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SQE1 - Legal Services > 5. Financial Services > Flashcards

5. Financial Services Flashcards

1
Q

What is the general prohibition under the Financial Services and Markets Act 2000?

A

No person may carry on a regulated activity in the UK unless they are authorised or exempt from authorisation

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2
Q

What is a regulated activity?

A

A specified activity in relation to a specified investment carried out in the course of business to which no exclusions apply

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3
Q

What are the five specified activities which are regulated?

A

ADAMS

  1. Advising
  2. Dealing as Agent
  3. Arranging
  4. Managing
  5. Safeguarding
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4
Q

What is advising?

A

Giving advice to an investor on the merits of buying, selling, subscribing for, or underwriting a particular investment

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5
Q

What is dealing as an agent?

A

Actually buying, selling, subscribing for, or underwriting a particular investment for another person

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6
Q

What is arranging?

A

Making arrangements for another person to buy, sell, subscribe for, or underwrite a particular investment

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7
Q

What is managing?

A

Managing assets belonging to another person in circumstances which involve the exercise of discretion

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8
Q

What is safeguarding?

A

Protecting and administering assets belonging to another person

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9
Q

What are the six specified investments most relevant to a solicitor which are regulated?

A

I Should Drink Milk for Power and Fun
1. Insurance contracts
2. Shares/securities
3. Debentures
4. Mortgage contracts
5. Pension schemes
6. Funeral plans

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10
Q

What are two things which are not specified investments?

A
  1. Interests in land
  2. National savings products, e.g. Premium Bonds
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11
Q

When must the conduct be carried out to breach the general prohibition?

A

In the course of business

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12
Q

What is the Designated Professional Bodies exemption which means a regulated activity would not violate the general prohibition at all?

A

If a solicitor provides a regulated activity incidentally to the provision of legal advice and does not receive compensation for this from anyone else without accounting to the client for it, it is exempted

So, for example, you might have:

  • provided debt counselling in respect of joint credit card debts in a matrimonial matter
  • advised a client on how they should invest monies when advising on a will or probate matter.
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13
Q

How is whether an activity is incidental determined for the purposes of the Designated Professional Bodies exemption?

A

By considering whether the activity is incidental:

  1. To the work the firm does as a whole, and
  2. To the client’s particular matter
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14
Q

What are some limitations of the Designated Professional Bodies exemption?

A

It does not apply to activities contained in the SRA Financial Services (Scope) Rules

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15
Q

What are some activities in the SRA Financial Services (Scope) Rules to which the Designated Professional Bodies exemption does not apply?

A
  1. Recommending a client get rid of any rights under a personal pension scheme
  2. The firm entering into a regulated credit agreement as lender (except in relation to the firm’s fees)
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16
Q

In order to provide incidental financial services under the Designated Professional Bodies exemption, what two special rules does the SRA impose on firms?

A

Firms must:

  1. Let clients know at the outset that the firm is regulated by the SRA and not the FCA, and
  2. Confirm that the client is coming to the firm for this incidental service and has not sought/relied upon any advice from the firm in relation to the transaction
17
Q

What are four exclusions that will render a specified activity in a specified investment not a regulated activity?

A
  1. Takeover exclusion
  2. Acting as trustee, nominee, or personal representative
  3. Introducing or acting through an authorised person
  4. The necessary exclusion
18
Q

What is the takeover exclusion that will render a specified activity in a specified investment not a regulated activity?

A

A solicitor can deal as agent, arrange, or advise with respect to a client who is buying/selling 50% or more of the voting shares of a company, or when the object of the transaction is taking control of the company’s day-to-day business, *then also less than 50% would be sufficient

19
Q

What is the introducing/acting through exclusion that will render a specified activity in a specified investment not a regulated activity?

A

A solicitor may arrange/act as an agent with respect to specified investments if the client receives advice from an authorised person and the solicitor is merely assisting the client in acting on this advice

20
Q

In what two circumstances is the introducing/acting through exclusion that would render a specified activity in a specified investment not a regulated activity not available?

A
  1. Where the specified investment is an insurance contract
  2. Where the solicitor received payment/commission from the authorised person/any source other than the client
21
Q

What is the necessary exclusion that will render a specified activity in a specified investment not a regulated activity?

A

It is not a violation of the general prohibition to carry on an activity (other than managing) if the activity is reasonably regarded as a necessary part of providing legal services

22
Q

In what three circumstances is the necessary exclusion that would render a specified activity in a specified investment not a regulated activity not available?

A
  1. Where the activity is managing
  2. Where the activity relates to insurance policies
  3. Where the activity is billed separately from the main legal advice
23
Q

What is the difference between an exemption and an exclusion?

A

An exemption is from the requirement to be authorised under the general prohibition, so all conduct would be excusable under this. An exclusion goes to whether or not the conduct is a regulated activity and therefore caught by the general prohibition, but is not available in all circumstances.

24
Q

Even though they are very similar, what is the key advantage of the Designated Professional Bodies exemption over the necessary exclusion?

A

The Designated Professional Bodies exemption is available for managing, and for activities related to insurance policies, but the necessary exclusion cannot be used in these circumstances.

DPB will always be a better answer choice, but note the instances when it is not available.

25
Q

If a firm wishes to carry out activities in relation to insurance policies, what additional requirements does the SRA impose?

A
  1. Notify SRA that the firm is carrying out activities related to insurance policies
  2. Become part of a register of providers
  3. Appoint an insurance distribution officer
26
Q

Overview: General Prohibition and Regulated Activities

A

SQE1 - Legal Services (5 decks)

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