Models of the Lawyer and Client Relationship Reflected in Professional Regulation

A. Clients in the Codes

Codes of conduct often convey a very clear, if sometimes contradictory, picture of the place of clients in professional priorities. Even the relative absence of clients from the code speaks volumes.

B. Solicitors

i. A Brief History of ‘Client Care’

Concerns about the nature of the lawyer and client relationship have tended to find expression in client care regimes. These detail requirements that lawyers must observe, usually at the beginning of the relationship. They tend to relate to the provision of information. This may have started as a defensive practice in terms of reducing the volume of complaints. It is generally more difficult for a client to allege that they have not been properly advised if a client care regime has been followed. As the regime developed, however, it began to promote more participative decision-making, at least at the beginning of the lawyer and client relationship.

The Solicitors’ Practice Rules 1990 appeared to have little concern for the promo­tion of client satisfaction. They were concerned with standards of work rather than good relationships between lawyers and clients. It was already clear however, that more attention to client needs was required. In an experiment reported in 1986, intending solicitors’ were found to have a number of ‘failings’ when conducting interviews.^[1418] One of the most significant was that they recorded what they had to do for the client in their notes, but did not share this information with the client. The research was conducted before the introduction of the Legal Practice Course, the interviewing component of which aimed to remedy problems identified in the research.

In the 1990s the Law Society was under pressure to raise standards of client care, partly as a result of scandals over costs.^[1419] Solicitors’ legal aid work was under threat from the government’s Legal Aid Efficiency Scrutiny^[1420] and plans for the develop­ment of legal aid contracting. The Green Paper, Legal Services: A Framework for the Future, published in 1989,^[1421] made it clear that the Law Society had to do something about standards of work and the treatment of complaints about bad service. The Law Society had a strong incentive to act on its own account. Reducing the number of dissatisfied clients would reduce pressure on a complaints system that was costly to run.

By the late-1990s, many solicitors had experience of stiffer requirements on client care. Firms seeking a legal aid contract had to demonstrate that they had systems for recording instructions, the requirements of clients and the advice given. They also had to comply with written standards on costs, confirming them in writing. Information about any costs liability had to be refreshed at least every six months. Firms on pan­els for insurance companies or trades unions usually had to comply with contractual standards for providing client information.

In 1999, the Law Society amended the Solicitors’ Practice Rules 1990 by introduc­ing Rule 15. This provided a rudimentary client care regime. Solicitors were required to give clients information about costs and other matters. They were also required to operate a complaints handling procedure. The detail was specified in a Solicitors’ Costs Information and Client Care Code issued by the Council of the Law Society.^[1422] This was not a particularly successful innovation. The majority of solicitors did not comply with some or all of the requirements of Rule 15.^[1423]

The Solicitors’ Code of Conduct 2007 provided a more developed and consistent framework for an open relationship between solicitors and clients.

The 2007 Code specified that information must be given on any payments the client would or might have had to make to others, so-called disbursements. Methods of payment had to be investigated, for example the availability of legal aid or insurance. All this information on costs had to be ‘clear and confirmed in writing’ under Rule 2.03(2). Conditional fee agreements (CFAs) were subject to additional requirements regarding provision of information.^[1425] Reflecting new procedural rules on proportionate costs, solicitors had to discuss with clients whether the potential outcomes of their case would justify the expense or risk involved, including the risk of having to pay the other side’s costs.

The principle behind all the new provisions of the Solicitors’ Code of Conduct 2007 was to ensure that solicitors were aware of clients’ concerns and that clients had sufficient information to make informed choices. Solicitors had to ‘identify clearly the client’s objectives’, provide the client with a clear explanation of the issues involved and the options available, agree on the next steps to be taken and keep the client informed of progress.^[1426] The Code introduced a requirement to agree an appropriate level of service and explain the responsibilities of both client and solicitor.

The 2007 rules made expectations more explicit and encouraged a greater flow of information between solicitor and client. There was also an attempt to improve com­munication between solicitors and clients. Guidance suggested that solicitors provided information ‘in a clear and readily accessible form’ and that ‘over complex or lengthy terms of business letters covering many matters’ may not be the most helpful way of doing it.

