WALKING THE LINE: balancing the duty to the client and the court.
In another instalment of Emma Slade’s blog, she discusses the probity of the legal profession in the context of a making a professional negligence claim against a solicitor where there are “alternative facts”.
Do you remember the mocking and drubbing that Kellyanne Conway, Counsellor to President Trump, received in the press and on social media at the beginning of 2017 when she described what was an obvious falsehood as “alternative facts”? If it wasn’t so painful, it would be quite amusing really. Generally though, lawyers get a bad press in these situations. There is an almost automatic assumption that we are strangers to the truth, always ready to give a false colouring to the facts and generally dissemble and equivocate. It might be a popular picture of lawyers, but it doesn't reflect the reality in my experience.
I am not going to say that all solicitors are whiter than white. I once knew a solicitor who, because he couldn’t get his client to sign a witness statement by the deadline, photocopied the client’s signature from a letter and pasted it on the signature line. He was inevitably caught out though when the client went in the witness box. The barrister asked the client whether that was his signature (“yes”) and could he confirm the contents of the statement? I am sure the solicitor in question must have invented facepalming at the instant his client said, “never seen it before in my life”. True story.
But outright lying? No. Even setting aside the moral arguments, a solicitor is an officer of the Senior Court of England & Wales and our primary duty is to the Court. As much as a client may think a solicitor is a “hired gun”, ruthlessly advancing their case at the expense of others, that is not the true position. If a client tells his “brief” that he is guilty but then provides a ‘not guilty’ plea in court, the lawyer can no longer represent the client. He cannot even dissemble or equivocate over it.
The reason this blog entry has come about is because of an enquiry I received this morning about making a professional negligence claim against a solicitor; and it was a tricky one. I can see why the caller was cross, but ultimately he was expecting the solicitor to – how shall I say it? – ‘embrace the truth with frivolity’. He didn’t dress it up, the caller wanted to sue the solicitor.
We all know about care home fees – if you own a property but need to go into a care home, the local authority can sell your home and take the funds to assist with the cost of that care. The property must belong to the patient for the local authority to lay claim to its value, so some people enter into a Trust Deed, giving their property to their nearest and dearest, usually the children. If the purpose of that transfer though is purely to put the property beyond the reach of the local authority and to avoid those fees, then the transaction can be reversed; if there is a genuine reason for the trust being set up, then the trust cannot be undone and the value of the property cannot be touched.
The caller this morning was saying that his trust had indeed been reversed because when the Local Authority called for his solicitor’s file, an attendance note said that the purpose of the trust was to avoid care home fees.
Now obviously, I have not seen that note and I would be surprised if it was as unequivocal as that. I would expect the note to contain, amongst other things, considerable advice from the solicitor about anti-avoidance remedies that a Local Authority has and to have advised his client accordingly. But the caller was somewhat agitated that the solicitor had failed to cover up the real reason for the trust.
I can understand his frustration – he had clearly hoped to protect his monies to be able to leave them to his loved ones – but it surprised me that he genuinely believed that his solicitor should have been economical with the truth, possibly even going so far as to put “alternative facts” in his attendance note.
It is disappointing that lawyers have got such a bad rap for alleged dishonesty – I don’t know whether that it is a case of one bad apple spoiling the barrel or something we have inherited from our American cousins – but I am not sure who was more surprised about my conversation: me, because the caller thought a solicitor should lie to protect his client; or the caller when I told him “absolutely no way”.
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