1. Legal Regulation Flashcards
The Legal Services Act 2007 (LSA) allows non-lawyers to own and manage law firms under an Alternative Business Structure (ABS). An ABS status can only be granted by the Solicitors Regulation Authority (SRA), and the grant is given by way of an ABS licence. At least one of the managers or employees must be a lawyer of England and Wales, and the lawyer must have practised for a minimum of three years and must supervise the SRA regulated work undertaken by the ABS. An ABS, should it wish, could also carry out non-legal services, in order to become a multidisciplinary practice, but the non-legal services are not regulated by the SRA. A solicitor working for a multidisciplinary ABS is responsible for work that is non-legal in nature.
Which of the following statements best describes whether a solicitor working for a multidisciplinary ABS is obliged to adhere to the Conduct of Conduct for Solicitors and / or the Code of Conduct for Firms when carrying out non-legal work.
A-Yes, the solicitor must follow the Code of Conduct for Firms as the ABS is a regulated body.
B-Yes, the solicitor must follow the Code of Conduct for Solicitors as the solicitor is a regulated individual.
C-Yes, the solicitor must follow the Code of Conduct for Solicitors and the Code of Conduct for Firms because the solicitor and the firm are both regulated entities.
D-No, the solicitor does not need to follow the Code of Conduct for Solicitors as the work is non-legal services.
E-No, the solicitor is not does not need to follow the Code of Conduct for Firms as the work is non-legal services.
Option C is correct. In general, the SRA does not regulate non-legal activities but the SRA requires authorised bodies, such as an ABS, and authorised individuals, such as solicitors, to comply with the SRA’s regulatory arrangements. This means that SRA authorised individuals and authorised firms carrying out non-legal activities are subject to SRA regulation, and as such a solicitor (who is an SRA approved (authorised) person) working for an ABS (which is an SRA approved (authorised) entity) must adhere to the respective codes of conduct when conducting legal and non-legal work.
As a result, the other Options are wrong.
A newly qualified solicitor has notified the Solicitors Regulation Authority (SRA) of their intention to practice as a freelance solicitor. The SRA has processed the notification and entered the freelance solicitor’s details on to the SRA’s public register of solicitors. The freelance solicitor has basic insurance (ie something less than professional indemnity insurance). A new potential client has approached the freelance solicitor seeking legal assistance with the drafting and filing of court documents.
Which of the following best explains whether the freelance solicitor is able to assist the new potential client?
A-Yes, because the solicitor possesses the requisite post-qualification experience and has basic insurance in place.
B-Yes, because the work is non-reserved legal work and the solicitor has basic insurance in place.
C-No, because the solicitor does not possess three years post qualification experience, nor has appropriate and adequate insurance in place.
D-No, because the solicitor does not have adequate and appropriate insurance in place.
E-No, because the solicitor does not have the requisite three years post qualification experience.
Option C is correct. The request for legal assistance by the new potential client amounts to the conduct of litigation and therefore falls under the definition of reserved legal activities in the Legal Services Act 2007 (which means that option B is wrong). In order to carry out reserved legal activities a freelance solicitor must either be authorised by the SRA as a recognised sole practice or fall within the exception from authorisation set out in the SRA Authorisation of Individuals Regulations.
The solicitor is not authorised as a recognised sole practice.
To come within the exception freelance solicitors need to have three years post qualification experience and possess appropriate and adequate professional indemnity insurance (option A therefore is wrong). Basic client protection is not sufficient to meet the requirements of appropriate and adequate professional indemnity insurance. Given that the freelance solicitor is newly qualified, and does not possess the appropriate insurance cover, the freelance solicitor is prevented from accepting the instructions from the new potential client.
While options D and E correctly identify that the solicitor cannot act for the client, they are not the best answers, as neither fully describes why the solicitor cannot act.
A solicitor works for an unregulated employer. The solicitor has been asked by her employer to take instructions from a client, to draft a statement to file and serve at court and to attend court on behalf of the client to make oral submissions before the court.
Which of the following statements best describes whether the solicitor can pursue this work?
A-All solicitors, regardless of their employer’s regulatory status, can exercise a right of audience and conduct litigation.
B-Only solicitors from unregulated bodies can exercise a right of audience and conduct litigation.
C-Solicitors who are employed by an unregulated bodies must not seek to exercise a right of audience and conduct litigation.
D-Only regulated bodies can provide legal services that entail a right of audience and the conduct of litigation.
E-Only solicitors with three or more years post-qualification experience can exercise a right of audience or conduct litigation.
