Association of Construction Attorneys: revised scheme

10.0 Code Of Practice

10.1 Introduction

10.2 Generally

10.3 Professional Conduct

10.4 Conduct of litigation

10.6 Withdrawing of a Member/Fellows Services

10.7 Costs, fees and payment

10.8 Conflict of interest

10.9 Confidentiality

10.10 Below standard professional work and negligence

10.11 Professional Indemnity insurance

10.12 Advertising and Publicity

10.13 Relations with the Faculty of Advocates and Solicitor Advocates

10.14 Complaints against Individuals

10.15 Clients Money

10.16 Member/Fellows in private practice

10.17 Employed Member/Fellows

10.1 Introduction

10.1.1 The Code of Practice outlines the standards required of all classes of membership (Attorney) of the Association of Construction Attorneys, in relation to their exercise of rights acquired under the Act.

10.1.2 If an Attorney is unclear in respect of the requirements of the Code of Practice then advice should be sought from the Association of Construction Attorneys for clarification of the requirements.

10.1.3 The Code of Practice is established to meet the requirements of section 25(2) (b) (ii) of the Act

10.1.4 The Rules of Conduct have been drafted with regard to section 26(2) of the Act.

10.2 Generally

10.2.1 An Attorney is responsible for work carried out and shall conduct him/herself in a professional manner. An Attorney must exercise personal judgment in all professional activities.

10.2.2 An Attorney must not conduct him/herself, whether in pursuit of their profession or otherwise, in a manner which is:-

(i) dishonest or otherwise discreditable or;

(ii) prejudicial to the administration of justice or;

(iii) likely to diminish public confidence in the Association of Construction Attorneys, the legal profession or the administration of justice or otherwise bring the Association of Construction Attorneys or any section of the legal profession into disrepute.

10.2.3 Attorneys must not discriminate on grounds of race, ethnic origin, sex, religion or political persuasion.

10.3 Professional Conduct

10.3.1 Attorneys shall act in accordance with the following principles:-

(i) that the client has the freedom to instruct an appropriate professional of his choice;

(ii) where an Attorney is approached, with regard to accepting instructions in a matter, the Attorney shall explain to the client whether he/she is qualified to do the work. The Attorney must offer to provide the client with written advice as to the alternatives available and the appropriateness of using any particular route as well as informing the client with regard to any difference in the level of Professional Indemnity insurance in comparison with Solicitors.

(iii) The Attorney is to make the client aware that he/she is bound by the Complaints Procedure of the Association. In addition the Attorney is to make the client aware of the right to refer matters of complaint in the first instance to the Scottish Legal Complaints Commission and to provide a written copy of the complaints procedure on request;

(iv) that the Attorney is independent and may decide whether to accept instructions or not according to his own judgment;

(v) that the Attorney has a duty to act in the best interests of the client;

(vi) that the Attorney shall accept instructions and continue to act only where the client can be represented competently and diligently with the exercise of reasonable care and skill (and see 10.10 below);

(vii) an Attorney has an overriding duty to the Court to ensure in the public interest that the proper and efficient administration of justice is achieved. The Attorney must assist the Court in the administration of justice and must not deceive or knowingly or recklessly mislead the Court;

(viii) that the Attorney shall exercise judgment before accepting instructions where it is known that a third person has stipulated that the particular Attorney shall act;

(ix) where instructions are received from a third party the Attorney should seek instructions from the client;

(x) that an Attorney shall not act or shall cease to act further where the instructions would involve the Attorney in a breach of the law or of this Code of Conduct. However, the Attorney may continue to act if the client changes his instructions appropriately;

(xi) that an Attorney shall not act or shall cease to act further, where there is a conflict of interest between himself/herself, or his/her firm or his/her employer and the client or prospective client, or between two existing clients or between an existing client or former client and a prospective client (and see 10.8 below);

(xii) that an Attorney must not accept instructions to act in a matter where another Association Attorney is acting for the client in the same matter, until either the first retainer has been determined by the client, or the first Association Attorney has consented to the Attorney acting in his place;

(xiii) that an Attorney will keep the client's business and affairs confidential (and see 10.9 below);

(xiv) that an Attorney is under a duty to keep the client properly informed and to comply with reasonable requests from the client for information concerning the matters entrusted to the Attorney;

(xv) that an Attorney is under a duty to consider and advise a client on the availability of legal aid where the client might be entitled to assistance.

