This chapter deals with misconduct by lawyers. It complements Chapter 3 which deals with regulatory codes and compliance, and Chapter 8 which deals with the fiduciary and other duties of lawyers derived from the general law. The conduct described in this chapter is that which involves culpability – or in other words, misconduct. In this book the term ‘misconduct’ is used to describe culpable behaviour. Breaches of rules and codes usually result from misconduct, but need not do so. Such breaches may involve penalties even in the absence of misconduct. Conversely, misconduct may be punished even in the rare circumstances in which it does not involve a breach of any Rule or Code.
The distinction between rule breaches and misconduct is particularly relevant to the position of individual lawyers practising within an entity which is in breach of rules. An entity may be in breach without misconduct; individuals formally responsible for compliance will also be in breach but may not be guilty of misconduct.
The fundamental principles governing misconduct are common to all branches of the legal profession. In this chapter, therefore, no general distinction is drawn between different types of lawyer (such as solicitors, barristers or licensed conveyancers) – although some types of misconduct are more relevant to lawyers in particular areas of practice. Thus, for example, conduct in relation to the handling of client money is particularly relevant for solicitors and licensed conveyancers.