1- Ethics - FLK2

Question 1

What is the position regarding a solicitor accepting instructions from a third party to draw up a will for a testator?

Answer 1

A solicitor should not accept instructions from a third party to draw up a will for a testator. They should interview the testator in the absence of the third party to ensure that any will drafted reflects the testator’s wishes.

Question 2

What should a solicitor do if they are being gifted something in the will?

Answer 2

They should ask the testator to get independent legal advice.

Question 3

What are the solicitor’s duties to a client in a will?

Answer 3

1) Explain to the client how to sign the will
2) Warning the beneficiaries
3) Warning those married / spouses / civil partnership regarding witnessing the will if they are a beneficiary
4) If the testator executes the will at home – solicitor should ask them to return the will so that the solicitor can check that s9 appears to have been complied with and that the witness are not the beneficiaries of their spouses or civil partners

Question 4

Does a solicitor owe a duty of care to beneficiaries?

Answer 4

Yes. There is a duty of care.

Failure to carry out these duties may lead to liability in negligence.

If a solicitor confirms (or anyone in the firm, even a secretary) that a will is ‘in order’ but it is not, the firm is deemed to be negligent and will have to pay damages to the relevant beneficiary to the amount that they should have received under the will

Question 5

What are the general ethical obligations in property practice?

Answer 5

Principle 7: We must act in the best interest of each client.

Para 6.2 of the SRA Codes supports this Principle, it sets down the basic rules that a solicitor cannot act if there is a client conflict or a significant risk of a client conflict.

Question 6

What is client conflict in property practice?

Answer 6

Defined in the SRA Glossary as ‘situation where your separate duties to act in the best interests of two or more client conflicts’.

Question 7

Can a solicitor act for both the buyer and seller?

Explain the ethical implications:
Conflict of interest
Substantially common interest
Competing for the same objective

Answer 7

High risk of conflict of interest (Para 6) = yes, one is buying and one is selling, will need to be negotiating for both.

‘Substantially common interest’ (Para 6.2(a))= it can be argued that the buyer and seller have a substantially common interest as they both have a common interest of completing the sale, but SRA did not consider that the seller and buyer have a substantially common interest, the 2011 code required any client conflict to be peripheral to the common purpose between the seller and buyer and that this would only occur in very rare circumstances.

‘Competing for Same objective’ (Para 6.2(b)) = doesn’t apply even if they are in a buyer/seller situation and not ‘competition’ for the same asset.

Question 8

How do firms assess the risk of conflict in a property transaction?

What does the Law Society Guidance say on conflict of interest in conveyancing?

Answer 8

*Up to the firm to assess the risk of a conflict and whether it is appropriate to act.

*In considering the risk, you should bear in mind:

Law Society Guidance on Conflict of Interest in Conveyancing which states.

-There is a high risk of conflict of interest if you act for both a buyer and seller

-Complexity : the more complex the transaction, the greater the risk of a conflict.

The likelihood of negotiations the more likely negotiations are, the greater the risk of a conflict. This is a risk especially where the transaction is a high value.

-The bargaining power of the parties and any particular vulnerability of a party : it is more difficult to act in the best interest of both clients if one has far greater bargaining power than the other.

Question 9

Explain when it is possible to act for clients even when paragraph 6.2 is breached if the circumstances of para 6.2(a) or 6.2(b) apply?

Property Transaction.

Answer 9

Substantially common interest = defined in the SRA Glossary as a situation where ‘there is a clear common purpose’ between the clients and a strong consensus on how it is to be achieved”

Competing for the same objective = allows a solicitor to act where clients are competing for the same objective, same asset for example.

Question 10

What if there is a conflict of interest part-way through the transaction? What should the solicitor do?

Property Practice.

Answer 10

Even if a solicitor is having regard to the Codes, if a conflict arises part-way through the transaction, they must cease acting for the client.

Question 11

Can a solicitor act for Joint Buyers?

Explain the ethical implications:
Conflict of interest
Substantially common interest
Competing for the same objective

Answer 11

High risk of conflict of interest (Para 6) = possibly

‘Substantially common interest’ (Para 6.2(a))= yes as they are buying the property as joint buyers and therefore have the same interest

‘Competing for Same objective’ (Para 6.2(b)) = depends if they are holding the title as equitable joint tenants or tenants in common – necessary to give advice about how they want to hold the property.

Question 12

Can a solicitor act for a borrower and a buyer?

Explain the ethical implications:
Conflict of interest
Substantially common interest
Competing for the same objective

Answer 12

High conflict of interest (Para 6)= The Law Society says that there is a risk of conflict of interest where:

1) the mortgage is not a standard mortgage
2) the mortgage is a standard mortgage but you do not use an approved certificate of title Solicitor needs to bear in mind the duty of confidentiality and disclosure (Para 6.3)

‘Substantially common interest’ (Para 6.2a) there is a substantially common interest provided the solicitor informs both clients of the following
1)Both clients have given their informed written consent
2)Effective safeguards have been put in place to protect any client confidential information
3)Solicitor is satisfied that it is reasonable for them to act for both clients.

