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All the professions have ethics and codes of conduct to ensure the best practices and the best services to their client. Similarly, legal profession also demands its members and practitioners to follow strict ethical standards, often issues by respective bar association for the guidance of solicitors, advocates and practitioners. However, there are some general principles that the law practitioners has to follow without any formal code of conduct and these have been evolved over the period of centuries and established through the verdicts of different courts[1].

However, it is sadly viewed in practice that practitioners often ignore the basic guidelines and duties enshrined in the code of conduct and often come in conflict of their professional behaviour though law hints that he may be subject to proceedings[2]. In the given scenario, behaviour of both the law practitioners has been reviewed in light of the general principles of legal profession as well as those are codified in Solicitor Regulatory Authority (SRA), 2011 and The Courts and Legal Services Act 1990 and The Legal Profession Act, 1987. Here, in the first instance, a review of the duties towards client may be reviewed, only to the extent that may be relevant to this scenario. 

Duties of a Legal Practitioner:

1. Duties as Officer of the Court:

As an advocate standing before the court, a member of legal profession has a prime duty towards the administration of justice as the officer of the court. An advocate has to avoid any clash of interests with this duty and is bound to not to follow any instructions of his client inconsistent to this duty. The other duty is towards the client. The solicitor-client relationship covers broader category of duties wherein a solicitor is duty bound to perform his functions with integrity, and honesty. He must offer his client best of the advice and keep the entire information secret. Preparation and presentation of documents must be accordance with the instructions of the client and there must not be any conflict of interest between the two. A legal practitioner is required to keep a complete record of the transaction and his fees for record and this must not be mixed with personal record. This entails that personal relationships and acquaintances must not hinder the course of justice[3].

2. Duties towards Client and Profession:

The immunity available of advocates has been withdrawn.[4] Role of a legal practitioner is to present the case on the behalf of the client and look after his interest in the court. At the same time, he is responsible to assist the client with the sane advice under the conditions, inform the client about the rights and duties and repercussions of different legal scenarios presented by him. The duties of a legal practitioner may be classified into different groups as are discussed as under:

In the first instance, the legal practitioner must avoid personal biases with the client or the other party of the case. He is bound to follow client’s lawful, proper and competent instructions while preceding the case and must advance the interest of the client. In doing so, personal opinion of the practitioner must not over power the case pleadings[5].

There must be no conflict of interests and duties. A legal practitioner must avoid appearing against a defendant that was his former client and he might have his secret information in his possession or knowledge, unless the former client allows him in writing. If this is not observed, this will lead to the breach of duties towards former client. Similarly, he must avoid any conflict of interests when he is representing more than one party in a case and they have different versions to present[6].

Practitioner’s own interest in any case should not be in conflict with the interest of client or must not be put forward during the case. This could be interest present or future. Therefore, if the practitioner is aware of these interests, he must avoid taking the case or leaving the case soon this conflict is in his knowledge. This conflict is evident in cases where the client is a relative, friend or in relation with the client. However, there are certain exceptions to act in a situation where this conflict of interest is present with certain precautions and safeguards. One, when the interests of the client and the practitioners are common and in absence of the client’s case practitioner will be a plaintiff in his own standing. Two, the client has been informed about the interests and the client has agreed to the potential risks to the case. Three, in presence of more than one client, there is written consent of other parties[7].

Ethical Questions in the Given Scenario under Discussion with Implications:

1. In the first instance, it appears that both the parties have not approached the court with clean hands. In the first instance Mirna had changed the locks where personal possessions of Omar were kept to restrict from access. These both facts are in the knowledge of solicitor and advocates representing the parties. At the same time, in case of Omar, he had encroached upon the joint account and has managed to withdraw amount without consent of his wife, Mirna.

Discussion: Ethically, both the legal practitioners must have educated their client to avoid any illegal behaviour so that they must approach court with clean hands. The judgement in favour of Omar itself hinted that the court has considered the action of Mirna to lock the belonging of Omar as illegal at the first instance. In this regard instead of advising Mirna to recourse to reconciliation and amending her behaviour, Mario, her solicitor helped to evade the situation. This is breach of trust by not advising as per law.

2. Mario, the solicitor hired by Mirna later on involved with Mirna and moved to the house of client.

Discussion: This is a case of clash of interest. Mirna was his client and he must act professionally with the client, especially when the matter related to family dispute. Instead, he moved to the house that was owned by Omar and took his client to weekends. This status of being in a relationship with a client was indicating that he was interested to continue this relationship and divorce of parties was in his favour, especially when he did not disclose his marital status to Mirna. It is personal cheating but in perspective of professional conducts it tantamount to professional cheating too. Instead, being a professional, Mario must neither involve in his client nor moved to her house to reside. This is breach of code of no clash of interests as discussed above.

3. Mario is providing amount of £30,000 a month to Mirna as loan that has made client indebted to the legal practitioner.

Discussion: Mirna already owe fee amount to Mario’s firm and he further extended loan facility to her that is an intrusion in personal affairs of a client. In other circumstances, this might not be objectionable when no personal relationship exists, but in the present scenario, it is clear that Mario had created a deliberate dependence of Mirna upon him and therefore, is unethical. This dependence had further lead to professional dependence of Mira and she had acted as Mario advised without realising the impacts that apparently were not told to her by Mario. This constitutes both presence of professional breach of trust by Mario and clash of interests in this case.

4. Mario get personalised with Omar, the other party, after judgment against Mirna, his client, and punched him on the face. Ditta and Mirna are witness.

Discussion: Professional ethics demands respect of the orders of the court and act in accordance with the norms of professional conduct where one loses his case. Being a legal practitioner, his action to hit Omar after the court’s award against Mirna indicates his loss of interests in the case. Furthermore, neither as a responsible citizen nor as legal practitioner, the act of mayhem outside court was warranted. It breached both decorum of the court as well as made him liable to be prosecuted under the criminal charges. As a legal practitioner, he might lose his professional licence issue by the bar due involvement in criminal case.

5. Ditta that happened to be wife of Mario, claimed divorce over bad temper and misbehaviour with her client.

Discussion: This is a personal matter of Mario and Ditta. However, this has ethical implication as Ditta has hinted that Mario is a person of bad temper and legal profession is considered as a profession of mature and groomed people where legal practitioner is custodian of personal information of clients. A person of bad temper may lead to leakage of secrecy and professional dishonesty.

Conclusion:

This discussion has lead to the conclusion that this scenario contains many instances where Mario has committed breach of professional ethics. Under SRA, he is liable to be proceeded as professionally unfit person and may result in cancelation / suspension of his professional licence.

Bibliography

• Bolton v The Law Society [1993] EWCA Civ 32
• Harris v Scholfield Roberts and Hill (Conjoined Appeals) [2000] UKHL 38 (20 July 2000)
• Solicitor Regulatory Authority (SRA), 2011, A handbook for Solicitors: Code of Conduct, accessed on 15.8.2016 from http://www.sra.org.uk/solicitors/handbook/code/part2/rule1/content.page
• The Courts and Legal Services Act 1990