This post was contributed by Ms Charlotte Crilly, Teaching Fellow for Legal system and method.
What should a lawyer do if their client asks them to do something unethical? Lawyers sometimes have to grapple with knotty questions like:
- Should I present my client’s case to the court, even if I know it isn’t quite true?
- Must I disclose documents that harm my client’s case?
You may have you own ideas about what a lawyer should do in these situations. How lawyers should make ethical decisions about their conduct can be a tricky area, especially where they may have a duty to their client on the one hand, and a conflicting duty to the court on the other. This question of conflicting duties has been brought into focus by the Post Office Horizon scandal.
Post Office Horizon case
This has been said by the Criminal Cases Review Commission to be “the most widespread miscarriage of justice” it has ever seen.
Here is a brief summary:
- Post Office Ltd introduced a new computer system, called Horizon, to be used in individual post offices across the country. These individual Post Office branches were run by sub-postmasters who ran them as small businesses, not as employees.
- Horizon was faulty, and sometimes wrongly made it appear that money was missing from Post Offices’ accounts.
- More than 900 sub-postmasters were prosecuted for stealing because of this incorrect information. Many were imprisoned for theft and false accounting. Post Office Ltd prosecuted many of the cases in court itself (under its private prosecution powers).
- Since the scandal came to public attention, most of the victims of the miscarriage of justice have had their criminal convictions overturned, and compensation schemes have been put into place. The Post Office Horizon Inquiry was established in 2020, tasked with investigating the failings of the Horizon system and the consequences for the sub-postmasters.
Role of solicitors
You will recall that the English legal profession is made up mainly of solicitors and barristers. In this blog post, I will focus on solicitors.
Among the many legal issues raised by the Post Office Horizon scandal, one of importance for Legal System and Method is the role of solicitors who acted for the Post Office during the criminal proceedings against sub-postmasters. Criticisms have been made before the Post Office Horizon Inquiry that some solicitors put the interests of their clients, the Post Office, above their ethical duties to the court to act fairly and in the interests of justice, for example by not disclosing relevant documents when required to do so.
The Solicitors Regulation Authority (SRA) is in the process of investigating some solicitors and law firms who were working for the Post Office. If they are found to be in breach of ethical standards, they could be subject to large fines or be brought before the Solicitors Disciplinary Tribunal, whose powers include striking off from the roll of solicitors.
Professional ethical duties
Solicitors are bound by professional rules of conduct overseen by the SRA. Under the Code of Conduct, they must act with integrity, uphold the rule of law, and ensure the proper administration of justice. The SRA’s Principles, which comprise the fundamental tenets of ethical behaviour for solicitors, are that they must act in a way that upholds the constitutional principle of the rule of law, and the proper administration of justice and that upholds public trust and confidence in the solicitors’ profession. They must act with independence, honesty and integrity.
The SRA makes it clear that: “Should the Principles come into conflict, those which safeguard the wider public interest (such as the rule of law, and public confidence in a trustworthy solicitors’ profession and a safe and effective market for regulated legal services) take precedence over an individual client’s interests.”