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SQE 1: Professional Conduct > Chapter 1: Regulatory and Legal Environment > Flashcards

Chapter 1: Regulatory and Legal Environment Flashcards

1
Q

Regulatory Environment - Introduction

A

This element explores the meaning of ‘professional’ and introduces the concept that as lawyers our conduct is regulated and that we have obligations to our clients and the public.

‘Professionals are governed by codes of ethics and profess commitment to competence, integrity and morality, altruism and the promotion of the public good within their expert domain. Professionals are accountable to those served and to society’

Cruess, Sylvia R., Sharon Johnston and Richard L Cruess, ‘Professional’: a working definition of medical educators

As legal professionals, we are accountable to our clients and to the public.

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2
Q

As lawyers we are legal professionals. What does ‘profession’ mean?

A
  • ‘Any type of work that needs special training or a particular skill, often one that is respected because it involves a high level of education’, Cambridge English Dictionary
  • ‘An indicator of trust and expertise’, Professional Standards Council, Australia
  • ‘Professionalism comprises the personally held beliefs about one’s own conduct as a professional. It is often linked to the upholding of the principles, laws, ethics and conventions of a profession as a way of practice’, Professional Standards Council, Australia
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3
Q

What does ‘ethics’ mean?

A

‘Moral principles that govern a person’s behaviour or the conducting of an activity’, Oxford English Dictionary

Key aspects of being a legal professional:

  • Professionalism requires knowledge, skill, expertise and a high level of education and training
  • but also trust, ethics, morality and integrity.
  • Trust and morality are important because legal professionals owe a duty to promote the public good, not just the interests of their clients.
  • These principles apply to you as lawyers, in your personal life as well as your professional life.
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4
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A
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5
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6
Q

As a lawyer you will need to comply with:

A
  • Legal
  • Regulatory and
  • Ethical requirements.
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6
Q

Summary

A

ü Professionalism requires knowledge and expertise but also trust and morality.

ü Legal professionals owe a duty to the public as well as to their clients.

ü Lawyers need to comply with legal, regulatory and ethical requirements in their personal as well as their professional lives.

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7
Q

Regulators

There are a number of bodies that regulate the legal profession

A

Legal Services Board regulates all lawyers in England and Wales.

Solicitors Regulation Authority (‘SRA’) regulates solicitors, law firms and individuals who work for businesses authorised by the SRA.

Bar Standards Board regulates barristers.

Chartered Institute of Legal Executives (‘CILEx’) regulates legal executives.

Council for Licensed Conveyancers regulates licensed conveyancers.

Costs Lawyers Standards Board regulates costs lawyers

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8
Q

To whom can a client complain?

A
  • Law Firm
  • Legal Ombudsman
  • SRA
  • Solicitors Disciplinary Tribunal
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9
Q

Law Firm

A

The SRA requires that every law firm has a complaints procedure. If a client is unhappy with the service, the client’s first step is to follow the law firm’s complaints procedure

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10
Q

Legal Ombudsman

A

If the firm’s internal complaints procedure is exhausted, individuals, small businesses, charities, clubs and trusts can refer complaints about poor service and fees/bills from solicitors to the LO.

The LO can require the solicitor to:

  • apologise;
  • pay compensation;
  • correct or put right an error or omission;
  • take specific action in the interests of the complainant;
  • pay for the costs of the complaint;
  • limit the firm’s fees.

Crucially the LO has no powers to discipline or fine a lawyer; the LO’s primary function is to resolve complaints

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11
Q

SRA

A

The SRA sets the principles and code of conduct that solicitors and lawyers regulated by the SRA must comply with.

