SRA Code of Conduct
Peng and Others (2020) found in their research study that an ethical culture within the workplace facilitates the development of ethical leadership by impacting the ‘organisational citizenship behaviour' (‘OCB') within that organisation and thus positively affecting the task performance of followers (employees).
Therefore, ethical practices go beyond just individual behaviour and should extend to ethical practices within the legal practice or organisation.In addition to the seven Principles, the SRA also prescribes codes of conduct that governs the way those in the profession are expected to work to ensure competency and ethics within the workplace. There are two codes of conduct, one for firms and one for solicitors.
The SRA Codes of Conduct for Solicitors contain the standards of ‘professionalism' and these are set out across eight chapters:
• Code 1 - Maintaining Trust and Confidence.
• Code 2 - Dispute Resolution and Proceedings Before Courts and Tribunals.
• Code 3 - Service and Competence.
• Code 4 - Client Money and Assets.
• Code 5 - Referrals, Introductions and Separate Businesses.
• Code 6 - Conflicts of Interest.
• Code 7- Cooperation and Accountability.
• Code 8 - Client Identification, Complaints Handling, Information and Publicity.
Meeting the standards set in the SRA Code of Conduct for Solicitors will also be indicative that the SRA Principles are being observed. For example, Code 2.2 states:
You do not seek to influence the substance of evidence, including generating false evidence or persuading witnesses to change their evidence.
Adhering to this standard will also ensure that you are acting in a way that upholds the rule of law and proper administration of justice (Principle 1) and upholds public trust and confidence in the solicitors' profession (Principle 2). You will also be acting honestly (Principle 4) and with integrity (Principle 5).
It is possible for the Principles and Codes of Conduct to conflict when deciding on the correct course of action to take. This is particularly so as the Principles are not ordered in terms of importance. For example, there is a requirement to act in the best interests of the client (SRA Principle 7) as well as a duty of confidentiality to the client (e.g. SRA Code of Conduct chapter 6.3). However, observing these duties to the client could also lead to an advocate’s independence being compromised which would equally breach professional rules (e.g. SRA Principle 3 - acting with independence). Equally, only observing duties to the client ignores duties owed to the court and the public at large (e.g. SRA Code of Conduct chapter 2 - dispute resolution and proceedings before courts).
The duty to the court (Code 2) is often considered to be a primary and overriding duty and it even extends to experts who also have an overriding duty to the court. They include expected behaviours such as:
• “You do not misuse or tamper with evidence or attempt to do so” (2.1).
• “You do not place yourself in contempt of court, and you comply with court orders which place obligations on you” (2.5).
• “You draw the court’s attention to relevant cases and statutory provisions, or procedural irregularities of which you are aware, and which are likely to have a material effect on the outcome of proceedings” (2.7).
In Chapter 4 you will also find some helpful guidelines on what to do when you are in disagreement with your client (see 4.3.2). You will also find guidance on how to avoid misconduct or unethical behaviour when giving an undertaking to the court or other legal professionals (see 4.4.4).
Ethical behaviour therefore also extends to the way in which an advocate manages themselves and their work (see SoSC D) and how an advocate treats others (see SoSC C). An advocate will build relationships with others whether this is the client, members of the public (for example witnesses and jurors) or other professionals such as barristers or experts or the judiciary and members of court staff (see the discussion in Chapter 4).
At all times an advocate must behave appropriately and maintain professionalism with the client (see SoSC C2) and with others (see SoSC C3).1.4.1 Conflict between the Principles and the Code
Where two or more Principles and Codes of Conduct conflict, an advocate is expected to follow the one that best serves the public interest. If an advocate is unclear as to the correct course of action to take, then the SRA and the Law Society encourage solicitors to contact their ethics helplines (see details on their websites, which are listed at the end of this chapter).
The SRA and the Law Society have also issued practice guidance, which can be found on their websites. These include guidance on how to avoid offensive communications (SRA Warning Notice on Offensive Communications) and the Law Society Practice Note: Social Media on how to avoid making offensive comments on social media. This follows a number of disciplinary proceedings brought against lawyers as a result of their use of Twitter and other social media platforms.
Legal professionals can be sued for negligence, or they can be subject to criminal proceedings and this includes advocates. Practice decisions should therefore be taken after carefully weighing up all the available evidence and information. This should involve undertaking a risk-based assessment and choosing a course of action that is not tainted simply by motives to benefit oneself. Such decisions should stand up to scrutiny by others and be transparent, rational and objective. The expectation is that when deciding on the possible actions to take, the decision will be informed by a desire to be honest and to always act with integrity. Go to the end of this chapter to try some exercises on decision-making.
In particular, remember that:
A. An ethical advocate is expected to resist any pressure to act unethically.
B. An ethical advocate is expected to respect equality, diversity and inclusivity.
C. An ethical advocate is expected to recognise when they have made mistakes and take appropriate action to put things right.
1.5