Ethics - SRA Principles (2) Flashcards
What are the SRA principles?
The SRA Standards and Regulations begin with the SRA Principles.
These Principles define the fundamental ethical and professional standards that the SRA expects of all firms and individuals it regulates.
The Principles are all- pervasive and underpin all of the SRA’s regulatory arrangements.
The Principles are therefore a starting point for any consideration of a solicitor’s professional conduct responsibilities.
The importance of the Principles is evident from the introduction contained in the SRA Standards and Regulations.
This states that:
The SRA Principles comprise the fundamental tenets of ethical behaviour that we expect all those we regulate to uphold.
The Principles are mandatory and apply to all individuals and bodies regulated by the SRA, whether traditional firms of solicitors, ABSs or in- house. They apply outside a solicitor’s practice as well as within it and, if not met, are likely to give rise to action being taken by the SRA in accordance with its Enforcement Strategy.
The Principles are as follows:
You act:
(a) in a way that upholds the constitutional principle of the rule of law, and the proper administration of justice;
(b) in a way that upholds public trust and confidence in the solicitors’ profession and in legal services provided by authorised persons;
(c) with independence;
(d) with honesty;
(e) with integrity;
(f) in a way that encourages equality, diversity and inclusion;
(g) in the best interests of each client.
In the event that the Principles come into conflict, the introduction makes it clear that it is those Principles that safeguard the wider public interest (such as the rule of law, and public confidence in the profession) which take precedence over the interests of an individual client.
Consequently, clients should be made aware that there may be circumstances in which the solicitor’s wider professional duties outweigh the solicitor’s duty to the individual.
What comprises the SRA principle that requires a solicitor to act in a way that upholds the constitutional principle of the rule of law, and the proper administration of justice?
A breach of Principle 1 may occur in a number of circumstances. The most obvious example is where a solicitor commits a criminal offence. The SRA will always carry out an investigation when a solicitor is convicted of a criminal offence.
However, the action ultimately taken by the SRA will depend on the circumstances of the case.
Under the SRA Enforcement Strategy, factors such as an inherently serious offence, substantial harm caused to others and vulnerability of the victim would all point to more severe sanctions being imposed.
All solicitors are concerned with the administration of justice, but this Principle will be of particular significance in relation to the conduct of litigation and the duties owed by a solicitor to the court.
For example, a solicitor who, in presenting the client’s case, misleads the court will be in breach of Principle 1. The Principle applies, however, not only in relation to the court but also to clients and to third parties with whom the solicitor may deal.
What comprises the SRA principle of public trust?
Principle 2 requires a solicitor to act in a way that upholds public trust and confidence in the solicitors’ profession and in legal services provided by authorised persons.
It is essential for the public to be able to place trust and confidence in solicitors. In Bolton v Law Society [1994] 1 WLR 512 Sir Thomas Bingham MR said, ‘A profession’s most valuable asset is its collective reputation and the confidence which that inspires.’ The reasons for this are obvious. Clients will often hand over money or assets to the safekeeping of their solicitor or disclose information which is personal in nature or commercially sensitive. Clients often instruct a solicitor when they are at their most vulnerable; for example, after suffering personal injury or following a death in the family. At all times clients are entitled to assume that their solicitor will behave professionally and protect their interests.
Understandably, the protection of the reputation of the profession in the eyes of the general public is a key aspect of the SRA’s role. The actions of an individual can damage the reputation of the profession as a whole. The SRA have been at pains to point out that, for example, solicitors involved in fraudulent investment schemes have been disciplined as much for their failure to uphold public confidence in the profession as for their dishonesty.
A solicitor may harm the public’s trust in the profession by behaviour outside the solicitor’s practice. For example, conviction of a criminal offence wholly unconnected with the solicitor’s practice would lead the solicitor to breach Principle 2.
The behaviour of the solicitor does not need to be criminal in nature in order to fall foul of Principle 2. The sending of offensive communications has been a cause for concern in recent years and has resulted in the SRA issuing specific guidance on the topic in the form of a warning notice. So, for example, sending derogatory emails to the opponent’s solicitor and making offensive social media posts in a personal capacity are both examples of acts by a solicitor likely to breach Principle 2.
What comprises the SRA principle of independence?