If the client has a complaint that is concerning misconduct, dishonesty or breaches of the SRA’s rules, they can complain to the SRA. The SRA has the power to:

  • issue a warning to the firm;
  • impose a disciplinary sanction, eg a fine;
  • reprimand the solicitor for professional misconduct;
  • order the solicitor to repay or refund the whole or part of the costs to the client;
  • impose restrictions on a lawyer’s ability to practise;
  • institute disciplinary proceedings before the Solicitor’s Disciplinary Tribunal;
  • revoke recognition of a firm; and
  • close down a firm.
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12
Q

Solicitors Disciplinary Tribunal

A

The SDT is an independent statutory body. It deals with serious breaches of the SRA’s rules and disciplines solicitors. Its powers include power to:

  • strike a solicitor off the roll;
  • suspend a solicitor from practice for a fixed or indefinite period;
  • reprimand a solicitor;
  • impose a fine;
  • award costs against a party to proceedings; and
  • make a restriction order, imposing a restriction on the area in which a solicitor can practice.

The SDT does not have power to award compensation.

Ultimately the only option left if the client is not happy would be court action.

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13
Q

Law Society

A
  • Represents solicitors in England and Wales to the public.
  • Supports solicitors in their careers and practice.
  • Is there to fight your corner.
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14
Q

Summary

A

· A number of bodies regulate the conduct of the legal profession in England and Wales.

· The SRA regulates law firms and individual lawyers who work in businesses authorised by the SRA.

· Clients who are unhappy with the service they receive should complain to the firm, the Legal Ombudsman and may also have the right to complain to the SRA.

· The SRA has power to refer a complaint about a solicitor to the Solicitors Disciplinary Tribunal (‘SDT’).

· The SDT has power to strike a solicitor off the roll of solicitors.

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15
Q

SRA Standards and Regulations 2019

A

The SRA sets out the ethical and professional standards it expects from solicitors, law firms, people that work in those law firms and other legal businesses in the SRA Standards and Regulations 2019 (‘SRA Standards and Regulations’). The SRA Standards and Regulations comprise a number of documents. Key documents include:

SRA Principles (‘Principles’)

Code of Conduct for Solicitors, Registered European Lawyers and Registered Foreign Lawyers (‘CCS’)

Code of Conduct for Firms (‘CCF’)

SRA Accounts Rules

The SRA Accounts Rules regulate how law firms hold and manage clients’ money

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16
Q

References in the SRA Principles and the Codes

A

We refer to individual Principles as Principle 1, Principle 2 etc.

We use the term ‘Codes’ to refer to CCS and CCF.

We refer to paragraphs of the Codes in the following shorthand format:

‘CCS 2.1’ refers to paragraph 2.1 of CCS, and

‘CCF 3.1’ refers to paragraph 3.1 of CCF.

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17
Q

Principles

A

The Principles are the key points of ethical behaviour that the SRA expect all people they regulate to uphold.

They apply to all individuals who are authorised to provide services by the SRA, authorised firms, businesses, their managers and employees.

There are seven Principles.

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18
Q

The Seven Principles

A

The Principles require individuals and firms to act:

in a way that upholds the constitutional principle of the rule of law and the proper administration of justice
in a way that upholds public trust and confidence in the solicitors’ profession and in legal services provided by authorised persons
with independence
with honesty
with integrity
in a way that encourages equality, diversity and inclusion
in the best interests of each client

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19
Q

The Principles

A

The Principles relate to a lawyer’s relationship with their client and also the court, other professionals and the public.

Should the Principles come into conflict, the principles which safeguard the wider public interest (for example the rule of law) take priority over the interest of an individual client.

The Principles apply to legal professionals in their personal as well as their professional lives.

Code of Conduct for Solicitors, Registered European Lawyers and Registered Foreign Lawyers (‘CCS’)

CCS sets out the standards that the SRA and the public expect from individuals authorised by the SRA to provide legal services, including solicitors, paralegals and apprentices.

CCS is a brief document, approximately eight pages long. It sets out a framework.

You as a legal professional must exercise your judgment in applying the standards to your situation and deciding on a course of action.

You are personally responsible for compliance with CCS.

