Question of ethics archive

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and issued before the introduction of the SRA Handbook on 6 October 2011, and may refer to regulatory material that is no longer in effect.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 Accordingly, it has been archived.

July 2010

Note: References to the 'Code' means 'The Solicitors' Code of Conduct (2007)'.

Equality and diversity – selecting a barrister

Q. I am acting for a client who has been charged with rape. I was proposing to instruct our usual barrister, a man with a great deal of experience. However, the client is insisting that we instruct a woman since he thinks that will play better with the jury. Am I obliged to accept this instruction?

As a general rule, you must comply with your client's instructions unless to do so would involve you in a breach of the law or a breach of the rules of professional conduct (see rule 2.01 of the Code). If you refer to rule 6.01 of the Code, you will see that you must not, in your professional dealings with others, (which includes other lawyers), discriminate against them on various grounds, which includes discrimination on the grounds of their sex. You should explain to your client why you cannot comply with this instruction, but if he refuses to change it, you will have to cease acting. See rule 6, guidance notes 15 and 16.

Relationship with client

Q. I am acting for a client in connection with his divorce which is at an early stage of the proceedings. He has now asked me out, but I am not sure whether it would be appropriate to agree. What is the SRA's position on this?

The rules of conduct do not prohibit a solicitor having a relationship with a client per se, but you cannot act if your duty to act in the best interests of the client conflicts with your own interests, or there is a significant risk that they may do so (rule 3.01(2) of the Code). This could happen, for example, if you were acting in connection with the financial settlement whilst cohabiting or planning to cohabit with the client, since this would be likely to have an indirect impact on your own financial position.

In addition, you need to be able to act both with integrity, and in the best interests of the client (rule 1.02 and rule 1.04). You need to consider carefully, therefore, whether a relationship with the client could impair your ability to give the client independent and impartial advice (see rule 3, guidance notes 47 and 48).

Confidentiality at police station

Q. I acted for a client in connection with an interview under caution at the police station. Whilst taking instructions before the interview, the client lost his temper and caused damage to the furniture. The police have now asked me to provide a statement with regard to the matter. What is my position?

You are not required to provide a statement. However, whilst you owe a duty of confidentiality to the client under rule 4.01 of the code, this does not extend to this incident which is not part of the retainer. You could therefore provide a statement if you wished to do so, provided you do not disclose any information which is confidential to the retainer. The SRA encourages the profession to cooperate with the police insofar as they can, but you will need to consider the likely impact on the solicitor-client relationship if you are still acting for the client.