Obligations to Prospective Clients

People who are seeking lawyers are essentially third parties until they have been accepted as clients. They are owed obligations and even defined as clients for some purposes, for example, in the current SRA Handbook, where the context permits.⁴

A.

Lawyers, as professionals, are generally under a duty to decide honestly whether a prospective client’s best interests are served by them acting. Supporting a free choice of lawyer therefore has several dimensions. It means providing information to help a client make the best choice of lawyers. It requires that the lawyer is not party to arrangements that fetter the prospective client’s freedom to select a lawyer. It involves not applying any pressure or doing anything else inappropriate that may influence free choice. For this limited purpose, ensuring freedom in the choice of representation, prospective clients are third parties whose best interests must be protected by their prospective lawyers.

B. Barristers

There a number of exceptions to the barristers’ strict rules on providing representa­tion. Under the old Bar rules the ‘cab rank rule’ was always subject to specific excep­tions relating to professional embarrassment.⁵ For example, barristers were required

⁴ SRA, Handbook 2011, as amended, Glossary.

⁵ Bar Council, Bar Code of Conduct 1981, as amended, at para 603. to refuse instructions if they were not competent to handle a matter or if they consid­ered it in the client’s best interests to go elsewhere.^[2031]

C. Solicitors

The old Rule 1 of the Solicitors’ Practice Rules 1990 provided that a solicitor should ‘do nothing to restrict a person’s freedom to instruct the solicitor of their choice’. This was re-emphasised by Principle 11.01 in the 1999 Law Society Guide.

The guidance to old Rule 1 provided an example of improper influence. It was that of a landlord client who required his solicitor to ask a tenant not to use solicitor Y because, in the past, Y had pointed out unfavourable terms in a lease to another tenant. Another example is where a solicitor is requested to include a term in a settle­ment agreement that the other side’s solicitor should not act for other clients against his client in the future. The guidance noted that solicitors accepting these instructions would be in breach of Rule 1.

It was significant that no similar rule appeared in the core duties of the Solicitors’ Code of Conduct 2007. The principle still applied to referrals, in relation to which the relevant rule stated that ‘[y]ou must not enter into any agreement or association which would restrict your freedom to recommend any particular firm’.^[2032] The reach of this rule was, however, considerably more restricted than the old Rule 1. The rea­son for this was probably recognition of the impracticality of the rule under certain conditions.

A case that demonstrated the limits of Rule 1 in supporting the principle of free­dom of choice of solicitor concerned litigation against tobacco companies.^[2033] An action by lung cancer sufferers alleged that Imperial Tobacco knew of the association of tobacco with cancer long before they revealed it. The claimants entered a conditional fee agreement, but the costs escalated to the point that their solicitors could not afford to finance the case. The costs of Imperial Tobacco had apparently, by that stage, reached £7 million. The claimants were forced to settle.

Agreement was reached whereby the litigation ceased and the defendant company agreed not to ask for costs, provided the solicitors agreed not to represent any claim­ants against Imperial Tobacco in a similar matter for 10 years.

Practice also began to accommodate exceptions to the idea of freedom to choose solicitor. There were special regulations on choice of lawyer where legal expenses insurance was involved.^[2034] Companies were allowed to restrict their insured’s freedom of choice of solicitor to members of their panels, albeit in specified circumstances only.^[2035] Courts also recognised that over-strict interpretation of rules on conflict of interest could result in a denial of a free choice of solicitor.^[2036]

The nail in the coffin of Rule 1 was possibly the 2001 decision in Sarwar v Alam,^[2037] a case relating to legal expenses insurance. In the case, the Court of Appeal held that a strong public interest in maintaining a client’s freedom to retain the solicitor of his choice, did not override all other considerations, such as cost. In accordance with the Civil Procedure Rules, costs should be reasonable and proportionate. That would usually imply a restriction on the choice of solicitor.

D. The SRA Handbook

None of the principles or any of the outcomes of the current code replicates the old Rule 1 on the freedom to choose solicitor. It is arguable that Principles 3 (not compromising independence), 4 (acting in client’s best interests) and 6 (maintain­ing public trust) are relevant. It is, however, difficult to imagine that they would be sufficient alone to support an obligation to promote freedom of choice of solicitor. Any obligation must therefore be inferred from other outcomes and indicative behaviours.

The outcomes to Chapter 1, on Clients, includes one that is particularly relevant to promoting freedom of choice. It requires that solicitors ‘have the resources, skills and procedures to carry out client instructions’.^[2038] This may of course work against freedom of choice of solicitor, in the sense that the rule might conflict with the client’s decision.

The same chapter contains two relevant indicative behaviours. One involves solici­tors considering whether they should decline to act when unable to act in the client’s best interests.^[2039] The other involves being cautious when acting for clients where there are reasonable grounds for believing that their instructions are affected by duress or undue influence.^[2040] The first of these overlaps with the outcome related to capacity. The second is directly relevant to the issue of freedom of choice; solicitors dealing with vulnerable clients must take extra care to ensure that their instructions reflect the client’s preference, rather than that of a guardian or carer.

