The importance of being an Officer of the Court

Looking for a career in the Law? The importance of being an Officer of the Court – Partner Khalid Mughal writes about one of the fundamental principles of being a solicitor.

Solicitors are first and foremost Officers of the Court. The Solicitors Regulation Authority states:

“A solicitor's duty to the court may override other duties or principles, such as the duty (reflected in Principle 7) to act in a client's best interests. The preamble to the Principles provides that:

"Should the Principles come into conflict, those which safeguard the wider public interest (such as the rule of law, and public confidence in a trustworthy solicitors' profession and a safe and effective market for regulated legal services) take precedence over an individual client’s interests."

On occasion, a solicitor may be asked to certify a document as a true copy of the original without having seen the original. Close friends and family may request this. It is important that a solicitor does not succumb to this type of request and insist upon seeing the original. It only takes the break-up of a friendship or relationship for someone to report a solicitor for doing this and the SRA would have no hesitation in striking off a solicitor for being dishonest.

Clients believe that a solicitor is bound by confidentiality not to disclose anything told to them. However, this is incorrect. 

The Proceeds of Crime Act 2002 states if a solicitor acquires knowledge in the course of his business dealings with a client, such that he knows or suspects or has reasonable grounds for knowing or suspecting that another person is engaged in money laundering, then the solicitor must report the matter to the National Criminal Agency (NCA).

The 2002 Act introduced a number of criminal offences, which are punishable upon conviction by a heavy prison sentence. In particular, a solicitor commits an offence if he enters into or becomes concerned in an arrangement which he knows or suspects facilitates (by whatever means) the acquisition, retention, use or control of criminal property by or on behalf of another person. Accordingly, the solicitor must make full disclosure by way of a report to NCA, and cannot proceed to act for the client unless and until authorised to do so.

Such report must be made as soon as possible, and the solicitor must not inform his client of the report if it would tip off the offending party or prejudice an investigation.

It will be obvious from the above that the solicitor’s duty of confidentiality to the client and the rights of professional privilege have been substantially eroded by this law.

The solicitor’s duties as an Officer of the Court take precedence over client confidentiality. There are some very narrow circumstances in which professional privilege may be a defence to a claim by the authorities of “failure to report”, but in general terms, a solicitor as an officer of the Court is bound to disclose matters to the authorities that a client would not want the police to know about.   This includes but is not limited to source of funds and tax avoidance.

A solicitor must not mislead, manipulate, or allow the Court to be misled. A solicitor who seeks to manipulate or abuse the court system would also be failing in their duty to uphold the proper administration of justice. The rules apply equally to litigious and  non-litigious matters.

Those considering a career in law or already embarking on such a career should be aware of the overriding duty as an Officer of the Court and act accordingly to fulfil that duty.

The trust of the general public is required for the legal profession to be effective and principles such as this are key to that relationship of trust.