Previous experience of trying to implement a client care regime had obviously caused the Law Society Working Group to reflect on enforcement. The 2007 rules con­tained a warning that failure to comply with the client care requirements could lead to enforcement ‘in a manner which is proportionate to the seriousness of the breach’.^[1427] In some cases this could include the solicitor’s retainer becoming unenforceable.

ii. The Lawyer and Client Relationship in the SRA Handbook

The lawyer and client relationship described in the new SRA Handbook builds very substantially on the Solicitors’ Code of Conduct 2007. Many of the principles, out­comes and indicative behaviours in the Handbook are recognisable as former rules or parts of rules. Of the 10 principles set out in the SRA Handbook, three directly relate to clients. These are acting in the best interests of each client,^[1428] providing a proper standard of service to clients^[1429] and protecting client money and assets.^[1430] Among the outcomes that must be achieved, one operates at a similar high level of generality. This is the outcome specifying that clients must be treated fairly.^[1431] The principles apply to solicitors, their employees and those in licensed bodies. These are referred to collec­tively as solicitors in this part.

The principles operating in favour of clients may be reinforced, or balanced, depending on perception, by some of the other principles applying to the regulated parties. These include upholding the rule of law and the proper administration of justice,^[1432] acting with integrity^[1433] and not allowing independence to be compromised.^[1434] The last two of these three could apply to protect client interests. They could also operate as counterweights to excessive client loyalty and as a reminder of wider duties to the system of justice.

The section of the SRA Handbook called ‘You and Your Client’ contains 16 outcomes that must be achieved. Many of these refer to the inception of the relationship and information that must be provided. Some refer to the nature of the relationship itself and the service provided. Finally, a few relate to the end of the relationship and the consequences if something has gone wrong. This section is organised around these stages rather than the sequence in which the outcomes are listed.

iii. Chronological Stages of the Relationship and Outcomes Attributable to each Stage

a. Inception

Many of the outcomes deal with matters that must be settled at the start of any mat­ter. Clients must have the benefit of the solicitor’s compulsory professional indemnity insurance and the exclusion of liability below the minimum level of cover required by the SRA Indemnity Insurance Rules is not permitted.^[1435] Clients should receive the best possible information at the time of engagement about the likely overall cost of their matter.^[1436] Solicitors can only to enter into fee agreements with clients that are legal, suitable for the client’s needs and take account of the client’s best interests.^[1437] This might include discussing whether the possible outcomes can justify the expense or risk involved, including the risk of paying another party’s legal fees.^[1438]

Solicitors must inform clients whether and how their services are regulated and how this affects the protections available.^[1439] They must be informed in writing of their right to complain, and how complaints can be made to the firm, at the outset of the matter.^[1440] They must also be informed in writing, both at the time of engagement and on the written copy of the firm’s complaints procedure, of their right to complain to the Legal Ombudsman (LeO) and the time frame for doing so.^[1441] Solicitors must also provide clients with the contact details of the LeO.

b. Conduct of the Ongoing Relationship

The SRA Handbook contain significant indicators of the way in which the lawyer and client relationship is currently conceived. An important outcome is that solicitors put clients in a position to make informed decisions about the services needed, the handling of their matter and the options available to them.^[1442] It may be significant, however, that the phrasing of the outcome suggests an initial rather than an ongoing obligation. Another outcome includes a requirement that the service provided ‘takes account of their needs and circumstances’.^[1443] Yet another requires solicitors to ‘agree an appropriate level of service with clients, for example the type and frequency of communications’.^[1444]

The various outcomes requiring consultation with clients, and client choice about the service provided, obviously require quite detailed discussion of options. This suggests commitment, at some level, to participatory decision-making. Another suggested outcome is that solicitors ensure that they ‘have the resources, skills and procedures to carry out your clients’ instructions’.^[1445] This suggests, albeit not defini­tively, a commitment to client autonomy in decision-making. Another outcome sug­gesting ongoing dialogue is the requirement to discuss costs, when appropriate, as the matter progresses.^[1446]

c. Conclusion of the Matter

The end of the matter might, but does not necessarily, mean the termination of the relationship. The client may well have other matters in progress, or, if they are a repeat player, intend to return at a later date. Several of the outcomes relate to events that may tend to occur at the end of the matter. For example, if a solicitor discovers any act or omission in the handling of the matter which could give rise to a claim by the client against the firm, the client must be informed.^[1447]

Clients must be informed of their right to challenge or complain about their bill and their liability to pay interest on an unpaid bill.^[1448] Any complaint by the client must be dealt with promptly, fairly, openly and effectively.^[1449] A proper account must be given to clients for any financial benefit received as a result of their instructions.^[1450]

iv. Complaints

Private plight and one-shotter clients dominate complaints data. In 2011/12, for example, there were over 75,000 contacts and 8420 cases accepted for investigation by the Legal Ombudsman (LeO).^[1451] Analysis of the LeO data by the Law Society shows that solicitors are the subject of 96 per cent of the active complaints.^[1452] Three areas of law accounted for just over half of all complaints handled by the LeO in 2011-12.

