A new frontier in the boundary between professional and private life – solicitors’ undertakings

part two

30 July 2021

One of the hottest topics in solicitor regulation is how far the SRA’s regulatory powers reach beyond a solicitor’s professional life.   This topic has caused heated debate when dealing with allegations of sexual misconduct and inappropriate posts on social media. 

One would expect that the world of solicitors’ undertakings would not be part of this debate.  However, the recent decision of the Supreme Court suggests that a true solicitors’ undertaking arises in relatively narrow circumstances and as such many undertakings given by solicitors fall outside their professional work and should not engage the SRA Codes of Conduct.

It is well established that failure to honour an undertaking by a solicitor is misconduct.  Paragraph 1.3 of the SRA Code of Conduct for Individuals provides: “you perform all undertakings given by you, and do within an agreed timescale or if no timescale has agreed then within a reasonable amount of time.” Undertaking is defined in the SRA’s glossary as follows: “means a statement, given orally or in writing, whether or not it includes the word "undertake" or "undertaking", to someone who reasonably places reliance on it, that you or a third party will do something or cause something to be done, or refrain from doing something.”  

The wording of the SRA Codes of Conduct does not seek to limit the scope of the obligation to the professional work of a solicitor and therefore on its face applies to any promise by a solicitor given either in their professional or private life.  As such a promise to pay a private debt could give rise to enforcement by the SRA.  It is difficult to reconcile that interpretation with the present debate on the boundary between professional and private life.  As the Divisional Court observed in Beckwith v SRA [2020] EWHC 3231 (Admin) the SRA Principles “may reach into private life only when conduct that is part of a person’s private life realistically touches on her practise of the profession … or the standing of the profession .. Any such conduct must be qualitatively relevant.  It must, in a way that is demonstrably relevant, engage one or other of the standards of behaviour which are set out in or necessarily implicit from the Handbook.”   There is therefore a need to identify a dividing line between a professional undertaking breach of which would be misconduct and one that does not engage the SRA Codes of Conduct.

In Harcus Sinclair v Your Lawyers [2021] UKSC 3 the Supreme Court considered a situation where a solicitor had signed an undertaking to keep confidential certain information provided by another solicitor as part of a proposed business opportunity.   The Court concluded that the undertaking was not a solicitor’s undertaking.  In doing so the Supreme Court suggested a twofold test for determining whether an undertaking was a solicitor’s undertaking:

we consider that in many cases it will be helpful to consider the following two questions when determining whether an undertaking is given by solicitors in their “capacity as solicitors”. The first concerns the subject matter of the undertaking and whether what the undertaking requires the solicitor to do (or not to do) is something which solicitors regularly carry out (or refrain from doing) as part of their ordinary professional practice. The second concerns the reason for the giving of the undertaking and the extent to which the cause or matter to which it relates involves the sort of work which solicitors regularly carry out as part of their ordinary professional practice. If both questions are answered affirmatively then the undertaking is likely to be a solicitor’s undertaking.” (paragraph 112)

It follows from this analysis that undertakings given by a solicitor as part of their wider business would not qualify as a solicitor’s undertaking.  Neither would an undertaking given in support of a restrictive covenant in an employment contract or members’ agreement.  Therefore not only would the personal dealings of a solicitor fall outside the definition but also any practice related (as opposed to client related) activities.

It is important to note that this decision was given in the context of determining the scope of the Court’s inherent jurisdiction over solicitors as officers of the Court.  That jurisdiction is both compensatory and disciplinary (see Udall v Capri Lighting Ltd [1988] QB 907).  As such there would be no logical basis for it to be narrower than the SRA’s jurisdiction.  Indeed much of the SRA’s Codes of Conduct are simply codification of common law principles and underlying cases often serve as an aid to their interpretation.

Whilst each case will turn on its facts, it seems that following Harcus Sinclair, there is a clearer line as to what type of undertaking should be the subject of SRA enforcement. 

FURTHER INFORMATION

If you have any questions about the issues discussed in this article, please contact Iain Miller or a member of our regulatory team.

 

ABOUT THE AUTHOR 

Iain Miller is a Partner in the Regulatory department and specialises in advising law firms and the legal professionals on legal ethics, investigations, and public law matters.  

He is General Editor of Cordery on Legal Services and Editor of its Chapter on Undertakings.  He acted as technical adviser to Your Lawyers in the case before the Supreme Court.

 

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