Development of the Codes of Conduct

In the early development of the legal professions the gathering of regulatory power was integral to governance of the profession generally. While memberships were led centrally they were controlled by evolving and centrally endorsed standards.

The first formal code of ethics in the USA was adopted by the Alabama State Bar Association in 1887, which served as a model for the ABA’s Canons of Professional Ethics in 1908.²⁷ The first code of conduct to claim that status in England and Wales is the Bar Code of Conduct 1981. The development of codes is only one example of the exercise of regulatory control of members described in the next chapter. The process is dealt with here because the development of the codes reflected on the

²³ Administration of Justice Act 1999, s 47.

²⁴ HC Deb 22 June 1999 vol 333 cols 1028-37; R Abel, English Lawyers Between Market and State: The Politics of Professionalism (Oxford, New York, Oxford University Press, 2003).

²⁵ LSA 2007, s 51(4).

²⁶ AM Francis, ‘Out of Touch and out of Time: Lawyers, their Leaders and Collective Mobility within the Legal Profession’ (2004) 24(3) Legal Studies 322; A Boon, J Flood and J Webb, ‘Postmodern Professions?: The Fragmentation of Legal Education and the Legal Profession’ (2005) 32(3) Journal of Law and Society 473.

²⁷ LR Patterson, ‘On Analyzing the Law of Legal Ethics: An American Perspective’ (1981) 16(1) Israel Law Review 28.

process of governance, but also because it became the public manifestation of regulatory power.

A. Solicitors’ Codes of Conduct

i. The Solicitors’ Practice Rules

The Law Society accepted powers to make regulations governing solicitors under the Solicitors Act 1933.

After some changes and different versions, the Solicitors’ Practice Rules 1990 were made under delegated powers conferred on the Law Society by the Solicitors Act 1974. The Practice Rules did not claim to constitute a complete code. They omitted any rules on confidentiality and conflict, a gap which was remedied only in 2005. They did, however, contain what have proved to be enduring core principles, set out in Practice Rule 1, as follows:

A solicitor shall not do anything in the course of practising as a solicitor, or permit another person to do anything on his or her behalf, which compromises or impairs or is likely to compromise or impair any of the following:

(a) the solicitor’s independence or integrity;

(b) a person’s freedom to instruct a solicitor of his or her choice;

(c) the solicitor’s duty to act in the best interests of the client;

(d) the good repute of the solicitor or of the solicitor’s profession;

(e) the solicitor’s proper standard of work;

(f)the solicitor’s duty to the Court.^[726]

The Law Society also made the Solicitors’ Accounts Rules under their delegated powers. These were, and are, binding on practitioners.

Until 2007 the Law Society did not have a comprehensive and binding body of principles and rules and so might be said to have not had a code of conduct. The Solicitors’ Conduct Rules 2007 repealed the Solicitors’ Practice Rules from June 2007.

ii. The Guide to the Professional Conduct of Solicitors

The Law Society’s A Guide to the Professional Conduct and Etiquette of Solicitors was first published in 1960 and ran to eight editions. In later editions, the shorter title The Guide to the Professional Conduct of Solicitors (the Guide), was adopted. As a collection of rules, principles of conduct and regulation it grew with every edi­tion. The Guide was a sometimes confusing amalgamation, as the Legal Services Ombudsman pointed out.^[727] It described its principles as ‘based on a common law ethical requirement’^[728] but stated that they should not be ‘confused with the require­ments of the general law of contract or tort or... criminal law’.^[729] Of course, ethical considerations, broadly conceived, may form the basis of common law rules, but, in England and Wales at least, it is usually the other way round. Some of the non- statutory guidance was stated to be based on ‘an interpretation of statutory rules’.^[730]

Some of the content of the Guide had no legal status at all. Crawley and Bramall, who worked in the Professional Ethics Division of the Law Society, pleaded for a broad approach, arguing that ‘[t]he codes of conduct... should not be treated as if they were tax statutes to be scrutinised for loopholes’.^[731]

The Guide grew rapidly through later editions. The 1990 version contained 600 pages, whereas the 1999 edition was 860 pages. It never aspired to be a ‘code’ and was not capable of being fairly enforced. As the Law Society later acknowledged, the Guide had become ‘a mix of mandatory and non-mandatory conduct requirements and best practice information which sometimes left the reader unable to identify the relevant regulatory obligations ‘amongst a morass of material’.^[732]

iii.

