A3 Professional Conduct Flashcards
SRA Principle 1: Act in a way that upholds… and
Upholds the constitutional principle of the rule of law, and the proper administration of justice
SRA Principle 2: Act in a way that upholds…
Upholds public trust and confidence in the solicitors’ profession and in legal services provided by authorised persons
SRA Principles 3 to 5: Act with…
Independence, Honesty, Integrity
SRA Principle 6: Act in a way that encourages
Equality, diversity and inclusion
SRA Principle 7: Act in the … of each client
Best interests
Maintaining Trust and Acting Fairly, Code/Firms’ Code, 1.1: Do not unfairly discriminate by…
Allowing personal views to affect professional relationships and the way in which you provide your services
Maintaining Trust and Acting Fairly, Code/Firms’ Code, 1.2: Do not abuse your position by
Taking unfair advantage of clients or others
Maintaining Trust and Acting Fairly, Code/Firms’ Code, 1.3: Perform all undertakings…
Within agreed timescale or within reasonable amount of time
Maintaining Trust and Acting Fairly, Code/Firms’ Code, 1.4: Do not…
Mislead client, courts or others either on your own or by being complicit
Dispute Resolution, Code, 2.1 - 2.3 (Evidence)
- 2.1 Do not misuse or tamper with evidence
- 2.2 Do not influence substance of evidence (e.g. false evidence)
- 2.3 Do not provide benefits to witnesses
Dispute Resolution, Code, 2.4 (Assertions)
- Only make assertions/statements/ representations/submissions
- To court or others
- Which are properly arguable
Dispute Resolutions, Code, 2.5 (Court orders)
- Do not place yourself in contempt of court
- Comply with court orders
Dispute Resolution, Code, 2.6 (Court’s time)
Do not waste the court’s time
Dispute Resolution, Code, 2.7 (Court’s attention)
- Draw court’s attention to relevant cases/statutes/procedural irregularities
- Which are likely to have material effect on outcome
Service and Competence, Code, 3.1 (Instructions)
- Only act on instructions from client or authorised person
- If acting with legal authority without instructions, you are to protect client’s best interests
Service and Competence, Code, 3.2 (Service)
Ensure that service to clients is competent and timely
Service and Competence, Code, 3.3 (Competence)
Maintain competence, keep professional knowledge and skills up to date
Service and Competence, Code, 3.4 (Client’s needs)
Consider client’s attributes, needs, circumstances
Service and Competence, Code, 3.5 (Supervision)
- Remain accountable for work by those you supervise/manage
- Effectively supervise work done for clients
Service and Competence, Code, 3.6 (Managing individuals)
Ensure individuals you manage are competent to carry out role and keep their professional knowledge, skills, and knowledge of ethical obligations updated
Client Money and Assets, Code, 4.1 (Properly account to clients…)
For any financial benefit you receive as a result of their instructions
Unless agreed otherwise
Client Money and Assets, Code, 4.2 (Safeguard…)
Money and assets entrusted to you by clients and others
Client Money and Assets, Code, 4.3 (Do not hold client’s money unless…)
Do not personally hold client money save as authorised by regulations
Or unless you work in an authorised body
Referrals, Code, 5.1 (Financial interest in referral, fee sharing arrangements, when you cannot refer clients)
- Clients should be informed of financial or other interest in referral
- Clients should be informed of fee sharing arrangement
- Fee sharing arrangement in writing
- No referrals in respect of clients in criminal proceedings
Referrals, Code, 5.2 (Presumption of referral fee)
Where it appears to SRA that you have made a referral fee, it will be treated as such unless you show otherwise
Referrals, Code, 5.3 (When you can refer client to separate business)
Only refer client to separate business, or divide work with separate business, with client’s consent
Other business reqs, Code, 5.4 (Rule on use of “solicitors” in business)
Don’t be manager, employee, member of a business saying “solicitors” unless it is an authorised body
Other business reqs, Code, 5.5 (On annual returns)
Solicitors with practising cert must deliver annual return in prescribed form
Other business reqs, Code, 5.6 (Indemnity insurance)
Need for indemnity insurance for reserved legal activities
- Exercise of right of audience, conduct of litigation, reserved instrument activities (property), probate, notarial, oaths
Conflicts: Define “own interest conflict”
Conflict with personal interest or interest in related matter (or significant risk of such conflict)
Conflicts: Define “conflict of interest”
Conflict between separate duties to act in the best interests of two or more clients
Conflicts, Code, Firms’ Code,6.1 (Own interest conflict)
Cannot act if there is own interest conflict or significant risk of it
Conflicts, Code. Firms’ Code, 6.2 (Not to act where conflict of interest unless…) (4)
- Clients have substantially common interest/competing for same objective
- Clients have given informed consent in writing
- Effective safeguards to protect confidential information
- You are satisfied it is reasonable to act for all the clients
Conflicts: Define “substantially common interest”
- Clear common purpose between clients