Option C is correct. The exercise of a right of audience and the conduct of litigation are reserved legal activities as defined by the Legal Services Act 2007. Solicitors offering legal services to the public from unregulated organisations are subject to practice restrictions, and this includes the restriction to undertake reserved legal services for the public or a section of the public. Due to the restriction, solicitors working for unregulated bodies must not seek to exercise a right of audience or conduct litigation, unless it is an exempt not-for-profit body or a community-interest company as defined by the Legal Services Act 2007.
As a result, all other options are wrong. Option E is also wrong because the ability to exercise a right of audience does not depend on a certain degree of post-qualification experience (although the ability to exercise rights of audience before higher courts does depend on the satisfactory completion of civil and/or criminal Higher Rights of Audience assessments).
A new Human Resources manager has started work at a firm of solicitors. He is concerned that the office building is not wheelchair accessible and raised this concern with the partners. The partners in the firm want advice on their obligations under the Equality Act 2010 (‘the Act’).
Must the partners install wheelchair access to meet their obligations under the Act?
A-No, because the firm is not under a duty to make any adjustments until a client raises the lack of wheelchair access as an issue.
B-Yes, because the firm is under a duty to make all necessary adjustments irrespective of whether the firm has any disabled clients.
C-Yes, because the firm is under a duty to make all reasonable adjustments and the cost of making the adjustments can be passed onto the clients.
D-No, because the firm is not under a duty to make any adjustments until a disabled client raises the lack of wheelchair access as an issue.
E-Yes, because the firm is under a duty to make reasonable adjustments, taking into account the cost of making the adjustment, the nature of the service being provided and the size of the firm.
Option E is the correct answer because s 29 of the Act imposes a duty to make adjustments and a service provider will be considered to have discriminated against a disabled person if they fail to make reasonable adjustments. In assessing whether the adjustments are ‘reasonable’, various factors will be considered, including the cost of making the adjustment, the nature of the service being provided and the size of the firm.
Options A and D are wrong because the firm is required to anticipate the possibility of disabled people using its service and make appropriate adjustments, rather than waiting for a client to encounter a problem or raise an issue.
Option B is wrong because the duty is not to make all ‘necessary’ adjustments but all ‘reasonable’ ones.
Option C is wrong because the cost of making any adjustments cannot be passed onto those using the service i.e. the clients.
A solicitor’s husband is a well-known actor. The husband is the subject of a scathing review of his latest acting role written by a female theatre critic. Both the solicitor and his husband are very upset by the review. One evening, having drunk a considerable amount of alcohol, the solicitor goes onto social media and makes various sexist remarks about the theatre critic.
Which of the following best describes the repercussions of the solicitor’s actions under the Equality Act 2010?
A-The solicitor’s actions are not unlawful under the Equality Act 2010, but they are likely to breach the rules of professional conduct.
B-The solicitor’s actions amount to victimisation.
C-The solicitor’s actions are not unlawful under the Equality Act 2010 and do not breach the rules of professional conduct.
D-The solicitor’s actions amount to direct discrimination.
E-The solicitor’s actions amount to indirect discrimination.
Option A is correct. The Equality Act 2010 only makes discrimination unlawful in certain contexts (eg in the provision of legal services and in the workplace). As the comments were made outside those contexts they do not amount to unlawful discrimination under the Act. The SRA Principles apply to a solicitor’s private life. Making sexist comments is likely to place the solicitor in breach of Principle 2 and Principle 6.
A firm offering conveyancing services to members of the public is set up by four individuals, none of whom are solicitors.
Which of the following best describes the position regarding the regulatory requirements which will apply to the proposed firm?
A-The firm must be authorised by the SRA.
B-There is no need for the firm to be authorised.
C-The firm must be authorised by an approved regulator.
D-The firm must be authorised by the Legal Services Board.
E-Authorisation for the firm is dealt with outside the Legal Services Act 2007.
Option C is correct. As the firm will be offering conveyancing services it will be carrying out reserved instrument activities – one of the reserved legal activities. The firm must therefore be authorised (option B is wrong) within the regulatory framework set down by the Legal Services Act 2007 (option E therefore is wrong). Authorisation can be given by any of the approved regulators (here probably the Council of Licensed Conveyancers) and is not restricted to the SRA (option A therefore is not the best answer). Option D is wrong; the Legal Services Board is responsible for the oversight of regulation, it does not authorise firms itself.
A solicitor sets up in practice to provide legal services to members of the public. The solicitor is authorised by the SRA.
Which of the following best describes the effect of authorisation?
A-The solicitor can provide all reserved legal activities.