The largest areas in terms of complaints registered were family law (18 per cent), residential conveyancing (18 per cent) and wills and probate (14 per cent). These could be areas where lawyers are cutting costs in order to compete, with deleterious results for quality of service. The Law Society analysis found that of the 7455 active com­plaints about solicitors,^[1453] 40 per cent arose directly out of dysfunction in the lawyer and client relationship. They related to failure to advise (16.50 per cent), failure to fol­low instructions (15.70 per cent) and failure to keep the client informed (10 per cent).

C. Barristers

The longstanding Code of Conduct of the Bar of England and Wales (1981, as amended) was superseded in 2014 by the BSB Handbook. The new Code of Conduct, contained in the Handbook, preserves many of the former rules, and the orientation towards clients that they reflect. Both derive from the distinctive relationships that existed between barristers and what are referred to as ‘professional clients’ and ‘lay clients’. Before considering the new Code of Conduct, it is instructive to examine the position set out in the previous code.

i. The Orientation of the Bar Code of Conduct 1981

The Bar Code of Conduct 1981 was originally written from the perspective of the role of a freelance advocate working through intermediaries.^[1454] These intermediaries were originally solicitors, but were expanded to include a wide range of other ‘professional clients’. The Code therefore provided that self-employed barristers could only supply legal services if appointed or instructed by a court or if instructed by a professional client.^[1455] Consequently, barristers were not ordinarily permitted to undertake activity associated with service to clients. They could not, for example, undertake the manage­ment, administration or general conduct of a lay client’s affairs or take any steps in conducting litigation.^[1456]

ii. Barrister and Client Duties Based on the Advocacy

and Consultancy Role

The focus in the Bar Code on the advocacy and consultancy role was reflected in restrictions on barristers conducting correspondence. They could only do so when satisfied that it was in the lay client’s best interests and where there were adequate systems, experience and resources for managing appropriately such correspondence.^[1457] They also had to be satisfied that they had adequate insurance cover in the event that the lay client suffer any loss arising from the conduct of any such correspondence.

Given the focus on advocacy the Bar Code was heavily orientated towards the complex duties impinging on that role. The first rule in Part III of the Code, the Fundamental Principles, noted the barrister’s overriding duty to the court to act with independence in the interests of justice. It stated that he.. must not deceive or know­ingly or recklessly mislead the Court’.^[1458] This emphasis may be telling. It suggests that the duty to the court was uppermost in the mind of the drafters of the Code and, conceivably, more important than responsibilities to client.

The rule stressing the overriding duty to the court was followed by a rule defin­ing the barrister’s duty to clients. This required a barrister to ‘promote and protect fearlessly and by all proper and lawful means the lay client’s best interests and do so without regard to his own interests or to any consequences to himself or to any other person’.^[1459] The rule went on to clarify that ‘any other person’ means ‘any colleague, professional client or other intermediary or another barrister, the barrister’s employer or any Authorised Body of which the barrister may be an owner or manager’. The same rule clarified that barristers owed their primary duty as between the lay client and any other person to the lay client. They were not to permit any other person to limit their discretion as to how the interests of the lay client could best be served.^[1460]

This focus on the barrister’s standards was reinforced by a further rule stating that ‘[a] barrister is individually and personally responsible for his own conduct and for his professional work: he must exercise his own personal judgement in all his professional activities’.^[1461] The view that barristers’ loyalty to clients is subordinate to loyalty to judges is reflected by the attitudes of judges in court. They often regard the advocate’s duty to the court as extending to the whole way in which the client’s case is presented.

