Ceasing to Act
A. Background
Lawyers are generally restricted in deciding that they cannot act for a client. Both solicitors and barristers have required good reasons for withdrawal from a case.
Under the Solicitors’ Code of Conduct 2007 solicitors could not terminate the relationship unless for ‘good reason and upon reasonable notice’.160 Because of the difficulty that withdrawal of advocates causes the court, barristers were generally subject to tighter restrictions. Even so, barristers must cease to act if continuation would cause them professional embarrassment.161 This phrase embodies all the reasons, such as lack of skill or time, which justify refusing the brief in the first place.162Before the enactment of the new codes, solicitors could withdraw from representation when clients failed to make agreed payments on account, on the bankruptcy of either solicitor or client and mental incapacity. The circumstances where withdrawal is allowed included those where clients required a breach of professional duty or where there was a breakdown of confidence between lawyer and client. Solicitors, but not barristers, might argue that this included circumstances where the client was determined on a course of
156 SRA, Code of Conduct, ch 8: ‘Publicity’, Outcome 8.1.
157 BSB, Code of Conduct 2014, ch 2: ‘Behaving Ethically’ gC22.
158 ibid.
159 www.barstandardsboard.org.uk/code-guidance/media-comment-guidance-april-2013.
160 SRA, Solicitors Code of Conduct 2007, r 2.01(2).
161 Bar Council, Bar Code 1981, as amended, r á08.
162 ibid, r 603.
conduct to which there were grave moral objections. Lawyers were not generally allowed to withdraw simply because the court made it difficult to do their best for their client.
Prior to the enactment of the new codes, the courts had already put some flesh on the bones of previous restrictions on withdrawal.
In R v Ulcay,[1534] a solicitor and barrister had been retained to represent a criminal defendant after previous representatives had withdrawn because of professional embarrassment. The court then refused an application for an adjournment to prepare the case. The court decided that the proper remedy was to appeal against the refusal rather than withdraw. Once the order was made, the lawyers owed a duty to the court to comply and ‘soldier on’.B. Ceasing to Act under the New Codes
If solicitors decide they can no longer act for the client the SRA Code provides they must comply with the law and the Code when terminating their instructions.[1535] Solicitors may fail to achieve that outcome when they ‘cease to act for a client without good reason and without providing reasonable notice’.[1536]
One of the outcomes in the Bar Code 2014 is that ‘[instructions are not accepted, refused, or returned in circumstances which adversely affect the administration of justice, access to justice or (so far as compatible with these) the best interests of the client’.[1537] Another outcome provides that ‘[c]lients and BSB authorised persons and authorised (non-BSB) individuals and BSB regulated managers are clear about the circumstances in which instructions may not be accepted or may or must be returned’.[1538]
There are 10 circumstances set out in the Bar Code that require a barrister not to accept instructions[1539] and a similar number requiring their return.[1540] Among the more interesting is the situation where the barrister feels that the
instructions seek to limit your ordinary authority or discretion in the conduct of proceedings in court’ or because of a threat to the barrister’s professional independence caused by a connection with the client, with the court or a member of it, or otherwise.
Barristers are also severely restricted in returning instructions. The new Bar Code provides that barristers can cease to act on a matter and return instructions only if their professional conduct is called into question, the client consents or for other good reason such as illness or jury service.[1541] The guidance provides that when considering whether or not barristers are required to return instructions in accordance with the rule, they should have regard to relevant case law.[1542] The specific cases referred to relate to not using privileged information inadvertently disclosed by the other side.[1543]
XII.