Principle 3 requires a solicitor to act with independence. ‘Independence’ in this context means a solicitor’s own and the firm’s independence, and not merely the solicitor’s ability to give independent advice to a client. A solicitor should, therefore, avoid situations which might put their independence at risk, for example giving control of their practice to a third party which is beyond the regulatory reach of the SRA or other approved regulator.
Independence includes independence from the client: ‘A solicitor is independent from his client and having regard to his wider responsibilities and the need to maintain the profession’s reputation, he must and should on occasion be prepared to say to his client, what you seek to do may be legal, but I am not prepared to help you to do it’ (In the matter of Paul Francis Simms, Solicitors Disciplinary Tribunal, 2002).
What comprises the SRA principle of honesty?
Principle 4 requires a solicitor to act with honesty.
This is one of the most fundamental principles underpinning the solicitors’ profession. It is therefore not surprising that this Principle (along with Principle 5) has been singled out in the SQE1 Assessment Specification:
Candidates are required to demonstrate their ability to act honestly and with integrity.
It is clear from its Enforcement Strategy that the SRA considers a breach of Principle 4 to be a very serious matter:
Conduct or behaviour which demonstrates a lack of honesty or integrity are at the highest end of the spectrum, in a ‘profession whose reputation depends on trust.’ …
The most serious involves proven dishonesty.
A finding of dishonesty against a solicitor will almost invariably result in the solicitor being subject to the most severe disciplinary action, namely being struck off the roll. Such sanctions may be needed to protect members of the public from any repeat of the dishonest behaviour, but will always be justified by the need to preserve the good reputation of the profession.
In Bolton v Law Society (above) Sir Thomas Bingham MR referred to ‘the need to maintain among members of the public a well- founded confidence that any solicitor whom they instruct will be a person of unquestionable integrity, probity and trustworthiness’.
The Principle is applicable not only to a solicitor’s professional practice but also to life outside practice. For example, a solicitor convicted of theft will be in breach of Principle 4 and likely to be struck off even though the act of theft is completely unconnected with the solicitor’s professional life.
There is an obvious overlap with the criminal law in that a solicitor convicted of a criminal offence involving dishonesty will, by definition, be in breach of Principle 4. However, a finding of dishonesty in professional conduct terms is not dependent on a conviction, or even on the solicitor’s behaviour having been criminal in nature.
In Ivey v Genting Casinos (UK) Ltd t/ a Crockfords [2017] UKSC 67 the Supreme Court held that when dishonesty is in question, the fact- finding tribunal has first to ascertain the actual state of the individual’s knowledge or belief as to the facts. The question whether the conduct was honest or dishonest must then be determined by applying the objective standards of ordinary decent people. Consequently, in determining whether a solicitor’s conduct is dishonest, the
SRA adopts a two- stage test:
(1) What was the solicitor’s genuine knowledge or belief as to the facts at the time? There is no requirement for the belief to have been objectively reasonable. However, reasonableness or how other solicitors may have acted can be an indicator of whether the belief was genuine.
(2) In view of the solicitor’s knowledge or belief at the time, was their conduct dishonest by the standards of ordinary decent people?
This is an objective test. There is no requirement that the solicitor knew or understood that their behaviour was dishonest.
It is clear that a wide variety of acts or behaviour may be considered dishonest and therefore in breach of Principle 4. The SRA has provided the following non- exhaustive list of examples:
* taking or using someone else’s money without their knowledge or agreement,
* lying to, or misleading someone, such as telling a client that their case is going well when it has failed,
* knowingly bringing a false case to a court,
* helping other people to act improperly, such as by giving credibility to a dubious or suspicious investment scheme run by others,
* giving false information to the firm’s insurer,
* misleading a court, tribunal, or regulator,
* lying on a CV and misleading partners in the firm,
* backdating or creating false documents.
What comprises the SRA principle of integrity?
Principle 5 requires a solicitor to act with integrity.
Along with Principle 4, this Principle has been singled out in the SQE1 Assessment Specification: Candidates are required to demonstrate their ability to act honestly and with integrity.
This Principle will apply to all professional dealings with clients, the court, other lawyers and the public. A solicitor is in a position of trust, and so must behave in an appropriate manner to reflect that position.
