A Guide to Good Professional Conduct for Solicitors
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1VCMJTIFECZ -BX4PDJFUZPG*SFMBOE #MBDLIBMM1MBDF %VCMJO A Guide to Good 5FM Professional Conduct 'BY XXXMBXTPDJFUZJF for Solicitors *4#/ 3rd Edition Lawyers Helping Lawyers Alcohol • Depression • Bullying Stress • Drugs • Eating Disorders Free and completely confidential helpline available to all Irish lawyers, their staff and immediate families 1800 991801 www.lawcare.ie LawCare Ltd. Registered as a charity in England and Wales no. 1061685 and in Scotland no SCO39335. Company registration no. 3313975 VE T RITAS VINCE A Guide to Good Professional Conduct for Solicitors 3rd Edition © ISBN: 978-0-902027-99-2 Published by the Law Society of Ireland Foreword I am very pleased to introduce the third edition of our guide to conduct, A Guide to Good Professional Conduct for Solicitors. The previous edition was published in 2002. The Guidance and Ethics Committee has carried out an excellent review and updating of the guide. The whole profession was invited to comment on the draft text and the resulting publication has benefited from this additional input. As members of the solicitors’ profession, we strive to deliver a quality service to our clients. We also recognise that we play a vital role in the administration of justice in our society. We must carry out our roles to the highest professional standard. When we find ourselves in situations where our professional duty is not immediately clear, we can consult the guide. The role of solicitors is constantly evolving, and solicitors must adapt to meet the new challenges. However, the core principles that guide our conduct, including: honesty, integrity, independence, avoidance of conflict of interest, and confidentiality, remain the same. The Guidance and Ethics Committee operates the Guidance and Ethics Helpline. Solicitors who are concerned about their own position on any matter of conduct should not hesitate to contact the secretary to the committee at the Law Society. The solicitor will be assisted and will be informed about any relevant published material, including practice notes. The solicitor will then be in a position to make an informed professional judgement on the particular matter. This publication will be important in the training of solicitors. We must ensure that trainees fully understand the core principles and adopt them when they qualify as solicitors. This guide will be reviewed on an ongoing basis. Accordingly, comment on this edition will be welcomed. I would like to thank James Cahill, Brendan J. Twomey and Brendan Dillon (recent Chairs of the Guidance and Ethics Committee), Therese Clarke (secretary to the committee) and all committee members who were involved in this important task. James McCourt President October 2013 i PANEL TO ASSIST SOLICITORS IN DIFFICULTY WITH THE LAW SOCIETY PROBLEMS ARE If you have been notified by the Law Society of a MORE LIKELY TO complaint made against you BE RESOLVED IF or of other difficulties THEY ARE GIVEN relating to your practice, you may wish to contact one of IMMEDIATE AND the Panel members to assist PROPER you with your initial response ATTENTION. to the Society. For further information about the Panel and for information in relation to regulation, visit the members’ area at www.lawsociety.ie Introduction This is the third edition of the publication which was formerly known as “A Guide to Professional Conduct of Solicitors in Ireland”. The publication now has a new title – “A Guide to Good Professional Conduct for Solicitors”. The title describes the simple purpose of this publication. The publication, like the first two editions, will be commonly referred to as “The Guide”. The Guide provides a statement of the accepted principles of good conduct and practice for solicitors. Those principles are illustrated in the context of practical situations, including those situations which are most frequently the subject of queries from solicitors to the Law Society. It serves a very useful purpose and is regularly consulted and quoted. The Guide represents Law Society policy and recommendations as at the date of publication. The Guide does not have the force of law. If a decision has to be made as to whether certain acts or omissions of an individual solicitor constitute misconduct, this can only be done following a hearing of the Solicitors Disciplinary Tribunal, which will consider the facts of the particular case. Generally, no action can be declared misconduct until it has been so found by the Tribunal. The Complaints and Client Relations Committee and the Regulation of Practice Committee have some limited powers to deal with cases of misconduct1. The brief to the Guidance & Ethics Committee, who carried out the review of the current edition, was to review and