2.1 Code of Conduct: Chapters Flashcards
Who is the Code of Conduct for - only private, or in-house too?
Both
What parts of CoC are mandatory?
Outcomes and Principles
Who is CoC binding on?
Non-lawyers (e.g. manager of ABS) and lawyers
What parts of CoC are not mandatory
IB
What Principle takes precedence if conflict
One that best serves public interest
What does ‘you’ include
Both firm and individual S
Three things to do if new client/instructions
Conflicts check, CCL and CDD (if MLR applies)
What Principle is most important for Chapter 1: Client Care
P(5) (proper standard of service)
3 things to consider before accepting new instructions
CDD may be needed, cannot breach law/CoC, and must know who client is
What should S do if instructions from 3rd on behalf of company
BM to check authorised
Is CCL mandatory?
No, but helps achieve Outcomes
What helps to achieve O(1.3)
Include paragraph in CCL informing client of potential need to cease acting if e.g. CoI
What must client be told in CCL
Regulation, sufficient info to make informed decisions, continuous estimate of costs, day-to-day supervisor, and responsibilities
What to do re: CCL if client established
Annual CCL + confirm instructions if new matter
What should S explain to client for costs
Hourly rates, disbursements, potentially may have to pay other side’s costs, plus VAT etc.
What should S consider re: costs to help client make informed decision
If outcome justifies cost, how fees will be calculated, and VAT + disbursements on top of fees
What must clients be told about regulation
Firms authorised and regulated by SRA
How must complaints procedure be set out and told to client
In writing and given at outset
Must inform client’s right to complain to who
Legal Ombudsman
What Principle is most relevant when terminating retainer
P(6) maintaining public trust
What is the general rule on ceasing acting for client
Only when matter complete
What does S need to cease acting for client
Good reason
Example of good reason to cease acting for client
Failing to pay bills or breach of CoC
Principle most relevant to Chapter 2, equality and diversity
P(9), encourage equality of opportunity and respect for diversity
Who has the main responsibility for complying w/ Chapter 2
Managers and partners
Can the firm priorities obligations (e.g. beliefs) to employees over Os to clients?
No
What is the basic rule under Chapter 2?
Do not discriminate unlawfully, and respect diversity
What must firms do under Chapter 2 for e.g. disabled clients
Make free reasonable adjustments
Is ‘discrimination’ defined in the CoC?
No
What reasonable adjustments might a firm be required to make to avoid discriminating?
E.g. finding a translator, but not taking on word re: religion they have insufficient knowledge of
What can a firm have to help comply with Chapter 2
Written diversity policy, training employees, and monitoring if policy needs updating
Is it mandatory to have a written diversity policy?
No
Three Principles that especially apply to Chapter 3
P(3) independence, P(4) BI, P(5) proper standard
When can S not act per O(3.4) & (3.5)
If own or client conflict
When can S act despite O(3.5) prima facie applying
If exceptions apply
Glossary definition of client conflict
Separate duties to act in BI of 2+ clients in same/related matter and duties conflict (or significant risk)
What is the ‘same/related matter’ for client conflict?
Same asset/matter, or reasonable relationship between the same
How to work out if exceptions apply to O(3.5)
Glossary –> specific IBs –> general IBs
Two general IBs disapplying exception to O(3.5)
Direct conflict or negotiating on substance
What is the definition of O(3.6) SCI
Clear common purpose and strong consensus, so conflict becomes peripheral
Specific IBs applying to O(3.6)
3.5, 3.12 and 3.11
What happens if O(3.6) does apply?
Need informed + written consent, reasonable to act, and benefits outweigh risks
When is O(3.6) likely to be in BI of clients
If similar work to be carried out for both
What is the definition of O(3.7) C4SO
If attained, becomes unattainable for other
How must the object be attained for O(3.7) to apply?
Liquidation, private auction or tender
When does O(3.7) NOT apply (for what kinds of clients)
C &D, seller & buyer
What three IBs apply specifically to O(3.7)
3.5, 3.6 and 3.13
What happens if O(3.7) applies?
Need informed and written consent, ensure employees only work for one client, reasonable to act and benefits outweigh risks
General rule on Chapter 4
Keep client info confidential and disclose all material info
How long does duty of confidentiality last
Forever, unless waived/in public domain/under statute
Which one takes precedence out of O(4.1) and O(4.2)
O(4.1) confidentiality
What should S do if unsure if O(4.1) duty of confidentiality overridden?
Liaise with COLP
When can S agree to act for A if confidential info on B which is material to A?
Safeguards in place
What happens if outsourcing e.g. photocopying to 3rd under Ch.4?
3rd must also safeguard
Exception to duties of confidentiality and disclosure
O(4.4) have safeguards
When does O(4.4) NOT apply (IB)
Lesser/no duty of disclosure, risk of serious injury, or prohibited by law
Two limbs to O(4.4)
Info must be both material AND adverse interest
When is info ‘material’ for O(4.4)
Material relating to particular matter - not info of general interest
What is an ‘adverse interest’ for O(4.4)
E.g. one party likely to become opposing party in dispute
What happens if only one limb applies under O(4.4)
May be able to act with safeguards if can maintain public trust (P(6))
When is O(4.4) likely to be used
If one client is a former client - UNLIKELy if both clients are current clients
Per Ch.5, what is S?
Officer of the court
What is S’s duty to the court?
Overriding
What must S inform client of re: duty to the court?
Of situations when duty to the court overrides O to client
Who do duties under Ch.5 apply to?
FIRM, so even if one lawyer not in attendance at court, still applies
What does deceiving under O(5.1) require
Knowledge
Does misleading the court require knowledge?
No - inadvertent
Which is more likely to = misconduct - deceiving or misleading the court?
Deceiving
What must S do if aware of misleading the court?
Inform court ASAP w/ client’s consent, or cease acting for client if client refuses