- Strong consensus on how it is to be achieved
Conflicts: Define “objective” in “competing for the same objective”
Asset, contract, or business opportunity which 2 or more clients are seeking to acquire / recover in insolvency / auction or tender process
Confidentiality and Disclosure, Code, Firms’ Code, 6.3 (2 exceptions to confidentiality)
- Keep affairs of current and former clients confidential
- Unless law requires or client consents
Confidentiality and Disclosure, Code, Firms’ Code 6.4 (4 situations where you don’t need to inform client of all information in matter)
- Disclosure prohibited by legal restrictions in interest of national security or crime prevention
- Client gives written informed consent
- Reason to believe serious physical or mental injury in event of disclosure
- Information was in a privileged document disclosed by mistake
Confidentiality and Disclosure, Code, Firms’ Code 6.5 (2 conditions before you can act for client with adverse interest)
For clients with adverse interest to current / former client / you / business /employer, only if:
- Effective measures in place - no real risk of disclosing confidential info
- Current or former client’s written informed consent
Cooperation and Accountability, Code, 7.1 - 7.5
- 7.1 Keep up to date with law and regulation
- 7.2 Able to justify decisions and actions to demonstrate compliance with SRA regulatory reqs
- 7.3 Cooperate with SRA in investigations
- 7.4 Respond promptly to SRA
- 7.5 Do not attempt to prevent anyone providing info to SRA
Cooperation and Accountability, Code, 7.6 (Inform SRA of 3 things)
- Subject to criminal charge, conviction, caution
- Relevant insolvency event occurs to you
- Become aware of material change to info OR that info you provided may be false, misleading, incomplete, inaccurate
Cooperation and Acountability, Code, 7.7 - 7.10
- Promptly report..
- Inform SRA of..
- Do not subject..
- Act promptly if..
- 7.7 Promptly report to SRA any potential breach by others
- 7.8 Inform SRA of any facts or matters that should be brought to its attention in order that it may investigate
- 7.9 Do not subject any person to detrimental treatment for proposing to make report or give info to SRA
- 7.10 Act promptly if SRA requests remedial action, investigate breaches if requested by SRA
Cooperation and Accountability, Code, 7.11 (Firms, 3.5) (4 things to do when things go wrong)
- Be…
- Put …
- Explain…
- Investigate…
- Be honest and open with clients if things go wrong
- If client suffers loss or harm, put matters right if possible
- Explain fully and promptly what has happened and likely impact
- If SRA asks, investigate if anyone has claim against you
Client Identification, Code, 8.1
Identify who are acting for in relation to any matter
Complaints Handling, Code, 8.2 (Complaints procedure)
Ensure that you have a procedure for handling complaints in relation to legal services
Complaints Handling, Code 8.3 (Right to complain)
Inform clients in writing At time of engagement, about - Right to complain - How and to whom - Right to complain to Legal Ombudsman
Complaints Handling, Code 8.4 (What you must do if complaint not resolved within 8 weeks)
- What to inform clients of
- What to inform clients of if complaints procedure exhausted (3)
Inform clients in writing of:
- Right to complain to Legal Ombudsman and how
If your complaints procedure exhausted:
- That you cannot settle complaint
- Name and website of ADR approved body
- Whether you agree to use that ADR scheme
Complaints Handling, Code, 8.5 (Ensure that complaints are dealt with … ) (3)
Promptly, fairly, free of charge
Client Information, Code, 8.6:
Give clients information in a way that…
Ensure they can make informed decisions about …(3)
…they can understand
The services they need, how their matter will be handled, and options available to them
Client Information, Code, 8.7: Give clients best possible information about … (3 things relating to costs)
How their matter will be priced
Likely overall cost of matter
Any costs incurred
Publicity, Code, 8.8: Publicity about your practice must be .. and not..
Accurate, not misleading
Publicity, Code, 8.9: Do not make unsolicited approaches to advertise unless to…
Your current or former clients
Client information, Code, 8.10 - 8.11 (Client’s knowledge of regulations)
- 8.10: Ensure clients know how your services are regulated
- 8.11: Ensure clients know regulatory protections available to them
Maintaining Trust and Acting Fairly, Firms’ Code, 1.5: Monitor, report and publish
Workplace diversity data, as prescribed by SRA
Compliance and Business Systems. Firms’ Code, 2.1: You must have….
Effective governance structures, arrangements, etc. to ensure compliance with SRA’s regulatory arrangements
Compliance and Business Systems, Firms’ Code, 2.2 - 2.5 (records, accountability, finances, identifying risks)
- 2 Maintain records to show compliance
- 3 Remain accountable for compliance
- 4 Actively monitor financial stability and business viability and effect orderly winding-down if needed
- 5 Identify and monitor all material risks to business, including those from connected practices
Firms’ Code, 8.1 (Managers in SRA authorised firms)
If management is shared, responsibility is …
If you are a manager, you are responsible for compliance of firm.
