Misconduct

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 finding of misconduct, 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 stated:

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

Aside from the statutory duties, by far the most important requirements in terms of conduct derive from the Solicitors’ Code of Conduct 2007 (as amended) (from now on referred to as “the Code”) and from the provisions contained in other regulations such as the Solicitors Accounts Rules. 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 rule 1 of the Code. They are:

• to uphold the rule of law and proper administration of justice
• to act with integrity
• not to allow independence to be compromised
• to act in the best interests of each client
• to provide a good standard of service
• not to behave in a way likely to damage public confidence in solicitors

These duties are, it has to be said, somewhat vague in the way in which they are worded and can be, and are, 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 and their staff in so far as they provide:

• values to shape professional character and behaviour
• a framework within which more context-specific rules can be better understood, and
• help in perceiving situations which may lead to misconduct but which are not covered by specific rules.

Specific aspects of rule 1 – such as the need for independence – will be looked at elsewhere on this web site.

In addition to rule 1, however, misconduct can arise from the breach of any of the rules, regulations and other professional duties to which solicitors are subject. For example, whilst failure to observe the requirements of rule 5 in relation to the management of an office may not in itself amount to anything which could be regarded as a lack of integrity, nevertheless it may still be regarded as being something which nevertheless amounts to misconduct. Likewise, accounting breaches which are not brought about by a desire to defraud may not in any way be likely to bring the profession into disrepute but may nevertheless amount to misconduct.

Thus, if solicitors or their staff wish to avoid investigation by the SRA and the resulting sanctions, they must ensure that all rules are complied with and all steps taken to ensure that future compliance is not put at risk.

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.

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@lawyersdefencegroup.org.uk
• 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, Richard Nelson Solicitors, 8 The Courtyard, 707 Warwick Road, Solihull, West Midlands, B91 1TT