Done the State some service
The Solicitor’s Guide to Professional Conduct represents Law Society policy and recommendations on professional conduct and ethics for all solicitors. Justine Carty and Peter White consider some of the obligations that arise for solicitors in the full-time service of the State.
In Bolton v Law Society (1994), Sir Thomas Bingham said that “a profession’s most valuable asset is its collective reputation and the confidence which that inspires”. Currently, there are over 12,000 practising solicitors in Ireland, and the rules of professional conduct apply to all solicitors, whether working in the private sector, in-house, or as a solicitor in the full-time service of the State.
The rules governing solicitors in the provision of legal services are set out in the Solicitors Acts 1954-2015, statutory instruments, and the rules or principles of professional conduct contained in the guide.
The rules exist to ensure that the legal profession maintains high ethical standards and that solicitors act with integrity, honesty, and independence. High standards of professional conduct are required at all times to maintain the reputation of the solicitors’ profession and to sustain public confidence in its integrity.
However, solicitors in the full-time service of the State should be cognisant of further legislation and policy documents that are relevant to their particular circumstances.
Service of the State
Section 54(3) of the Solicitors Act 1954 (as substituted by section 62 of the Solicitors (Amendment) Act 1994) provides that “a solicitor shall be regarded as a solicitor in the full-time service of the State if and while he is required to devote the whole of his time to the service of the State as solicitor, and is remunerated in respect of such service wholly out of moneys provided by the Oireachtas.”
Under section 2 of the Legal Services Regulation Act 2015, a solicitor in the full-time service of the State is a practising solicitor, but is exempted from the requirement to hold a practising certificate (PC).
Although exempt from holding a PC, solicitors in the full-time service of the State should update their practising status each year with the Law Society as part of the annual PC renewal process for solicitors.
Civil Service Code
The Civil Service Code of Standards and Behaviour, published by the Standards in Public Office Commission in September 2008, forms part of the terms of employment of all civil servants and, therefore, applies to solicitors in the full-time service of the State.
The code identifies the traditional core values of the public service as honesty, impartiality, and integrity. These core values underpin the work of all civil servants in providing services.
Similar to solicitors working in the private sector, solicitors in the full-time service of the State provide legal services, and those services are provided to the Government and the other institutions of the State.
Typically, solicitors in the full-time service of the State have one client who is also their employer, so it is critical that the solicitor is cognisant of the overall standards of behaviour and values to support the standards required for the delivery of services. The code outlines the standards underpinning service delivery, behaviour at work, and the standards of integrity necessary for all civil servants.
Conflicts of interest
Avoidance of conflict of interest is a core value of conduct for solicitors. There is an ethical obligation on all solicitors not to act in a situation where there is a conflict of interest. The code also imposes certain obligations regarding conflicts of interest. There is a general duty imposed on civil servants not to:
- Engage in, or be connected with, any outside business or activity that would conflict with the interests of their departments or office, or
- Be inconsistent with their official positions, or
- Tend to impair their ability to carry out their duties as civil servants.
For solicitors who are whole-time civil servants, the code makes it clear that they “must not engage in private practice in their professions”.
An example of how a conflict-of-interest situation could arise is from a solicitor’s previous employment. Where a solicitor in the full-time service of the State is directed to act or advise in a matter in which a former client of that solicitor may have a material interest in its outcome, the solicitor should immediately make that fact known to their line manager and advise them of the nature and circumstances of the conflict or potential conflict.
The solicitor should then exercise their professional skill and judgement in deciding whether to act or not or deal with the matter. In deciding not to act, the solicitor should not discuss the matter or be a party to discussion on the matter, and should excuse themselves from such discussions.
Gifts and hospitality
As set out in the code, civil servants should not receive or accept benefits of any kind from a third party that might reasonably be seen to compromise their judgement or integrity. In the code, the term ‘gift’ includes any benefit given to a civil servant free of charge or at less than its commercial price.