In carrying out their duty to the court, advocates were expected to preserve the court’s time and to focus on the issues as efficiently and economically as possible. They were required to refuse to put questions demanded by their client which they consider unnecessary or irrelevant, and refuse to take false points however much their client may insist that they should do so: ‘He is not bound by the wishes of his client in that respect, and the mere fact that he has declined to do what his client wishes will not expose him to any kind of liability’.^[1462]

The Fundamental Principles conveyed the notion that lay clients are important, but not, perhaps, the most important consideration for advocates. The invocation of the word ‘fearlessly’ conveys a zeal that is immediately contradicted by a qualification; the use of ‘proper and lawful means’. Finally, the rules made it clear that barristers’ discretion in deciding how lay clients’ interests were served must not be fettered. This emphasis on the barrister’s discretion, rather than the client’s decision, reflected the traditional view that control of the lawyer and client relationship in the courtroom resided in the professional, the barrister.

iii. Barrister and Client Relationships Based on the

Advocacy and Consultancy Role

Apart from delineating the split loyalty between professional and lay clients and the court, the Bar Code 1981 did not focus on the nature of the lawyer and client rela­tionship. Even the Written Standards of Work, to be found as Part III of the old Bar Code, said very little about the nature of relationships with clients. What was said tended to reinforce the impression, given by the Code, that barristers were in charge of the relationship.

The old Bar Code repeatedly emphasised that barristers must not simply follow the instructions of their lay or professional client but exercise their own professional judgment. As an advocate, a barrister was ‘personally responsible for the conduct and presentation of his case and must exercise personal judgment upon the substance and purpose of statements made and questions asked’.^[1463] When advising or prepar­ing documents barristers were told that they must exercise personal judgment upon substance and purpose.^[1464] They could not devise facts which would assist in advancing a lay client’s case.

Barristers were required to be particularly careful in drafting a number of specified, formal court documents. These were originating process, pleading, affidavit, witness statement or notice of appeal. In these documents barristers could not state facts or make contentions not supported by the lay client. They were not permitted to make any contention which they did not consider to be properly arguable. They could not make any allegation of fraud unless there were clear instructions and ‘reasonably credible material which as it stands establishes a prima facie case of fraud’.^[1465]

The advice on client care in the Written Standards of Work for barristers was brief and to the point. A barrister was told to ‘ensure that advice which he gives is practical, appropriate to the needs and circumstances of the particular client, and clearly and comprehensibly expressed’.^[1466] This, despite the nod to good communication, does little to counteract the impression, probably intended, that barristers should keep clients at arms’ length.

iv. Barrister and Client Relationships in Licensed

and Public Access Work

The general restrictions on barristers dealing directly with professional clients other than solicitors were relaxed with recognition of Licensed Access clients, members of those professions or other organisations approved for such work. Restrictions on dealing with lay clients were also lifted. In these cases the barrister was required to comply with the Licensed Access Rules and the Public Access Rules respectively.

a. Licensed Access Work

Before accepting licensed access work the instructing organisation had to produce a current licence authorised by the BSB. ^[1467] The barrister also had to ensure that the terms of work were established and confirmed with the client.^[1468]

b. Public Access Work

Before undertaking public access work barristers were required to ‘[b]e properly quali­fied by having more than three years’ practising experience, by having undertaken and satisfactorily completed the appropriate training, and by registering with the Bar Council as a Public Access practitioner’.^[1469] They were then required to establish whether it would be in the best interests of the client or in the interests of justice for the lay client to instruct a solicitor or other professional client.^[1470]

Finally, before accepting public access clients, barristers had to take ‘such steps as are reasonably necessary to ensure that the client is able to make an informed decision about whether to apply for legal aid or whether to proceed with public access’.^[1471] The barrister needed to keep the client’s interest and the public interest in the arrangement continuing under constant review.^[1472]

Barristers accepting public access instructions were required to confirm to clients a number of matters, ‘in writing, and in clear and readily understandable terms’. Barristers normally met the requirements by sending an adjusted copy of a model letter provided by the Bar. The confirmation covered the work they have agreed to perform, the fees to be charged for that work, and the basis on which they would be calculated, the barrister’s contact arrangements and both the in-house and Bar complaints procedures.

Barristers were required to make it clear that they could not perform the functions of a solicitor or other authorised litigator, that barristers were sole practitioners, not members of firms, and did not take on any arranging role.^[1473] Another notable requirement on barristers conducting public access work was that they were required to warn their clients that they could be prevented from completing the work if profes­sional duties conflicted.^[1474] They had to inform the client what they could expect of the barrister in such a situation.

