The Solicitors Regulation Authority (SRA) Principles codify the ethical standards at the core of the solicitors’ profession and it is incumbent on each solicitor to always have regard to those principles and to use them as a starting point when faced with an ethical dilemma. Unlike some of the other principles, Principle 4, the “duty to act in the best interests of each client” does not have the benefit of a chapter in the SRA Code of Conduct. Though it is mentioned 11 times throughout the code and there is some limited guidance about what this might means in relation to achieving other outcomes, the lack of a chapter specifically covering best interests arguably leaves defining and achieving this somewhat up to interpretation and debate.
Recently, a number of interesting issues arising in my cases has provoked an analysis and consideration of precisely how to interpret the duty to act in the best interests of each client and how far this duty extends. Though my examples relate to individual clients, it seems that a similar approach to the one described below is also applicable for corporate clients.
In my first example, I act for a client in an injury claim. My client is also currently homeless and not claiming any benefits. Through referring my client to a specialist benefits adviser that Anthony Gold work with, it became apparent that the preliminary issue prohibiting my client from obtaining, or at least applying to obtain, housing was his lack of up-to-date travel documents. With assistance, I was able to obtain the correct application form for my client to complete. My client had been trying for months to find the right application form to use and was, unsurprisingly, bamboozled by the plethora of forms to choose from. My client is a vulnerable adult who may well be categorised as being in priority need for housing once this preliminary issue has been dealt with. I pondered the extent to which I should be assisting him with this giant homeless elephant in the room, or at least finding out the reason for his homelessness and signposting him in the right direction given that I am, strictly speaking, instructed to act for him in his injury claim. Upon consideration, I concluded that it would be antithetical to acting in my client’s best interests to fail to enquire into his homelessness, not least because of the added difficulties he faces as a result of his homelessness in recovering from his ongoing physical and psychological injuries.
My second case involves a young female who injured her back in a car accident. My client now requires more breaks at work, to travel at times outside the rush hour and she is also less able to do some of the manual work she previously could. Her employer, who was previously accommodating my client’s needs, has stopped doing so. From some further questioning about this, it became clear that my client’s employer is in breach of the Equality Act 2010, by failing to make reasonable adjustments for her as a “disabled person” under the Act. I considered whether I could have satisfied myself that I was acting in the best interests of my client if I had failed to investigate further her problems at work, which revealed a potential claim for her and the possibility of redress for this: it did not seem that I could.
Finally, during my training contract, I was assisting my supervising partner in representing a client in a housing disrepair matter. It became apparent, in the course of quantifying this claim, that my client had experienced a severely traumatic event a number of years previously that she was beginning to face as a result of assessing the value of her disrepair claim. I spent some time eliciting the facts of this event from my client, which initially I thought might give rise to a potential clinical negligence claim. However, most unfortunately, she was out of time to pursue this and so instead I was able to refer her to a legal advice centre for assistance with writing a letter of complaint to the hospital.
When reflecting on the above cases, it occurred to me that the basis upon which I was making a judgment to investigate those further issues with my clients was inextricably linked to my understanding of the duty to act in my client’s best interests. Of course, it is unreasonable and unrealistic to expect a solicitor to spot every single issue arising for a client. However, in my view, a failure at least to enquire beyond a client’s often ostensibly discrete legal issue is a failure to discharge the duty to act in their best interests. In my case examples, without taking a holistic approach to understanding my client’s needs, I would not have elicited further legal problems that my clients require help with. In an increasingly time pressured, streamlined and competitive legal market, taking a holistic approach to understanding your client’s needs is not only good for business and good for client satisfaction, but imperative in order to ensure that you are acting in their best interests.