Book reviews

Alan Paterson and Bruce Ritchie
PUBLISHER: W GREEN
ISBN: 0 414 01439 8
PRICE: £60

“Of course, in practice the code of ethics is viewed by most lawyers in the same way career criminals view the criminal code – more in the nature of suggestions than actual rules governing one’s professional conduct.”

This quote comes from an airport pot-boiler, The Colour of Law by Mark Gimenez, approximately the 121st novelist to be titled the “next John Grisham”. I read it on the same holiday on which I read the bulk of Paterson and Ritchie’s less catchily titled, but infinitely more valuable and considerably more detailed exposition. But like Paterson, Gimenez has much to say about US legal morals. The comparison was illuminating.

Far less important works than Paterson & Ritchie have attracted the comment “no solicitor should be without it”. But never has it been more true. This book should not be kept until it becomes a necessary work of reference for one’s own problems. It might keep those problems away. I defy any solicitor to read it through without at least one toe-twitching frisson of self-recognition.

Much more than a descriptive manual of the apparent current position, the book aims to provide practical answers. While in regular use among Diploma students (the course on professional ethics being the origin of at least some of the text), the subjects it covers are emphatically not among those to be learned when young and then forgotten in practice.

A major first chapter on Standards highlights the vital differences between professional misconduct, professional negligence and the new kid, inadequate professional service. There follow what might be termed the substantive modules – obtaining and retaining clients (including advertising); deciding whether to act (including money laundering considerations); taking instructions; and extent of authority.

Three chapters then form the heart of the subject. “Confidentiality” extends to dealing also with what is usually termed solicitor-client privilege. These concepts are difficult to distinguish and explain, but this is a valiant attempt. Declaring an obsession of mine, the particular issues in this area in relation to taxation might have been addressed.

The largest chapter is devoted to conflict of interest, and resists the frankly unrealistic approach of a recital of bare prohibitions. Conflicts can and do arise and are often apparent only with a degree of hindsight. It is vital to have a clear guide to what can be done, beyond a counsel of despair.

Chapters follow on the solicitor/client relationship (including its termination), the accounts rules, and matters about charging. Arguably the book could have survived without all of those subjects, especially as a comprehensive account would demand more space than is available.

There are sections on duties to third parties, professional colleagues and the court. The rules are set out clearly – and it is safe to say that the authors would disagree with this passage from The Colour of Law: “Neither the prosecutor nor the defense attorney is concerned with truth or justice: truth is whatever they can get a jury to believe, and justice is when they win”.

Apart from some appendices of sources, the final chapter deals with the regulatory framework, in relation both to the rules enabling a solicitor to practise, and to the (current) methods under which complaints are raised and discipline exercised. Whatever disciplinary procedures will apply in future, it is a safe bet that careful consideration of the preceding chapters would render less necessary a working knowledge of this last one.

One of the great problems in this field is the dearth or vintage of actual Scottish authority. The authors do not shy away from this, providing examples and reasoned solutions from other parts of the world where appropriate. Some will disagree as to the weight given to such material, and it does require to be used with care. But it may well be in time that Paterson & Ritchie itself will be treated as more than an advisory source, as authorities draw on its views on disputed issues. There are large gaps in our law and practice and these vacuums require to be filled.

Unlike the hero in The Colour of Law, Paterson & Ritchie would deny any dichotomy between being a good lawyer and retaining one’s integrity. But questions in that connection still have to be asked – thanks to this work, in Scotland at least we now have a better chance of getting some answers. I cannot claim (nor, I think, would its authors) that Law, Practice and Conduct for Solicitors is light holiday reading. But reading and absorbing the lessons within it may well make the holiday a more relaxing experience.

Alan R Barr, Legal Practice Unit, University of Edinburgh; Partner, Brodies LLP