Misconduct

(revised November 2011)

Introduction

Misconduct is a fundamental concept in the regulation of all professionals and will usually result in a some form of regulatory sanction, the exact nature of which will be determined by the severity of the misconduct, being imposed upon that professional. Misconduct is a widely drawn concept, and can arise from a number of different circumstances; moreover, a finding of misconduct may not even arise from conduct which would, in the normal sense, be regarded as either wrong or dishonest.

In this section we shall look at misconduct in general rather than at the specific rules which could or would give rise to a finding of misconduct. Specific issues such as those actions (or failures to act) which could give rise to a specific finding of misconduct – under, for example, the SRA Disciplinary Procedure Rules 2011 – together with the manner in which misconduct is dealt with by the Solicitors Regulation Authority, are dealt with elsewhere on this web site.

What is Misconduct?

The duties which are placed upon solicitors, registered foreign lawyers, registered European lawyers, recognised bodies, managers and employees of recognised bodies and recognised sole practitioners (for the sake of brevity referred to as “solicitors and their staff”) are wide and derive from a number of different sources including statutory, regulatory and common law. Before we proceed to look at these duties in more detail, however, it is worth looking at briefly at how misconduct has been defined.

In his book Professional Ethics: The Consultant Professions and Their Code, F.A.R. Bennion states:

“Integrity, probity or uprightness is a prized quality in almost every sphere of life….. The best assurance the client can have … is the basic integrity of the professional consultant….. A reputation for integrity is an indivisible whole…. [and] has many aspects and may be displayed (or not) in a wide variety of situations … the preservation of confidences, the display of impartiality, the taking of full responsibility are all aspects of integrity. …. Integrity is the fundamental quality, whose absence vitiates all others.”

This need for integrity was echoed by Sir Thomas Bingham MR in Bolton v Law Society [1994] 1 WLR 512 at 518A-519B when he said:

“It is required of lawyers practising in this country that they should discharge their professional duties with integrity, probity and complete trustworthiness.

Any solicitor who is shown to have discharged his professional duties with anything less than complete integrity, probity and trustworthiness must expect severe sanctions to be imposed upon him by the Solicitors Disciplinary Tribunal. Lapses from the required high standard may, of course, take different forms and be of varying degrees. The most serious involves proven dishonesty. In such cases the tribunal has almost invariably, no matter how strong the mitigation advanced for the solicitor, ordered that he be struck off the Roll of Solicitors. If a solicitor is not shown to have acted dishonestly, but is shown to have fallen below the required standards of integrity, probity and trustworthiness, his lapse is less serious but it remains very serious indeed in a member of a profession whose reputation depends upon trust. A striking off order will not necessarily follow in such a case, but it may well. Only in a very unusual and venial case of this kind would the tribunal be likely to regard as appropriate any order less severe than one of suspension.”

The practical application of the term conduct, therefore, goes further than merely something which contravenes specific laws or rules; it can be something which simply brings the profession into disrepute or has some inference of conduct which is unbefitting. In other words, conduct “which would be regarded as improper according to the consensus of professional (including judicial) opinion” (Ridehalgh v Horsefield [1994] Ch 205).

Statutory Duties

The Solicitors Act 1974 at section 31, for example, provides to the Law Society (now operating through the Solicitors Regulation Authority) the powers to make rules relating to conduct and to enforce those rules:

(1) Without prejudice to any other provision of this Part the Council may, if they think fit, make rules, with the concurrence of the Master of the Rolls, for regulating in respect of any matter the professional practice, conduct and discipline of solicitors and for empowering the Society to take such action as may be appropriate to enable the Society to ascertain whether or not the provisions of rules made, or of any code or guidance issued, by the Council are being complied with.

(2) If any solicitor fails to comply with rules made under this section, any person may make a complaint in respect of that failure to the Tribunal.

whilst other powers derive from other statutory sources, for example the Courts and Legal Services Act 1990 which requires, at sections 27 & 28, certain standards of conduct from those exercising a right of audience before the courts which override other legal duties. In relation to statutory sources you need to be aware also of provisions in the Administration of Justice Act 1985, the Access to Justice Act 1999, the Financial Services Act 1986 and of course the Legal Services Act 2007.

Regulatory Duties

Despite the fact that it uses the term “misconduct” on a regular basis (as for example in Outcome O(10.4) in Chapter 10 of the SRA Code of Conduct which states that solicitors must “report to the SRA promptly, serious misconduct by any person or firm authorised by the SRA, or any employee, manager or owner of any such firm (taking into account, where necessary, your duty of confidentiality to your client);”), it is surprisingly difficult to pin down precisely what the SRA means by the term. The SRA Disciplinary Procedure Rules 2011 somewhat unhelpfully states that “the term “misconduct” shall mean conduct or behaviour resulting in an SRA finding.” The Code itself contain no definition of misconduct in Chapter 14 (interpretation) despite using the term in various places.

