Question of ethics

May 2014

Disclosure of a will

Q. My firm was instructed by a lady to draft her will. The will was drafted but never executed. The draft will remained in the client's file and we heard nothing further from the client. We have just been contacted by the client's daughter who has provided us with a grant of probate showing that she was appointed as her mother's Executor in a will which was executed some time after the client instructed this firm. The daughter has asked us for the file containing the draft will which was never executed. Do we have to release the file to the daughter even if we believe that the client would not have wanted the daughter to know what was in the draft will?

The file is part of the client's estate so the daughter is entitled to the file, including the draft will. If you think that there is sensitive information in the client's file, you could ask the executor to specify which documents she requires rather than sending the whole file. However, if the personal representative insists on being sent the entire file then you must provide it.

It would be worth solicitors reminding clients that, on their death, their personal representatives are entitled to their files. If there is information that the client would not want executors or family members to become aware of, they should consider alternative arrangements.

For all advice on the SRA Handbook, call the Professional Ethics Helpline 09.00 to 17.00, Monday to Friday.

Solicitors' duties in VHCC matters

Q. I have been acting for a client in a very high cost criminal matter (VHCC), and the chambers I generally instruct on such matters has refused to take this matter on as a consequence of fee cuts. This would leave my client with no trial advocate.

I have seen from the press that this is a major problem in these types of cases, with some trials having been adjourned or proceedings stayed as a consequence.

I have discussed this with my client, who, not surprisingly, would welcome such an outcome. It would appear to be in my client’s interests to do nothing to rectify the position. What is your advice?

There are two SRA Principles (SRA Handbook) that you need to consider.

While you do have a duty to act in your client’s best interests (Principle 4), you also have a duty, under Principle 1, to uphold the rule of law and the proper administration of justice. It would appear that these two principles conflict, and in these circumstances you should have regard to Note 2.2 of the principles. This provides that, where two or more principles come into conflict, the principle which takes precedence is the one which best serves the public interest in the particular circumstances, especially the public interest in the proper administration of justice.

In these circumstances, our view is that Principle 1 takes precedence in that you are expected to make proper efforts to find a replacement advocate, whether it be a barrister or a solicitor advocate. You would be well advised to document all such efforts made.

In order to achieve Outcome (5.5) of the Code of Conduct, you should explain to your client that, in this instance, your duty to the court outweighs your obligations to him.

Q. If, in the scenario described above, I cannot find an available barrister from my usual chambers, should I consider instructing an advocate employed by the Public Defenders Service (PDS)?

Yes, you should try the PDS on the same basis as you would a set of chambers. As with the above scenario, you should keep your client updated and note all attempts made to obtain an advocate for your clients hearing.

The Law Society has produced a practice note on solicitors’ duties where counsel ceases to act in VHCC matters.

'Either way' offences retainer and legal aid changes

Q. My client is charged with an 'either way' offence. Having regard to the recent legal aid changes, can I limit my retainer to representing the client at the police station and magistrates court only?

At the commencement of any retainer, a solicitor, should set out the scope of the retainer, the work that will be covered and where necessary, work which will not be covered. Having regard to your obligations set out in Chapter 1 of the SRA Code of Conduct 2011, you should ensure that your client has sufficient information to give informed consent to the limits of any retainer. Further consideration should be given to the vulnerabilities of your client having regards to the best interests of that client. It may be appropriate for the client to seek alternative representation which covers all aspects of their matter. It must be remembered that a retainer cannot be terminated by you without good reason and reasonable notice.