CCS 7.3 requires you to cooperate with the SRA and other regulators when they investigate concerns relating to legal services.

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20
Q

Code of Conduct for Firms

A

CCF sets out the standards and business controls the SRA expects of firms.

CCF contains all the standards set out in CCS plus additional standards about the way firms run their businesses, including rules relating to:

  • the systems and controls firms must have in place to comply with the SRA’s rules
  • the responsibilities of managers of a firm
  • the requirement to have a Compliance Office for Legal Practice (‘COLP’) and a Compliance Officer for Finance and Administration (‘COFA’).
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21
Q

Summary

A
  • The SRA Standards and Regulations 2019 sets out the standards the SRA expects from individuals and businesses it regulates. The Standards and Regulations comprise a number of documents.
  • The Principles: there are 7 Principles which are the key behaviours the SRA expect from individuals.
  • CCS: is a framework document setting out the standards the SRA expects from individuals.
  • CCF sets out the standards the SRA expects from firms and managers of firms.
  • The SRA Accounts Rules set out rules on how law firms hold and manage clients’ money.
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22
Q

Maintaining trust and acting fairly

A

In this element we will consider how:

  • many of the Solicitors Regulation Authority (‘SRA’) Principles (each a ‘Principle’) require legal professionals to maintain trust and act fairly
  • maintaining trust and acting fairly can conflict with the Principle to act in the best interests of each client
  • acting with integrity differs from acting with honesty; and
  • Code of Conduct for Solicitors, Registered European Lawyers and Registered Foreign Lawyers (‘CCS’)​ 1 requires individuals to maintain trust and act fairly, including:
  • CCS 1.1: you do not unfairly discriminate
  • CCS 1.2: you do not abuse your position by taking unfair advantage of clients or others
  • CCS 1.4: you do not mislead your clients, the courts or others.
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23
Q

Maintaining Trust and Acting Fairly

A

Many of the Principles require legal professionals to maintain trust and act fairly:

Principle 1: acting in a way that upholds the constitutional principle of the rule of law, and the proper administration of justice.

Principle 2: acting in a way that upholds public trust and confidence in the solicitors’ profession and in legal services provided by authorised persons

Principle 3: acting with independence

Principle 4: acting with honesty

Principle 5: acting with integrity

Principle 7: acting in the best interests of each client

Although you must act in the best interests of each client, you must also act with independence, honesty and integrity. If the client wants to do something dishonest or illegal, you cannot help them do it.

For example, if your client wants you to lie to a court or other person or body, you must refuse to do so.

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24
Q

What’s the difference between acting with honesty and acting with integrity?

A

Integrity is broader than honesty. For example, if you mislead a client or the court, you have not breached Principle 4 (honesty), but you have breached Principle 5 (integrity).

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25
Q

What’s the difference between acting with honesty and acting with integrity?

A

Integrity is about being scrupulous, careful and accurate.

The SRA might take action against an individual for lack of integrity where they have:

Taken unfair advantage of a client or a member of the public

Allowed another person to take unfair advantage of someone else

Misled another person or stood by and allowed another person to be misled

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26
Q

CCS: maintaining trust and acting fairly

A

The first section of CCS relates to maintaining trust and acting fairly. It is about upholding the trust that the public needs to have in the legal profession. The following paragraphs of CCS are relevant:

CCS 1.1 ‘You do not unfairly discriminate by allowing your personal views to affect your professional relationships and the way in which you provide your services.’

CCS 1.2 ‘You do not abuse your position by taking unfair advantage of clients or others.’

CCS 1.4 ‘You do not mislead or attempt to mislead your clients, the court or others, either by your own acts or omissions or allowing or being complicit in the acts or omissions of others (including your client).’

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27
Q

CCS 1.1

A

‘You do not unfairly discriminate by allowing your personal views to affect your professional relationships and the way in which you provide your services.’ To comply with this standard you must ensure that your personal views do not affect the way you provide legal services. For example, a solicitor with strong religious or political views should not allow those views to stop them from complying with Principle 7, acting in the best interests of their client.

