This practice note is the Law Society's view of good practice in this area. It is not legal advice. [Read more]
Practice notes are issued by the Law Society for the use and benefit of its members. They represent the Law Society's view of good practice in a particular area. They are not intended to be the only standard of good practice that solicitors can follow. You are not required to follow them, but doing so will make it easier to account to oversight bodies for your actions.
Practice notes are not legal advice, nor do they necessarily provide a defence to complaints of misconduct or of inadequate professional service. While care has been taken to ensure that they are accurate, up to date and useful, the Law Society will not accept any legal liability in relation to them.
For queries or comments on this practice note contact the Law Society's Practice Advice Service.
The following sections of the SRA Code are relevant to this issue:
- Chapter 1: Client care - in particular, outcome 1.3 - when deciding whether to act, or to terminate your instructions, you comply with the law and the Code; and outcome 1.4 you have the resources, skills and procedures to carry out your clients' instructions
- Chapter 3: Conflicts of interests
- Chapter 4: Confidentiality and disclosure
- Chapter 5: Your client and the court
There are ten mandatory principles which apply to all those the SRA regulates and to all aspects of practice. The principles can be found in the SRA Handbook.
The principles apply to solicitors or managers of authorised bodies who are practising from an office outside the UK. They also apply if you are a lawyer-controlled body practising from an office outside the UK.
1.1 Who should read this practice note?
Solicitors practising in criminal law. This practice note has been updated to reflect that the Criminal Procedure Rules have been amended and the latest version is in force as of 7 October 2013.
1.2 What is the issue?
Issues arise when you are considering either withdrawing from representing a defendant, or taking on a transferred case, close to or in the course of the trial.
Once the criminal trial process is engaged, you owe professional obligations both to the defendant/s for whom you act, but also to the court.
This practice note gives advice on these issues.
For contextual information see:
1.3 Legal and other requirements
- Criminal Procedure Rules 2013
- Criminal Legal Aid (Determinations by a Court and Choice of Representative) Regulations 2013
2 Reasons to withdraw
You may withdraw from acting for a client in a criminal case, whether during the trial itself or during preparation for trial, where there are compelling reasons to do so.
2.1 Who determines whether there are compelling reasons?
The decision about whether compelling reasons to withdraw exist lies with you, not the court.
The Court in R v Ulcay agreed with the observations of Rose LJ in R v G and B when he said, at paragraph 14 of that case: ?We think it right, both in principle and pragmatically, that whether a solicitor or barrister can properly continue to act is a matter for him or her not the court, although of course the court can properly make observations on the matter.'
In R v Ulcay Judge LJ stated, at paragraph 30: 'The principle ... remains clear. The court cannot oblige the lawyer to continue to act when he has made a professional judgement that he is obliged, for compelling reasons, to withdraw from the case'.
2.2 What are 'compelling reasons'
You must withdraw from a case if you conclude that you are professionally embarrassed by continuing to act, in accordance with the Solicitors' Code of Conduct, and the professional obligations you owe to your client, and/or to the court.
This is to avoid breaching the code, and also prevent risk of punishment by the court, whether through a wasted costs order or, in more serious cases, prosecution for an offence against public justice.
2.3 Examples of compelling reasons
2.3.1 Obligations to clients
Where you are acting for two defendants a conflict of interest may arise.
You must withdraw from at least one client where this has occurred. Continuing to act would be in breach of Chapter 3 of the SRA Code on conflicts of interest.
You must withdraw from both clients if, by continuing to act for the remaining client, you would breach your duty of confidentiality to your former client contrary to Chapter 4 of the SRA Code on confidentiality and disclosure.
2.3.2 Obligations to the court
You must withdraw from a case if a client changes instructions in such a manner that for you to continue would involve you misleading the court, contrary to Chapter 5 of the of the SRA Code 'Your client and the court', in particular outcomes 5.1 that you do not attempt to deceive or knowingly or recklessly mislead the court, and 5.2 requiring that you are not complicit in another person deceiving or misleading the court.
3 Withdrawal when the client wishes to change solicitor
The retainer is a contractual relationship and subject therefore to legal considerations. In principle, a client can end the retainer with you at any time and for any reason. However, when a client is a defendant in criminal proceedings, different practical considerations apply to the determination of the retainer and withdrawal depending on client funding.