update the guide, not to make new rules, and this is what has been done. As the rules of professional conduct derive both from statutory and non-statutory sources, the committee has tried to ensure that all necessary references to legislation and case law are included. Accordingly, where legislation or case law is relevant, reference has been made to it in footnotes. In addition, a comprehensive schedule of 1. Section 14(c) Solicitors (Amendment) Act 2002 – Power of Complaints and Client Relations Committee to require contribution towards costs incurred by the Society and/or issue reprimand in writing. Regulation 28(5) Solicitors Accounts Regulations 2001 (S.I. No. 421 of 2001) – Power of Regulation of Practice Committee to levy the costs of the investigation. iii Introduction statutory instruments promulgated under the Solicitors Acts 1954 to 2011, and other relevant statutory instruments, has been included as an appendix. Reference has also been made in footnotes to practice notes to which the solicitor can refer for a full expansion of particular topics. The practice notes are updated on an ongoing basis – see www.gazette.ie. Account was taken of the codes of other jurisdictions and disciplines. CCBE (Conseil Des Barreaux de la Communauté Européenne) which is the association of the Bars and Law Societies within the EU, has requested that the CCBE Code be taken into account in all revisions of national rules, with a view to the progressive harmonisation of codes and regulations governing lawyers within the European Community. The Guide has been made as user friendly as possible. It is hoped that the detailed schedule of contents and the index will lead the solicitor to the required topic without difficulty. The Guide is relevant for all solicitors whether in private practice as principal, partner or assistant or in employment in the corporate and public services sectors. References to the masculine should be read to include reference to the feminine. October 2013 iv A Guide to Good Professional Conduct for Solicitors Contents 01 The Rules of Professional Conduct 1.1 THE FUNCTION OF THE SOLICITOR IN SOCIETY 1 1.2 LegislatiON 1 1.3 CORE Values OF THE PROfessiON 2 – General – Honesty – Independence – Independence of the solicitor employed in an organisation – Conflict and confidentiality 1.4 THE ENFORCEMENT OF THE RULES OF PROfessiONAL CONDUCT 4 02 The Solicitor and his Relationship with his Client 2.1 Acceptance OF INSTRUCTIONS 7 – General – Terms and conditions of business – Information in relation to legal charges – Time costing – Refusal of instructions – The solicitor employed in an organisation – Instructions to be taken directly from client – Payment by client of fees in advance – Legally aided clients in criminal matters – Legally aided clients in civil matters 2.2 PROPER Standard OF LEGAL Services 10 – Continuing professional development – General – Legal agents – Failure to reply to letters v Contents – Complaints – Accounting for monies – Client lacking mental capacity – Vulnerable clients – Duress or undue influence – Family law – Litigation, Arbitration and Mediation 2.3 TERMinatiON OF A Retainer 14 – General – Client’s failure to act on advice or to furnish instructions – Permanent loss of capacity – Termination when client in custody – Termination by client 03 Conflict of Interest 3.1 GENERAL 17 3.2 CONFLICT OF INTEREST BETWEEN TWO CLIENTS 17 3.3 PROpertY TRANSACTIONS 17 – General – Second party to a conveyancing transaction not represented – Owners’ Management Companies – Prohibition on acting for a borrower and lender in commercial conveyancing transactions – Residential conveyancing – Undertaking to lender on behalf of solicitor 3.4 NON-CONVEYANCING TRANSACTIONS 19 – Client with conflicting roles – Conflict as family solicitor – Separate representation for vulnerable clients – Client lacking mental capacity – State solicitors – Independent legal advice vi A Guide to Good Professional Conduct for Solicitors Contents – Conflict in Probate and Administration – Family law 3.5 CONFLICT OF INTEREST BETWEEN SOLICITOR AND CLIENT 23 – Bequests or gifts by client to solicitor, staff or family – Wills for parents – Borrowing money from a client – Prohibition on payments to clients – Solicitor holding power of attorney – Joint ventures between solicitor and client 04 Privilege and Confidentiality between Solicitor and Client 4.1 INTRODUCTION 27 4.2 PRIVILEGE 27 – Court orders or warrants – Tax legislation – Receipt of information intended for the other party to litigation – Loss or waiver of privilege – Material disclosed by mistake – Exceptions to privilege 4.3 THE SOLICITOR EMPLOYED IN AN OrganisatiON 29 4.4 PROfessiONAL DUTY OF CONFIDENTIALITY 30 – General – Solicitor as mediator – Revenue audits – Disclosure of testator’s affairs – Supplying copy of will