Solicitor

[JanieB]

My son has been accused of an offence. I know he’s innocent as he was with me at the time but as his mother I’m not regarded as a credible witness. However, that’s not the reason I’m posting. This has been ongoing for 11 months and he’s due in court on Tuesday. His solicitor texted him on Thursday saying he can no longer represent him as there is a conflict of interest. He didn’t state what the conflict is. Can a solicitor suddenly dump a client at such short notice? We’ve asked for an adjournment but the automated reply from the court states they may not get around to reading the message for about 10 days.

[The Todal]

On 11/02/2024 21:35, JanieB wrote:
> My son has been accused of an offence. I know he’s innocent as he was with me at the time but as his mother I’m not regarded as a credible witness. However, that’s not the reason I’m posting. This has been ongoing for 11 months and he’s due in court on Tuesday. His solicitor texted him on Thursday saying he can no longer represent him as there is a conflict of interest. He didn’t state what the conflict is. Can a solicitor suddenly dump a client at such short notice? We’ve asked for an adjournment but the automated reply from the court states they may not get around to reading the message for about 10 days.
>

I think your son will probably know what the conflict of interest is. It
is unusual to withdraw from a case at short notice but the fault will
usually lie with the client, not the lawyer.

The most common scenario is that a client is asking his lawyer to put
forward a case which is ethically wrong. Perhaps by totally changing his
account of what took place so that the lawyer knows that he has been
lied to either in the original account or in the new account.

If your son is an adult it's up to him what to do about this - if he's a
child then I suppose it's up to you. Complaining to the complaints
partner in the law firm might be an option, if the lawyer has really
failed to explain what the problem is.

[Norman Wells]

On 11/02/2024 22:34, The Todal wrote:
> On 11/02/2024 21:35, JanieB wrote:
>> My son has been accused of an offence. I know he’s innocent as he was
>> with me at the time but as his mother I’m not regarded as a credible
>> witness. However, that’s not the reason I’m posting. This has been
>> ongoing for 11 months and he’s due in court on Tuesday. His solicitor
>> texted him on Thursday saying he can no longer represent him as there
>> is a conflict of interest. He didn’t state what the conflict is. Can a
>> solicitor suddenly dump a client at such short notice?  We’ve asked
>> for an adjournment but the automated reply from the court states they
>> may not get around to reading the message for about 10 days.
>>
>
> I think your son will probably know what the conflict of interest is. It
> is unusual to withdraw from a case at short notice but the fault will
> usually lie with the client, not the lawyer.
>
> The most common scenario is that a client is asking his lawyer to put
> forward a case which is ethically wrong. Perhaps by totally changing his
> account of what took place so that the lawyer knows that he has been
> lied to either in the original account or in the new account.

I don't think that's a 'conflict of interest', though, but rather a
matter of principle. Conflicts of interest are usually when the lawyer
has another client whose interests would be potentially harmed by his
proceeding.

[David McNeish]

Yes, the more usual one in criminal proceedings being somebody else
accused in the same incident (since there's a high risk they'll just blame
each other!).

Though it would seem rare for that to come up at the last minute, unless
two things have only recently been connected somehow.

[The Todal]

It would of course be wrong and a breach of duty to knowingly accept
instructions from another party in the case having begun acting for the
first party, and I suppose that might happen due to a breakdown of
record-keeping in the firm. Quite often the concept of "chinese walls"
would enable several lawyers in the same firm to act.

But if the interests of the client conflict with the interests of the
lawyer, eg if the lawyer is being asked to put forward a case that would
put him in breach of professional standards, then I'd call that a
conflict of interests. The lawyer in that situation would not want to
undermine his client's case by explaining to the court the precise
reason for recusing himself.

It should be quite easy to find a new law firm to represent the son, and
that law firm would make whatever application is necessary for an
adjournment, if indeed an adjournment is necessary. The case might
perhaps be ready for trial and most lawyers are capable of taking over
conduct of a well-prepared case. Sometimes barristers only meet their
client on the morning of the trial.

[Simon Parker]

I note with sadness that your annual sojourn has done nothing to improve
the accuracy of your posts. :-(

I give you paragraph 6.1 of the SRA Code of Conduct for Solicitors, RELs
and RFLs [1]:

"You do not act if there is an own interest conflict or a significant
risk of such a conflict."

And to save you attempting to argue about what that might mean, here is
the SRA's definition of an "own interest conflict":

<quote>
"means any situation where your duty to act in the best interests of any
client in relation to a matter conflicts, or there is a significant risk
that it may conflict, with your own interests in relation to that or a
related matter"

The SRA further note:

"When it comes to an 'own interest' conflict, there are no exceptions to
the ban on acting. So, for example, obtaining your client's consent to
act will not change the position. Neither will telling the client to
obtain independent advice as to whether to allow you to continue to act,
if you will be conflicted if you do so."

Regards

S.P.

[1]
https://www.sra.org.uk/solicitors/standards-regulations/code-conduct-solicitors/

[Jon Ribbens]

On 2024-02-12, The Todal <the_...@icloud.com> wrote:
> It would of course be wrong and a breach of duty to knowingly accept
> instructions from another party in the case having begun acting for the
> first party, and I suppose that might happen due to a breakdown of
> record-keeping in the firm. Quite often the concept of "chinese walls"
> would enable several lawyers in the same firm to act.

I've received a letter before from a firm of solicitors threatening
civil suit on behalf of their client, to which I replied "hang on a
moment, aren't you *our* solicitors?"

(They had acted for us on an unrelated matter fairly recently prior
to the letter. My response resulted in a very similar letter arriving
from a different firm of solicitors a few weeks later ;-) )

[Pamela]

As there's only a text message from the solicitor, there doesn't seem to
be much documentary evidence of his decision not to represent his former
client.

Would the solicitor be expected to inform the court of his withdrawal, in
advance of the hearing? If not, could the hearing proceed at all without
representation?

[Simon Parker]

The Criminal Procedure Rules state that a solicitor needs compelling
reasons to withdraw representation. This is not a decision that will
have been taken lightly or without sufficient justification.

Without breaching Legal Professional Privilege, the solicitor must
inform the court of the reasons for withdrawal by providing enough
explanation to enable the judge to decide how to proceed.

Contextual case law is R v Ulcay [2007] EWCA Crim 2379 [1] and R v B & G
[2004] EWCA Crim 1368 [2]

Regards

S.P.

[1] http://www.bailii.org/ew/cases/EWCA/Crim/2007/2379.html
[2] http://www.bailii.org/ew/cases/EWCA/Crim/2004/1368.html

[Norman Wells]

I am afraid it is you who has a misunderstanding over this.

A solicitor has no choice whether to act unethically. There is no
question; he has to refuse to do so, whatever the circumstances. That
is not a 'conflict of interests', which requires other parties'
interests, but is absolute.

A conflict of interests arises when he could in theory do what is
intended on behalf of his client, but his judgement and actions could be
influenced by factors other than what is in his client's best interests,
eg if he or another client would benefit if he didn't.

[Roger Hayter]

It seems to me that a conflict between the client's instructions and the
solicitors's duty as an officer of the court could well be described as a
"conflict of interest". And this is much politer than saying: "I am not
prepared to put forward the story I know to be untrue that you have instructed
me is to be your defence."

--
Roger Hayter