A comprehensive new handbook guides solicitors through the rules and regulations that govern their profession. Authors Andrew Hopper QC and Gregory Treverton-Jones QC explain why lawyers need it now more than ever
From next month lawyers will have – for the first time since 1999 – a convenient handbook. It will contain up-to-date versions of all the important rules and regulations that control practice, together with extensive commentary to help solicitors pick their way through the regulatory minefield that now exists.



Why on earth did two busy practitioners decide to devote months of work to producing such a handbook? As we are those practitioners, allow us to explain.



It is unlikely that any practitioner believes that the profession is under-regulated. We have moved on some distance since the first Solicitors Practice Rules were made in 1936, comprising four rules (seven if you counted those on waivers, interpretation and commencement). It was only necessary to have in mind: rule 1 – no touting; rule 2 – no charging below the published scale fees; rule 3 – no fee-sharing; rule 4 – no association with ambulance chasers. To supplement this was the concept of conduct unbefitting a solicitor which, though undefined, covered everything that could be termed a crime against the common law of professional conduct. To make a mistake was not misconduct; the action or failing had to be sufficiently serious to attract the condemnation of one’s peers and to justify a professional sanction (which could range from a rebuke to striking off).



Now we have a plethora of rules and regulations, to the extent that the new Solicitor’s Handbook runs to 976 pages. Pride of place, of course, belongs to the Solicitors Code of Conduct – 253 pages if printed out from the Solicitors Regulation Authority (SRA) website on A4 paper. The Solicitors Accounts Rules 1998 now runs to 95 pages. There is a cornucopia of other rules, covering financial services, professional indemnity, recognised bodies, the Compensation Fund, money-laundering and more. Most are either dated or were amended in 2007.



The Code of Conduct is well written and comprehensive. It is intended to be a complete and all-embracing system of regulation (except that you also have to comply with all the other rules referred to above). In future, in relation to matters arising on and after 1 July 2007, conduct unbefitting a solicitor will no longer be alleged; all misconduct will be identified by reference to a specific rule, even if that is only by reference to rule 1.06: something – anything – which serves to undermine public confidence in the profession.



There is also rule 1.05: ‘You must provide a good standard of service to your clients.’ Is anything less than ‘good service’ therefore a breach of the rule, and misconduct?



The full effects of this change have yet to be seen. It is envisaged that the SRA will argue that there is no mental element required to establish a breach of a rule – no mens rea – and that a breach is a breach, a matter of absolute liability. Only the level of sanction, not the question of guilt or innocence, will be affected by the degree of seriousness of the breach.



This is potentially significant in a minor but insidious way. If the SRA investigates a matter of conduct and finds against the practitioner, it can and will normally direct the individual to pay the costs of the investigation, so that a bare finding of fault, even if no sanction could conceivably be justified, will result in an entry on the solicitor’s ‘record’ and a contribution to the SRA coffers.





Hidden dangers

There may be other unattractive consequences of the combination of absolute liability and the professional rules having the force of secondary legislation (see Swain v Law Society [1983] 1 AC 598).



According to the official guidance of the SRA on the code (paragraph 2): ‘It is not envisaged or intended that a breach of 2.02, 2.03 or 2.05 [the rules on client care, costs information and complaints handling] should invariably render a retainer unenforceable.’



But how long will it be before we see a client arguing that he cannot be sued for costs, complaining: ‘You didn’t comply with one of the rules, so the contract is unenforceable’? And will solicitors face complaints for failing to advise clients to take this stance against the clients’ former solicitors?



Also, the comprehensive nature of the code creates its own problems. When the law changes, so too must the code – sometimes, at least. The printed copy of the code published by Law Society Publishing in June 2007 was out of date within two months, due to amendments made in July and August. But there are disadvantages in having a fully web-based information system. You can find what the rule is today and all the current guidance about it – but was the guidance the same last November, when (for your present purposes) it mattered? [The SRA says it plans to update the code online as and when necessary, and publicise the changes on its website, alongside issuing news releases for ‘significant’ changes.]



The reality is that nearly all solicitors are always trying to get it right and pride themselves on the service they give to clients – in an economic environment in which they have to adapt and develop their businesses in ways that would have been unrecognisable to practitioners a generation ago.



Solicitors, simply because they are solicitors, have an instinctive understanding of the important principles of the profession and would equally instinctively recognise and avoid anything in the course of their practice which caused prejudice to their clients. But most do not have or claim to have an encyclopaedic knowledge of every area of professional regulation – nor do they believe they need it. In the past, at least, they have believed that they knew what was important and if some minor rule was broken it could only be, and be seen to be, an innocent mistake, having no adverse consequences, particularly for their clients, and therefore not something that could result in any material criticism.



This is not, however, the SRA culture, at least at present. Speaking in Cardiff recently, SRA chairman Peter Williamson stated that it had not yet achieved the right balance between education and disciplinary action, and was working to achieve that – a very welcome comment and statement of intent. Many practitioners, having experienced the attentions of the SRA, fail to detect the proportionality and ‘risk-based regulation’ it is said to espouse. The fact that most SRA caseworkers are not practising solicitors means that the solicitor’s arguments about the realities of practice are often unsympathetically received, and a dialogue impossible.





Help is at hand

In the meantime, practitioners must learn to look after themselves. For generations of solicitors, the Guide to Professional Conduct (first published in 1960 and always provided free of charge) was the source of all knowledge in relation to the rules that controlled the profession. If you could not find it in the guide, or if the available published guidance still left you in a quandary, you could always ‘ring Redditch’ – the Law Society’s ethics helpline. Looking it up in the guide and seeking the Law Society’s advice was a total solution. After all, how could you be criticised for following the Law Society’s own advice?



But the guide is no more. The eighth edition, published in 1999, was the last. We have moved into the modern era; the paperless age. Much information can be found on the various websites of the Law Society, the SRA and the Legal Complaints Service, though some is far less easily found than it should be.



You can still ‘ring Redditch’ for advice on issues of professional conduct, but the official and published position of the SRA is that, for the purpose of any investigation or adjudication, it is ‘not bound’ by any opinion or advice given by its own staff on the ethics helpline. In other words, you can follow the advice of the regulator but – in theory at least – the regulator can nevertheless find you guilty of misconduct and impose sanctions. Anecdotally it seems the ethics team is increasingly reluctant to give positive guidance, perhaps unsurprisingly given the circumstances. It is also not clear to what extent, if at all, information provided for the purposes of seeking such advice will be regarded as confidential, as opposed to being useful intelligence for regulatory purposes about the person making the enquiry.



The Practice Standards Unit is the part of the SRA that undertakes compliance monitoring visits – a mixture of the pastoral and investigatory – and can also offer advice that historically practitioners have often welcomed and appreciated, leading to a generally positive view in the profession about such visits. However, the Forensic Investigators – the SRA’s police – also reserve the right to disagree with any advice given by the PSU, as well as the ethics team.



The final straw, in terms of relying on your regulator to avoid any pitfalls, was dropped on the camel’s back by a decision of the Solicitors Disciplinary Tribunal (9183-2007) published on 9 May 2008: ‘… it is not the job of the ethics department to confirm that a complex commercial arrangement does not breach any of the rules relating to professional practice or does not amount to conduct unbefitting a solicitor. The respondents would be expected to rely on their own judgement, including seeking advice elsewhere had they deemed it appropriate.’



Time and again our clients have turned to one or other of us and told us that they simply did not know where to turn for advice about their regulatory predicament. We hope the Solicitor’s Handbook will provide at least part of the solution.



The Solicitor’s Handbook 2008 is published by Law Society Publishing on 7 June