PROFESSIONAL PRACTICE

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PROFESSIONAL PRACTICE

• Dr Arthur McInnis
• Handout F

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Professional Practice

• Competence and Quality of Care
• real context
• part of control process that begins with
  admission
• control is reactive not proactive
• minimal monitoring overall
• standards vary widely across firms
• strongest case today in favour of it is the
  business case

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Competence and Quality of Care

• Standards or sources of obligations imposed by
• the law generally - common law and legal
  regulation
• the Guide and Code - professional discipline
• standards differ - express reference to this in
  6.01(3).

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Competence and Quality of Care

• Competence to act
• 5.03 - A solicitor must not act or continue to
  act in circumstances where he cannot represent
  the client with competence or diligence.
• part of the retainer (Ch 5)
• does this alone mean a solicitor must be
  competent?
• no - the explanation

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Competence and Quality of Care

• Can a solicitor overcome incompetence? Yes.
• 1. by instructing counsel
• 2. in any other way imaginable.
• Are there limitations? Yes. For 1.
• must be able to exercise sufficient care and
  control Sorry it is 5.03(3)
• other responsibilities remain

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Competence and Quality of Care

• Are there limitations for 2? Yes.
• cannot involve undue delay, (undue) risk or
  (undue) expense for client 6.01(3)

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Competence and Quality of Care

• Diligence, care and skill
• 5.12
• duties owed during the retainer
• bound to carry out instructions (and)(must be
  carried out) with diligence
• Ask - does this impose an obligation or is it a
  statement of intent?
• must exercise reasonable care and skill

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Competence and Quality of Care

• Other duties
• efficiency - 5.12(1)

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Competence and Quality of Care

• Other limitations
• the jurisdiction box - 5.12(2), and (6)
• cannot exclude or limit liability in negligence -
  6.01(8) and s 59(2) LPO
• cannot exclude his liability for professional
  misconduct 6.01(10)
• cannot seek clients agreement to refrain from
  making professional misconduct complaint
  6.01(10)

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Competence and Quality of Care

• It could be asked - for fun
• just how far a solicitor could go under 6.01(9)?
• whether 6.01(10) is meaningful given different
  standards which apply?

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Competence and Quality of Care

• Care
• tell client timeously in simple language
• the issues raised
• how to be dealt with 5.12(3)
• the steps to be taken
• costs
• explain to client
• the effect of any important and relevant document

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Competence and Quality of Care

• Care
• inform client
• of progress
• significant developments
• reason for any serious delay

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Competence and Quality of Care

• Is there an imperative or mandatory writing
  requirement with respect to this?
• Not under 5.12
• See 5.12(3), and (7)

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Competence and Quality of Care

• Can competence be given any substance?
• knowledge
• skill 6.01(1)
• ability
• understanding of legal principles
• (knowledge) of practice and procedure 6.01(4)
• seeking 3rd party advice - 6.01(5)

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Competence and Quality of Care

• What is the standard?
• adequacy - 6.01(2), and (4), 12.01
• any 3rd parties chosen should themselves be
  competent

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Competence and Quality of Care

• And in the case of barristers alone
• competence is
• relative
• extends to and includes experience

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Competence and Quality of Care

• Is a solicitor responsible for errors in the
  barristers advice?
• not per se but only obvious errors - 12.03(1)

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Competence and Quality of Care

• And what of solicitors responsibilities
  generally when barrister instructed?
• cannot amount to their abrogation

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Competence and Quality of Care

• Other responsibilities for the solicitor?
• Use of best endeavours to ensure
• instructions carried out within a reasonable time
• that claim does not become statute barred
• that claim not liable to be struck out for want
  of prosecution
• 12.03(2)

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Competence and Quality of Care

• Action solicitor must then take
• ask for return or papers to instruct another
  barrister - 12.03(2)
• correlative obligation upon barrister under para
  63(b) Code - 12.03(3)

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Competence and Quality of Care

• Additional risks for the solicitor
• costs penalties
• in (causing or contributing) to avoidable delays
  in litigation or
• when an action struck for want of prosecution
• and in which case actions for damages may follow
• 6.01(7)

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Competence and Quality of Care

• Dealing with claims - 6.02 and 6,03
• gives rise to a duty to inform client to seek
  independent advice
• when?
• client makes a claim or
• notifies of intention to do so or
• solicitors act or omission reasonably justifying
  claim
• BUT does not preclude acting - 6.02 Commentary,
  6.03(3)

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Competence and Quality of Care

• Informing of the client must be in writing in
  cases where the act or omission was discovered by
  the solicitor.
• No further communications with client or former
  client without approval of manager or Fund.

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Competence and Quality of Care

• Dealing with claims
• must notify insurers as soon as practicable
• through manager
• and co-operate subsequently
• covers client, former client and 3rd party claims
• assumes claim falls within those for which
  indemnity provided under Solicitors (Professional
  Indemnity) Rules

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Competence and Quality of Care

• Dealing with claims
• no admissions of liability
• no settlement
• nor incurring of costs
• without prior consent of manager or Fund
• a breach of 6.03 or SPIRs and prejudice may give
  rise to reimbursal obligation

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Competence and Quality of Care

• 6.04 - prompt response to inquiries
• covers only correspondence
• limited to that from clients and former clients
• extends to 3rd parties on their behalves
• may be broader when from Law Society
• failure potentially disciplinable

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Competence and Quality of Care

• Look out for 6.04(2) as makes failure
• to answer a letter
• to explain conduct when required to do so
• by or from Law Society or Solicitors Disciplinary
  Tribunal simpliciter
• professional misconduct

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Competence and Quality of Care

• Bar Code 6(d)
• practising and employed covered
• must be competent
• in all professional activities

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Competence and Quality of Care

• Standards for discipline for barristers
• read with Handout H
• professional misconduct - for serious failures to
  comply with para 6, or
• breach of proper professional standards - for
  just failures to comply
• therefore to distinguish look at the failure -
  ask whether serious or not.
• problem as meaning of serious is ambiguous

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Competence and Quality of Care

• Of note - Arthur JS Hall v Simons 2000 3 ALL ER
  (HL) 2000 overruled advocates immunity.

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Competence and Quality of Care

• Nowadays by reason of the sophisticated level of
  professional education of solicitors which
  includes instruction in ethics, advocacy and
  court procedure footnote PCLL together with the
  clear guidelines in the Solicitors Guide, it is
  reasonable to expect a higher standard of
  responsibility of instructing solicitors with
  regard to the plea than Somasundaram apparently
  demands.
• S W, 340

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Competence and Quality of Care

• Will you practise law on the edge?