ETHICS AND PROFESSIONAL LEGAL PRACTICE
Assignment Brief
ESSAY TITLES
SOLICITOR (GENERAL PRACTICE)
“Our Risk Outlook 2014 highlighted Failure to act with integrity or ethics: improper or abusive litigation as one of our priority risks. It is critical that solicitors manage this risk effectively if we are to ensure that the legal services market operates in a way that serves the needs of consumers and the public interest.”
‘Walking the line: The balancing of duties in litigation’ March 2015 Solicitors Regulatory Authority
Explain and discuss the above in relation to the SRA Code of Conduct for Solicitors 2019 and the ethical dilemmas faced by solicitors.
SOLICITOR (CORPORATE PRACTICE)
“It is pretty hard to find a group less concerned with serving society and more concerned with serving themselves than lawyers”
F. Rodell ‘Goodbye to Law Review’ (1936) 23 Virginia Law Review 38, at p.42
Have corporate lawyers lost their moral compass? Explain and discuss the above quotation with reference to the SRA Code of Conduct for Solicitors 2019 and the ethical dilemmas faced by solicitors in corporate practice.
BARRISTER
“The solutions to the daily problems arising from the duties of the barrister are left to the barrister`s honour. Lord Macmillan identified five core duties of an advocate: ‘… a duty to his client, a duty to his opponent, a duty to the court, a duty to the state and a duty to himself’. Du Cann observed that the proper observance of these duties ‘may prevent [the barrister] ever rising to his feet at all, whilst a failure to follow them may result in an appearance before a disciplinary committee … and the striking of his name from the list of those qualified to practise in the courts”
‘Ethics and the legal profession, part three.’ 7 December 2009 by Mark Humphries
Explain and discuss the above with reference to the 2020 Bar Standards Board Code of Conduct.
Sample Answer
Walking the Line: The Balancing of Duties in Litigation – An Ethical Analysis in Light of the SRA Code of Conduct 2019
The practice of law is inherently bound to ethics, integrity, and the broader duty to uphold justice. In its Risk Outlook 2014, the Solicitors Regulation Authority (SRA) identified “failure to act with integrity or ethics: improper or abusive litigation” as a significant regulatory concern. This risk reflects the reality that legal practitioners, particularly those involved in litigation, operate within a space fraught with ethical dilemmas. Solicitors must balance duties to their clients with responsibilities to the court, the public, and the profession. The SRA Code of Conduct for Solicitors 2019 reinforces this balance, setting forth principles and mandatory obligations that guide solicitors in their professional conduct.
The Legal and Ethical Framework
The SRA Code of Conduct 2019 applies to all solicitors and is underpinned by seven core principles, among which the most relevant to litigation include acting with integrity (Principle 5), upholding the rule of law and the proper administration of justice (Principle 1), and acting in a way that maintains public trust in the profession (Principle 2). These principles require solicitors to resist any temptation to manipulate litigation processes in favour of their clients or their own personal or commercial interests.
In litigation, Rule 1.4 of the Code expressly prohibits misleading the court or others, while Rule 2.1 imposes a duty to provide a competent standard of service. Solicitors must, therefore, ensure that legal proceedings are conducted fairly, based on genuine legal merit, and not misused to harass, delay, or coerce opposing parties. This reflects the principle of procedural fairness, a cornerstone of the justice system.
Ethical Dilemmas in Practice
Solicitors are often placed in ethically challenging situations when clients instruct them to pursue aggressive or even abusive litigation tactics. For instance, a client may insist on issuing proceedings with little or no prospect of success, not as a bona fide attempt to obtain legal relief, but as a strategy to pressure an opponent into settlement. Such actions may be deemed an abuse of process, and solicitors who comply may face regulatory sanctions, reputational damage, and professional misconduct findings.
The SRA’s Walking the Line report (2015) highlights the tension between acting in a client`s best interest and maintaining legal and ethical standards. The report recognises the increasing pressure on solicitors to secure results, particularly in a commercial environment, where clients expect aggressive representation. However, the solicitor`s duty to the court must take precedence. As set out in Myers v Elman [1940] AC 282, solicitors are officers of the court and must not become “mere mouthpieces” of their clients.
Managing Risk: Integrity and Proportionality
Effective risk management in litigation demands ethical literacy and moral courage. Solicitors must be capable of identifying when litigation strategies cross ethical lines. The concept of proportionality is particularly important: legal action must be proportionate in scope, cost, and impact. The Civil Procedure Rules (CPR), especially under Part 1 (the Overriding Objective), promote the just, expeditious, and economical resolution of disputes. Solicitors must ensure that their litigation conduct aligns with these aims.
Where client demands conflict with professional obligations, the solicitor must carefully explain the limits of their role. This includes clarifying that solicitors are bound by legal and regulatory duties, including not pursuing claims with no legal foundation or presenting evidence they know to be misleading. The Solicitors Disciplinary Tribunal (SDT) routinely disciplines practitioners who breach these duties, particularly where such breaches reflect a disregard for the rule of law.
Training, Culture, and Regulatory Oversight
The increasing complexity of litigation and the growing commercialisation of legal practice underline the need for continuous professional development in ethics. Law firms must foster cultures of ethical awareness and provide support structures for solicitors facing difficult decisions. Internal training, mentoring, and ethical review panels can be instrumental in ensuring compliance with the SRA Code.
Moreover, the SRA`s shift towards outcomes-focused regulation requires firms to take responsibility for ensuring that the right outcomes, in terms of ethical and professional behaviour, are achieved in practice. This includes developing internal systems to monitor case conduct and client interactions.
Continued...
