Professional Rules of Conduct are there to serve the public interest, not (solely) the client’s or the lawyer’s interest. Whilst concepts such as zealous advocacy tend to equate the client’s interest with the the public interest, the rules in fact are different. In particlar, Rule 1.01 of the Solicitors’ Code of Conduct makes the point that “You must uphold the rule of law and the proper administration of justice.” and that this takes precendence over Rule 1.04 “You must act in the best interests of each client” as the gudance makes plain:
“Where two or more core duties come into conflict, the factor determining precedence must be the public interest, and especially the public interest in the administration of justice. Compliance with the core duties, as with all the rules, is subject to any overriding legal obligations.”
This position is preserved in broad terms by the new draft code.
An interesting question is whether there are occasions when a solicitor generally will put the public interest before the client’s interest because of this general duty rather than more specific rules or guidance (say because of their duty to the court, or where clients threaten to abduct children). If any reader’s have examples, I would be eager to hear them. I suspect there is a tendency to say to oneself, the public interest is in me pursuing my client’s interest and therefore Rule 1.04 is de facto promoted over Rule 1.01. There is also an interesting tension between Rule 1.01 and duties of confidentiality: on my reading of the rules R1.01 should take precedence. A recent blog entry on the excellent legal futures site may inadvertently illustrate both points. It’s worth quoting in full:
“Q. I acted for a client in connection with an interview under caution at the police station. Whilst taking instructions before the interview, the client lost his temper and caused damage to the furniture. The police have now asked me to provide a statement with regard to the matter. What is my position?
“A. You are not required to provide a statement. However, whilst you owe a duty of confidentiality to the client, this does not extend to this incident, which is not part of the retainer. You could therefore provide a statement if you wished to do so, provided you do not disclose any information which is confidential to the retainer.
“The SRA encourages the profession to cooperate with the police insofar as they can, but you will need to consider the likely impact on the solicitor-client relationship if you are still acting for the client.”
Given the commercial pressure, and the natural inclination of decent criminal lawyers perhaps, is to maintain confidentiality and not to give evidence against their client, is the SRA being too mealy mouthed in its support for the profession’s own rules? And what is the meaning of requiring the solicitor to consider the sol-client relationship, is it saying the public interest in having ‘strong’ lawyer client relationships might be legitimately considered more important than the public interest in prosecuting (in this case) relatively trivial crime? This suggests to me the SRA are saying the rules say R1.01 trumps R1.04 but in reality either R1.04 trumps or they are on a par and solicitors have to use their own sense of right and wrong to decide what they should so. If that is so, why pretend its a matter of professional ethics?