The legal profession has been historically linked with a moral and ethical behaviour on the part of its participants, and as such it is bound to necessitate careful scrutiny, in the same manner that the medical profession does. Solicitors are regulated by the Law Society of Scotland, and advocates by the Faculty of Advocates. Both bodies deal with a variety of matters, from establishing qualifications for admission to the profession to rules of professional conduct and disciplinary actions. They impose certain standards of service and behaviour on legal professionals.
Even though the legal profession is self-regulating, the Law Society exists only as a creature of statute. S.34 of the ...view middle of the document...
He noted that
“there are certain standards of conduct to be expected of competent and reputable solicitors. A departure from these standards which would be regarded by competent and reputable solicitors as serious and reprehensible may properly be categorized as professional misconduct”.
He goes on to complete that when assessing a solicitor’s conduct “it will be essential to consider the whole circumstances and the degree of culpability.”
It is reasonable to say that this test denotes much flexibility and leaves much room for interpretation. It is similar to the test for negligence established in Hunter v Hanley, where it was held that a professional is acting negligently is he does something “which no professional man of ordinary skill would have taken if he had been acting with ordinary care.” Negligence could also amount to misconduct if it is serious enough.
Delay, neglect and incompetence on the part of a solicitor are some of the most commonly invoked grounds for complaints in disciplinary hearings and cases, but they seldom lead to striking off, since that would be considered as an excessive measure-it would leave the solicitor unable to practice the law again.
These manners of holding solicitors to account for their professional misconduct might be considered as unfair for the public, because there are often very few other ways available for redress outside of this system. This clearly points to the fact that the legal profession is a separate and self-regulatory body, rarely able to be reprimanded outside of its own circle. The question might, therefore, be whether this independence is actually of a positive nature, or should be more carefully scrutinized. If a profession is regulated by its own participants (in our case, by solicitors themselves), is it necessarily thoroughly regulated? Independence is needed for the profession, but many might argue that solicitors are often unlikely to be held accountable for anything at all. Courts are expensive and people usually need a faster, more direct way in which to hold their solicitors accountable for any potential mishaps. Citizens partaking in legal proceedings are not necessarily pleased at the way in which disciplinary measures are employed, because lawyers assessing their lawyer peers might appear too indulgent in dealing with such matters. A simple google search leads to many instances where solicitors were seldom reprimanded for misbehaving and they often returned to their jobs once investigations were over.
It is true that lawyers making their own rules and judging their colleagues might appear unfair. But the law itself is in the hands of legal professionals. It is judges, lawyers and advocates who know the most about the system, about what should be demanded from them, and about punishments involved for professional misconduct or negligence. The system is indeed independent and sufficiently robust, and should remain this way. There is no reason why any other body...