Important: The guidance below was written and issued before the introduction of the SRA Handbook on 6 October 2011, and may refer to regulatory material that is no longer in effect. Although it may still be relevant, this guidance has not yet been reviewed in light of the wide-ranging regulatory changes implemented on 6 October. It will be reviewed and updated (or archived) in due course.
Miners' knee and claims for Industrial Injuries Disablement Benefit
Last updated 21 July 2009
This guidance was issued in July 2009. It does not form part of the rules and is not mandatory, but the SRA may have regard to it when exercising its regulatory functions. Solicitors, and others subject to the rules, who do not follow the guidance may be required to demonstrate how they have nevertheless complied with the rules.
The issue
1. From 13 July 2009 miners and former miners who have developed osteoarthritis of the knee, and who fulfil certain conditions, may qualify for payment of Industrial Injuries Disablement Benefit (IIDB).
The risk
2. The SRA has received reports that some solicitors may have issued misleading publicity aimed at miners or former miners, encouraging potential claimants to instruct firms to act on their behalf, but failing to advise prospective clients of other sources of help which is available free of charge. In view of the particularly vulnerable nature of the claimants, we wish to remind practitioners of your professional duties.
Professional duties
3. You should bear in mind your duties under rule 1 (core duties) of the Solicitors' Code of Conduct 2007, in particular rule 1.02 (you must act with integrity), rule 1.04 (you must act in the best interests of each client), rule 2 (client relations), and rule 7.01 (publicity must not be misleading or inaccurate).
4. Rule 2.03 requires you to give clients certain information about the cost of a matter. The rule includes a requirement at 2.03(1)(d) that you
- "discuss with the client how the client will pay, in particular:
- (i) whether the client may be eligible and should apply for public funding; and
- (ii) whether the client's own costs are covered by insurance or may be paid by someone else such as an employer or trade union; "
5. Rule 2.03(6) states:
6. It is important that your clients are able to make an informed decision about whether and how their matter should proceed, and whether they need to instruct your firm. There may be circumstances in which the method for dealing with a matter is so straight forward, possibly involving little or no expense to the client, that you should discuss with the client whether your involvement justifies the cost. Failure to do so could amount to a breach of one or more of your core duties set out in rule 1, as well as a breach of rule 2.03(6). It would also be a breach of your core duties if you were to mislead potential clients about the effect your involvement would have on the outcome of the matter.
7. Therefore, we recommend that you clearly advise clients and prospective clients that it is not necessary for them to instruct you to act on their behalf to claim IIDB, and that help is available free of charge from agencies, such as the local Citizens Advice Bureau and other welfare advisers. Claimants should be told that they may apply for the benefit direct at Jobcentre Plus or via the Directgov website and that they may, if appropriate, wish to consider contacting their trade union for assistance.
8. If a claimant, having been clearly advised by you of these other methods of obtaining IIDB, insists that your firm act, you will need to be able to demonstrate that the information given regarding the cost is clear, and that any charge you make is reasonable.
For further guidance please contact the SRA's Ethics Guidance Team.