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Q & A corner

15 April 18

Professional Practice advice: what duty is there to check whether a client has been sequestrated; and whether it is misconduct to have a sexual relationship with a client

Q. What is the duty on a solicitor to check on whether their client has been sequestrated?

A.The Professional Practice Committee recently considered a question from a solicitor who had been consulted by a client in relation to divorce proceedings. During the initial meeting the client mentioned that she had been served with a petition for sequestration. The solicitor advised the client on the implications of sequestration with regard to the divorce proceedings and there was no further action.

A few months later, the client consulted another solicitor within the same firm (as the original solicitor had moved on) and advised the second solicitor that she had settled her debts and that she was not sequestrated. The solicitor accepted her instructions and proceeded to act in the divorce. The client received a divorce settlement of £15,000 which was paid to her.

The client has now died (there is no estate) and the solicitor has been contacted by a bankruptcy trustee who is claiming that the solicitor should have paid the monies received in the divorce settlement to them and is now insisting on payment. The trustee has said that the solicitor is liable for payment on the basis that he has been negligent in that he has breached his duty of care to his client.

Professional Practice advised the solicitor to ask the trustee to provide authority for his position, given that the client had told the solicitor that she was not sequestrated.

The committee were conscious that there was a danger in hypothesising on the solicitor’s knowledge; however, if the trustee was insistent on making a claim, intimation should be made to the Master Policy.

They were advised that in Law, Practice and Conduct for Solicitors, Paterson and Ritchie had narrated a previous decision of the Professional Practice Committee when it was agreed that there was no obligation to check whether a client had been made bankrupt unless there was a reason to do so.

The committee agreed with that previous decision and reiterated that a solicitor does not have a duty to explore a client’s financial stability status unless there is a reason to do so.

 

Q. We have recently taken on a client. One of our solicitor employees has entered into a sexual relationship with them. Is this going to be an issue?

A. A sexual relationship with a client raises issues of independence, undue influence, acting in the best interest of the client and conflict of interest between the solicitor and the client. Where it can be shown that a solicitor has taken advantage of a client through, for example, emotional vulnerability, age, ill health or lack of education, it is likely that this will be a conduct offence.

Nevertheless, contrary to the position with doctors in the UK where it is always misconduct for them to enter into such relations with a patient, it will generally only be so for a solicitor in relation to a client where the latter is particularly vulnerable or has become dependent on the solicitor, for example in a traumatic divorce case.

Furthermore, professional rules in other jurisdictions state that a sexual relationship between solicitor and client would be regarded as misconduct, unless it had already existed at the time that the solicitor-client relationship was formed. While this is not part of a rule in Scotland, the question of which of the two relationships started first would clearly be a factor in determining any question of misconduct. Thus, in the SSDT case of Solicitor B in 2015, the respondent had at the time of the commencement of the sexual relationship already been acting as her solicitor. In that case the Tribunal found the respondent guilty of professional misconduct and stated that by entering into a sexual relationship with a client who was vulnerable, the solicitor allowed his independence to be impaired.

The propriety of such a relationship is therefore likely to turn on the vulnerability or dependency of the client
and whether the sexual relationship had antedated the legal relationship.

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