10.4 Conduct of Litigation

10.4.1 Attorneys must not in carrying out his duties or in instructing Counsel devise information that is presented as fact to advance the client's case and must not draft any statement of claim, pleading, affidavit, witness statement or notice of appeal containing:-

(i) any statement of fact or contention which is not supported by his client or by his/her instructions;

(ii) any contention which the attorney does not consider to be properly arguable;

(iii) any allegation of fraud unless he/she has clear instructions to make such allegation and has before him/herself an extract of conviction which as it stands establishes a prima facie case of fraud;

(iv) in the case of an affidavit or witness statement, any statement of fact other than the evidence which in substance according to his instructions the Attorney reasonably believes the witness would give if the evidence contained in the affidavit or witness statement were being given orally;

10.5 The Attorney in drafting (notwithstanding items 10.4.1 (i) - (iv) noted above) a pleading, affidavit or witness statement containing specific facts, matters or contentions must only do so following confirmation (from the Client or otherwise) as to their accuracy.

10.6 Withdrawal of an Attorney’s services.

10.6.1 An Attorney shall not withdraw his services and cease to act for a client except for good reason and upon reasonable notice.

10.6.2 On withdrawing services the Attorney must, subject to any lien, deliver to the client all papers and property to which the client is entitled or hold them to the client's order.

10.7 Costs, fees and payment.

10.7.1 In all matters the Attorney must consider with the client whether the likely outcome will justify the likely cost or risk involved.

10.7.2 When confirming acceptance of the client's instructions the Attorney shall state the basis of the fees to be charged. The Attorney shall in so far as reasonably possible provide the client orally and in writing with an estimate of likely costs and of the costs of alternatives available (see 10.3.1 (ii) above).

10.7.3 The Attorney may, at the outset of accepting instructions, require the client to make a payment on account of costs and disbursements to be incurred and may agree at any time appropriate arrangements for further payments on account of costs and disbursements to be incurred and for periodic settlement of sums due.

10.7.4 Unless there is an agreement to the contrary, an Attorney is personally responsible for paying the proper costs of Counsel, any professional agent or other person instructed by him on behalf of the client whether or not he receives payment from the client.

10.8 Conflict of interest

10.8.1 An Attorney shall not act or shall cease to act further, where there is a conflict of interest between him/herself, or his/her firm or his/her employer and the client or prospective client, or between two existing clients or between an existing client or former client and a prospective client. In instances where an Attorney considers that no conflict of interest exists but that there may be the perception that one may or could exist then the Client should be notified of all the relevant details.

10.8.2 If an Attorney acquired relevant knowledge concerning a former client when acting for him, the Attorney shall not accept instructions to act against the former client.

10.9 Confidentiality

10.9.1 The duty upon an Attorney to keep confidential the client's affairs extends to ensuring that the Attorney's partners, directors and employees also observe that duty.

10.9.2 The duty to keep confidential the client's affairs applies irrespective of the source of the information.

10.9.3 The duty to keep confidential the client's affairs continues until the client permits disclosure or waives the confidentiality.

10.10 Below standard professional work and negligence

10.10.1 All Attorneys are under a duty to represent the client competently and diligently with the exercise of reasonable care and skill, and to keep the client properly informed.

10.10.2 Complaints from clients which allege breach of the duty in 10.10.1 shall be dealt with properly and promptly by the Attorney. For situations where the complaint is not resolved to the client's reasonable satisfaction see section 11.0 below.

10.10.3 If the client makes a claim against an Attorney or notifies the intention of doing so, or if the Attorney discovers an act or omission which would justify such a claim, the Attorney is under a duty to inform the client that he should seek independent advice.

10.10.4 Attorneys must notify clients in writing that the Association of Construction Attorneys operates a Complaints Handling Procedure. This information may be conveyed by inclusion in the Attorney’s terms and conditions.