By implication, it is clear that the SRA Code of Conduct (from now on referred to as “the Code”) and indeed the handbook in general regards misconduct as the failure to act in accordance with the Code and other rules or to act in such a way that the interests of clients, the reputation of the profession or the interests of the public as a whole are put at risk. These requirements can encompass almost all forms of unprofessional behaviour.

The core duties to which a solicitor is subject, and the ones which can have the widest general application, are to be found in the mandatory Principles set out in the SRA Handbook and which require that solicitors:

1. uphold the rule of law and the proper administration of justice;
2. act with integrity;
3. not allow their independence to be compromised;
4. act in the best interests of each client;
5. provide a proper standard of service to their clients;
6. behave in a way that maintains the trust the public places in them and in the provision of legal services;
7. comply with their legal and regulatory obligations and deal with their regulators and ombudsmen in an open, timely and co-operative manner;
8. run their business or carry out their role in the business effectively and in accordance with proper governance and sound financial and risk management principles;
9. run their business or carry out their role in the business in a way that encourages equality of opportunity and respect for diversity; and
10. protect client money and assets.

Whilst these duties are less vague than the principles that were to be found in the 2007 Solicitors Code of Conduct, nevertheless they are still worded very generally and, the cynical might say could be used by the Solicitors Regulation Authority as the basis for actions against solicitors and their staff in circumstances where there has not been a breach of any of the other, more specific rules in the Code. The notes to rule 1 do provide some additional, if slight, guidance as to what is expected from solicitors, however, they also make it very clear that the SRA is not willing to be tied down in terms of their application when they state at paragraph 2.15:

” Our approach to enforcement is proportionate, outcomes-focused and risk-based. Therefore, how we deal with failure to comply with the Principles will depend on all the particular circumstances of each case. Our primary aim is to achieve the right outcomes for clients.”

We will look in more detail at the principles in a separate section on this web site.

So far as the rules of the SRA are concerned, and indeed so far as any other rules imposed by other bodies are concerned (because the principles and certain elements of the Code make it abundantly clear that misconduct can arise from the breach of other non-SRA rules), misconduct can arise from any failure to observe the rules, regulations and other professional duties to which solicitors are whether or not that failure in itself amounts to anything which could be regarded as a lack of integrity. Thus, for example, accounting breaches which are not brought about by a desire to defraud, and which may not in any way be likely to bring the profession into disrepute, may nevertheless amount to misconduct.

The difficulties which this could potentially cause to firms is enhanced by the fact that we are now talking about a system of regulation which does not deal in specifics but only in general statements or outcomes. Thus a solicitor may now genuinely believe that he has complied with the requirements of the code yet still have committed an act of misconduct.

Wider Duties

Similarly, consideration must be given not only as to how a solicitor conducts himself in practice but also as to how he or she behaves in private life.

Any conviction for dishonesty, or in relation to indictable offence could result in a solicitor being disciplined. Dishonesty itself will be considered in more detail in the separate section dealing with it. However, it should be borne in mind that so far as conduct is concerned dishonesty is not limited to matters such as fraud or theft and need not in itself lead to a conviction. Thus a dishonest attempt to mislead someone which falls short of criminal dishonesty could still be viewed as being something sufficiently serious to form the basis for a finding of misconduct.

Principles 2 and 6 in particular place “out-of-work” requirements upon solicitors. Indeed paragraph 2.10 (which aims to explain principle 6) states:

“Members of the public should be able to place their trust in you. Any behaviour either within or outside your professional practice which undermines this trust damages not only you, but also the ability of the legal profession as a whole to serve society.”

How far this extends is open to some conjecture and puts the solicitor in the position of being a hostage to the “morality” of the SRA. So, beware student pranks, drunken nights out or participating in protests – peaceful or otherwise!

Duties to Report Misconduct

The SRA now places a duty upon all those who are regulated by them to report promptly, serious misconduct by any person or firm authorised by the SRA, or any employee, manager or owner of any such firm. That means that anyone employed within a solicitors’ practice is under a duty – whether they are a solicitor or a member of the support staff, and failure to do so is, of itself, misconduct.

To self-report or report another lawyer or firm regulated by the SRA you can either complete the report form to be found on the SRA web site and return it to them or you can email them at report [Email address: report #AT# sra.org.uk - replace #AT# with @ ], or telephone them on 0870 606 2555.

Contact LDG

If you are facing possible sanctions as a result of misconduct or if you have been, or believe that you will be, charged with an offence of dishonesty and want to take steps to help preserve your practising certificate or minimise any sanction which might be imposed upon you then contact the Lawyers Defence Group for professional and effective advice and assistance. To contact us, either:

• phone on 0333 888 4070;
• email on help [Email address: help #AT# lawyersdefencegroup.org.uk - replace #AT# with @ ];
• request a callback using the form in the right hand menu and someone will call you back at a pre-arranged time; or
• write to Lawyers Defence Group at Richard Nelson LLP, Priory Court, 1 Derby Road, Nottingham, NG9 2TA.