Question 13

What is the position regarding contract races - what if the seller instructs the solicitor that they do not want other people to kow?

Answer 13

Paragraph 1.4 – where a solicitor acts for a seller, they must not mislead or attempt to mislead the buyers either by their own act or omission or by being complicit in the acts or omissions of others. Therefore, the solicitor should inform all buyer’s immediately of the seller’s intention to deal with more than one buyer.

Question 14

What is the duty of confidentiality (para 6.3) in terms of contract races?

Answer 14

If the seller refuses to give such disclosure, the solicitor cannot disclose the contract race to prospective buyers due to the duty of confidentiality, instead the solicitor should immediately stop acting in the matter.

Question 15

What are the obligations of a solicitor regarding undertakings?

Answer 15

Paragraph 1.3 – solicitors should perform all undertakings and do so within an agreed timescale. Failure to honour an undertaking is professional misconduct so a solicitor should always ensure that anything they undertake to do is within their control.

-Usually within ‘reasonable amount of time’.
-Undertakings are binding even if they are given in relation to something outside of the solicitor’s control.

Question 16

What are the Etridge guidelines in respect of matrimonial homes?

What should the lender do?

Answer 16

If lender uses a matrimonial home as security for a business loan, the lender should (with the borrowers consent) provide the solicitors with the following information:
1) Purpose for which the loan is being made available
2) The current amount of the borrower’s indebtedness
3) The amount of the current overdraft facility
4) The amount and terms of the new loan; and
5) A copy of any written application made by the borrower for the loan.

Question 17

What are the Etridge guidelines in respect of matrimonial homes?

What should the solicitor do?

Answer 17

The solicitor should:
1) Explain to the spouse the purpose for which the solicitor has become involved;
2) Explain that the lender will rely on the solicitor’s involvement to counter any suggestion that the spouse has been unduly influenced or has not fully understand the nature of the transaction; and
3) Obtain confirmation from the spouse that they wish the solicitor to act for them in the transaction, and to advise them on the legal and practical implications of the transaction.

The solicitor’s discussion with the spouse should take place at a face-face meeting in the absence of the borrower and the advice should be given in non-technical language.
*The nature and extent of the advice given will depend on the facts of the case, but should include an explanation of the nature of the documents, the practical consequences to the spouse of signing them and a warning as to the seriousness of the risk involved.
*It must be clearly explained to the spouse that they have a choice as to whether or not to proceed with the transaction and the solicitor should check whether the spouse wishes to proceed.
*Spouse should be asked whether they want the solicitor to write to the lender confirming that matters have been explained to them. The solicitor must not confirm this to the lender unless they have received the relevant documents from the lender and have express instructions from the spouse to do so.
*If the solicitor thinks that the transaction is not in the spouse’s best interest, they should give reasoned advice to that effect.
*If it is ‘glaringly obvious’ that the spouse is being ‘grievously wronged’ the solicitor should decline to act.
*One solicitor can advise both parties (do not need a separate solicitor to explain this to the wife).

^ same principles apply to civil partners, cohabitees, parent and child and any other situation where property is being charged in return for a loan that is not being made to all the property owners.

Question 18

Can the solicitor give regulated mortgage advice to a client?

Answer 18

If a solicitor is carrying out regulated activity in relation to a regulated mortgage contract, they must be authorised to do so under the Financial Services and Markets Act 2000.

A regulated mortgage includes one where the borrower is an individual and the lender takes a first legal charge over the property in the UK and at least 40% of the property is intended for occupation by the borrower or a member of their immediate family.

A solicitor can under the s237 exemption:

1) give very generic advice - what the different types of mortgages are.
2) Arrange on the execution of a mortgage chosen independently by the client or on the advice of an authorised person
3) If a solicitor does not have the required knowledge to provide generic advice, or the client requires specific advice, the solicitor should refer them to a person authorised by the FCA to provide that advice.

Question 19

If there is suspicious money laundering activity from a client, what should you do?

Answer 19

The solicitor must report to the firm’s nominated money laundering officer to comply with the Proceeds of Crime Act 2002 (the 2002 Act). It is for the nominated officer to decide whether an external report to NCA should be made and it is not for an individual solicitor to go directly to the NCA themselves.

Question 20

What should a solicitor say to a custody officer if they can no longer act for a client (e.g. the client has admitted to the truth but wants the solicitor to lie)?

Answer 20

That he is no longer able to represent the client for professional reasons.

Question 21

Can a solicitor disclose information between clients (criminal law)?

Answer 21

The solicitor can disclose information between clients as long as both clients’ consent (it is good practice to obtain this consent in writing); they are putting forward the same defence and the solicitor considers it in their best interests for it to be disclosed. Ensuring that the clients’ defences are consistent guards the solicitor against being used to fabricate a defence.

Question 22

A member of the defendant’s family contacts you and asks you to represent the defendant, what should you do?

Answer 22

• Contact the defendant and check if they want you to represent them.
• If you have reason to suspect that the instructions do not represent your client’s wishes DO NOT ACT, unless you have satisfied yourself that they do

Part 3.1 of the Code for Solicitors: you must only act for clients on instructions from the client, or someone properly authorised by them.