V. The BSB Handbook 2014 and the New Code of Conduct

The new Bar Code follows the previous versions closely in defining the lawyer and cli­ent relationship. The core duties include a duty to act in the best interests of each cli­ent (CD2), to provide a competent standard of work and service to each client (CD7) and to keep the affairs of each client confidential (CD6). The obligations include promoting fearlessly and by all proper and lawful means the client’s best interests.^[1475]

The obligation to promote the client’s interest must be without regard to the barrister’s own interests or to any consequences to them or to any other person, whether professional client, employer or any other person. Barristers must not let any of these parties limit their discretion as to how the interests of the client can best be served.^[1476] Nor can they accept instructions that seek to limit their ordinary authority or discretion in the conduct of proceedings in court’.^[1477]

In the new Conduct Rules, the duty to act in the best interests of each client con­tinues to be subject to the duty to the court, to barristers’ obligations to act with honesty, and integrity and the obligation to maintain their independence. Barristers are required to cease acting, and return instructions, if a client requires action that will breach the barrister’s duty to the court.^[1478] The same consequence must follow if a client will not sanction the return of privileged documents to the other side.^[1479]

The sequence of the chapters may suggest an order of priorities. The first chapter of the new conduct rules is ‘You and the Court’, while ‘You and Your Client’ does not appear until Chapter 3, after ‘Behaving Ethically’. There are 10 outcomes in Chapter 3. While some of these are conventional, providing a competent standard of work and service^[1480] or protecting and promoting client interests,^[1481] for example, others may anticipate more direct relationships with clients.

The outcomes to Chapter 3 of the BSB’s new Conduct Rules specify that clients should ‘know what to expect and understand the advice they are given’.^[1482] Care must be taken to ensure that the interests of vulnerable clients are taken into account and their needs are met.^[1483] Clients should understand who is responsible for work done for them,^[1484] be adequately informed as to the terms on which work is to be done^[1485]and should have confidence in those instructed.^[1486] They must be told how to bring a com­plaint and complaints must be dealt with promptly, fairly, openly and effectively.^[1487]

The new rules provide extended attention to barristers providing public access and licensed access services. There are three outcomes overall. First, barristers undertaking public access or licensed access work must have the necessary skills and experience

required to do the specific kind of work.^[1488] Secondly, they must maintain appropriate records of the work.^[1489] Thirdly, they can only accept public access work when it is in the client’s interests that they do so and when the client fully understands what is expected of them.^[1490]

Few specific adjustments to the nature of the lawyer and client relationship are specified for when barristers depart the advocacy role for a more conventional rela­tionship with clients. They must, however, consider whether work should be con­ducted under public access or legal aid and advise clients accordingly.^[1491] Unless the barrister is authorised to conduct litigation by the Bar Standards Board, the client must be warned that the barrister cannot be expected to perform the functions of a solicitor or other authorised litigator.^[1492]

D. Evaluation of the Lawyer and Client Relationship Revealed in the Codes of Conduct

It would be fair to say that the legal professions’ initial attempts at codes of conduct reflected rather paternalistic notions about the lawyer and client. The latest version of the SRA Handbook has maintained the conception of a participatory model estab­lished in the client care regime. The rules reflect some recognition that solicitors are, for the most part, dealing with autonomous individuals wishing to make informed decisions about the services needed, the handing of their matter and the options avail­able to them. The new code has not, however, moved the conceptual framework of the lawyer and client relationship forward.

The Bar Code and Written Standards of Work did not make the same concessions to the concept of client autonomy as do the solicitors’ codes. This is despite the fact that barristers have become more involved in work involving direct client contact. The old Bar Code reflected a vision of the barrister, primarily as a defender of the proper administration of justice. They pursued their clients’ goals but subject to a duty to the court. Much of the old Bar Code was devoted to specifying and delineating this conception of the role.

Perhaps because of the emphasis in the Bar Code on the barrister as an independent advocate, clients appeared almost as a subtext. The general tone of the Bar Code, cer­tainly in defining the relationship between clients and the advocate, cast the barrister as a remote figure. The Code was unclear about the location of responsibility for decision­making, but appears to reserve a very substantial, but ultimately undefined, discretion to the barrister. This emphasis has largely been retained in the 2014 Code. There are outcomes concerned with clients knowing what to expect and understanding advice, and measures for vulnerable clients, but the locus of decision-making is unclear.

The Bar Code and supporting schedules convey a somewhat paternalistic impres­sion. This is slightly at odds with some barristers’ new role in conducting litigation. It is debatable whether the professional detachment from clients that is arguably desirable in the advocacy role is also appropriate to a relationship involving direct client contact. It could be argued that paternalism is an inevitable element of professional relationships and that this is reflected in the new Bar Code. It is questionable whether this orienta­tion to clients can survive. Consumer ideology will increasingly drive lawyers towards providing the service a client contracts for. It is debatable whether this is consistent with lawyers also being guardians of the administration of justice. Exploring this issue requires examination of the limits the codes place on what lawyers can do for clients.

IX.