There is obviously an overlap with Principle 4 in that a solicitor acting dishonestly can also be said to be acting without integrity. However, they are two distinct concepts. Integrity is wider in scope than dishonesty. This means that it is possible for a solicitor to lack integrity without being dishonest.
The SRA approaches allegations of a lack of integrity on a case-by-case basis, taking account of the individual facts. That said, there is a wide variety of circumstances in which a solicitor could be said to have acted without integrity. The SRA has provided the following non- exhaustive list of examples of situations in which it is likely to take disciplinary action for lack of integrity:
* displaying a wilful or reckless disregard of standards, rules, legal requirements and obligations or ethics,
* taking unfair advantage of clients or third parties,
* knowingly or recklessly causing harm or distress to another,
* misleading clients or third parties.
In Ryan Beckwith v SRA [2020] EWHC 3231 (Admin), the court confirmed that Principle 5 is applicable to a solicitor’s private life where the conduct touches realistically on the individual’s practice of the profession and in a way that is demonstrably relevant. Following on from the case, the SRA has said that the closer the behaviour is to the solicitor’s professional activities, workplace or relationships, and/or the more it reflects how the solicitor might behave in a professional context, the more seriously it will be regarded by the SRA. Examples of behaviour outside practice which could result in disciplinary action for a lack of integrity include sexual misconduct, bullying and making offensive/discriminatory remarks on social media in a
personal capacity.
What comprises the SRA principle of equality, diversity and inclusion?
Principle 6 requires a solicitor to act in a way that encourages equality, diversity and inclusion. Solicitors are obviously subject to the general law. Solicitors must therefore comply with all anti- discrimination legislation, including the Equality Act 2010. Should a firm refuse to act for a client on the basis of ethnicity or sexual orientation, or fail to make reasonable adjustments to enable disabled clients to access its offices, this would amount to unlawful discrimination.
Solicitors are also under a wider duty not to discriminate in their professional dealings. Paragraph 1.1 provides that a solicitor must not unfairly discriminate by allowing their personal views to affect their professional relationships and the way in which they provide services.
A finding of unlawful discrimination could also amount to a breach of Principles 1 and 2. However, Principle 6 goes beyond a direction not to discriminate. It places a positive requirement on the solicitor to ensure that their actions encourage equality, diversity and inclusion. These are wide and distinct concepts.
In very simple terms:
Equality – treating people fairly ensuring equal opportunities and not discriminating because of an individual’s characteristics;
Diversity – encouraging and valuing people with a broad range of different backgrounds,
knowledge, skills and experiences; understanding and respecting these individual differences;
Inclusion – acceptance and encouraging everyone to participate and contribute.
These concepts obviously impact on law firms. A firm must ensure that its recruitment process, advertising, HR policies etc encourage equality, diversity and inclusion. Additionally, the SRA expects firms to treat their employees fairly, create an inclusive workplace environment and have systems and procedures in place to address issues such as bullying, harassment, discrimination and victimisation (SRA Guidance – Workplace environment: risks of failing to protect and support colleagues).
Principle 6 is applicable to the conduct of the individual solicitor. Solicitors come into contact with a variety of people during their working day: clients, judiciary, work colleagues, counsel, expert witnesses etc. Treating those people fairly, with dignity and respect, is part and parcel of upholding the reputation of the profession. The Principle also extends to a solicitor’s conduct outside practice. For example, a solicitor who, in a personal capacity, expresses racist views on social media is likely to fall foul of Principle 6.
What comprises the SRA principle of best interests of the client?
Principle 7 requires a solicitor to act in the best interest of each client.
This Principle derives from the common law in that it reflects the fact that a solicitor is said to be in a fiduciary position in relation to a client (see 4.4.2).
Ensuring that clients are provided with a proper standard of service in terms of client care, competence and standard of work is also encompassed by this Principle. For example, if a client is seeking advice on a subject which is beyond the solicitor’s area of expertise, the solicitor would be unable to act in the best interests of the client. The best interests of the client would require the solicitor to refer the client to an expert (ideally this would be a colleague, or alternatively someone in another firm) in the relevant field of law. Equally, a solicitor must consider their capacity (in terms of work volume) to take on a particular matter. If a solicitor were to take on work when they did not have the capacity to deal with it effectively, the solicitor would be unlikely to be able to provide a proper service to that client and so would not be acting in the client’s best interests.
