The following review was published in the Resolution Review magazine issue 194 following Mena's successful workshop on ethics for family solicitors.
Workshop review: Essential ethics for the family lawyer
Vanessa Fox, hlw Keeble Hawson LLP
This was an excellent presentation by Mena Ruparel on ethics for family lawyers. She helpfully referred us to the Guide to Good Practice on working with litigants in person produced by Resolution, and the Guide to Good Practice produced by the Law Society.
She pointed out that, these days, the approach in connection with ethics is based on outcomes focused regulation rather than on the rules, and that few of us have received any ethics training after qualification. At the end of the day, each of us in our own practice will need to make decisions and understand the SRA Code of Conduct.
Mena went on to consider the SRA statement of competence and the need to act honestly and with integrity, recognising ethical issues and exercising effective judgement, understanding and applying equitable concepts in our behaviour as lawyers, and resisting the pressure to condone, ignore or commit unethical behaviour.
Mena was at pains to confirm that compliance, ethics and regulation are not all the same thing. In groups, we were asked to consider where proper application of rules and regulations produced an unethical result. We considered the issue of the Windrush generation and the fact that proper rules and regulations would have meant they would have to leave the UK after living and working in the UK for 40 years. We also considered the use of stop and search regulations which were not always used fairly.
On that basis ethical behaviour was more abstract. Behaving unethically might not lead to a sanction but might lead to one if the behaviour was such that the regulator became involved. We looked at the ten principles of behaving as a solicitor in the correct manner and it was noted that out of ten, five principles concerned ethics.
Mena also considered issues where mistakes were sometimes made by other solicitors and whether we should act to draw attention even if those mistakes benefitted our clients. There is no obligation on the solicitor to clarify the matter but nevertheless it might be better for clients in some instances to raise the issue. Sometimes we might ourselves have caused a misunderstanding and if so there was a duty to clear it up. In any case, clients should be informed of mistakes made by the other party to decide whether or not it should be raised and if it was in the client’s best interests to raise it.
We looked at the various qualities that solicitors had been asked to consider which they thought were the most important virtues for lawyers. The issues included fairness, honesty, honour, judgement, perseverance and kindness. However, the top six virtues for an ideal lawyer were slightly different and included team-work and perspective.
We discussed other ethical positions, such as threatening costs orders and applications for injunctions, which are sometimes empty threats. We must be careful – even more so when working with litigants in person – to make sure that these threats are actually something that we intend to carry out. We have to act with integrity, act in the best interests of each client, and provide a proper standard of service. Finally, we need to behave in a way that maintains the trust the public has in us.
Mena went on to look at what had happened when matters have come before the SRA. In one case, a solicitor was qualified for 21 years and created some misleading emails when a client thought he had not been chasing up a legal aid appeal. In those circumstances where emails had been created by the solicitor concerned, despite his previous unblemished record, he was struck off. It was the cover up on that case that had led to this outcome. He should have had the courage to inform his employers at an early stage.
In another matter, another solicitor had been qualified for 34 years. He had tried to get the client and witnesses to sign their statements, but they had to be changed at the last minute. He signed the statements of truth himself, effectively forging the signatures. His client was told what he was doing, and no one complained. However, it came to light and was an attempt to mislead the defendant and the court. Although neither the client nor the judge complained about the matter, and the solicitor had co-operated and was suffering from depression, he was suspended for nine months. We were asked to consider that depression can impair professional judgement and we need to ask for help. We were all very concerned that long periods of good employment did not really count when a mistake was made.
I was reminded of this session when I viewed BBC’s The Split, showed days after the conference and noticed all the breaches of ethics.