The idea that the common law, and professional ethics, requires a free choice of a solicitor, the view taken in 1990, is now only partly true. A problem may arise as a side issue, one of conflict of interest, for example, in which case conflicts rules would be enforced. In general though, the idea of freedom of choice has been overtaken by realities. Most people could only afford legal lawyers’ fees through personal insurance, such as car insurance, or collective insurance, such as trade union personal injury schemes. A condition of cover was that they used lawyers nominated by the insurers or trade union.

Any obligation to promote freedom of choice of solicitor must now be conjured from abstract values, like promoting independence. These abstract values could justify a number of conclusions about whether a choice of lawyer is necessary in a given situation. Because of the vagueness of these principles, it is difficult to imagine cir­cumstances in which the issue might become a disciplinary matter.

E. Refusing to Represent

The most basic obligation of a lawyer is to provide legal assistance, notwithstanding disapproval of their clients or of their moral positions. The legal role that flows from obedience to the rule of law is based on a theory of neutrality and non-accountability in client selection. Refusing clients appears to offend the principle of neutrality. The issue of when clients can be refused, and on what basis, therefore has theoretical as well as practical importance.

i. Barristers

Barristers have traditionally made neutrality in client selection a central pillar of their professional ethics. The eighth edition of the Bar Code of Conduct, like all of its pre­decessors, stated that self-employed barristers ‘must comply with the “Cab-rank rule”’ in any field in which they profess to practise in relation to work appropriate to their experience and seniority and irrespective of whether their client is paying privately or is publicly funded.^[2041]

The substance of the rule is that they must accept any brief or instructions on behalf of any person irrespective of the party, the nature of the case and ‘any belief or opinion which he may have formed as to the character, reputation, cause, conduct, guilt or innocence of that person’. In addition to not acting where it is not in their prospective client’s interests that they should, barristers did not need to comply with the cab rank rule unless a proper fee was payable.^[2042] Queen’s Counsel was not obliged to act without junior counsel in situations where they considered it inappropriate to do so.^[2043]

Despite the exceptions, the existence of the cab rank rule does have practical impli­cations for barristers, not least because it tends to be endorsed, and occasionally rigor­ously enforced, by the judges. In Arthur Hall & Co v Simons, Lord Steyn affirmed that it was a ‘valuable professional rule’ and Lord Hoffmann suggested it was a ‘valuable professional ethic of the English Bar’.

Judicial endorsement of the cab rank rule, as essential to the proper administra­tion of justice, has not prevented it from being controversial. A recent suggestion, in a report commissioned by the Legal Services Board (LSB), that the cab rank rule is symbolic, rather than substantive, evoked a robust response from the Bar and BSB. It is surprising therefore that the rationale of the cab rank rule does not figure more prominently in the new Bar Handbook. The new core duties do not mention the cab rank rule and provide only that barristers must not discriminate improperly in relation to any person.^[2046]

The cab rank rule itself is retained in the new Bar Code as an obligation on self­employed barristers to accept briefs irrespective of any ‘belief or opinion which you may have formed as to the character, reputation, cause, conduct, guilt or innocence of the client’.^[2047] The BSB promises to extend the rule to all BSB-authorised bodies and authorised individuals working in them where instructions are given on a referral basis and seek the services of a named authorised individual.^[2048] Indeed, the rule has been strengthened by removal of power for the Bar Council to deem fees to be reason­able for the purposes of the Code.

ii. Solicitors

Solicitors have never had an equivalent of the cab rank rule. Therefore, the right of clients to freedom of choice of solicitor was rather meaningless; solicitors could decline representation. Many solicitors are probably, in fact, morally neutral in client selection, but some deny that they have an obligation not to discriminate on moral grounds.^[2049] Human rights lawyers, for example, might refuse to represent parties iden­tified with committing human rights abuses.

Chapter 1 of the SRA Handbook (‘Client Care’) states that ‘when deciding whether to act you comply with the law and the Code’.^[2050] Chapter 2 of the SRA Handbook (‘Equality and Diversity’) provides that solicitors must not discriminate unlawfully^[2051] and provide services in a way that respects client diversity.^[2052] They must make reasonable adjustments to ensure that disabled clients are not at a substantial disadvantage compared to those who are not disabled.²⁸

The key negative indicative behaviour is discriminating unlawfully when accepting or refusing instructions to act for a client.²⁹ This might involve having been found to have committed, or being treated as having committed, an unlawful act of discrimina­tion by a court or tribunal of the UK.³⁰ Both the outcomes and indicative behaviours in the SRA Handbook only require that solicitors comply with the general law on discrimination when it comes to client selection. This means that solicitors must not refuse clients on grounds of race, colour, nationality or ethnic origins or on grounds of their religion or philosophical beliefs. Neither can they refuse clients on grounds of sex, disability or age.

III.