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28
Q

CCS 1.2

A

‘You do not abuse your position by taking unfair advantage of clients or others.’

For example, you could be instructed on a matter and find yourself opposite a party with no legal representation. You should not take advantage of the other party’s lack of legal knowledge.

Dealing with an unrepresented client can be challenging.

If the unrepresented party produces a badly drafted document, you should suggest they find a lawyer. If they do not, you need to maintain a balance between acting in your client’s best interest and not taking advantage of the opponent’s lack of legal knowledge and drafting skills.

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29
Q

CCS 1.4

A

‘You do not mislead or attempt to mislead your clients, the court or others, either by your own acts or omissions or allowing or being complicit in the acts or omissions of others (including your client).’

Misleading a client:

  • Telling a prospective client they have a strong case in order to get the work, when they don’t.
  • Telling them the case is going well when it is going badly.
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30
Q

Misleading the court:

A
  • Not disclosing a case or statutory provision to the court which goes against the argument you are presenting for your client.

Misleading others:

Making false representations on behalf of a client to a third party. For example, telling prospective purchasers of your client’s company that it is a good or bad deal. You should not give your personal opinion on the value of a deal to anyone involved.

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31
Q

Misleading the court:

A

ü Principles 1, 2, 3, 4, 5 and 7 are connected to the requirement to maintain trust and act fairly.

ü Although you must act in the best interests of each client, you must also act with independence, honesty and integrity. If the client wants to do something dishonest or illegal, you cannot help them do it.

ü Acting with integrity is broader than acting honestly.

ü Integrity is about being scrupulous, careful and accurate.

ü CCS 1 requires individuals to maintain trust and act fairly, for example:

ü CCS 1.1: you do not unfairly discriminate

ü CCS 1.2: you do not abuse your position by taking unfair advantage of clients or others

ü CCS 1.4: you do not mislead your clients, the court or others.

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32
Q

Equality, Diversity and Inclusion

A

This element explores the concepts of equality, diversity and inclusion.

‘Whether you are a manager or an employee, you have a role to play in implementing EDI policies… You must act with integrity and honesty and in a way which is fair, inclusive and transparent.’

**SRA, Guidance on the SRA’s approach to equality, **

diversity and inclusion, 23 July 2019.

Equality, diversity and inclusion (‘EDI’) applies to everyone

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33
Q

Meaning of Equality, Diversity and Inclusion

A

In this element we will explore:

  • what equality, diversity and inclusion mean
  • why EDI is important
  • the protection required under the Equality Act 2010
  • the SRA’s requirements on EDI under Principle 6 and CCS
  • the SRA’s guidance note on its approach to EDI
  • how most employers have a policy on EDI

Before working through this element, please read the SRA’s Guidance on its approach to equality, diversity and inclusion which can be found on the SRA website here:

https://www.sra.org.uk/solicitors/guidance/ethics-guidance/guidance-on-the-sra-s-approach-to-equality-diversity-and-inclusion/

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34
Q

Meaning of Equality, Diversity and Inclusion

A

What do equality, diversity and inclusion mean?

Equality is about making sure there is a level playing field and people are treated fairly.

Diversity is about encouraging and valuing people with a broad range of different backgrounds, knowledge, skills and experiences.

Inclusion is about accepting people for who they are and encouraging everyone to participate and contribute.

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35
Q

Importance of EDI

A

The SRA states that EDI is important for many reasons, including:

The effective administration of justice. A diversity of views and approaches, whether in law firms or the judiciary, support an independent justice system and maintains the rule of law.

Improving access to services. Some people may be more likely to seek legal help from solicitors with whom they share some social or cultural characteristics.

Allowing the most talented people to become solicitors and progress in their careers which helps to maintain high standards.

