This month's Professional Practice column highlights a solicitor's inappropriate response to a conflict of interest situation in a criminal matter
One of the functions of the Professional Practice Committee is to consider particular instances of concern in the context of whether new or additional guidance is required.
A recent example involved consideration of correspondence between SLAB’s Criminal Quality Assurance Committee (CQAC) and the Professional Practice Team.
CQAC had reported that, during the peer review of solicitor A, it became apparent that this solicitor was the nominated solicitor in a summary criminal case where the client was originally the client of solicitor B. Solicitor B had asked solicitor A to act on the client’s behalf due to a conflict of interest with a co-accused. Solicitor A applied for legal aid and this was granted in his name. In the peer review of the file it appeared that solicitor A had had very little contact with the client, and the solicitor was asked for an explanation.
Solicitor A advised that he considered that the client remained a client of solicitor B despite the fact he was acting on his behalf in respect of this matter. Solicitor A and solicitor B agreed that as the client was a client of solicitor B, solicitor B would write to the client and advise him of the progress of the case. They believed that if solicitor A were to write to him, this would create confusion in respect of the existing client relationship with solicitor B and the client might have believed that solicitor B was no longer willing to act for him.
The Professional Practice Team had responded that if a solicitor is unable to act because of a conflict of interest with another client, it is not sufficient merely to arrange for another solicitor to be the nominated solicitor. The first solicitor should not act for or advise the client thereafter at all. To do so would appear on the face of it to be a breach of the Society’s rule B2: conflict of interest. Where there is an actual conflict of interest, the rule contains a total prohibition on acting for both clients.
Additionally, the team had found the explanation for solicitor B continuing to be involved with the client lacking in credibility. In its view the client must have known that solicitor B was acting for the other accused in the case, and the client would have clearly understood the reason why solicitor B could not act for both in the particular case.
After consideration of this response, CQAC felt that this issue required a wider airing and requested that the Society consider issuing an update on this matter as an area of professional practice.
At that stage the matter was considered by the Professional Practice Committee. It agreed with the views expressed by the Professional Practice Team and was of the opinion that no new guidance is required. The rule is sufficiently clear and adequate to deal with this particular situation.
The committee was, however, of the view that it would be useful to publish a reminder note about this matter, and both the Professional Practice Committee and the Professional Practice Team welcome the opportunity of bringing this reminder to the notice of the profession through this Journal article.
Another method the Professional Practice Team employs to bring topical issues to the notice of members is by regular postings on the professional practice updates section of the Society’s website (www.lawscot.org.uk/members/member-services/professional-practice/professional-practice-updates). These postings remain accessible as a resource, and their initial publication is often further highlighted with a strapline and link in the Society’s monthly e-bulletin which is circulated to all members.