B-The solicitor is only subject to regulation by the SRA in respect of the reserved legal activities they carry out.
C-The solicitor is only subject to regulation by the Legal Services Board in respect of the reserved legal activities they carry out.
D-The solicitor is absolved from the need to comply with any further regulatory requirements.
E-The solicitor will be subject to regulation by the SRA in respect of all the legal services they provide.
Option E is correct. An authorised provider is subject to regulation by their own regulator (here the SRA) in respect of all the legal services they provide, not just those falling within the definition of reserved legal activities. The SRA cannot authorise an individual to carry out notarial activities, and so the solicitor cannot carry out all types of reserved legal activity.
A solicitor decides to set up a niche business as a sole practitioner conducting medical negligence cases. The solicitor anticipates that they will regularly be dealing with damages claims in excess of £10 million. The solicitor will be authorised by the SRA as a recognised sole practice.
Which of the following best describes how the requirements in respect of professional indemnity insurance applies to the solicitor?
A-The solicitor can limit their liability at below £2 million.
B-The cover must be for at least £3 million.
C-Having taken out professional indemnity insurance the solicitor will be absolved from liability for negligence.
D-The cover will need to be in excess of the minimum terms and conditions set under the SRA Indemnity Insurance Rules.
E-The solicitor is not required to meet the minimum terms and conditions set under the SRA Indemnity Insurance Rules.
Option D is correct. As a recognised sole practice the cover required under the minimum terms and conditions is £2 million. The ability to limit liability below this sum only applies to freelance solicitors. The solicitor is required to take out ‘adequate and appropriate insurance’. Given the level of damages that the solicitor will be dealing with, the cover will need to be in excess of the minimum. Indemnity insurance does not absolve a solicitor from liability for negligence.
Having completed all the necessary training requirements, a woman has been offered a position as an assistant solicitor in the Family Department of a large firm of solicitors authorised by the SRA. In order to take up the offer, the woman will be applying for admission to the roll of solicitors. There is no reason to think that the application will be refused.
Is it necessary for the woman to obtain a practising certificate in order to take up the position?
A-No, because given the nature of the job the woman will not be carrying out reserved legal activities.
B-No, because the woman will not be a partner in the firm.
C-Yes, because the firm is authorised by the SRA.
D-Yes, because having a practising certificate is a mandatory prerequisite for being admitted to the roll of solicitors.
E-Yes, because otherwise in taking up the position the woman will be committing a criminal offence.
Option E is the best answer. The job is that of a solicitor. Section 1 Solicitors Act 1974, inter alia, requires anyone acting as a solicitor to have a practising certificate. Practising as a solicitor without satisfying the requirements of s 1 is a criminal offence. The requirement is not dependent on the firm being SRA authorised (option C is wrong). The requirement applies irrespective of whether the solicitor will be carrying out reserved legal activities (option A is wrong). The requirement applies to employed solicitors as well as partners (option B is wrong). Finally, option D is wrong as it is possible to be on the roll without having a practising certificate.
A managing partner of a law firm has interviewed two candidates for a newly-qualified position with the firm. One candidate was a man with a disability; the other was an able-bodied woman. The managing partner reasonably believes that people with disabilities are disproportionately under-represented at the law firm. The managing partner thought that both candidates were equally qualified for the role, although the woman did secure a better mark on her law degree.
Can the managing partner employ the man because of his protected characteristic?
A-No, because this would mean that the woman has been treated less favourably which would be unlawful.
B-No, because the man is not as qualified as the woman given her better law degree result.
C-No, because the recruitment of under-represented groups must also include quotas in order to align with the approach of positive action.
D-Yes, because it is a statutory requirement that positive action be taken.
E-Yes, because the managing partner reasonably believed that disabled people were disproportionately under-represented.
Option E is correct. Section 159 of the Equality Act 2010 allows employers, when deciding between two equally qualified candidates, to choose a candidate from an under-represented or disadvantaged group, so long as the employer reasonably thinks that people with a particular protected characteristic are disproportionately under-represented in the workplace.
Option A is wrong. So long as the requirements of s 159 are met, the law firm can take steps to address the disadvantages suffered by those who share a protected characteristic, even if this results in less favourable treatment of those who do not share that characteristic.
Option B is wrong. Positive action in the context of recruitment is permitted where the person with the protected characteristic is as qualified as those without that characteristic. However, ‘qualification’ is not restricted to having passed particular examinations, but instead relates to the overall suitability of the individual for the job.
Option C is wrong because positive action which includes quotas is regarded as unlawful.
