Code of Conduct for Scottish Solicitors
Introduction
In common with lawyers in most parts of the world, solicitors in Scotland have always been expected, by the general public and by their professional colleagues and others, to observe certain standards of professional conduct. The standards are required in order to establish the essential relationship of trust between lawyer and client, between lawyer and court, and between lawyer and other members of the legal profession.
All solicitors in Scotland require to be members of the Law Society of Scotland and for many years specific practice rules have been promulgated by the Society as a self-regulatory organisation for solicitors. Some of these rules have been included in Acts of Parliament and the Society’s authority for promulgating additional practice rules comes from Parliament itself and the rules are subject to the consent of the Lord President of the Court of Session. These rules are binding upon solicitors. They stem from and have the force of statutory authority.
The Law of Scotland was and is founded upon principles which have the same validity and authority as Acts of Parliament. In the same way, in addition to the written rules governing solicitors in Scotland, there are other commonly accepted standards of conduct which solicitors are expected to meet.
The CCBE (Conseil des Barreaux de la Communaute Europeenne), comprising representatives of all the governing bodies of lawyers in the European Community, adopted in 1988 a Code of Conduct for lawyers within the community which governs conduct of lawyers in relation to activities crossing over from one country to another.
In addition, the CCBE Code is to be taken into account in all revisions of national rules with a view to the progressive harmonisation of codes and regulations governing lawyers within the European Community.
All the standards of professional conduct, whether contained in Acts of Parliament or in practice rules (written or unwritten) which are binding upon solicitors in Scotland are based upon certain values and principles which form the foundation of the profession and reflect the legal, moral and professional obligations of the solicitor to:
(a) the clients;
(b) the courts and other authorities before whom a lawyer pleads his client’s cause or acts on his behalf;
(c) the public; and
(d) the legal profession in general and each fellow member of it in particular.
Should any solicitor transgress any of these rules, then such transgression may give rise to disciplinary proceedings and amount to professional misconduct or some lesser finding.
The following Code contains a statement of the basic values and principles which form the foundation of the solicitor profession. It is not intended to be an exhaustive list of all the detailed practice rules and detailed obligations of solicitors, but it is the foundation for those rules and may be referred to for guidance in assessing whether or not a solicitor’s conduct meets the standard required of a member of the profession.
Preamble
I. The function of the lawyer in society
In a society founded on respect for the rule of law lawyers fulfil a special role. Their duties do not begin and end with the faithful performance of what they are instructed to do so far as the law permits. Lawyers must serve the interests of justice as well as those whose rights and liberties they are trusted to assert and defend and it is their duty not only to plead their clients’ cause but also to be their adviser.
The function of lawyers therefore imposes on them a variety of legal and moral obligations (sometimes appearing to be in conflict with each other) towards:—
(a) the clients;
(b) the courts and other authorities before whom the lawyers plead their clients’ cause or act on their behalf;
(c) the public for whom the existence of a free and independent profession, bound together by respect for rules made by the profession itself, is an essential means of safeguarding human rights in face of the power of the state and other interests in society.
(d) the legal profession in general and each fellow member of it in particular.
II. The nature of rules of professional conduct
Rules of professional conduct are designed to ensure the proper performance by the lawyer of a function which is recognised as essential in all civilised societies. The failure of the lawyer to observe these rules must in the last resort result in a disciplinary sanction. The willing acceptance of those rules and of the need for disciplinary sanction ensures the highest possible standards.
The particular rules of all the Bar Associations and Law Societies in the European Community are based on identical values and in most cases demonstrate a common foundation which is also reflected in Bar Associations and Law Societies throughout the world.
The Code
1.Independence
Independence is essential to the function of solicitors in their relationships with all parties and it is the duty of all solicitors that they do not allow their independence to be impaired irrespective of whether or not the matter in which they are acting involves litigation.
Independence means that solicitors must not allow themselves to be restricted in their actings on behalf of or in giving advice to their clients, nor must they allow themselves to be influenced by motives inconsistent with the principles of this Code. For example, solicitors must not compromise their professional standards in order to promote their own interests or the interests of parties other than their clients. Advice must not be given simply to ingratiate solicitors with their clients, courts or third parties. Nonindependent advice may be worse than useless in that it may actively encourage someone to undertake a course of action which is not in his or her best interests. When representing clients in court solicitors appear as agents and speak for their clients, but this does not mean that they are permitted to put forward statements or arguments which they know to be untruthful or misleading. Similarly, in relation to other services solicitors, although acting as agents, must remain independent for their advice and actings to be of value.
