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2435 Words
Solicitor General Practices Assignment
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The relation between the solicitor and the client is formed in a simple way when the client goes to the solicitor for legal help or for taking over his case and proceeding, he wants to initiate in the court. As soon as the solicitor or the lawyer accepts to give his service to the client, he gets bound by the duty and the ethical conduct that he is required to follow in his profession. These duties and ethical practice are a result of the contract of rendering service between the client and the solicitor. Some of the ethical practices and duties rise due to the fiduciary relationship that the solicitor has with the client and that he is under the obligation of abiding by the same. These ethical duties and the practices to be followed by the solicitors are provided under the code of conduct for lawyers and in the United Kingdom, the code of conduct for lawyers and solicitors is the SRA Code of Conduct of 2019 that deals and provides for the ethical practices that a solicitor is required to follow and abide by while rendering their services to their clients. There has been a lot of written material on these duties of the solicitors but there is very little literature on the ethical dilemmas faced by the solicitors while fulfilling these duties as well as satisfying their clients.[1]The presented essay shall outline the specific duties of the solicitors under the SRA Code of Conduct of 2019 and at the same time, it shall outline the ethical dilemmas faced by the lawyers in fulfilling that duty. Further, the essay shall also present arguments in favour or in against the enacted ethical duties whether such duties require amendment or not.
The essay starts with the issues arising in the profession of the solicitor at the time when the solicitor-client relation is established. Further, the essay shall outline the ethical challenges faced by the solicitors in making decisions. Lastly, the essay shall outline the issues that are faced by the solicitors when the relationship between the solicitor and the client comes to an end. The essay shall also outline the ethical dilemmas faced by the solicitors in practising their profession as well as abiding by the enacted code of conduct.
When the relation between the solicitor and client is established, the solicitor has the duty of rendering his service to the client as the client requires in court. As per the SRA Code of Conduct under Rule 3.2, it is provided that the solicitor is under the duty that he has to provide his service as and when required by the client. Further, the rules also provide that the solicitor must render his service in timing. But a critical analysis of this rule makes it clear that the ethical dilemma faced by the solicitor while fulfilling this duty is that is it possible for the solicitor to be on time for all his clients and that whether he is bound to accept the case of every client that approaches him.[2]Further, the dilemma faced by the solicitor in such a situation is also that whether refusing the client to take his case shall amount to the violation of the code of conduct under SRA. In this regard, it has been stated that if the lawyer is unnecessarily burdened or has limited time for the clients, he should be allowed to refuse the clients for taking their case and this shall not amount to the violation of the code of conduct by the solicitor.
Further, the solicitor should also be allowed to refuse the case to the client due to special circumstances for example, if the solicitor has less knowledge in the field of law that is the interest of the client or has fewer skills in representing the case of the client before the court. Further, the solicitor should also be allowed to refuse the case to the client if the taking of the case shall unnecessarily burden the lawyer due to other pending work.[3] This refusal should also not amount to the violation of the code of conduct as solicitors should not be burdened under rules and codes as this shall affect their performance in the court and they shall not be able to represent their clients in a better way. Further, the burden of work shall make them give less time to each case which shall lead to loopholes in the case and ultimately affecting justice.[4]Apart from this lack of knowledge and skill shall make the lawyer stand incompetent in the court and every solicitor can't be an expert in every field of law. Hence, they shall be allowed to refuse cases that are beyond their skill and competencies as they have less knowledge of such field of law. In court, it is required that the solicitor should be competent in the law and it requires that the solicitor should be well prepared before he represents the client in the court. It is also required that the solicitor should have a grip over the law based on which he shall argue in the court and he shall be well versed with the precedents, evidence and the drafting he is presenting before the court. Hence, if the solicitor lacks this knowledge, he shall be allowed to refuse the client from taking the case and this shall not amount to a violation of the code of conduct as this is one of the ethical dilemmas faced by the lawyers.[5]
Another issue that comes between the relation of the client and the solicitor is that of decision making, the solicitor is an agent of the client and the client is made responsible for the decisions taken by the solicitor. Further, the client is also made to ratify the decisions of the solicitors and the client has to pay for the decision of the solicitor. Hence, the solicitor faces an ethical dilemma whether he should take some decision on his own or rely on the decision of the client for every single issue. On analysing this rule under the code of conduct, it has been observed that this rule also put solicitors under an ethical dilemma where they are confined within the judgment of the client and are not allowed to take any decision on their own. Further, it is also stated that when a client hires a solicitor for his case, he gives implied authority to the solicitor for the matters falling within the scope of the case. But the question arises regarding the matters that are collateral where the solicitor has no power to take decisions.[6]Moreover, another issue arises when the solicitor is appointed for representing the client of a special category like if the client is minor or mentally unstable. Hence, in such cases, it shall not be possible for the solicitor to rely on the decision of the client as the client is minor or mentally unstable and their judgment cannot be relied on. Hence, in such cases, solicitors should be given the authority to taking decisions for them and if such a decision does not benefit the client despite proper representation by the solicitor, the solicitor should not be made liable if the interest of the client is not met as they want. Hence, the solicitors should be given some powers in taking the decisions for their clients so that they can expand the scope of their practice. The analysis of this issue reveals that the solicitor has better and more knowledge than the client regarding the best available option under the law for the interest of the client. The solicitor has better knowledge of the legal provisions and the provisions that are applied on the case of the client and the provisions under which the client shall get justice, but if the solicitor shall be confined to the judgment of the client, there shall be chances that the interest of the client is not met. Hence, this issue should be resolved by giving the solicitors the power to take decisions in the interest of the client.[7]
