Professional Conduct and Ethics: Duties and Discipline
Core duties
A lawyer owes duties to the court, the client, and the profession. Duties to the court include candour, not misleading the court, and avoiding abuse of process. Duties to the client include competence, loyalty, confidentiality, and avoiding conflicts of interest. The duty to the court generally prevails over the duty to the client.
Conflicts and confidentiality
A lawyer must not act where there is a conflict between the lawyer's interests and the client's, or between two clients. Informed consent may permit some conflicts, but not where confidential information would be used against a former client. Confidentiality survives the retainer.
Trust money and discipline
Trust money must be held separately and accounted for. Breach can lead to disciplinary action, including suspension or removal from the roll. Professional bodies investigate complaints; serious misconduct may be referred to a tribunal.
Traps
- Assuming client instructions override the duty to the court.
- Missing that a lawyer cannot act for both parties in a dispute.
- Forgetting that confidentiality continues after the retainer ends.
- Treating barristers and solicitors as subject to identical rules in every respect.
Worked example
A solicitor learns confidential information while acting for a company, then is asked to act against it for a new client. Even if the new matter is unrelated, the solicitor must decline if the confidential information could be used to the former client's disadvantage, unless the former client gives informed consent.