A nervous disposition
It’s the time of year for exchanging gifts with friends and family and showing our gratitude for what others have done for us. It is also the time when clients or patients often reflect on the work that a professional has done for them and bestow an expression of their gratitude. Whilst it is flattering to receive a token of appreciation for your hard work, it remains important for professionals to be cautious before accepting a client’s gift.
It may seem trivial, but it is essential that accepting a gift does not breach a professional code or standard or otherwise influence impartiality and professional judgment.
Why is this so important?
Put simply, accepting a gift can be viewed as inappropriate. It is sometimes just as much about “how things look” as how things actually are. When considering how appropriate a gift really is, imagine how an objective bystander would view the exchange.
Accepting a particularly valuable gift (monetarily or otherwise) could be seen as something that might have the potential to influence a professional’s behaviour. Even if the gift-giver does not intend to influence the professional in any way, it may cause others to question whether that individual is being unfairly prioritised or treated differently. At worst, it may lead to an expectation from the gift giver that they should be treated more favourably.
Further, if a gift is seen as giving someone a financial or other advantage to encourage that person to perform their functions or activities improperly, or reward that person for having already done so, accepting the gift may constitute an offence under the Bribery Act 2010.
How will you know whether or not to accept a present?
Much depends on the value of a gift as well as the timing and frequency with which they are given. That is not to say that a basic assessment of price will dictate what should be done. However, the more expensive and more frequent the gift giving, the more that it triggers alarm bells.
Professional guidance on the issue is broadly consistent across professional sectors.
Solicitors Code of Conduct
The first Chapter of the Solicitor’s Regulation Authority (SRA) Handbook expresses, under the heading “You and Your Client”, the outcomes that solicitors must achieve in their dealings with clients. These include, among other obligations, treating your clients fairly (O1.1), only entering into fee agreements with your clients that are legal, and which you consider are suitable for the client’s needs and take account of the client’s best interests (O1.6), and that you properly account to clients for any financial benefit you receive as a result of your instructions (O1.15).
In detailing how the above outcomes can be achieved the SRA list indicative behaviours which “tend to show that you have achieved these outcomes and therefore complied with the Principles”. Listed at IB(1.9) is “refusing to act where your client proposes to make a gift of significant value to you or a member of your family, or a member of your firm or their family, unless the client takes independent legal advice”.
Fortunately for probate practitioners, there are practice notes and guidance to assist those who draft wills when their client is leaving a gift to them, their family or colleagues. However, much of the guidance in the code is directed towards the beginning of a client relationship when instructions can be declined, rather than during the relationship. This can make it difficult for solicitors to know what to do in practice.
Barristers Code of Conduct
The Bar Standards Board (BSB) Handbook, which contains the Code of Conduct for Barristers, details rules under “behaving ethically” relating to maintaining honesty, integrity and independence.
Among these include, rC8, [y]ou must not do anything which could reasonably be seen by the public to undermine your honesty, integrity (CD3) and independence (CD4).
The BSB issues guidance, listing examples of what may be seen as “compromising your independence”. At gC19 the guidance states that “[i]f you are offered a gift by a current, prospective or former client, professional client or other intermediary, you should consider carefully whether the circumstances and size of the gift would reasonably lead others to think that your independence had been compromised. If this would be the case, you should refuse to accept the gift”. The BSB go further at gC20, extending this to “[t]he giving or receiving of entertainment at a disproportionate level…”
In the General Medical Council’s (GMC) Good Medical Practice the regulator highlights the importance of openness in a doctor’s financial dealings. At paragraph 80 the guidance states “you must not ask for or accept – from patients, colleagues or others any inducement, gift or hospitality that may affect or be seen to affect the way you prescribe for, treat or refer patients or commission services for patients. You must not offer these inducements”.
The ACCA’s (Association of Chartered Certified Accountants) “Guidance on ethical matters for members in business”, provides guidance on this topic under the heading “Fundamental Principles”. This falls under the warning entitled “the familiarity threat”, which occurs when, because of a close relationship, members become too sympathetic to the interest of others. Circumstances said to constitute such a threat include “accepting a gift or preferential treatment, unless the value is trivial and inconsequential.” The regulator also advises members, under “section 8: inducements” to be aware of the threat to members’ compliance with the fundamental principles were they or their immediate family to be offered gifts and hospitality.
What is clear is that maintaining honesty, integrity, and independence is a fundamental tenet of acting in line with professional obligations. Avoiding situations where your conduct has become impugned is of paramount importance. There is no absolute rule against accepting a small gesture from a well-meaning client. However, accepting a significant gift may not be wise. What amounts to a significant gift is a matter to be considered in context.
If you find yourself in this situation this season, consult a supervisor and your professional standards. It may help to make a note of what the gift is, whether it was accepted or declined, and the reasons why. Certain professionals, such as solicitors, may also be obliged under a firm’s bribery and corruption policy to make a note and declaration to those in management positions.
Professionals who need to decline a gift can do so graciously with a ‘thank you’ note without being a “Scrooge”. Those who do exercise caution before accepting gifts from clients or patients are likely to be relieved to have done so if their judgment or integrity is later called into question.
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