The Solicitors Regulation Authority (SRA) Handbook (the Handbook) sets out all the SRA’s regulatory requirements on solicitors. It is updated regularly, version 18 having been published on 1 November 2016. The Handbook outlines the ethical standards expected of solicitors and the outcomes that the SRA requires solicitors to achieve in relation to client care.
The SRA Code of Conduct (the Code)is an outcomes-focused regulation. It sets out positive outcomes which, when achieved, will benefit and protect clients. The conduct requirements of the Code enable solicitors to adapt the regulations to how their firm operates, their practice areas and client base to best achieve the right outcomes for client care. The essence of the Code is effective, risk-based supervision and enforcement.
Solicitors and others providing legal advice and representation do so in an important role of a trusted advisor. Fiduciary duties and obligations arise from this role. Solicitors should always strive to uphold the intention and purpose of the Code as well as follow its letter.
Most clients engage a solicitor for a single transaction and accordingly are much less familiar with regulations and governance of solicitors than those who regularly use legal services. In addition, a solicitor is often instructed in stressful or difficult situations for the client. The primary focus for any client engaging a solicitor is the resolution of their legal issue or completion of a transaction.
It could be argued that a client should not need to be concerned with client care. Given the client has engaged professional services, the client should be able to take for granted the fact that their solicitor will adhere to high professional standards of client care. It is likely that the majority of clients give little contemplation to the required standards of client care, unless and until of course, something goes awry.
Even for knowledgeable or regular clients, the standard of client care is no different and solicitors should always ensure that all clients are given requisite information regarding the exact scope of instructions to limit the potential for disputes.
The 10 principles set out in the Code define the fundamental ethical and professional standards expected of legal advisers, who must:
1. uphold the rule of law and the proper administration of justice;
2. act with integrity;
3. not allow your independence to be compromised;
4. act in the best interests of each client;
5. provide a proper standard of service to your clients;
6. behave in a way that maintains the trust the public places in you and in the provision of legal services;
7. comply with your legal and regulatory obligations and deal with your regulators and ombudsmen in an open, timely and co-operative manner;
8. run your business or carry out your role in the business effectively and in accordance with proper governance and sound financial and risk management principles;
9. run your business or carry out your role in the business in a way that encourages equality of opportunity and respect for diversity; and
10. protect client money and assets.
Each part of the Code is divided into chapters dealing with particular regulatory issues, the first of which is client care. The chapters refer to how the principles apply in various situations through mandatory and non-mandatory provisions.
The following provisions are mandatory:
• the outcomes;
• the application and waivers provisions in Chapters 13 and 13A;
• the interpretations; and
• the transitional provisions in Chapter 15.
The outcomes show how the principles apply in the context of client care in many situations but are not an exhaustive list. Examples include:
O(1.1) you treat your clients fairly;
O(1.2) you provide services to your clients in a manner which protects their interests in their matter, subject to the proper administration of justice;
O(1.4) you have the resources, skills and procedures to carry out your clients’ instructions; and
O(1.9) clients are informed in writing at the outset of their matter of their right to complain and how complaints can be made.
The outcomes are supplemented by indicative behaviours, which, along with notes, are the non-mandatory elements of the Code. Acting in accordance with an indicative behaviour demonstrates compliance with an outcome. Examples include:
IB(1.1) agreeing an appropriate level of service with your client for example the type and frequency of communications;
IB(1.2) explaining your responsibilities and those of the client; and
IB(1.7) considering whether you should decline to act or cease to act because you cannot act in the client’s best interests.
Chapter 1 – client care
The first outcome in chapter 1 of the Code relates to client care. There is a requirement to provide a client care and terms of business. Certain information must always be provided to a client in writing, such as details of a complaints procedure, and other information may be necessary in order to achieve the outcomes in the Code.
Clients must be made aware of the information provided, be able to understand it and have it explained further if necessary. Pages of “small print” should be avoided. Solicitors should not issue standard form client care letters without due consideration of each individual client’s needs and circumstances. Particular consideration should be given if a client is vulnerable or has special needs.
Outcome 1.12 requires that clients must be in a position to make informed decisions about the services needed, how their matter will be handled and the options available to them. An initial client meeting before instruction will provide much of this information. However, a client care letter is also important in demonstrating that this outcome has been achieved.
Client care letter
A client care letter should clearly identify the client and what capacity the client is acting in, confirm instructions and a clear explanation of the issues involved and options available. The Law Society guidance note suggests including the following:
• next steps to be taken;
• details of the solicitor handling the matter;
• adequate information on costs;
• advice on the client’s right to complain and complaints procedures, including the right to complain about the bill;
• reference to terms of business; and
• a client’s acknowledgment.
Be aware of client care
Failure to comply not only breaches the Code but also the SRA principles relating to expected professional standards. Breaches of client care regulations are likely to be taken extremely seriously and may result in regulatory investigation, penalties, disqualification and referral to the Solicitors Disciplinary Tribunal.
Jonathan Goodwin has over 20 years’ experience in regulatory and professional disciplinary law relating to solicitors. I am a solicitor advocate and regarded as an expert in this area of law. Please call me on 0151 909 2380 for a confidential no obligation discussion.
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