10.10.5 The Attorney is under a duty to inform the Client of the existence of the Scottish Legal Complaints Commission and his rights to use this body.

10.11 Professional Indemnity Insurance

10.11.1 Attorneys, when engaged in activities covered by these Rules, shall carry indemnity insurance against loss arising from claims as described in the Association’s approved policy:-

• by an Attorney or by former Association Attorneys in connection with their practice, firm or corporate body;
• by any employee or former employee of an Association Attorney or former Attorney.

10.11.2 The form of the indemnity insurance, including level of indemnity, will be as prescribed by the Association.

10.11.3 Attorneys must inform clients of the level and extent of Professional Indemnity Insurance held.

10.12 Advertising and Publicity

10.12.1 Attorneys may engage in any advertising or promotion in connection with his/her activities (or that of a firm or company the Attorney is involved with) provided that it conforms to the British Code of Advertising Practice.

10.12.2 Advertising and publicity must not be likely to diminish public confidence in the Association of Construction Attorneys, the legal profession or the administration of justice and must not otherwise bring the Association or the legal profession into disrepute.

10.13 Relations with the Faculty of Advocates, Solicitor Advocates, Law Society.

10.13.1 Attorneys shall at all times conduct themselves in a professional manner with officers of the court and all branches of the legal profession.

10.13.2 All Attorneys shall be aware of the requirements of the current edition of the appropriate Code of Conduct issued by the Faculty of Advocates, Solicitor Advocates body or the Law Society.

10.13.3 In instructing Counsel, Solicitor Advocates, or Solicitors, it is the Attorney’s duty to provide the necessary instructions and supporting documents in good time.

10.13.4 Where Counsel, Solicitor Advocate, or a Solicitor is instructed this does not affect the Attorney’s responsibility to the client for the conduct of the matter.

10.13.5 When the proper conduct of the matter so requires the Attorney shall arrange conferences between Client and Counsel, Solicitor Advocate or Solicitor.

10.13.6 Where an Attorney instructs Counsel, Solicitor Advocate or a Solicitor that Attorney shall be present throughout court proceedings unless otherwise agreed or where a local agent is appointed.

10.13.7 Where Counsel, a Solicitor Advocate or a Solicitor is instructed the Attorney is personally liable for the payment of the proper fees of whether or not the Attorney has been paid by the client.

10.14 Complaints against Attorneys

10.14.1 The Association has established a Complaints Procedure to investigate complaints of professional misconduct and inadequate professional services against Attorneys and where appropriate to discipline Attorneys.

10.15 Client’s money.

10.15.1 Attorneys shall not handle Clients’ Money. The Attorney must inform the Client that in respect of payment from Defenders or payment to Pursuers that the money is to be paid directly to or from the Client and not through the Attorney. Payment of fees and expenses on behalf of the Client is not deemed to fall under the heading of ‘Clients Money’.

10.15.2 Attorneys must take all reasonable steps to ensure that their practice or that of their firm is efficiently and properly administered and that proper records are kept.

10.16 Attorneys working in Private Practice Partnerships/Limited Liability Partnership

10.16.1 Attorneys in a firm may practise providing that the Attorney ensures that his partner(s) conducts business in a manner to enable compliance with the Code of Practice.

10.17 Employed Attorneys (including Company Directors).

10.17.1 Employed Attorneys may conduct litigation on instruction from their employer to act on behalf of his/her employer’s clients. The Attorney may also conduct litigation on instruction from their employer on his/her employer’s behalf. Once instructed the Attorney must undertake the work on his/her account and must not instruct others to carry out the work on his/her behalf. If the Attorney receives assistance from any other person he is deemed to have carried out the work on his/her own account.

10.17.2 When in the employment of others, the Attorney must ensure that his/her employer conducts business in a manner to enable compliance with the Code of Practice.

10.17.3 When in the employment of others, the Attorney must ensure that his Employer’s client is made fully aware of the Association of Construction Attorney’s complaint procedure and the right to refer matters of complaint about to the Scottish Legal Complaints Commission.