Solicitors are turning to The Ethics Helpline for advice. Neil Rose meets the team staffing the telephones and also goes behind the scenes at The Consumer Complaints Service's publc helpline.


There is a man waiting in your firm’s reception to consult one of your lawyers. What he does not know is that his wife recently sounded you out about a divorce, and you are concerned about the possible consequences if you explain why the firm cannot act for him. You would also like to tell the wife what has happened. Yet you know that you are in an ethically tricky position. So what do you do?



What a lot of solicitors do in situations like this is pick up the telephone and call Law Society Regulation’s confidential ethics helpline. The ethics guidance team received more than 70,000 enquiries in 2005, the vast majority by telephone – which it prefers to written correspondence, so that the advisers can more easily probe the circumstances – and their work was identified by solicitors as the most important service provided by the Law Society in the recent Have Your Say consultation (the Gazette came second).



Conflicts produced the most calls last year (9.2% of the total), with a further 5% relating to confidentiality and privilege. However, Austin O’Malley, who heads the team, says that to his surprise, the new conflict and confidentiality rules have not led to an increase – although to judge by one call on conflicts that the Gazette listened in on, that may be simply because many solicitors remain unaware of the change.



Other major areas include money laundering (8.7% in 2005 but down significantly on 2004 as a result of the ruling in Bowman v Fels 2005 EWCA Civ 226), accounts rules (7.6%), general requirements of practice (7%), and retainers (5.8%).



Of course, not all calls are at the ‘I’ve just seen my client on “Crimewatch” – what should I do?’ end of the spectrum. In reality, there are a lot of standard enquiries. In the 45 minutes we listened in, there were two identical calls relating to whether the solicitor should hand over client files demanded by the Insolvency Service, and Mr O’Malley says he is aiming to make the advice on such problems available on-line.



But as they never know what is going to be thrown at them when they pick up the telephone, it is clearly a daunting task for the ten advisers, plus three money laundering specialists, all of whom are solicitors except for one legal executive. All staff receive intensive training and oversight in their early months – it takes six to 12 months before an adviser is really able to fly solo – followed with continuous training.



Rebecca Maxim was in private practice for seven years, handling criminal and family law work, before joining the service five years ago. She did so because she wanted something different and to have a broader overview of practice, and she says her work on the helpline has achieved just that. ‘It’s nice to try and help solicitors comply with the rules,’ she explains.



It is clearly a demanding role. The advisers have to concentrate hard on the calls and tease out as much relevant information as possible before finding the right rules and offering guidance. Thus the helpline is only open for two two-hour shifts a day, although there is an emergency line open from nine to five, which last year received 1,028 calls. ‘The professional has been brilliant in not abusing this,’ says Mr O’Malley.



The rest of the time is spent on correspondence, training, and dealing with those questions that have proved too complex to answer immediately over the telephone without research or discussing with others.



However, most enquiries are handled immediately, and it is impressive to see the depth of knowledge and understanding Ms Maxim seems to have. She says this comes from training and ‘constant exposure to questions from the profession’.



In her view, ‘an awful lot of solicitors do know the rules, but they’re so terrified they’re doing something wrong that they contact us to make sure’. Reassurance appears to be a major role of the helpline. Several of the calls we witnessed sounded as though the solicitors wanted confirmation that they could not do something, so they could say to their clients: ‘The Law Society told me I can’t.’



Mr O’Malley says: ‘It’s encouraging that when solicitors phone through, they have a feeling whether something is right or wrong. And at least they’re phoning through. By and large, solicitors want to be compliant with their obligations.’



The guidance cannot be definitive as the adviser is reliant on the facts provided by the solicitor, while some problems do not have a simple answer. One of the calls we heard involved a solicitor’s duty not to mislead the court. ‘It’s a very difficult question as frequently it is a matter of interpretation,’ Ms Maxim says, but she was able to provide the general test – ‘are you allowing your client to give a false impression to the court?’.



In the next few months, it is likely that the new code of conduct for solicitors will finally be approved by the government. The content will be largely the same as now, but organised differently, with the core rules and principles laid out in a far slimmer volume than the Guide to the Professional Conduct of Solicitors, whose eighth edition runs to nearly 900 pages. The non-binding guidance will be hived off, probably on-line, and Mr O’Malley anticipates a spike in activity on the helpline as solicitors come to terms with the changes.



So what do you do with that client sitting in your reception? Ms Maxim faced this one recently and told the solicitor that, under the conflict and confidentiality rules, he had to say he was unable to act because of a conflict, and nothing more.



The majority of solicitors want to keep within the rules and they care about their clients. The ethics helpline may not always give them the answers they want, but it can at least reassure them that are not doing anything wrong.



The professional ethics lines are open for general enquiries between 11am and 1pm, and 2pm and 4pm. The lines are less busy in the afternoon. The professional ethics department takes emergency calls outside these hours,
T
el 0870 606 2577