In 1999 the Law Society set up a Regulation Review Working Party to make propos­als for a comprehensive code of conduct for solicitors. The working party sought to comply with basic principles of rule-making, promulgated by the government’s Better Regulation Task Force. These were that rules should be necessary, clear, fair, enforce­able, proportionate, targeted and consistent. After extensive consultation the new rules were passed by the Law Society Council and submitted to the Lord Chancellor for the approval process. The Law Society was keen to stress that the rules were neces­sary, fair and enforceable.^[733]

Approval was finally received at the end of 2006 and the rules came into force in July 2007 as the Solicitors’ Code of Conduct 2007 (the Code).^[734] This was a legally binding code, delegated legislation in the form of Solicitors’ Practice Rules made under powers contained in the Solicitors Act.^[735] The Code was much shorter than the Guide and aimed to deal only with the fundamental principles governing practice as a solicitor. The rules did not replace the more detailed rules governing the organisa­tion and management of solicitors’ firms such as the Accounts, Investment Business or Incorporated Practice Rules. It did replace the 1990 Solicitors’ Practice Rules and a range of specialist rules and codes.^[736]

Whereas the Guide had grown to over 800 pages long by this point, the Code com­prised slightly over 200 pages. The structure adopted in the Code began with a set of six ‘core duties’ intended as a statement of the basic ethical duties of solicitors. The core duties required solicitors to uphold the rule of law and administration of justice, act with integrity, not allow their independence to be compromised, act in the best interests of each client, provide a good standard of service to clients and not to behave in a way that is likely to diminish the trust the public places in you or the profession.

The core duties constituted Rule 1 and were binding.

Deriving from the core duties were 25 sections setting out more detailed and binding practice rules. Attached to each rule was guidance which was not binding. However, as the introduction to the Code noted, ‘Although the guidance is not mandatory, solicitors who do not follow the guidance may be required to demonstrate how they have nevertheless complied with the rule’. The guidance stated that a breach of a core duty could by itself constitute misconduct, but it is more likely that a breach would relate to one of the more detailed rules made under these ‘over-arching principles’.

The effort of the Law Society to revise and enlarge the rules and principles of con­duct was a welcome development. It involved consultation with the membership, and with sections of the profession on matters of drafting. This provided a benchmark for future efforts, which might have included more debate with the lay recipients of legal services. This could have made a significant contribution to the development of the professional ethics of lawyers, potentially increasing the legitimacy of self-regulation itself in the eyes of both the members of the Law Society and the public.

The relative brevity of the Code was a move towards encouraging solicitors to exercise their own discretion using the general ethical principles of core duties. Nevertheless, the Law Society published a Companion to the Code,^[738] which aimed to help practitioners on issues covered in the Guide, but not in the Code. The Code was, after all, intended to be enforceable through disciplinary sanctions, an objective not generally a priority for those favouring ethical discretion.^[739] It was, however, super­seded, following the LSA 2007, by a new code and a new approach to the regulation of solicitors.