2.The interests of the client
Solicitors must always act in the best interests of their clients subject to preserving their independence as solicitors and to the due observance of the law, professional practice rules and the principles of good professional conduct. Solicitors must not permit their own personal interests or those of the legal profession in general to influence their actings on behalf of clients; further, their actings must be free of all political considerations.
Solicitors in advising clients must not allow their advice to be influenced by the fact that a particular course of action would result in the solicitor being able to charge a higher fee. Solicitors are not permitted to ‘‘buy’’ or pay for business introductions, although commission may be paid to a fellow lawyer.
Solicitors should not allow themselves to be persuaded by clients to pursue matters or courses of action which the solicitors consider not to be in the clients’ interests. It may be appropriate for solicitors to refuse to act where clients are not prepared to follow the advice given.
Where solicitors are consulted about matters in which they have a personal or a financial interest the position should be made clear to the clients and where appropriate solicitors should insist that the clients consult other solicitors. The Discipline Tribunal has made it clear that a solicitor must not accept instructions to draft a will containing a legacy in his favour or in favour of a business partner or an immediate family member (including a civil partner). The Tribunal recognises only two exceptions to this general rule, namely a token legacy (which must not be a share of the residue) and a will by a close member of the solicitor's family. A solicitor may make a will for his spouse or civil partner in which the solicitor is the sole or main beneficiary. A will containing a share of residue may also be made for a parent, grandparent, child, collateral, aunt or uncle (and equivalent in-laws) provided that the solicitor his spouse civil partner or child as the case may be, does not benefit more than their expectation on intestacy. (Amended February 2006)
Solicitors are the agents of their clients and as such are not permitted to conceal any profit deriving from their actings for clients and must make known to their clients the source of any commission so arising.
3.Conflict
Solicitors (including firms of solicitors) shall not act for two or more clients in matters where there is a conflict of interest between the clients or for any client where there is a conflict between the interest of the client and that of the solicitor or the solicitor’s firm.
In considering whether or not to accept instructions from more than one party and where there is potential for a conflict arising at a later date, solicitors must have regard to any possible risk of breaches of confidentiality and impairment of independence. If, having decided to proceed, a conflict should later arise solicitors must not continue to act for all the parties and in most cases they will require to withdraw from acting for all of the parties. There may, however, be certain circumstances which would result in a significant disadvantage to one party were the solicitor not to continue to act for that party and there is no danger of any breach of confidentiality in relation to the other party. In these very special cases, the solicitor may continue to act for one party.
Solicitors must accept instructions only from clients or recognised agents authorised to give instructions on behalf of the clients; for example, persons authorised by a power of attorney or another lawyer. Where a solicitor is requested to act for more than one party in respect of the same matter, the solicitor must be reasonably satisfied that there is no apparent conflict among the interests of all the parties and that each party is indeed authorising the solicitor to act.
4.Confidentiality
The observance of client confidentiality is a fundamental duty of solicitors
This duty applies not only to the solicitors but also to their partners and
staff, and the obligation is not terminated by the passage of time. This
principle is so important that it is recognised by the courts as being essential
to the administration of justice and to the relationship of trust which must
exist between solicitor and client. Only in special circumstances may a court
require a solicitor to break the obligation of confidentiality.
5.Provision of a professional service
Solicitors must provide adequate professional services
Solicitors are under a professional obligation to provide adequate
professional services to their clients. An adequate professional service
requires the legal knowledge, skill, thoroughness and preparation necessary
to the matter in hand. Solicitors should not accept instructions unless they
can adequately discharge these. This means that as well as being liable for
damages assessable by a court of law for any act of negligence in dealing
with a client’s affairs, a solicitor may face disciplinary action by the Law
Society in respect of a service to a client which is held to be an inadequate
professional service.
5(a) Solicitors must act on the basis of their clients’ proper instructions or on the
instructions of another solicitor who acts for the client.
Solicitors act as the agents of the clients and must have the authority of the clients for their actions.
A client may withdraw authority at any time by giving due notification to the solicitor. However, such withdrawal cannot act retrospectively.