Option D is wrong because positive action is not compulsory. Positive action is a voluntary provision.
An employer explains that all employees will have to work a monthly night shift pattern. This is to meet customer demand. The majority of employees agree to the night shift. One female employee is unable to work the night shift pattern as she is unable to find childcare for her children. She is dismissed.
Is the employer’s conduct prohibited?
A-Yes, because the female employee has been treated less favourably than the men have been treated in this situation.
B-Yes, because the employer has applied a new condition to the workplace that has potentially disadvantaged persons of one sex more than another.
C-No, because the reason for dismissal was because of the employee’s inability to comply with the imposition of the monthly night shift.
D-No, because the employer can show that the night shift is to meet customer demand.
E-No, because a male employee who is unable to meet the imposition of the monthly night shift due to childcare responsibilities would also be dismissed.
Option B is correct because this meets the test for indirect discrimination. The employee can establish that a criteria imposed by her employer disadvantaged her as belonging to a group of women generally and her personally. This is based on the case of London Underground v Edwards (1986).
Option A is wrong because the reason the female employee is dismissed is because she cannot work the night shift – not because she is female. This is the test for Direct Discrimination.
Option C is wrong. It is relevant for the purposes of Indirect Sex Discrimination that the female did or did not have childcare issues. This is because she must show both group disadvantage and personal disadvantage. Thus, the fact that other female employees could comply would not prevent the claim. This is the group test for Indirect Discrimination
Option D is wrong because although there is a justification defence for Indirect Discrimination, it is unlikely that making all employees work without consultation would be deemed proportionate.
Option E is wrong because following London Underground Ltd V Edwards (1998) the tribunal must compare the proportion of women within the pool for comparison who suffer a disadvantage with the proportion of men who do not. The Court of Appeal decided that it is more likely that women would have caring responsibilities than men. National statistics were used to support this view. Thus, although a male employee would suffer a personal disadvantage, he would not be able to establish a group disadvantage.
All solicitors must apply to the Solicitor’s Regulation Authority (SRA) for a practising certificate in order to provide legal services to members of the public and it is an offence for an individual to hold out that they are a solicitor if they do not possess a practising certificate. All solicitors must ensure that they are competent.
Which of the following statements best describes what steps the solicitors must take to ensure their competence?
A-All solicitors do not need to take any steps because admittance to the roll of solicitors is sufficient reflection of competence.
B-All solicitors do not need to take any steps because their competence is assessed through the number of negligence claims.
C-All solicitors do not need to take any steps because their competence is assessed through client satisfaction or complaints.
D-All solicitors must record, reflect and continue their competence through accredited training.
E-All solicitors must record, reflect and continue their competence by recording activities that will help deliver a proper standard of service.
Option E is correct because under the new regime of continued competence, all solicitors must record, reflect and continue their competence through a choice a activities, which need not be accredited) to ensure that they are competent in their areas of law.
Option A is wrong because admission and continued professional competence are two separate regulatory components.
Option B is wrong because negligence claims is not used as a measure for continued competence.
Option C is wrong because client complaints or satisfaction is not used as a measure to assess a solicitor’s continued competence.
Option D is wrong because solicitors are no longer required to attend accredited training courses to demonstrate continued competence.
A solicitor is issued with and accepts a police caution as a result of a road traffic incident. This is the first time that the solicitor has had any involvement with the police. The solicitor’s firm reviews the matter internally and the solicitor keeps his job.
What action should the solicitor take?
A-The solicitor does not need to do anything because the matter has been resolved with his firm and the police.
B-The solicitor must tell the Solicitors’ Regulation Authority about the police caution.
C-The solicitor does not need to do anything because the caution is unrelated to their legal practice.
D-The solicitor must immediately re-apply for a practising certificate.
E-The solicitor must tell all of their clients about the police caution.
Option B is correct. Under paragraph 7.6 of the SRA Code of Conduct for Solicitors, RELs and RFLs, a solicitor must inform the SRA promptly if they are subject to any criminal charge, conviction or caution.
Option A is wrong. Even thought the matter has been resolved with the police and the firm, the solicitor must still comply with the SRA Code of Conduct.
Option C is wrong. It does not matter that the police caution is unrelated to the solicitor’s legal practice. They must still comply with the SRA Code of Conduct and inform the SRA of the caution.
Option D is wrong. The solicitor is not required to re-apply for a practising certificate. However, the SRA may take this new information into account during the annual application for renewal.
Option E is wrong. There is no obligation on the solicitor to tell their clients about the caution.
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B-
C-
D-
E-
