Models of the Lawyer and Client Relationship Reflected in the Courts, Legal Education and the Legal Services Act 2007

It is to be expected that an idea of the model of the lawyer and client relationship in use will be reflected in a number of professional sources. The obvious materials include court cases, professional codes of conduct and education and training curricula.

A. The Courts

The courts are generally unsympathetic to the paternalistic model of lawyer and client relationships. This is evident in antipathy towards lawyers who substitute their own moral choices for those of their clients. In Griffiths v Dawson,³² for example, a solici­tor failed to lodge an application to protect a wife’s future right to a widow’s pension. This would have held up the divorce. The solicitor considered this to be ‘unsporting’, in other words unfair and improper. It was held that a solicitor was negligent in such circumstances. He could not make a personal decision not to take such a vital step. In ordinary circumstances, the presumption is that decisions on important matters are taken by clients.

³² Griffiths v Dawson [1993] FL 315.

B. The Lawyer and Client Relationship in Legal

Education and Training

The representation of the lawyer and client relationship in education and training curricula has presented a somewhat lawyer-centred picture. In the current LPC regu­lations there are two relevant elements. These are concerned with interviewing and advice giving and follow-up. They are both directed to collecting information as a basis for providing advice. Both elements are rather prosaic. There is no reference to moral issues, or other signalling that a participative model of the lawyer and client relationship is envisaged.

In the interviewing element of the LPC outcomes, for example, the main criterion for effectiveness describes eliciting the relevant information, allowing the client to explain any concerns, anticipating the client’s questions and having clear outcomes.

The description of client interviewing and advice giving in the curriculum for the BPTC is similarly directed to gathering information and issuing advice.^[1416] The con­stituent elements of conducting a conference with a client are listening to what clients say, permitting them to raise concerns, listening to the client in a non-judgmental manner, empathising with and reassuring the client when appropriate, clarifying the relevant gaps and any ambiguities, selecting and using appropriate questioning tech­niques, eliciting the information required to advise the client and demonstrating a clear understanding of the client’s account of the case or facts.

The BPTC standards related to advising a client similarly describe a process.^[1417] It requires setting out the strengths and weaknesses of the case, advising on the con­sequences of any course of action taken and what further steps should be taken. The student must then ensure that the client understands what has been discussed, obtain the client’s full instructions and adhere to the instructions. There is not much clue from these standards as to the nature of the relationship, the importance of inter­ests or the expectation of an ongoing, participative relationship. In fact, the tone is suggestive of a paternalistic relationship with clients.

C. Professional Principles of the LSA 2007

It is a regulatory objective of the Legal Services Act 2007 (LSA 2007) to promote and maintain adherence to the professional principles identified in the Act. These prin­ciples are directed at lawyers as authorised persons. They contain two references to clients. One is that authorised persons should act in the best interests of their clients and the other is that the affairs of clients should be kept confidential. These principles scratch the surface of the complex duty that lawyers owe clients as elaborated in the codes of the legal professions.

VIII.