Responsibility is joint and several
Definition of “manager” in Firms’ Code
Sole principal, LLP member, director of company, partner, member of governing body
Firms’ Code, 9.1 - 9.2
- 1 - compliance officers for legal practice
9. 2 - compliance officers for finance and administration
Accounts: 2.1 (Definition of client money)(4)
Money received or held by solicitors
- Relating to regulated services
- On behalf of a 3P in relation to regulated services
- As trustee or holder of specified office / appointment
- in respect of fees / disbursements if received before bill is delivered
Accounts 2.2 Client money for fees / disbursements need not be paid into client account if.. (4)
- Only client money you hold is fees/disbursements
- You do not hold a client account for any other reason
- Money held for disbursements is for expenses that you are liable for (e.g. counsel or expert fees)
- You have informed client in advance where and how money will be held (that it will not be ring fenced)
Accounts, 2.3: Client money must be paid into client money unless (3)
- (For 2.1(c)) Conflict with obligations under specified office/appointment
- Client money is payment of costs by Legal Aid
- Alternative arrangement agreed with client in writing or 3P
Accounts, 2.4 (Availability of client money)
Ensure that client money is available on demand unless there is alternative arrangement in writing with client or 3P
Accounts, 2.5 (Returning client money)
Ensure that client money is returned promptly as soon as there is no longer any proper reason to hold those funds
Accounts, 3.1 (Where your client account must be)
With a branch or head office of bank or building society in England and Wales
Accounts, 3.2 (What must name of client account include) (2)
- Name of authorised body
- The word “client” to distinguish it from other accounts
Accounts, 3.3 (What you cannot use client account for)
Providing banking facilities to clients or 3Ps
Accounts, 4.1 (Separation)
Keep client money separate from money belonging to authorised body
Accounts, 4.2 (Allocation)
Ensure that you promptly allocate any funds from mixed payments to client account or business account
Accounts, 4.3 (What to do if client money is used to pay your costs) (3)
- Give bill of costs or written notification to client
- Do this before transferring money from client account
- Payment must be for specific sum in bill
Accounts, 5.1: You can only withdraw money from client account … (3)
- For purpose for which it is being held
- Following receipt of instructions from client or 3P for whom it is held
- SRA’s prior written authorisation
- (Or to pay your costs: see 4.3)
Accounts 5.2 (Supervision of withdrawals)
Appropriately authorise and supervise all withdrawals made from a client account
Accounts, 5.3 (Sufficiency of funds)
Only withdraw client money from client account if sufficient funds are held on behalf of that specific client or 3P to make payment
Accounts, 6.1 (When to correct breaches; what to do if money improperly held or withdrawn)
- Duty to correct breaches promptly
- Money improperly held or withdrawn must be immediately paid back into account or replaced
Accounts, 7.1 (Interest on client money; exception)
- Account to clients for fair sum of interest on any client money
- You may come to alternative arrangement if you provide sufficient info for them to give informed consent
Accounts, 8.1: Keep and maintain accurate, contemporaneous, chronological records to…. (3)
- Double entry - client account on one side and business side accounts on the other
- Maintain list of balances of liabilities to clients
- Provide cash book showing running total of all transactions through client accounts
Accounts, 8.2 (How often must you obtain bank statements for client accounts)
At least every 5 weeks
Accounts, 8.3 (How often must you complete reconciliation of statement balance with cash book balance and client ledger total; who must sign off)
At least every 5 weeks
Signed off by COFA or Manager
Promptly investigate and resolve differences shown by reconciliation
Accounts, 8.4 (Record of your bills/costs)
Keep readily accessible a central record of bills or notification of costs given by you
Accounts, 9 (If holding money jointly with 3P, which 2 rules from the Accounts Rules apply?)
- Rule 8.2 - need to obtain bank statements every 5 weeks
- Rule 8.4 - Need to keep a record of bills and costs
Accounts, 10 (If operating a client’s own account as signatory, which 3 rules from Accounts Rules apply?)
- 8.2 - need to obtain bank statements every 5 weeks
- 8.3 - Need to complete reconciliation every 5 weeks
- 8.4 - Keep a record of your bills and costs
Accounts, 11.1: Third Party Managed Accounts - conditions for use (3)
- Use of account does not result in you receiving or holding client’s money
- Inform client of contractual arrangements for TPMA and in particular the fees for TPMA
- Inform client of right to terminate agreement and dispute payment requests made by you
Accounts, 11.2: (How often to obtain statements from TPMA)
Obtain “regular” statements.
Accounts, 12.1: When must you obtain accountant’s report, when must you deliver it to SRA
- Obtain the report within 6 months of end of accounting period
- Deliver it to SRA within 6 months of end of accounting period if it shows a failure to comply with rules
Accounts 12.2: When you are not required to obtain accountants’ report (2)
- All client’s money received is from Legal Aid
- Statement or passbook balance does not exceed average of GBP 10,000 and maximum of GBP 250,000
Accounts, 13: How long accounting records must be retained
For at least 6 years