Question 23

A client gives you inconsistent instructions, what do you do?

Answer 23

A client giving inconsistent instructions is not an issue unless it becomes clear that the client changing their instructions with a view of putting forward false evidence before the court

1. You must not mislead or attempt to mislead the court
2. You must ensure statements to court are properly arguable
3. Do not place yourself in contempt of court

Question 24

If you are asked to disclose details of a clients case to a co-defendant (who is jointly charged) what should you do?

Answer 24

Should only do so with the clients express consent (ideally in writing)
* A solicitor owes a client a duty of confidentiality
* Such request is unlikely to be in the clients best interests. You should explain this to your client

Question 25

The prosecution asks you to commenct on the accuracy of a list of previous convictions which is inaccurate and incomplete - what do you do?

Answer 25

• You should decline to comment
• You must not mislead the court, but equally you must not breach your duty of confidentiality and disclose previous convictions without a client’s consent

Question 26

Criminal Practice

What next steps should you take if your client admits to guilt and intends to mislead police at interview?

Answer 26

• Solicitor must advise the client that they cannot attend the interview if the intend to deny having committed the offence.
• This would be a breach of the solicitor duty to not mislead the court
• Could attend the interview if it is ‘no comment’ as it is not false information but if the client insists of giving false information, solicitor should decline to act
• Police should not be told why and just for ‘professional reasons’

Question 27

What do you do if you are being asked to act for two or more clients accused of the same offence?

conflict of interest

Answer 27

Consider potential conflicts of interest.
* You must not act if there is a client conflict and
* You should inform the police that the second suspect should receive separate legal advice
* Exceptions do not apply to co-defendants as they do not have a substantially common interest and are not competing for the same objective

Even if two clients intend to both plead guilty
* could give rise to a conflict at mitigation stage as one client may wash to deny the seriousness of his involvement in an offence by blaming his co-defendant

Note. On arrival at the police station, if custody officer suggestes that there is a conflict, solicitor should ask the officer to clarify wheether they consider this to be the case but ultimately it is the solicitors decision alone whether the conflict exists not the police

Question 28

Your client tells you that they will plead not guilty despite admitting that they committed the offence - what should you do?

Answer 28

1. Advise the client of the merits of entering a guilty plea e.g. credit given and solicitor will be able to enter plea or mitigation
2. If your client insists on doing so then
   * You can continue to act, however
   * Client must be advised that you will be limited to representing the client by arguing that he has no case to answer i.e. merely putting the prosecution to proof.

Although you must act in your clients best interests, you also have a duty to
1. Act with honesty
2. Integrity
3. A duty to uphold the Rule of Law

Where to principles conflict, Code provides that one which takes precedence is the one which:
* Serves the public interest in the particular circumstances
* In light of this, the client should be advised to not lie

Question 29

Your client lies in the court, and you know they are lying - what do you do?

Answer 29

Must cease to act
* Have a duty to not mislead the court or be complicit in anyone else misleading the court
* Notwithstanding any breaches of the code, the client may be guilty of perjury or perverting the course of justice
* You must not place yourself in contempt of court, you must not inform the court for the reasons for withdrawal merely state that you are withdrawing for ‘professional reasons’ as you are under a continuing duty of confidentiality

Question 30

Your client has a defence but wants to plead guilty, what do you do?

Answer 30

Can continue to act but client will be unable to rely on any facts which may constitute a defence when giving a plea in mitigation.

Client should be dissuaded from entering a guilty plea purely for convience

Question 31

What is a solicitors duty with regards to disclosure of cases at trial?

Answer 31

• You are under a positive duty to assist the court by supplying any relevant authority from statute or case law; this includes highlighting instances where your opponent fails to cite a relevant case/statute (Para 2.7 Code for Solicitors)

However you are under NO DUTY to draw the court’s attention to facts or witnesses which are harmful to your clients case, that is the job of the prosection

Question 32

What should you do If your client suggests influencing the complainant to make them drop the case?

Answer 32

Advise the client not to do so.

Although influencing the complainant would
* Be in your client’s best interests
* Notwithstanding any breaches of the code, the client may be guilty of perverting the course of justice or seriously damaging his credibility.

If the client insists you must cease to act for client or otherwise you are in breach and you are under a duty to not mislead the court or be complicit in anyone else misleading the court
Further breach solicitor may face
* Para 2.1 you must not tamper with evidence
* Para 2.2 you must not seek to influence the substance of evidence
* Para 2.3 you must not induce or bribe a witness to change their evidence

Question 33

What should you do if your client informs you that he is guilty after he has been acquittted?

Answer 33

• Do nothing
• Solicitor owes his client an ongoing duty of confidentiality under Para 6.3 which lasts beyond the end of the retainer.
• Although you do have a duty to uphold the Rule of Law and proper administration of justice; and to act with honesty and to act with integrity
• Because court proceedings have completed there is no danger of the solicitor to mislead the court or to be complicit in anyone else misleading the court