Solicitors require to discuss with and advise their clients on the objectives of the work carried out on behalf of the clients and the means by which the objectives are to be pursued. Acceptance of instructions from clients does not constitute an endorsement or approval of the clients’ political, social or moral views, activities or motivations. With the agreement of the client a solicitor may restrict the objectives and the steps to be taken consistent with the provision of an adequate professional service. A solicitor may not accept an improper instruction; for example, to assist a client in a matter which the solicitor knows to be criminal or fraudulent, but a solicitor may advise on the legal consequences of any proposed course of conduct or assist a client in determining the validity, scope or application of the law.
Solicitors are free to refuse to undertake instructions, but once acting should withdraw from a case or transaction only for good cause and where possible in such a manner that the clients’ interests are not adversely affected. This obligation will not, however, prevent solicitors from exercising their rights at law to recover their justified fees and outlays incurred on behalf of their clients.
5(b) A solicitor shall act only in those matters where the solicitor is competent to do so.
Where a solicitor considers that the service to a client would be inadequate owing to the solicitor’s lack of knowledge or experience it would be improper for the solicitor to accept instructions and agree to act.
5(c) Solicitors shall accept instructions only where the matter can be carried out with due expedition and solicitors shall maintain appropriate systems in order to ensure that the matter is dealt with effectively.
Where a solicitor considers, for example, that the service to a client would be inadequate, owing to pressure of work or the like so that the matter would not be dealt with within a reasonable period of time, it would be improper for the solicitor to accept instructions and agree to act.
5(d) Solicitors are required to exercise the level of skill appropriate to the matter in deciding whether or not to accept instructions from a client, and in the carrying out of those instructions, a solicitor must have regard to the nature and complexity of the matter in hand and apply to the work the appropriate level of professional skills.
5(e) Solicitors shall communicate effectively with their clients and others Solicitors shall provide to their clients in writing at the earliest practical opportunity information in relation to:
1 The work to be carried out by the solicitor
2 The fees and outgoings to be charged by the solicitor or basis upon which such fees and outgoings are to be charged, such as the hourly rate to be charged. If the basis is Legal Advice and Assistance or Legal Aid, the contribution payable (if any) and the consequences of preserving or recovering property should be referred to as should a legally aided client’s liability for the expenses of his/her opponent.
3 The identity of the person or persons by whom the work will be carried out.
4 The identity of the person to whom the client should refer in the event of there being any dissatisfaction in relation to the work; unless in exceptional circumstances it is considered inappropriate to do so. Clients who provide a regular flow of instruction of the same type of business and subject matter should receive such a communication whenever the terms previously communicated are amended.
Solicitors are required to try to ensure that their communications with their clients and others on behalf of their clients are effective. This includes providing clients with relevant information regarding the matter in hand and the actions taken on their behalf.
Solicitors should advise their clients of any significant development in relation to their case or transaction and explain matters to the extent reasonably necessary to permit informed decisions by clients regarding the instructions which require to be given by them. Information should be clear and comprehensive and where necessary or appropriate confirmed in writing. In particular solicitors should advise clients in writing when it becomes known that the cost of work will materially exceed any estimate that has been given and should also advise the client when the limit of the original estimate is being approached.
The duty to communicate effectively extends to include the obligation on solicitors to account to their clients in respect of all relevant monies passing through the solicitor’s hands. (Amended February 1999)
5(f) Solicitors shall not act, nor shall they cease to act for clients summarily or without just cause, in a manner which would prejudice the course of justice where the matter in issue involves the courts or otherwise involves the administration of justice, a solicitor must have regard to the course of justice in considering whether or not to cease acting on behalf of a client. The solicitor may not simply and suddenly decide that it would no longer be appropriate to act for the client.
5(g) Solicitors shall comply with the specific rules issued from time to time by the Law Society of Scotland.
Subject to the consent of the Lord President of the Court of Session the Law Society is empowered to issue specific practice rules regarding the conduct of solicitors and other matters affecting the affairs of clients. All solicitors must comply with these rules. A list of the titles of such rules currently in force is annexed to this Code.
6.Professional fees
The fees charged by solicitors shall be fair and reasonable in all the circumstances.
Factors to be considered in relation to the reasonableness of the fee include:—
(a) the importance of the matter to the client;
(b) the amount or value of any money, property or transaction involved;
(c) the complexity of the matter or the difficulty or novelty of the question raised;
(d) the skill, labour, specialised knowledge and responsibility involved on the part of the solicitor;
(e) the time expended;
(f) the length, number and importance of any documents or other papers prepared or perused; and
(g) the place where and the circumstances in which the services or any part thereof are rendered and the degree of urgency involved.