B. Barristers’ Codes of Conduct

i. Early Codes

The first attempt to publish a code of ethics for the Bar was in 1645 by John Cooke, the parliamentarian lawyer who prosecuted Charles I. This effort was doomed to obscurity with the restoration of Charles II and the execution of Cooke.^[740] An ‘etiquette’ for the Bar was published in 1875,^[741] but it did not prescribe standards and so did not have one of the essential features of a disciplinary code.

ii. Bar Code of Conduct 1981

The Royal Commission on Legal Services 1979 recommended that the Bar adopt written standards.^[742] This resulted in publication of the Code of Conduct for the Bar of England and Wales (Bar Code of Conduct) in 1981. The eighth edition of the Bar Code of Conduct was published in 2004. The Bar Code of Conduct was not a statutory code, unlike the Solicitors’ Code 2007, but was subject to the same approval process.^[743] Insofar as the Bar Code replicates the common or statutory law, it is of course binding on both barristers and others.

The force of the Bar Code itself lay in the risk of disciplinary sanction. This could range from a small fine to being unable to practise at all, either because of a regula­tory failure, for example a failure to acquire a valid practising certificate, or because of being struck off by the Disciplinary Tribunal for a major breach like a breach of confidentiality. Like the Law Society, the Bar Council had the power to waive any part of the Bar Code ‘either conditionally or unconditionally’.^[744]

The aim of the Bar Code of Conduct was to provide a basis for practice and also for enforcement of the rules by the appropriate disciplinary machinery. It was much shorter than the solicitors’ code. This is not surprising since the Bar Code of Conduct arguably covers a less complicated range of activity. Barristers could not handle a client’s business affairs, prepare for litigation or hold client money. Although not very long, the Code was rather wordy.

The Bar Code contained no overarching statement of the basic or core ethical principles. Part 1 of the Code stated that the general purpose of the Code is to pro­vide requirements and rules and standards of conduct appropriate in the interests of justice and in particular:

(a) in relation to self-employed barristers to provide common and enforceable rules and standards which require them: (i) to be completely independent in conduct and in profes­sional standing as sole practitioners...; (ii) to act only as consultants instructed by solicitors and other approved persons (save where instructions can be properly dispensed with); (iii) to acknowledge a public obligation based on the paramount need for access to justice to act for any client in cases within their field of practice;

(b) to make appropriate provision for employed barristers taking into account the fact that such barristers are employed to provide legal services to or on behalf of their employer.^[745]

Part (iii) of paragraph (a) referred to the cab rank rule and barristers’ obligation of neutrality. Paragraph (b) is, of course, a nod to the fact that employed barristers cannot comply with the cab rank rule. This was added following considerable debate within the Bar about whether employed barristers would be regulated by the Bar or subject to the Bar Code. In the event, the Bar adapted its code to recognise the position of employed barristers.

These general principles were augmented by Part III of the Bar Code which laid down some ‘Fundamental Principles’ for barristers. Barristers could not engage in conduct ‘dishonest or otherwise discreditable to a barrister’. They could not do any­thing prejudicial to the administration of justice or that is ‘likely to diminish public confidence in the legal profession or the administration of justice or otherwise bring the legal profession into disrepute’.^[746] It was also stressed that the barrister had an overriding duty to the court and must not ‘knowingly or recklessly mislead’ it.

The details of the old Bar Code, like that of the old solicitors’ rules and principles, then consisted of a mix of practising regulations with little if any ethical content and, such as those on confidentiality and conflict, those that did. For example Part III, after laying down the ‘fundamental principles’, went on to prescribe an odd mixture of duties and prohibitions ranging from the barrister’s duty to the Legal Services Commission, the duty not to discriminate unlawfully, not to give or accept loans from clients or receive or handle money other than remuneration.

There were many annexes to the Bar Code dealing with detail of, for example, the barristers’ contractual relationship with the solicitor, the direct access rules and the complaints procedure. Standards of Professional Work were dealt with in a separate section 3 added to the Code. This was not regarded as setting mandatory standards but was conceived of as advice. However failure to adhere to the advice could be cited in complaints or disciplinary proceedings. It was, in general, difficult to read and navigate the Bar Code and its Annexes and it was certainly not written in plain English or aimed at the lay reader.

V.