Duties to the Profession

A. Restrictions on Attracting Potential Clients

Personal contact and word of mouth was the traditional method of attracting clients. Other, more active methods of attracting business were regarded as unethical.

The less honourable explanation of advertising bans is that clients were forced to rely on reputation alone. This favoured the lawyers with established businesses, who dominated professional bodies and made the rules. Advertising bans preserved the position of lawyers with established reputations and clienteles, and worked against new lawyers and new businesses.

Historically, the legal profession maintained specific bans on general advertising, pay­ing third parties for referring clients and approaching prospective clients direct. These prohibitions were relaxed before the Legal Services Act 2007 (LSA 2007), but the Act placed much greater importance on the interests of consumers in providing legal ser­vices. This has stimulated debate about how the interests of consumers are best served.

B. Responsibilities to Consumers

Consumers are a group including potential users of legal services. It therefore com­prises the whole of society. In this section we are looking at people who have not chosen a lawyer. We do not deal here with prospective clients who have asked a lawyer to act for them. As far as a lawyer is concerned, these are identified third parties and they were covered in the last chapter. The focus here is the responsibility lawyers are under to help consumers choose legal services. For professions this raises a number of questions.

Lawyers have had responsibility to consumers for some time, most obviously expressed through advertising codes. The level of responsibility and accountability is, however, increasing. This is most obvious since the LSA 2007, section 1. The regula­tory objectives of the Act, which are directed towards the Legal Services Board (LSB) and approved regulators, contain no mention of clients. Three of the Act’s eight regulatory objectives are aimed at consumers. The first, very explicit, objective of the Act is ‘protecting and promoting the interests of consumers’. The second, ‘promot­ing competition in the provision of services’, aims to benefit consumers by forcing down the price of legal assistance. The third, ‘increasing public understanding of the citizen’s legal rights and duties’ is more ambiguous, but could be read as aiming to de-mystify law or increase the possibility of self-help.

In addition to pursuing the regulatory objectives, the LSB was required by the Act to establish a Consumer Panel.^[2153] The Act provided that the panel could make repre­sentations to the LSB and was entitled to be provided with reasons should the LSB disagree.^[2154] The LSB can also seek advice from the panel or ask it to conduct research.^[2155] The panel can publish any representations and responses and any advice given or research conducted. Consumer views are therefore integral to the operation of the LSB and to the policy-making process for legal services regulation.

The Act cements a distinction between prospective clients and clients. Prior to the Act, lawyers already owed obligations to non-clients, whether as consumers or citi­zens. The Act merely makes the expectation that the profession have regard to con­sumers more explicit. The precise form of any obligation is not, however, specified. Of course, the process by which a consumer becomes a lawyer’s client usually impacts on the subsequent relationship.

C. Regulation of Consumer Contact

i. Advertising

Advertising can be a valuable source of information for consumers, enabling them to make an informed choice of adviser. Alternatively it can be a way of concealing prob­lems or inflating virtues. It is in the general interest of professions that some limits are placed on the claims their members can make. It may reduce tension between members. Complaints about solicitor advertising are generally made by other solici­tors rather than members of the public. Regulators often advise that minor breaches are resolved at local level rather than being raised as disciplinary issues.

a. Barristers

Advertising legal services by barristers is permitted but controlled. Since 1989, the Bar has allowed advertising in accordance with the British Code of Advertising and Sales Promotion. This meant that fees and methods of charging could be advertised but certain other claims were banned. Barristers could not make comparisons with other barristers or advertise success rates. These controls were imposed so as not to ‘diminish public confidence in the legal profession or the administration of justice’ or bring the legal profession into disrepute. Under the old Bar Code, advertising was not allowed to indicate that the barrister could refuse representation, except as provided in the Code.^[2156]

The Bar Code 2014 provides that barristers must not mislead persons to whom they supply legal services about the nature of those services.^[2157] Despite relatively extensive guidance on advertising in the Code,^[2158] however, advertising the implications of the cab rank rule is not specifically mentioned. The emphasis has shifted, for example, towards making sure that confusion is avoided when barristers share premises with solicitors and making sure that unregistered barristers make the disadvantages of instructing them plain.