7.Trust and personal integrity
Solicitors must act honestly at all times and in such a way as to put their personal integrity beyond question.
Solicitors’ actions and personal behaviour must be consistent with the need for mutual trust and confidence among clients, the courts, the public and fellow lawyers. For example, solicitors must observe the Accounts Rules which govern the manner in which clients’ funds may be held by solicitors and which are designed to ensure that clients’ monies are safeguarded. Solicitors who are dishonest in a matter not directly affecting their clients are nonetheless guilty of professional misconduct.
8.Relations with the courts
Solicitors must never knowingly give false or misleading information to the court and must maintain due respect and courtesy towards the court while honourably pursuing the interests of their clients.
For example, it would be improper for a solicitor to put forward on behalf of a client a statement of events or a legal argument which the solicitor knew to be false or misleading. Accordingly, if a client requests a solicitor to put forward a false story the solicitor must refuse to do so.
In the course of investigation a solicitor must not do or say anything which could affect evidence or induce a witness, a party to an action, or an accused person to do otherwise than give in evidence a truthful and honest statement of that person’s recollections.
9.Relations between lawyers
Solicitors shall not knowingly mislead colleagues or where they have given their word go back on it.
A solicitor must act with fellow solicitors in a manner consistent with persons having mutual trust and confidence in each other. It is in the public interest and for the benefit of clients and the administration of justice that there be a corporate professional spirit based upon relationships of trust and co-operation between solicitors. For example, the settlement of property transactions in Scotland is facilitated by the underlying trust between solicitors. A specific example of this is the
payment of the price by a cheque drawn by the purchaser’s solicitor on a joint stock bank in favour of the seller’s solicitor. Were the purchaser’s solicitor to instruct the bank to stop payment of the cheque such action could amount to professional misconduct.
It is not permissible for a solicitor to communicate about any item of business with a person whom the solicitor knows to be represented by another solicitor. A solicitor in such circumstances must always communicate with the solicitor acting for that person and not go behind the solicitor’s back. The rules governing the advertising of solicitors’ services take into account the need to maintain mutual trust and confidence, while permitting solicitors to market their services effectively and to compete with one another.
10.Civic professionalism
Solicitors have a duty not only to act as guardians of national liberties, but also
to seek improvements in the law and the legal system. It is the striving by solicitors for improvement both in general terms and in relation to the individual needs of a particular client that prevents the law and legal services ‘‘from degenerating into a trade or mere mechanical act’’ (Lord Cooper, Selected Papers, Edinburgh 1957, p. 77).
Many solicitors fulfil this obligation through working on the many committees of the Law Society of Scotland, including those not only commenting and advising on proposed legislative changes and areas of law reform but also recommending and promoting new ideas for reform. Others are involved at the highest level with other reforming bodies and many seek public appointment, both locally and at a national level. This duty extends beyond the issues of freedom and liberty, through the entire system of law, to the day-to-day legal services provided by solicitors.
11.Discrimination
Solicitors must not discriminate on the grounds of race, sex (including on the grounds of marriage), disability, gender, sexual orientation, religion and belief, or age (including perceived orientation, religion and belief, and/or age) in their professional dealings with clients, employees or other lawyers.
Legislation already provides that it is unlawful to discriminate against individuals either directly or indirectly in respect of the above grounds, it also protects individuals against harassment, or from victimisation if they raise or support a complaint in relation to issues affecting one of these ‘protected groups’.
However, solicitors should be prepared to observe not only the letter but also the spirit of the anti-discrimination legislation in all their dealings with clients, employees and others. In particular, solicitors should ensure that within their own firms or where they supervise solicitors working within a company or organisation:
There is no unlawful discrimination in employment including in recruitment, training, employment terms, promotion, advancement and termination of employment;
That those who may carry out work on their behalf do not discriminate unlawfully;
That they, and those they supervise, have appropriate awareness and understanding of the issues surrounding equal opportunities, unlawful discrimination, equality and diversity;
That there is no unlawful discrimination in the provision of legal services, and that those to whom legal services are provided can access them in a manner most appropriate to their needs.
Last revised September 2006
