Sticky wicket
Justine Carty and Susan Martin look at some of the most common ethical problems that arise for solicitors in practice – and how to avoid those sticky wickets.
The Legal Services Regulatory Authority (LSRA) Annual Report 2020, published on 20 July 2021, starkly states that “poor communication is still very much at the heart of” most complaints that are received by them.
Communication, or lack of it, is a common theme resulting in complaints made by clients against solicitors. Notably, this is also a familiar theme for complaints regarding the medical and accounting professions.
Complaints made by clients against solicitors were aired formerly at the Law Society’s Complaints and Client Relations Committee and at the Solicitors Disciplinary Tribunal, with adverse findings published in the Gazette. Complaints are now handled by the LSRA under the provisions of the Legal Services Regulation Act 2015 in its role as the independent regulator for the profession.
The Society’s Guidance and Ethics Committee provides assistance to solicitors on matters of professional conduct and ethics via their Guide to Good Professional Conduct for Solicitors, practice notes, guidance articles, and the helpline.
Client of another solicitor
Once a solicitor is on record for the other party in a matter, it is not good practice for the solicitor of the first party to contact them directly (see the Guide to Good Professional Conduct, third edition, chapter 7).
There are common-sense reasons why this should be the case: it causes confusion, may expose the solicitor to an allegation of bullying or intimidation, and it is unfair to the individual – they should have the benefit of their solicitor’s advice when dealing with correspondence.
Writing directly to someone else’s client can cause unnecessary distress for the recipient. There are exceptional times, however, when it may be necessary to contact that solicitor’s client directly. While these instances are rare and do not often arise in practice, the following list identifies some situations where it may be acceptable to make direct contact:
- Where it is necessary to serve a litigant with a copy order with penal endorsement. This must be served on them personally and cannot be served on their solicitor. It would be good practice to send a copy of the correspondence to their solicitor to make them aware of this development in the matter.
- Where, in a litigation matter, a solicitor has had pre-proceedings correspondence with another solicitor, but they have not replied to say whether they intend to come on record for their client. After writing to them with a warning, and assuming no reply has been received, it would be acceptable to serve their client directly. Thereafter, it would be good practice to send that solicitor a copy of the proceedings for their information, and so that they are aware that their client has been served.
- In a conveyancing matter, it is sometimes the case that the vendor will provide an undertaking to assist with Property Registration Authority queries. These are typically given directly by a vendor, and not by their solicitor. If a query arose, and writing to the vendor’s solicitor elicited no response, having warned the solicitor appropriately, it would be possible to write directly to the vendor regarding the undertaking.
There may be other occasions in practice where it is necessary to write to someone else’s client. A solicitor should carefully document on the file their thought process around this, showing how they arrived at the conclusion that it was necessary to write to the other party directly, before embarking on such correspondence.
Confidentiality
When dealing with their solicitor, a client ought to disclose their case with perfect candour, and they are entitled to believe that their solicitor will treat the information given confidentially (guide, chapter 4). In certain circumstances, the information may also be subject to the in camera rule, legal professional privilege, and GDPR.
On rare occasions, solicitors may find themselves in a situation where they believe it is necessary to depart from this policy of keeping their client’s affairs absolutely confidential.
Again, the following list of examples is not exhaustive. Some instances include:
- Handing over a file or documentation on the demand of An Garda Síochána or the Revenue Commissioners. This should only be done with the consent of the client or a court order. Even where such an order exists, it is necessary to advise the client of their entitlement to exercise legal professional privilege, where applicable.
- Where a client discloses an intent to harm themselves or others. In such circumstances, the solicitor should assess the threat and, if it is sufficiently serious, seek assistance and report the matter to the appropriate authorities (for example, the HSE, An Garda Síochána, Tusla). When acting as a guardian ad litem, solicitors are mandated persons within the meaning of the Children First Act 2015.
- Solicitors cannot be used to guide or assist in the commission of a crime. In this instance, the duty of confidentiality would be overtaken by the commission of an offence. Solicitors can never permit their offices to be used in this way.
- A more recent phenomenon concerns the ethical conflict caused by the confidentiality principle and solicitors’ reporting obligations pursuant to section 19 of the Criminal Justice Act 2011. This legislation provides that, for certain scheduled crimes (such as financial, company, competition, and theft and fraud), it is an offence for a person to fail to disclose information to An Garda Síochána where that information might prevent the commission of an offence or lead to a conviction in respect of that offence. This provision applies to solicitors as well as to any other persons. Legal professional privilege will apply to information that would otherwise trigger a reporting obligation pursuant to section 19. Where a solicitor forms the view that the information they receive from a client might be subject to a reporting obligation pursuant to section 19, but that information is privileged, then it would be good practice to clearly document how that conclusion was reached. In other words, to document the ‘inaction’.
