Unit 2: Duties and Responsibilities

Any regulated adviser works to a code of standards that is set by their regulator. While there is no unified code, there are a number of themes that are common to all codes. Regardless of who their regulator is, your adviser should:

1. Not break the law! (or encourage you or anyone else to break the law)
2. Act in your best interests
3. Keep your case confidential
4. Behave with honesty and integrity towards everyone
5. Provide competent advice and representation
6. Meet any deadlines
7. Be transparent about fees and charges
8. Do the work they have been paid to do
9. Keep you informed of progress
10. Treat you with dignity and respect

Regulated advisers have 3 core duties:

An adviser's first duty is always to their client: they must act in their client's best interests. The client is the person who is 'giving instructions' - i.e. explaining their problem and what they would like to do about it. It doesn't matter where the money comes from - even under legal aid. An adviser's duty is to the client, not to the government or the legal aid agency.

Example:

Feroz is a destitute asylum seeker. He borrowed money from his brother to pay a solicitor to help him with his claim. His solicitor did not tell him he was eligible for legal aid. What's wrong here?

In practice, most of the above duties, as well as many others, flow from this one duty. For example, if you are not competent, or you miss deadlines, then you are not acting in your client's best interests. However this duty is circumscribed by one other: honesty, as outlined below.

All legal adviser's have a duty of confidentiality towards their clients which goes significantly beyond most professions' duty of confidentiality (this is sometimes referred to as 'legal privilege.') The only likely scenarios where this duty may be breached are cases of money laundering or terrorism, or where there is a risk of serious harm to others.

Example:

Sheena entered the UK as a visitor and has overstayed her visa. She sought advice on claiming asylum. However she was unhappy with the advice she received and has decided not to pay the adviser. The adviser has threatened to notify the Home Office that she is an overstayer if he does not receive payment. What's wrong here?

Advisers are not permitted to lie on behalf of their clients - even if it would be in their client's best interests to do so! Similarly, advisers cannot permit their client to lie about something that is relevant to their case while they a representing the client. A lie in this context includes any form of deception, including accidental deception.

Example:

Arnold has applied to extend his partner visa. With his application he submitted a forged letter from a surveyor confirming the family's property is adequate, because he could not get hold of the surveyor in time. He informs his adviser of this the day before an appeal hearing. What should Arnold's adviser do?

This duty does extend to not deliberately abusing procedures (which would be an implied form of deception.)

Example:

Tofiq is a refused asylum seeker who has exhausted his appeal rights and is facing removal from the UK. The Home Office are anxious to remove him next week before his travel document expires, as it may take months or years to obtain a new one. He has limited family ties in the UK. His solicitor advised him that an application on this or any other basis will not succeed. Nonetheless, his solicitor has offered to make an application for judicial review and seek an injunction preventing his removal. Although the application will not succeed, the travel document is likely to expire before the matter is resolved and Tofiq's removal will not be able to take place for the foreseeable future. What's wrong here?

Principle 1: Act in a way that upholds the Rule of Law and proper administration of justice

Codes - You must:

1.1 Act in accordance with UK Law.

1.2 Not knowingly or recklessly allow clients, the Commissioner, the Home Office, the courts and tribunals and/or third-party agencies to be misled.

1.3 Not abuse any judicial and/or immigration process.

Principle 2: Behave with honesty and integrity

Codes - You must:

2.1 Conduct yourself with honesty and integrity in all your dealings.

2.2 When providing immigration advice or services to clients, or when interacting with prospective clients or third parties, clearly identify yourself.

...

2.8 Inform your client(s) of the availability of Legal Aid and free legal advice where appropriate.

Other regulators adopt a similar position.