However, gifts of a modest value, such as stationery, can be accepted, subject to any internal rules of the organisation. Any gift of more significant value should be refused or, if such refusal would offend, the solicitor should hand it over to their department.
Hospitality may include refreshments as part of attendance at a meeting or CPD event. In certain circumstances, modest offers of hospitality can be accepted, which would be considered a courtesy in business relationships.
However, in their contacts with outside organisations or persons, the solicitor must take care to ensure that their acceptance of hospitality does not influence them, and could not reasonably be seen to influence them, in discharging their official functions.
Under the Criminal Justice (Corruption Offences) Act 2018, the corrupt giving of gifts to, or receipt of gifts by, an official is a criminal offence. Where a civil servant receives money, gifts, or other consideration from a person holding or seeking to obtain a contract from a Government department/office, it is deemed to have been received corruptly unless the contrary is proved.
Official secrets
While the Solicitor’s Guide identifies the professional duty of confidentiality as a core value of the legal profession, the Official Secrets Act 1963 makes it a criminal offence for persons who hold public office to disclose secret official information, with the definitions as to who the law applies to, and what information the law applies to, being contained in the act. The act applies to all civil servants, including those who are retired or on a career break.
‘Public office’ is defined in the 1963 act as meaning “an office or employment which is wholly remunerated out of the Central Fund or out of moneys provided by the Oireachtas” and, therefore, applies to solicitors in the full-time service of the State.
Likewise, ‘official information’ is defined in the 1963 act as “any secret official code word or password, and any sketch, plan, model, article, note, document or information which is secret or confidential or is expressed to be either, and which is or has been in the possession, custody or control of a holder of a public office, or to which he has or had access, by virtue of his office, and includes information recorded by film or magnetic tape or by any other recording medium”.
Part II of the 1963 act sets out five offences relating to official information:
- Disclosure of official information (section 4),
- Disclosure of confidential information in official contracts (section 5),
- Retention of documents and articles (section 6),
- Offences relating to official dies, seals and stamps (section 7), and
- Forgery, etc, of official documents (section 8).
Section 4 of the act says that a “person shall not communicate any official information to any other person unless he is duly authorised to do so, or does so in the course of and in accordance with his duties as the holder of a public office, or when it is his duty in the interest of the State to communicate it”.
‘Duly authorised’ is defined as meaning that permission has been given by a minister or a State authority or person that has been authorised by a minister or a State authority. The type of information protected under the 1963 act is broad, and includes information that is secret or confidential, or expressed to be so, or certified by a minister to be secret or confidential.
There have been few prosecutions under the 1963 act. The most recent case, in 2019, involved an employee of the DPP’s office (non-solicitor) who was given an 11-month sentence concerning a number of charges of disclosing information. In addition to the 1963 act, the Criminal Justice (Corruption Offences) Act 2018 makes it an offence for an official to “use confidential information” for corrupt reasons.
Ethics acts
The Ethics in Public Office Act 1995 and the Standards in Public Office Act 2001 provide for, among other things, the disclosure of interests by civil servants occupying ‘designated positions’ and any interests held, to their actual knowledge, by their spouse or civil partner, a child of theirs, or a child of their spouse, that could materially influence them in relation to the performance of their official functions.
‘Designated positions’ vary between each Government department, so solicitors in the full-time service of the State should check the Ethics in Public Office (Designated Positions in Public Bodies) (Amendment) Regulations 2018 to see if they hold a ‘designated position’ within their work. Guidelines on Compliance with the Provisions of the Ethics in Public Office Acts 1995 and 2001: Public Servants are available on the Standards in Public Office Commission website.
Further, the code imposes a restriction on civil servants who hold ‘designated positions’, for a period of 12 months from the date of resigning or retiring, accepting an offer of appointment from an employer outside the Civil Service, or accepting an engagement in a particular consultancy project, where the nature and terms of such appointment or engagement could lead to a conflict of interest, without first obtaining approval from the appropriate authority. There are further restrictions on civil servants, even where the 12-month period has lapsed, to observe the restrictions imposed by the 1963 act.
