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Breach of ethics
26/06/2007 The Star Articles of Law by BHAG SINGH
When a breach of ethics has taken place, we need to take a look at the root
cause to address the problem.
IN recent weeks the action taken by the police against delinquent lawyers
has received considerable attention. From the individual’s point of view,
this is disturbing as much trust is placed on a lawyer who is after all a
member of an honourable profession.
I am sure members of the legal profession are sad to see this happening and
would not want it to happen again. This, however, is of little comfort to an
individual who has suffered loss as a result of such wrongdoing.
Members of the public may suffer as a result of all kinds of shortcomings in
work done by members of different professions and vocations. Such wrongdoing
could be in the form of a breach of ethics or the result of professional
negligence.
In so far as breach of ethics is concerned, the client may not necessarily
suffer a loss but negligence is always the cause of a loss or a perceived
loss. It happens in many professions and is highlighted in different ways.
As a result of a wrong diagnosis or negligent treatment by a doctor, a
patient may die. In other cases, a patient may have to suffer unnecessary
pain. Because an engineer has not designed a structure correctly, it may
collapse, with obvious consequences. A contractor may cut corners in the
construction of a building, leading to its collapse, resulting in loss of
lives and financial loss.
However, in the case of some professions the damage caused as a result of
negligence may take time to manifest itself. The public may not always be
able to pinpoint the person responsible as there may be several parties
involved.
However, in the case of lawyers, any wrongdoing may become visible within a
short span of time. This is so when it involves money deposited with them as
stakeholders. When this happens the matter goes beyond the sphere of
negligence; it constitutes a crime.
Such wrongdoing brings shame to the profession and is abhorred by those who
earn an honest living. The few black sheep may taint an honourable
profession. Why then does this happen?
By virtue of their work, lawyers are allowed to hold large sums of money as
stakeholders. Many get into difficulties when they use the clients’ money.
Cases of wrongdoing that amount to a crime arise on account of the breach of
rules relating to the client’s account. This is a trust account with money
which does not belong to the firm but is held in trust for the client or a
third party.
In fact, the account is governed by the Solicitors Account Rules 1990 and
related rules, where there is a need for an annual audit as a precondition
for a solicitor to obtain his annual practising certificate, which is issued
yearly.
However, the individual lawyer or the partners (in the case of a
partnership) have full control over the account. When a cheque is drawn on
this account for improper purposes, problems arise and the solicitor commits
an offence.
When this happens who is to blame? Obviously the sole responsibility rests
on the shoulders of the solicitor involved. Essentially it is a failure on
account of honesty and integrity.
In an immediate reaction many suggestions are made. It is said that only
those who have practised in an existing firm for a few years should be
allowed to practise on their own. Another suggestion is that in the case of
sole proprietors, there should be an outside person to countersign the
cheques drawn on the client’s account.
Honesty and integrity cannot be expected in absolute terms from everyone,
whatever profession they may belong to. However, in the interest of the
community, measures to control the situation are desirable.
Some suggest having a second signatory on cheques signed by a sole
proprietor. Others suggest that only lawyers who have worked in another firm
for a specified number of years can start on their own.
But what is required is a profile of the offenders to determine whether
those who commit such offences can be categorised into a particular group
with certain features, which can then allow the problem to be addressed in
the most appropriate manner.
The public may in some cases contribute to the situation that exists by
being careless in their choice of a lawyer.
Perhaps some do not realise the implications of entrusting a transaction to
a solicitor. Some think it is a matter of typing something on paper and
validating it with the solicitor’s rubber stamp.
The conviction of a delinquent solicitor, while it may attain the objective
of punishing the person and deterring others, does not help the individual
who has suffered loss.
This will need to be provided for by a compensation scheme. There is in
existence a scheme to compensate but it has its limitation. |
