Solicitors will not countenance ‘self-dealing’ but are less bothered by those who bring weak cases
Immigration breach: among the most seriously regarded offences
Solicitors view “self-dealing” – acting in their own, rather than the client’s, interests – money laundering, bribery and falsifying a CV as the most serious rule breaches, and bringing weak cases and mismanagement problems as the least, a major report has found.
However, it said the vulnerability of clients has “no discernible impact” on the how seriously rule breaches are rated by solicitors,
The report for the Solicitors Regulation Authority (SRA) by University College London involved 611 solicitors giving their views on a variety of ethical and regulatory scenarios, as part of the SRA’s Question of Trust campaign, from which other results were published earlier this month.
The authors were Professor Richard Moorhead, based at the Centre for Ethics and Law, and Cristina Godinho, at the Centre for Behaviour Change, both at University College London.
Five scenarios rated most seriously. One was immigration-related – a solicitor being convicted of providing falsified documents to assist unlawful immigration.
There was also a solicitor encouraging “a frail, elderly client to alter his will in her favour”, a solicitor holding client money until probate was granted using the money to solve cash-flow problems in his firm, and a solicitor acting for an elderly widow including in his bill costs which he had not incurred.
The final one was a firm with a temporary cash flow problem, where a partner took money out of client account to pay staff wages, even if she returned the money to the account when she received payment.
“These matters all involve dishonesty, if one accepts the misappropriation of client account money is dishonest, and usually involve financial misconduct,” the report said. “The one exception to financial misconduct is the falsification of documents in the immigration case.”
The top incidents involving “very serious” matters – the next level down – were an experienced solicitor regularly charging a charity for expenses he had not incurred, a partner in City firm deliberately ignoring misleading information in a witness statement from a key client, and a solicitor failing to inform a client that he had a financial interest in a company the client wanted to sue.
Nothing rated as being of no concern, but the three scenarios seen as being only of some concern were:
- A newly qualified solicitor in a large City firm fails to inform clients of the progress of cases and causes delays as a result of the unrealistic number of cases allocated to her by senior staff in the firm;
- A solicitor is caught fare dodging on the tube after drinking too much on a night out with friends. She says she didn’t intend to avoid the fare but that she forgot to tap in with her Oyster card. She accepts a penalty notice and pays £60 fine; and
- A High Court judge reports a solicitor to the SRA saying that the solicitor consistently take very weak cases on asylum and deportation. Investigation shows the solicitor’s success rate is one in ten. The solicitor admits the cases are often weak but that he believes that the asylum seekers he represents should be given every chance to make their case and will be at risk if they are deported.
The survey found that the level of intent “generally had the expected effect” on how seriously ethical breaches were regarded by respondents.
“There were some exceptions, where deliberate breaches of the mandatory professional obligation, ‘to uphold the rule of law and the proper administration of justice’ were regarded less seriously.
“Levels of harm had a predictable impact on levels of perceived seriousness, although other factors sometimes appeared to weaken this effect (where intent might be less deliberate) or strengthen it where there was deliberate dishonesty.
“Some breaches seemed to be treated more independently of harm: e.g., a client account breach with no actual impact on the client was still treated very seriously.
“Vulnerability of the client had no discernible impact on the rating of seriousness. Whereas those problems which involved more junior lawyers were generally treated more leniently, with a marginally significant finding that older lawyers’ breaches were treated more seriously.
“Interestingly, peer pressure did not have a discernible impact on how situations were rated, neither excusing nor aggravating ratings of seriousness.”
The report found some variations in opinion based on gender and ethnicity. Women solicitors rated in particular an incident involving a firm which “fails to make reasonable adjustments for an employee with increasing visual problems, which forces her to resign from her post” as more serious than men.
Men took more seriously than women a solicitor failing to inform a client that he has a financial interest in a company the client wants to sue.
Older solicitors were particularly harsh on an incident involving a solicitor caught fare dodging on the tube after drinking too much on a night out with friends.
The authors concluded that the report was not aimed at determining the SRA’s response to problems, but stimulating debate.
“Is it right, for instance, that misleading a client in a way that does or is likely to lead to financial loss is seen as more serious than temporarily misappropriating client funds?”
They added that the judiciary might take a “rather different view” of the apparently lower seriousness given to the profession’s obligations to protect the rule of law and administration of justice, than to financial misconduct.
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