b. Solicitors

The Solicitors’ Practice Rules 1990 provided that solicitors could publicise their practices provided there was no breach of the rules or of a Solicitors’ Publicity Code. This was created by the Law Society and approved by the Master of the Rolls.^[2159] The Solicitors’ Publicity Code 1990 provided that, as a matter of professional conduct, solicitors had to comply with the general law and could not be inaccurate or mislead­ing in any way when publicising their practices.^[2160] Solicitors were allowed to advertise their fees, subject to very specific rules on information not being misleading.^[2161] They could claim to be experts in a field, provided this could be justified, but could not claim a ‘success rate’.^[2162] Nor could they make direct comparisons with the charges or quality of service of another, identifiable solicitor.^[2163]

The Solicitors’ Code of Conduct 2007, Rule 7, adopted many of the rules of the old publicity code. Publicity on charges had to be ‘clearly expressed’, making clear whether disbursements and VAT are included. It had to clearly state gross fees, not fees discounted by any commission.^[2164] Claims to expertise in a particular field had to comply with the Advertising Standards Authority (ASA) British Code of Advertising requirement that it is ‘legal, decent, honest and truthful’. However a breach of this Code was not automatically a breach of Rule 7.^[2165]

There were also some key changes from the previous regime in the Solicitors’ Code of Conduct 2007. For example, the rule that publicity could not make direct compari­son with the charges of an identifiable solicitor^[2166] was abolished. The prohibition in the Solicitors’ Publicity Code 1990 that solicitors could ‘not publicise their practices in any manner which may reasonably be regarded as being in bad taste’^[2167] was also abandoned.

This relaxation of advertising rules may have reflected the difficulty of maintaining standards.

The SRA Handbook 2011 devotes a chapter to Publicity. It reveals direct links with the previous regimes. Of the five outcomes in Chapter 8 that must be achieved by regulated parties, two are directed at consumers in general. One requires that appro­priate information is provided about the firm, including the approved persons within it and how it is regulated.^[2169] The other outcome is that letterheads, websites and emails show the words ‘authorised and regulated by the Solicitors Regulation Authority’ and either the firm’s registered name if it is an LLP or company or, if it is a partnership or sole practitioner, the name under which it is licensed or authorised.^[2170] In either case it must also display the number allocated by the SRA. The outcomes maintain familiar formulae regarding accurate publicity, referring to the need for trust in the provision of legal services.^[2171] They demand particular care when quoting charges.^[2172]

ii. Personal Contacts and Referrals

a. Making Direct Contact

Attempting to make direct contact with potential clients has always been forbidden. The term ‘ambulance chasing’, approaching injury victims either directly or by leav­ing cards in hospitals, is still a term of professional abuse. The Solicitors’ Code of Conduct 2007 banned ‘cold calling’. Unannounced visits to old peoples’ homes, with offers to make their wills, were expressly prohibited. Rule 7.03 stated that ‘you must not publicise your practice by making unsolicited visits or telephone calls to a member of the public’.

The SRA Handbook 2011 specifies one negative outcome in relation to publicity.

b. Contact made through a Third Party

Paying a third party for their client contacts is problematic for several reasons. First, they may have used methods to generate contacts that a solicitor would not be allowed to use. These recruitment methods may, for example, impinge on the prospective cli­ent’s right to the lawyer of their choice. Secondly, payment by the lawyers for the contact creates a motive to recoup the outlay from the client. Thirdly, the desire to keep the flow of business is an incentive for the lawyers to prioritise the introducer’s interest over the client’s. Paid referrals therefore create conditions for bad faith and conflict of interest.

