Who's acting for whom?

A solicitor acted for a bank involved in forfeiture proceedings against a limited company tenant of leasehold property. Initially, the company was not represented, but after a short exchange of correspondence, it instructed its own legal advisers.


Surprisingly, the company continued to write to the bank's solicitor direct, and he continued to respond. At one stage, the company's solicitors asked the solicitor to stop writing to their client but he did not do so. He took a view that as the solicitors concerned had not placed themselves on the court record in the forfeiture proceedings, the company was not represented for that purpose and that he could continue to make direct contact.


The matter was not helped when the company wrote yet again to the solicitor, pointing out that its own solicitor was on holiday and that a problem had arisen requiring an urgent response. The solicitor did not copy correspondence to the company's solicitors, nor did he seek their specific authority to write to their clients directly, nor did he notify them that he was going to do so.


There was no reason for the solicitor to believe that the company's solicitors would not pass any message to their client. It was quite apparent that whether on the court record or not, the company's solicitors were attempting to represent the interests of their corporate client.


A complaint was made to the Law Society and the solicitor raised a robust defence. He argued that the terms of principle 19.02 of the Guide to the Professional Conduct of Solicitors, 1999, eighth edition, were advisory and not mandatory. He insisted the terms dictated that a solicitor 'should not' communicate with a party rather than 'must not'.


The adjudicator in the case concluded that the defence was inappropriate. The solicitor knew at all times that the other solicitors were acting for their corporate client. He had specifically been asked not to write to the company direct but had done so in his belief that because the other solicitors were not on the record, they were not acting for the company. There was no ground for such a belief and a finding of misconduct was inevitable.


However, it seemed that the solicitor had acted in good faith and under a misbelief, rather than with any intent to breach the principle. The adjudicator concluded that if similar circumstances were to arise, the solicitor would recall the matter and would ensure that a different approach were taken. It was not difficult to understand how the situation arose, but the rule is straightforward. A solicitor acts for a client if he says so, even if in litigation matters his name does not appear on the court record, which is an entirely different concept.


Every case before the adjudication panel is decided on its individual facts. This case study is for illustration only and should not be treated as a precedent