Conclusion

Some rules imposing obligations to third parties, such as those relating to undertakings, tend to be designed to facilitate legal transactions. Others, duties to the Legal Services Commission and the wasted cost jurisdiction, ensure the protection of public funds and prevent frivolous litigation respectively.

One of the exceptional areas in which legal professions have created obligations is the treatment of lay third parties. There has been a longstanding and broad duty not to take unfair advantage enforced by the courts and replicated in the codes. This suggests that it is acceptable to ‘merely’ take advantage. This is probably defensible. It is implicit in adversarial proceedings that one side is seeking advantage. An unfair advantage implies behaviour that is not explicitly sanctioned by the rules and may be regarded as underhand.

What is considered unfair advantage may vary according to the identity of an opponent. The examples of unfair advantage in codes of conduct are narrow. They relate to litigants in person and sending unjustified letters of claim. It seems fair to conclude that the main constraints on the conduct of cases which are not vexatious or frivolous are the courts and the rules of court rather than the code of ethics. Courts tend to allow latitude for some unfairness to third parties, depending how fairness is defined. What is regarded as unfair tends to be approached on a case by case basis.