In September 2011, despite probable incompatibility with UK and EU competi­tion law,^[2175] the government announced that it would adopt Lord Justice Jackson’s recommendation to limit referral fees.^[2176] The resulting legislation prevents regulated persons referring or being referred for payment ‘prescribed legal business’, which the LASPO Act currently defines as claims for personal injury and death.^[2177] The reasons behind this, and the regulatory regime for referral fees, are considered in more detail in chapter twelve, ‘Fees’.

D. Bringing the Profession into Disrepute

Obligations not to damage the interests of professions as a whole are well established in the rules. Rule 1 of the Solicitors’ Practice Rules 1990 required solicitors not to harm the ‘good repute’ of the profession. Similarly, the old Bar Code stated that bar­risters must not engage in conduct ‘discreditable to a barrister’ or likely to ‘diminish public confidence in the legal profession or the administration of justice or otherwise bring the profession into disrepute’.^[2178] The last core duty in the Solicitors’ Code of Conduct 2007 required that solicitors ‘must not behave in a way that is likely to dimin­ish the trust the public places in you or the profession’.

Breaches of specific rules of conduct bring professions into disrepute, as does unlawful conduct, especially of a criminal nature. There is little guidance on what other behaviour is caught by general rules to protect a profession’s reputation. It is unclear whether the need to ‘protect’ the reputation of the profession prohibits private conduct that might be regarded as odd, undesirable or unconventional although not criminal; promiscuity, belonging to a religious sect or promoting currently unaccept­able political beliefs, for instance.

Presumably, it should not be the behaviour itself, but the harm to the reputation of the profession, that is the acid test. For example, some criminal conduct would not necessarily be regarded as bringing the profession into disrepute. If it were, any lawyer guilty of dropping litter, speeding or careless driving would also be subject to profes­sional sanctions. Similarly, action short of criminal behaviour will involve a common sense evaluation of the norms of society generally. While the likelihood is that any standards set will be on the conservative side, the liberal ideal suggests that there should be tolerance of eccentric behaviour. The focus on ‘reputation’ does, however, run the risk that professions aspire to regulate social standards as well as workplace standards.

The codes of conduct of both solicitors and barristers have regulated members’ involvement in activities that might be disreputable in themselves. The Bar warns bar­risters that they must not engage, either directly or indirectly, in any occupation which might affect the reputation of the Bar adversely. The Solicitors’ Code of Conduct 2007 advised against behaviour ‘within or outside’ the profession which damages public trust in the profession. It may be assumed that a legal activity, like running a sex shop, might fall foul of such rules, but what about marginal activities, such as run­ning a betting shop, a pawnbrokers or a high interest doorstep moneylender business?

Most of the areas of risk, like advertising, are policed by regulation. Some, like statements to the press, have also been regulated. The risk that wild or inaccurate statements will discredit the profession can be used by clients to their own advantage. An example of this situation happened in the litigation against Railtrack arising from the Ladbroke Grove rail crash. The solicitor for relatives of a deceased victim issued a press release informing the press that the closing speech of their counsel would reveal ‘shocking evidence of total mismanagement and utter callous disregard for safety’ by the defendants.^[2179]

Railtrack complained to the Law Society that these comments were a breach of the Advertising Code and brought the profession into disrepute. After an 18-month investigation, during which the relatives’ solicitor incurred considerable legal costs, it was decided that the press release broke no professional rules. The implication is that wealthy parties can use professional rules to restrict opposing lawyers’ statements to the press. This suppresses public knowledge of the details of legal proceedings and their wider implications.

In the SRA Handbook 2011, the core obligation from the 2007 Code, behaving so as not to diminish trust in the profession, became one of the new principles. It was, how­ever, expressed differently, as a responsibility to maintain ‘the trust the public places in you and in the provision of legal services’.²⁹ It is not obvious why ‘trust in the profession’ had become trust in ‘the provision of legal services’. It may have been acknowledge­ment of the fact that those delivering legal services were no longer all members of the profession. It may also have been an attempt to escape the connotations of profes­sionalism in the era of ‘independent regulation’. The shift of focus from ‘reputation’ to ‘trust’ suggests a slightly different test for whether lawyer conduct breaches the Code.

III.