Take our ethics quiz. Explore the options given. Read the ethical thoughts.

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* 1. My sister wants me to give her a bit of help with her divorce.

Ethical Thoughts

Acting for family is a risky area. First, you would need to consider if your practising certificate allowed for it. Then is it an area you have any expertise in? We have an obligation under rule 4 only to provide advice where we are competent. That rule also requires professional independence of us. Can we be truly independent of our family? Another consideration is whether we are likely to have a conflict of interest, or even be a witness (rules 12 and 27).

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* 2. There is a serious accident at work where a filing cabinet falls on an employee. I am advising the department/company on its position. One of the managers asks me what their personal liability position is.

Ethical Thoughts

We must always ensure it is clear who our client is. That makes it easier to work out who our client cannot be. Here, it is likely that the manager would be a separate client. Therefore, we could be acting for both the department/company and the manager. Their interests may be quite different. Rule 11 essentially forbids us to act simultaneously for clients with conflicting interests. Also, there could be an issue with what our practising certificate allows us to do.

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* 3. A customer has made a complaint to the department/company which has been handled by our complaints team. The customer engages a solicitor who continues to communicate with that team, despite knowing there is an inhouse legal team.

Ethical Thoughts

The no-contact rule (rule 33) applies to inhouse legal teams in just the same way as it does to external solicitors. And it is prudent to treat all staff as “the client”. The solicitor for the customer should not make any assumptions about communicating directly with the client. The solicitor for the department/company might give the other solicitor a call and clarify that they should not be directly communicating with the complaints team without the first solicitor’s consent.

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* 4. I advised on the negotiations for a lease of office space. The landlord is now relying on a clause in the lease to evict us on one week’s notice – completely impossible for us to comply with. I made a mistake and didn’t pick up the dangers in the clause when it was being negotiated. Should I now act in relation to the dispute?

Ethical Thoughts

A solicitor must not act where they have a personal conflict of interest with their client (rule 12). This can occur where the solicitor is defending themselves and the work they previously did. For instance, there may be a temptation to minimise or even hide a mistake. The solicitor could also be called as a witness in some situations, another reason it could be necessary not to act (rule 27). And it may not be enough for the one solicitor to cease to act. It may be necessary for the matter to be outsourced, particularly if one considers the responsibility of senior lawyers in the legal department for their junior reports (rule 37).

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* 5. 1We have often used a particular firm to handle our litigation work. A statement of claim has been served on us (at 4.55pm on a Friday afternoon) and the claimant’s solicitors are this same firm. When should we raise our concerns with the firm and what should we do if they ignore us?

Ethical Thoughts

Under rule 10, a firm must not act against a former client if there is confidential information about the former client material to the new client and detrimental to the former client if disclosed. This includes knowing the character of the former client – are they particularly litigious, do they have a phobia of courts, is the CEO risk-averse? And it is inappropriate to sit on a potential ethical issue and use it as a weapon at a tactically advantageous time. As for threats of sanctions, no allegations about professional conduct can be made without proper basis (rule 32). If possible, it is best to resolve these matters by courteous, collegiate communications eg ringing up the other solicitor.

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* 6. A manager called Kim has been terminated for bullying and has brought an unfair dismissal claim. Their solicitor emails me late at night. My name is also Kim. The email says, “Hi Kim, please read the attached and get back to me ASAP. Cheers.” I immediately start skimming the document and am up to page 2 before I realise that it is an advice to the manager about settlement prospects, not an offer of settlement.

Ethical Thoughts

If a solicitor receives material in error, the first action is to stop reading. The next action is to contact the sender (rule 31). It may be that the recipient has not read anything of particular concern, or they may have to cease to act. Does the material retain its privilege despite the disclosure? Which side should suffer because of the mistake? But after all, it would be a very rare (or delusional) person who believes they have never sent an email to the wrong address.

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* 7. We need to provide some reports to the solicitors for the other side, so I confidently say to them that I will provide the reports tomorrow. Unfortunately, overnight the head of the relevant department instructs me not to provide them for another week.

Ethical Thoughts

It is essential that a solicitor is good to their word (rule 6). It does not matter whether that word is given in a formal undertaking, or an off the cuff promise. The only way out is a release by the recipient or by the court. It is also important that a solicitor does not put a colleague into the position of having to promise something which they might not be able to fulfil eg if the client’s instructions change. Therefore, it is prudent to be very careful before making any sort of promise, however it is characterised.

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* 8. I am busy working on a major tender. The lead manager tells me that, if we win the tender, we are all going to receive a promotion.

Ethical Thoughts

Does this create a conflict between the solicitor and the client (rule 12)? Some forms of incentive can do this, even if it is a subconscious pressure. It is essential to a solicitor’s role as a fiduciary that the only interests at stake are those of the client.

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* 9. Does it matter what I do in my spare time?

Ethical Thoughts

It is obviously necessary for everyone, solicitor or not, to act within the law. To what extent, though, could a solicitor’s personal life impact on them professionally? Rule 5 specifically states that a solicitor must not act in a way to bring the profession into disrepute or prejudice the administration of justice, whether personally or professionally. Deception is one area which could have a professional impact eg false insurance claims, cheating on exams. Personal interactions with a court are another.

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* 10. To whom do I owe my highest duty?

Ethical Thoughts

A solicitor is an officer of the court and their highest duty is to the court and the administration of justice (rule 3). There are times when a solicitor has a conflict between duties to the court and a client’s instructions – that conflict must always be resolved in favour of the court. A solicitor must not follow illegal or improper instructions (rule 8). This is not just in relation to litigated matters. It is a broad principle applicable in all areas of practice. A solicitor’s personal interest should not be involved in any matter (rule 12), although self-care and well-being are vitally important.

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