3.1 Where the client is privately funded
You must withdraw from a case if the defendant is privately funded and they terminate the retainer. You have no further authority to represent them.
3.2 Where the client is publicly funded
If the defendant is funded by legal aid then regulation 14 (change of provider) of the Criminal Legal Aid (Determinations by a Court and Choice of Representative) Regulations 2013 governs any application for a change of representation.
The court has the power to grant or refuse such an application.
The grounds for change are set out in regulation 14(3) and (4). You must provide details of either:
- the nature of the duty under the SRA Code of Conduct that you consider obliges you to withdraw from the case
- the particular circumstances that render you unable to represent the individual.
However, you must take legal professional privilege (LPP) into consideration as this may limit the information that you can give without your client's consent.
4 What should you tell the court when withdrawing?
You must inform the court of the reasons for your withdrawal, by providing enough explanation to enable the judge to decide how to proceed. However, in doing so you must not breach LPP.
This may mean that the court is not fully informed about the reasons for withdrawal or the nature of the breakdown between you and your client, but that cannot be avoided. Although the court can properly comment, the making of this decision rests solely with you.
5 Making an informed decision to accept a transferred case
You may decide whether or not to accept a retainer from a new client, but once you have accepted the retainer you may not later withdraw for reasons of practical difficulty which may result from your obligation to comply with court orders.
You must therefore be satisfied that you are able to comply with any orders already made by the court, including the length of any adjournment, before accepting instructions to act.
5.1 Replacing a solicitor at short notice
When considering taking over a case from another solicitor at short notice, you should make full inquiries of the court, asking to be given all the relevant information it can provide.
You should do this before accepting the case to ensure that you can comply with the court's requirements.
5.2 Difficulties arising from compliance with an adjournment order
If the defendant has changed their legal team close to, or during, a trial it is the responsibility of the trial judge to decide whether to adjourn the trial to accommodate new legal team, and for how long. Once you have accepted the retainer and assumed conduct of criminal litigation you have a professional obligation, as an officer of the court, to comply with these orders and to do your best for the client under those circumstances.
In R v Ulcay the Court of Appeal considered that a solicitor in such circumstances owes a duty to the court that requires them to ?soldier on'. If the trial judge's decision produces injustice or deprives the defendant of a fair trail, the remedy is to be sought in the Court of Appeal. See paragraphs 44 and 38 of the judgement.
5.3 How does compliance affect your professional obligation?
Complying with a court order that makes it impossible or difficult to achieve your normal standard of competence in looking after your client's interests does not put you in breach of the SRA Code, nor are you acting improperly or negligently.
6 More information
6.1 Practice Advice Line
The Law Society provides support for solicitors on a wide range of areas of practice. Practice Advice can be contacted on 020 7320 5675 from 8am to 6pm on weekdays.
6.2 Law Society publications
The Solicitors Regulation Authority's Professional Ethics Helpline for advice on conduct issues.
The Law Society is grateful to Christopher Murray of Kingsley Napley, former chair of the Criminal Law Committee, for his assistance with the Law Society's intervention, at the invitation of the Court of Appeal, in R v Ulcay, and in subsequently drafting this practice note. It is also grateful to other members of the Committee for their input.
This practice note has been amended to substitute references to sections of the SRA Code.
7 Terminology in this advice
Must - A specific requirement in legislation or of a principle, rule, outcome or other mandatory provision in the SRA Handbook. You must comply, unless there are specific exemptions or defences provided for in relevant legislation or the SRA Handbook.
- Outside of a regulatory context, good practice for most situations in the Law Society's view.
- In the case of the SRA Handbook, an indicative behaviour or other non-mandatory provision (such as may be set out in notes or guidance).
These may not be the only means of complying with legislative or regulatory requirements and there may be situations where the suggested route is not the best possible route to meet the needs of your client. However, if you do not follow the suggested route, you should be able to justify to oversight bodies why the alternative approach you have taken is appropriate, either for your practice, or in the particular retainer.
May - A non-exhaustive list of options for meeting your obligations or running your practice. Which option you choose is determined by the profile of the individual practice, client or retainer. You may be required to justify why this was an appropriate option to oversight bodies.
SRA Code - SRA Code of Conduct 2011
2007 Code - Solicitors' Code of Conduct 2007
OFR - Outcomes-focused regulation
SRA - Solicitors Regulation Authority
outcome - outcome
IB -indicative behaviour