Know when to cease acting

CILEx Regulation’s rules require us to publish all adverse findings and orders against those we regulate. As such, many of our regulatory articles feature details of proven misconduct and sanctions issued to CILEX members for wrongdoing.

Publication itself is not a sanction. It is, however, a necessary part of regulation and the principle of open justice. Amongst other things, it is a way of maintaining transparency about the action we take and public confidence in our regulation. It also helps protect the public and promote high standards across the profession by raising awareness of what we expect of our regulated community. This helps others avoid similar conduct and assists the public in identifying the types of concerns they can (and should) report to us.

The majority of reports we receive, however, do not result in an adverse finding and there are many cases where CILEX members have been able to demonstrate good practice, even when faced with difficulties such as work pressures and challenging client behaviours. Celebrating these outcomes is just as vital in helping our regulated community understand the positive steps they can take to maintain standards before any breaches arise.

Knowing how and when to cease acting

In one recent example, we received an allegation that a CILEX member had ceased acting for a client abruptly and left them without legal representation. This was a potential breach of principles 5 and 6 of the CILEx Code of Conduct, which require those we regulate to:

• Act in the best interests of their clients; and
• Treat everyone fairly and ensure their business, process and practices assist clients to access justice and the full range of legal services.

Generally, members should not cease acting for clients before the conclusion of a matter in which they have been instructed, unless there is good reason to do so and they have given the client(s) reasonable notice.

What is ‘good’ and ‘reasonable’ will depend on the circumstances of each case. We would expect this to be covered in the terms of engagement or a separate policy, ideally given to the client at the outset. Any agreed terms setting out the circumstances for termination should be complied with as far as possible.

In the case above, the CILEX member had agreed to assist the client in relation to a claim but ceased acting prematurely, due to the client’s unreasonable and abusive behaviour. This extended to contacting the member at their home address, making excessive, repetitive and impractical demands, and name-calling. This was a good enough reason for the member to cease acting in the circumstances of the case.

Good reasons

Other good reasons to cease acting may include situations where:

 A client loses capacity and there is no one with authority to give instructions on their behalf;

• There has been a serious breakdown in trust and confidence between the member and client; or
• Continuing to act would result in breaking the law and/or a breach of the code, for example, where there is a conflict of interest with a client, or between two or more clients; where money laundering is suspected; or where a member does not have the required experience or qualifications to act.

These reasons are not exhaustive but cover abusive, obstructive and inappropriate behaviour, as in the case above. They also include aggression, violence and inappropriate sexual advances or innuendo, for example.

Recognising that the client was going through a difficult time, the CILEX member above had attempted to resolve the issues and forewarned the client of their intention to cease acting before doing so, to give the client the opportunity to change their behaviour. No hearing date had been set and the member was found to have given the client reasonable notice in the circumstances.

Reasonable notice

Reasonable notice includes making clients aware of any intention to cease acting and considering the potential implications for them, such as the timeframe for them to seek additional advice and instruct a new lawyer. Steps should be taken to ensure that clients are not left without access to legal services at a critical point of need, such as right before a court hearing.

It is always better to identify any issues with clients openly at an early stage and try to resolve them where possible, either directly or with support from other staff and colleagues. This may involve setting new parameters, such as contact times and methods, agreeing to vary the terms of engagement and assigning an alternative caseworker.

If the issues cannot be resolved and it becomes necessary to terminate the arrangement, members should explain to clients how they propose to handle the closure of their matter. This should include their options for pursuing their case elsewhere, setting out any upcoming deadlines and the return of any files due to the client as agreed. Members should also comply with any other legal obligations and relevant court rules, such as notifying the court and any parties to proceedings that they have ceased acting in accordance with the Civil Procedure Rules, for example.

Ultimately, no disciplinary action was taken against the CILEX member above, as there was no evidence that they had breached the code in a serious way to amount to professional misconduct. There was no risk of harm to the public, consumer or reputation of the profession. The case did, however, illustrate the importance of understanding the obligations to clients, how to cease acting prematurely without falling foul of the code, and that acting in a client’s best interests does not have to be at the expense of other clients’ interests, or staff wellbeing and mental health.

Further resources:

Practice advice and guidance available from the CILEX membership body
Free help and advice about wellbeing in the workplace is available from LawCare