- The duty of confidentiality is enduring and survives the death of the client. For this reason, the client’s papers or will can only be given to their executor or legal personal representative (LPR).
- Regarding family law matters, the in camera rule continues to apply after death and, consequently, it is not appropriate to release the file relating to matrimonial matters to the client’s executor or LPR after death. If it were required by the LPR of the client, then a court order would be required to release it.
- When the subject of a Revenue audit, solicitors should ensure that their client’s confidentiality is preserved.
Conflict of interest
What is meant by conflict of interest? A summary provided in the guide says that a solicitor finds themselves in a conflict-of-interest situation when they are:
- In breach of the duty of undivided loyalty owed to their client,
- In breach of the duty to make full disclosure to their client, and
- In breach of the duty of confidentiality owed to their client.
The guide advises: “Where there may be a conflict of interest or a risk of a conflict of interest, it is a matter for the judgement of the solicitor in deciding whether to act, based on the professional duty owed by a solicitor to their client. It is not a matter for the judgement of the clients or any third party. A solicitor must give careful thought to the matter to ensure that their professional obligation is discharged, and ensure that no conflict of interest arises or that no risk of a conflict arises.”
Queries around conflict of interest arise frequently with respect to property or family law matters. Examples of conflict queries in family law matters arise where a solicitor purchases a property on behalf of a couple.
After some time, the parties decide to go their separate ways, but one of the parties wishes to instruct the solicitor who purchased the house in the matrimonial matter. This would put that solicitor in conflict with the other party they previously acted for.
In this situation, the solicitor should consider whether they hold information that would create an unfair advantage over the other party for whom they will not be acting, and whether it would be best to decline to act for either party.
If, having exercised their professional judgement, they believe that there is no conflict in acting for one of the parties, they should note their decision-making process in how they arrived at this conclusion. It may be also worthwhile checking that the other party has no reasonable objection to the solicitor acting.
Acting for the LPR
An LPR in an estate may also be a beneficiary but, to prevent a conflict of interest arising, the solicitor acting for the estate may only act for this party qua LPR and not qua beneficiary. This means that, although the client may have two roles in respect of the administration of the estate, they are only a client as LPR. It may sometimes be the case that it is necessary for the LPR to take independent legal advice in respect of their role as a beneficiary.
It may cause frustration on the part of the client to receive advice of this nature, and they may perceive the division of roles as artificial. However, the reality of conflict of interest is only too clear when it arises.
Where there are two or more LPRs, the estate solicitor may encounter a situation where there is a dispute between the LPRs regarding some aspect to the estate. When this situation arises, it may cause a conflict of interest unless handled carefully.
It is worth bearing in mind the three duties that are owed to the client: undivided loyalty, confidentiality, and disclosure. If a dispute does arise, only when a recommendation is given to the parties to take independent legal advice, along with a reminder that the solicitor can only act when the parties give the same instruction (that is, are ad idem), can the matter proceed.
Where the relationship between LPRs has seriously broken down, then it may be necessary to recall the grant and seek orders of the court. If this happens, it is all the more important for the LPRs to have received legal advice independent of the solicitor for the estate.
If a solicitor acting for the LPR in the estate cannot act for that individual qua beneficiary, it follows that the solicitor cannot act on behalf of other beneficiaries in that estate.
However, it is necessary for the estate solicitor to engage with beneficiaries during the course of the work in extracting the grant and distribution of the estate – for example, writing to the beneficiaries to let them know that they have received a bequest, or will take a share in the estate, and asking them for information regarding capital acquisitions tax.
The estate solicitor will engage with the beneficiaries in distributing their share of the estate to them and in providing a copy of the estate accounts, where appropriate.
If a dispute arises between the estate and a beneficiary, it is good practice for the estate solicitor to write to the beneficiary and to recommend that they seek independent legal advice.
Seeking help
In dealing with clients, the court, or other solicitors, it is usual for ethical considerations to arise. Solicitors are reminded that, when encountering a difficult situation, help is available to them via the Guidance and Ethics Committee (tel: 01 672 4800 – ask for the committee secretary); the Guidance and Ethics Committee practice and guidance notes; the Solicitors’ Helpline run by the DSBA (tel: 01 284 8484); and through the various committees of the Law Society or the DSBA.
The biannual reports of the LSRA into complaint handling contain recommendations that may pre-empt many complaints from arising in the first instance. The first step to take, therefore, when dealing with an ethical problem is to seek help.
Remember that, if it is necessary to deviate from usual practice or general principles, solicitors should document their decision carefully in the event of a query or complaint arising in the future.
Look it up
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Justine Carty and Susan Martin
Justine Carty is a solicitor with the Property Registration Authority and is chair of the Law Society’s Guidance and Ethics Committee. Susan Martin is the principal of Martin Solicitors and is a member of the committee. Both are members of the Law Society’s Council