Similar rules apply to civil servants (not occupying designated positions) intending to engage with outside business with which they had official dealings, or outside business that might gain an advantage over competitors by employing them, and they require prior approval. However, the legality of these provisions have not been analysed by the courts to date.
Administering oaths
Solicitors in the full-time service of the State cannot administer oaths.
Section 72(1) of the Solicitors (Amendment) Act 1994 states that only solicitors who hold a practising certificate that is in force shall have all the powers conferred upon a commissioner.
The key point here is that, in order for these powers to be conferred pursuant to section 72, the solicitor must be the holder of a current practising certificate. The subsection also makes it clear that the conferral of the power is subject to any conditions to which that practising certificate is subject under the Solicitors Acts 1954-1994.
While solicitors in the full-time service of the State hold a practising status, they do not hold a practising certificate and, therefore, do not fall within the provisions of section 72 and are not permitted to administer an oath.
Certifying documents
Solicitors in the full-time service of the State can certify documents to be true and certified copies.
However, certificates and the power to certify a document is not contained in one specific document or piece of legislation. It is contained in a variety of acts of the Oireachtas, and statutory instruments and regulations made under those acts.
Therefore, in order to be absolutely sure as to whether a solicitor in the full-time service of the State can ‘certify’ a document by virtue of them simply being a solicitor on the Roll of Solicitors, this cannot be easily answered with a ‘yes’ or ‘no’ answer.
To be certain whether a solicitor in the full-time service of the State can certify a particular document, the solicitor should check the section of the act or the regulations under any particular act (such as agricultural acts, environmental acts, road-traffic acts, etc) to see whether or not the word ‘solicitor’ appears and, if so, whether it is defined with the same particularity as is set out in section 54 of the Solicitors Act 1954 (as substituted by section 62 of the Solicitors (Amendment) Act 1994), which states that “a solicitor who has the qualifications specified in subsection (2) of this section may act as a solicitor, and is referred to in this act as a solicitor qualified to practice”.
Subsection (2) then refers to the qualifications:
a) That the name of the solicitor is on the Roll,
b) That he does not stand suspended from practice,
c) That either he is a solicitor in the full-time service of the State, or a practising certificate in respect of him is in force, and
d) That the solicitor concerned has not given an undertaking to the High Court that he will not act as a solicitor or, if he has given such an undertaking, that it has been discharged by the court.
Therefore, it can be seen that there are various references to ‘solicitors’ in the Solicitors Acts and under the Legal Services Regulation Act 2015, including:
- Solicitors on the Roll,
- Solicitors on the Roll with a current practising certificate (qualified to practise), and
- Solicitors in the full-time service of the State, as defined above.
Thus, in a very general way, in the event that an act of the Oireachtas or any subsidiary legislation or regulations by way of statutory instrument confers upon a ‘solicitor’ simpliciter a power to certify a particular form within that particular piece of legislation, it can be said that a solicitor in the full-time service of the State meets that definition. Whereas, the contrary applies in the event that the definition as contained in the relevant legislation and/or subsidiary legislation refers to a solicitor ‘qualified to practise’.
However, the meaning given to ‘legal services’ in section 2 of the 2015 Legal Services Regulation Act is simply “legal services provided by a person, whether as a solicitor or as a barrister”. It appears, therefore, that the certification of a document in a capacity as a (practising) solicitor (as also defined in that section and in the 1994 act) could constitute the provision of legal services.
Therefore, it would appear to follow that any solicitor entitled to practise, but limited only to providing legal services to their employer, could only provide this certification ‘service’ to their employer, and not to a third party, so solicitors in the full-time service of the State should be cognisant of this.
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Justine Carty and Peter White
Justine Carty is a solicitor with the Property Registration Authority, and Peter White is a solicitor with the Department of Justice.