightly strong, and their powers (for instance to freeze immediately the practitioner's bank account) equally so. But the process can be a shattering one for a practitioner, coming as it may do after decades of honest and faithful service to his clients. He may be the victim of an unbalanced or malicious client, or of a dishonest clerk or of a negligent accountant. He may be suffering from ill health or family difficulties. The author has made a study of professional defence for solicitors, having been struck by the total lack of it until recently compared with the two

Solicitors in England 5 1

powerful and wealthy defence organisations which serve the medical and dental professions, organisations which are joined as a matter of course by every practitioner a s soon as he becomes qualified, and enjoy excellent relations with the relevant professional bodies. Until recently, the solicitors' profession had done nothing whatever about this situation, an extraordinary comment on the fatalistic attitude of a profession which spends its life safeguarding others. ("It can't '

happen to me.") Now the British Legal Association has set up the B.L.A. Defence Fund in order to help its own members in this situation and it is to be hoped that i t will receive the support of the profession and indeed of the Law Society. There is surely no earthly reason why it should not. The author hopes that the Defence Fund will adopt, as soon as funds permit, one useful practice of its medical counterpart, namely to publish a t regular intervals, and of course without disclosing the identity of the solicitors concerned, brief case histories of matters which have come before the Discipli- nary Committee, preferably by categories, so that the profession can have some opportunity of learning where its own weaker brethren have gone wrong, and possibly of looking to their own practices accordingly. One of the criticisms of the existing disciplinary machi- nery is the difficulty which has been experienced in obtaining such statistics.

Documents

Professional Conduct, Etiquette and Ethics of Solicitors ...Solicitors in England* Clive D. Wickenden** In our introduction, the point was made that legal practice was not merely a