Yet another issue faced by the solicitors while dealing with the clients and representing their cases arises when the relationship between the solicitor and client comes to an end. The problem does not arise when the client is satisfied with the service of the solicitor but the problem arises when the client is not satisfied with the service of the solicitor and wishes to change the solicitor or wishes to stop the court proceedings. Hence, on the termination of this relationship between the solicitor and the client, the solicitor has a duty of returning all the documents of the clients in due time. Also, the solicitor has a duty of providing the client with the relevant accounts that is a statement of account where he has used the money of the client. But the question that arises when the relationship between the solicitor and client comes to an end is that if the client refuses to pay the outstanding amount of the solicitor and in such case whether the solicitor is entitled to hold the documents of the clients.[8] If the solicitor holds the documents of the clients till he clears the outstanding of the solicitor, the question arises as that whether the solicitor shall be violating the code of conduct by holding the documents of the clients. In this regard, it is stated that the solicitor falls in an ethical dilemma and he has to either give up the amount due or he shall stand in violation of the ethical practice by holding the documents. The analysis of this rule makes it clear that this rule for the solicitors to give the documents to the client is timely, is a relevant rule as this shall protect the confidentiality of the client and all the information relating to the case. Hence, the solicitor should timely return the document to the clients and shall not hold the documents of the clients even if the amount is outstanding. To recover the amount, the solicitor should rely on other methods and not the retention of documents of the clients. For example, the solicitor may file a separate petition in the same court and plea that the proceeding should not be carried forward unless the client clears the previous dues of the solicitor. As a result, the client shall clear the dues of the previous solicitor if he wishes to carry on the proceedings by another solicitor.[9]
For an effective justice rendering system, it is required that the system has skilled, qualified and knowledgeable solicitors who are dedicated towards their profession and practice abiding by the code of conduct required under the SRA Code of Conduct in the United Kingdom. Hence, the ethical issues faced by the solicitors should not be neglected as they are stuck in dilemmas of rendering their service to the client and also protect their legal service profession. It is also recommended that the code of conduct be amended in such a way that the rules are not harsh on the practising solicitors. The solicitors are also given some flexibility in practising their profession and there should be amendments as a resolution for the dilemmas faced by the legal practitioners.[10]Thus, to conclude it is also stated that some rules make the practice of solicitors effective and under their professional conduct but some rules limit the scope and ambit of the solicitor's practice and hence, these rules should be amended so that the solicitors practice their profession effectively without rigidity. There should be awareness regarding the professional conduct of the solicitors as this awareness shall make them serve their clients better and also make their professional life work efficiently.
References
Bala N, Birnbaum R, and Hebert P, 'Recognizing Ethical Duties Of Parents Lawyers To Children Of Clients: Being A Child-Focused Family Lawyer' [2017] SSRN Electronic Journal
Bernstein A, ‘Minding the gaps in lawyers' rules of professional conduct (2019) 72 Okla. L. Rev.
Covert D, and Wang A, 'The 'Tenth Justice' Revisited: The History Of Amicus Oral Argument By The Solicitor General At The Supreme Court' [2019] SSRN Electronic Journal
Keyes J, 'Loyalty, Legality And Public Sector Lawyers' [2018] SSRN Electronic Journal
Mughal M, 'A Book Review Of Rule Of Law: A Handbook For Bar &Amp; Bench' [2021] SSRN Electronic Journal
Noone MA, ‘Wearing Two Hats: Lawyers Acting as Mediators’ (2017) NEW DIRECTIONS
Oakley E, and Vaughan S, 'In Dependence: The Paradox Of Professional Independence And Taking Seriously The Vulnerabilities Of Lawyers In Large Corporate Law Firms' (2019) 46 Journal of Law and Society
Pace H, 'Rogue Corporations: Unlawful Corporate Conduct And Fiduciary Duty' [2019] SSRN Electronic Journal
Wolski B, 'Collaborative Law: An (Un)Ethical Process For Lawyers?' (2017) 20 Legal Ethics
Ziegler AR and Jonathan KR, ‘The legitimacy of private lawyers representing states before international tribunals’ (2019) Unseen Actors in International Law
[1]Darcy Covert and A. J. Wang, 'The 'Tenth Justice' Revisited: The History Of Amicus Oral Argument By The Solicitor General At The Supreme Court' [2019] SSRN Electronic Journal.
[2]Munir Ahmad Mughal, 'A Book Review Of Rule Of Law: A Handbook For Bar &Amp; Bench' [2021] SSRN Electronic Journal.
[3]Emma Oakley and Steven Vaughan, 'In Dependence: The Paradox Of Professional Independence And Taking Seriously The Vulnerabilities Of Lawyers In Large Corporate Law Firms' (2019) 46 Journal of Law and Society.
[4]Bobette Wolski, 'Collaborative Law: An (Un)Ethical Process For Lawyers?' (2017) 20 Legal Ethics.
[5]Andreas R Zieglerand Kabre R Jonathan, ‘The legitimacy of private lawyers representing states before international tribunals’ (2019) Unseen Actors in International Law
[6]Nicholas Bala, Rachel Birnbaum and Patricia Hebert, 'Recognizing Ethical Duties Of Parents Lawyers To Children Of Clients: Being A Child-Focused Family Lawyer' [2017] SSRN Electronic Journal.
[7]H. Justin Pace, 'Rogue Corporations: Unlawful Corporate Conduct And Fiduciary Duty' [2019] SSRN Electronic Journal.
[8]Noone MA, ‘Wearing Two Hats: Lawyers Acting as Mediators’ (2017) NEW DIRECTIONS
[9]John Mark Keyes, 'Loyalty, Legality And Public Sector Lawyers' [2018] SSRN Electronic Journal.
[10] Anita Bernstein, 'Minding the gaps in lawyers' rules of professional conduct (2019) 72 Okla. L. Rev.
