Death of the hired gun

David Middleton discusses a recent disciplinary case which shows that solicitors owe duties to non-clientsSeveral fundamental issues at the heart of legal practice were considered by the Solicitors Disciplinary Tribunal (SDT) last April.

A solicitor from Huntingdon was fined 25,000 and ordered to pay substantial costs incurred by the Office for the Supervision of Solicitors (OSS).

The size of the fine was unusual and so were the facts.

The solicitor had not dipped into client account or failed to deal with his clients' cases.

On the contrary, he had pursued his client's interests energetically - too energetically.

The case illuminates three particular issues relating to professional conduct and its investigation.

Firstly, many practitioners become uneasy from time to time about how far they can go in damaging the interests of non-clients while pursuing instructions which are, at least, lawful.

Those who argue that lawyers should be free to pursue clients' interests aggressively, subject only to the minimal standard of compliance with the general law, are sometimes said to be advocating the lawyer as 'hired gun'.

This case makes it clear that solicitors in England and Wales are not hired guns for their clients, but owe wider duties.

The second issue invokes the story of the young candidate seeking articles who was asked about the purpose of legal practice.

After a meandering reply about professionalism and justice, the interviewer assisted her by shouting that the purpose is to make a profit.

Of course, most practitioners would accept that the interviewer and interviewee were both right, but at times it seems there are internal conflicts within the profession about how professionalism relates to business practice.

Again, this case is a useful reminder that professionalism must be maintained.

The third point is to do with investigation powers.

The OSS has the power to override client confidentiality and privilege to inspect documentation for the purposes of its investigations.

If it did not have this power, it would be almost impossible to investigate any case unless the complainant was the client.

Much misconduct, particularly at the serious end of the scale, would be left unregulated.

Section 44B of the Solicitors Act 1974 (as amended) gives the OSS a wide power, not restricted to complaints from a client or anyone else, to give notice that documents should be produced.

The solicitor in this case contested such a notice but after enforcement of it was sought in court he agreed to provide documentation.

His client's confidentiality and privilege were protected in the tribunal by a short part of the hearing being heard in private.So what exactly was the solicitor doing in this case? He acted for a ground landlord and sent out a number of letters where there were arrears of ground rent.

At least initially, he did not write to the residential occupier, but instead direct to mortgagees telling them there were long-standing arrears and his client had elected to forfeit the lease.

Cleared funds were demanded within a tight timescale.

The mortgagee was told that no time extension would be allowed, and if their account number was not quoted in the letter and they ask for it to be provided, they 'will be ignored'.

One of these letters was quoted in the tribunal findings.

It is worth setting out what was demanded:1 Arrears of rent under previous lease: 6.502 Our costs in action to date: 125.003 Our client's managing agent's costs to date: 70.004 VAT at 17.5% on 195.00: 34.125 HM Land Registry Search Fee: 16.00Total: 251.62The first allegation proved at the tribunal was worded in a particularly interesting way: 'The respondent had acted in breach of rule 1 of the Solicitors Practice Rules 1990 in that in pursuing instructions on behalf of a client, he acted in circumstances which failed to preserve the good repute of the respondent and the solicitors' profession.'Other allegations proved were that he had acted contrary to his position as a solicitor by taking unfair advantage for himself and another person, that he sought improperly to demand monies other than those recoverable under due process of law, and that he wrote letters which were misleading with a view to extracting unfair advantage from third parties - and therefore had been guilty of conduct unbefitting.

Counsel for the solicitor took the hired gun defence and argued: 'Provided he acted on his client's firm instructions, the respondent could not be criticised because he embarked on a course of action which many would regard as wholly disproportionate to the perceived mischief.

His conduct could not be characterised as dishonourable or disgraceful in the light of [rule 1] if in those circumstances the option which his client instructed him to adopt was a perfectly lawful one.'The tribunal disagreed and found that the letters were 'on any reading to be regarded as intimidatory'.

There had been a number of complaints from residential occupiers and the tribunal considered this clearly indicated that the letters reflected badly on the good repute of the respondent.

The tribunal took the view that the whole tenor, purpose and object of the letters was to recover monies claimed and accepted that he had demanded money which was not recoverable under due process of law.

He had indeed sought to take unfair advantage.The solicitor made the point (set out in the submissions made by counsel for the OSS) that 'banks wrote worse letters'.

The tribunal gave short shrift to this argument and made it clear that solicitors are required to adhere to higher standards than those which apply in the commercial world: 'The members of the tribunal were of the view that the letters to the lenders ...

went beyond the description of "uncompromising" for which the respondent's counsel contended and were on any reading to be regarded as intimidatory ...

The mere fact that commercial institutions wrote letters that might fit the same description did not justify a solicitor adopting a similar approach.'Practitioners with an interest in the theory of professional conduct may be aware of an interesting recent book, Professional Legal Ethics: Critical Interrogations, by two academics, Donald Nicolson and Julian Webb (Oxford University Press, 1999).

They conclude that lawyers - which for the purposes of their discussion includes barristers - are hired guns 'prepared to do anything for anyone capable of paying their fees'.

They accept that rules mean that the solicitors are not quite the hired gunmen of the wild west but consider that the limitations which exist are concerned really with the administration of justice in the court system or are 'too vague to ensure that lawyers will refrain from pursuing immoral ends and means'.It is notable that the solicitor in the case discussed here was accused of breaching what is now principle 17.01 in the Guide to the Professional Conduct of Solicitors (1999 edition), which requires solicitors not to act in any way which is contrary to their position as solicitors and also requires them not to use their position to take unfair advantage for themselves or another person.

In discussing this principle, Nicolson and Webb say it is unlikely to have much impact because 'it is not generally seen as contrary to the solicitor's position to cause harm to the public interest of third parties when acting on behalf of clients'.

They conclude that principle 17.01 'appears to be designed as much to protect the image of solicitors as upright professionals as the interests of third parties'.

This case demonstrates that the OSS is prepared to take on conduct which damages non-clients and, as stated in the findings of the SDT, pursue it in the face of years of 'filibustering and obfuscation', legal challenge, and a solicitor represented by leading counsel at the tribunal.

The tribunal demonstrated that solicitors must not act simply as hired guns for their clients and that the standards required of practising solicitors are, as we would all hope and expect, required to be higher than those operated generally in the commercial world.David Middleton is head of investigation & enforcement at the Office for the Supervision of Solicitors