Question of ethics

Important: The guidance below was written and issued before the introduction of the SRA Handbook on 6 October 2011, and may refer to regulatory material that is no longer in effect. Although it may still be relevant, this guidance has not been rewritten in light of the wide-ranging regulatory changes implemented on 6 October 2011. Accordingly, it has been archived.

January 2010

Retired solicitor witnessing or certifying a document

Q. I am not currently practising and do not therefore have a practising certificate. Occasionally I am asked to witness a signature to a document or to certify a copy document - is this something I can do without a PC?

Yes, unless it is clear from the document or any notes accompanying the document that it must be signed by a practising solicitor (if in doubt, it may be advisable to check with the person or organisation for whom the document is intended). In doing so, you may describe yourself as a solicitor so long as you are still on the roll. However, to avoid any implication that you are practising, you should add words such as "non-practising" or "retired" to make your status clear.

Whilst you may do either of the above, you cannot administer an oath or statutory declaration unless you have a practising certificate.

For more information on what you can do without a practising certificate, see Do I need a practising certificate? - Temporary break or retirement.

Working for a debt collection company

Q. I am a practising solicitor and have been offered a job in-house at a debt collection company. Part of my job will involve issuing proceedings and recovering debts for its customers. Can I do this?

Rule 12.01 of the Solicitors' Code of Conduct 2007 sets out the different ways in which you are allowed to practise. As an in-house solicitor, you are of course permitted to undertake work for your employer. However, where third parties are concerned, the rule only allows you to do the work as part of your employment in the circumstances (and subject to meeting the relevant conditions) set out in rule 13 of the Code (see rule 12.01(1)(e)).

In recovering debts for your employer's customers, you would be acting on behalf of the customer rather than undertaking work for your employer. You will therefore be in breach of rule 12.01(1)(e), unless you come within one of the limited exceptions set out in rule 13.

Dealing with unrepresented third party

Q. I act for the seller of a property in a transaction which is not entirely straight forward. The buyer does not require a mortgage and does not want to instruct solicitors. My difficulty is that he has started to ask me to explain the legal position or advise him where to find the information. How do I deal with this?

You need to take care to ensure that a retainer does not arise by implication which could happen if you give legal advice. If, in order to progress the matter in your client's best interests, you have to give generic or non-specific advice, you should make it clear on each occasion that in doing so, you are acting only for the seller and that the buyer should seek his own legal advice. For your own protection, you should confirm this in writing. Even with this warning, you need to exercise judgement in assisting the buyer - remember, you have a duty under rule 10.01 of the Solicitors' Code of Conduct 2007 not to use your position to take unfair advantage of the buyer.