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for Solicitors to be even more conscientious than ever
of the necessity for scrupulous honesty and the utmost
integrity in their handling of their clients affairs and in
particular with regard to the handling of clients monies.
The only thing a Solicitor has that is worth having
and which cannot be estimated in financial terms is his
good name. Once this is lost, he has nothing further
to offer as a member of the profession. It is thus
absolutely essential that in the course of practice a
Solicitor must not only be both completely and scrupul-
ously honest but must also be patently seen to be
honest. I trust that it is hardly necessary to spell
out this requirement of our profession in any greater
detail but it is a matter that all practising Solicitors
should constantly keep in the forefront of their minds
because the temptations are great. While the spirit may
indeed be willing, the flesh, as we know too well, can
sometimes be too weak to withstand them. Human
nature being what it is, as a practising member of the
Solicitor's profession, one should be constantly on one's
guard against any temptations that may present
themselves and if they transgress it, it is only then that
the necessity for the maintenance of the highest stan-
dards becomes fully apparent.
Negligence and professional misconduct
A clear distinction should be drawn between negli-
gence and professional misconduct. As I am sure you
are well aware, negligence has been defined as the doing
of something that a reasonable man would not do, or
the failure to do something that a reasonable man
would do. In the context of the Solicitor's profession, it
could be described as the absence of such care as it was
the duty of the Solicitor to take. Professional miscon-
duct could be summarised as arising where a Solicitor
has acted in a manner either towards a colleague or
a client which falls below the standard of conduct
required and expected from him as a member of the
profession.
Solicitor's Rights
It can be briefly stated that a Solicitor's rights are
lew and cannot be considered in isolation from his
duties, responsibilities and obligations and such as they
are they only exist to enable him to carry these out.
The rights of Solicitors are largely statutory and. are
contained in a number of enactments, principally the
Solicitors Acts 1954-1960 and recently the Courts Act
1971 which gave Solicitors a right of audience in Civil
matters in all Courts. Broadly speaking, the Solicitor's
profession has a monopoly in conveyancing and com-
pany work and in regard to litigation in Court but this
does not extend to the increasing number of Tribunals
and Enquiries and like quasi judicial bodies. It should
he clearly born in mind that any individual has a right
to perform on his own behalf any of the services which
a Solicitor performs for a client but an unqualified
person may not indulge on behalf of another person
in any of the work in regard to which the services of a
Solicitor are required by statute or otherwise. In prac-
tise, lay litigants receive a great deal of indulgence
from the Courts but they are not usually as successful
for the obvious reasons that they lack both qualifica-
tions, legal training and experience to enable them to
present their cases. This is rather effectively summed
up by the well known saying that "Anyone who is his
own lawyer has a fool for a client". It is worth noting
that the legal profession in Sweden does not have any
monopoly but this does not appear to provide any
problem for them or inhibit their activities or diminish
the requirement for their services.
A factor that is a direct result of the monopoly which
the Solicitor's profession holds in regard to certain types
of legal work is the statutory control of Solicitor's costs
which is designed as a safeguard to the public but of
which they do not appear to be sufficiently aware and
certainly do not seem to appreciate. In this regard we
are the only profession whose charges for professional
services as such are controlled by statute.
Solicitors' Privileges
Co-extensive with a Solicitor's rights are his privileges
conferred both by statute and of necessity under the
circumstances of his activities for and relationship with
his clients. It must be understood that a Solicitor's
rights and privileges derive essentially from his retention
as such by his client and a Solicitor's retainer is the
foundation on which the relationship between Solicitor
and client is built. This relationship of Solicitor and
client is created by the retainer, given freely by the
client, and accepted by the Solicitor which then be-
comes a Contract between the Parties. A retainer is
thus essentially a contract whereby in return for a
client's offer to employ a Solicitor, the Solicitor under-
takes to perform certain services. The ordinary law of
Contract applies to a retainer and, as in the case of
most contracts, it need not be evidenced by writing,
and can be either express or implied.
Duties and Responsibilities
One of the most essential and fundamental differ-
ences between Solicitors and all other professions is
that Solicitors handle clients monies and in the present
day these amount to quite vast sums. As you are
aware, Solicitors are required to comply strictly with
the Solicitors' Accounts Regulations both in regard to
the handling of and accountability for clients monies.
It is hardly necessary to spell out in detail the duties
and responsibilities that are thereby incurred by Solici-
tors.
One of the most important duties of a Solicitor is
the
taking
of proper
instructions
because he will
obviously not be able to implement his client's instruc-
tions or be of any use to the client unless they have
been accurately taken. It is thus highly desirable that at
every available opportunity that a Solicitor should take
clear and unimbigous notes of attendances on his clients.
If he feels in any doubt as to the client's exact inten-
tions or if he is unhappy about his instructions for any
reason, he should take the precaution of having the
client sign the attendance sheet acknowledging that he
has read it and that it represents his instructions. In
more serious matters the Solicitor should obtain written
instructions from his client in the form of a letter. This
is particularly important where the Solicitor is requested
to give an undertaking on behalf of the client, espe-
cially for the payment over of monies; in such cir-
cumstances, an irrevocable authority to act for the
client in regard to the particular matter in question,
whether it be a property transaction or the handling
of a litigation matter, should be obtained in writing.
Solicitor's undertakings
One of the cornerstones of the Solicitor's dealings
with his colleagues, with institutions, or members of the
public is the giving of undertakings. In the course of
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