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36
Q

Equality Act 2010

A

The Equality Act 2010 protects people from discrimination in the workplace and in wider society against the following protected characteristics:

  • age
  • disability
  • gender reassignment
  • marriage and civil partnership
  • pregnancy and maternity
  • race
  • religion or belief
  • sex
  • sexual orientation

Legislation sets minimum legal obligations, eg that an employer takes steps to remove potential discrimination, harassment and victimisation. The SRA’s obligations extend beyond strict compliance with the law.

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37
Q

SRA requirements relating to EDI

A

What are the SRA’s requirements on EDI?

Principle 6: You must act in a way that encourages equality, diversity and inclusion.

CCS 1.1 ‘You do not unfairly discriminate by allowing your personal views to affect your professional relationships and the way in which you provide your services.’

CCS 1.2 ‘You do not abuse your position by taking unfair advantage of clients or others.’

CCS 3.4 ‘You consider and take account of your client’s attributes, needs and circumstances.’

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38
Q

Guidance on the SRA’s approach to EDI

A

The SRA has issued a guidance note to help firms and individuals understand their obligations on EDI. You must:

Provide reasonable adjustments to disabled clients and employees to make sure they are not at a substantial disadvantage compared to those that are not disabled. You must not pass on the costs of providing these adjustments to others. Encourage diversity at all levels of the workforce.Collect, report and publish data about the diversity of your workforce.

Uphold the reputation of the profession in your professional and personal life and treat people fairly and with dignity and respect. You should ensure your personal views do not have a negative impact on others. This includes expressing extreme personal, moral or political opinions on social media.Be fair and inclusive in your interactions with people you meet and deal with in the course of your work.

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39
Q

Guidance on the SRA’s approach to EDI

Firms must:

A

· have a complaints procedure and make sure complaints including those of discrimination, harassment and victimisation are dealt with promptly, fairly and effectively.

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40
Q

Firms and other employers may wish to:

A

· produce a statement about EDI for their workforce, clients and the people they work with.

Monitor and analyse the diversity of their staff and clients.Draft and implement an EDI policy outlining the employer’s approach to recruitment, retention and progression and to encourage equality of opportunity and respect for diversity.Attract the best staff: have a recruitment policy and fair process for promotions to maximise the chances of getting and retaining the best people for each role.

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41
Q

Summary

A

EDI is important for many reasons including the effective administration of justice, improving access to legal services and allowing the most talented people to progress in their legal careers.The Equality Act 2010 imposes legal obligations to protect people from discrimination.The SRA’s obligations extent beyond strict compliance with the law.The key requirements are contained in Principle 6, CCS 1.1, 1.2 and 3.4.The SRA’s document Guidance on the SRA’s approach to EDI contains further guidance on solicitors’ obligations in relation to EDI.All employers should have an EDI policy

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42
Q

Undertakings and dealings with the court

A

In this element we will consider:

  • what an undertaking is;
  • the SRA’s requirements in relation to undertakings;
  • good practice in relation to giving undertakings;
  • the SRA’s requirement that solicitors do not mislead the court; and
  • the SRA’s requirement to ensure that solicitors conduct themselves properly before the court and comply with their overriding duty to the court.
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43
Q

SRA Principles

A

The rules on undertakings and dealings with the court stem from the following SRA Principles requiring solicitors to act:

Principle 1: in a way that upholds the constitutional principle of the rule of law, and the proper administration of justice.

Principle 2: in a way that upholds public trust and confidence in the solicitors’ profession and in legal services provided by authorised persons.

Principle 3: with independence

Principle 4: with honesty

Principle 5: with integrity

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44
Q

What is an undertaking?

A

An “undertaking” is defined in the SRA Glossary as:

‘a statement, given orally or in writing, whether or not it includes the word ‘undertake’ or ‘undertaking’ to someone who reasonably places reliance on it, that you or a third party will do something or cause something to be done, or refrain from doing something’.

Undertakings are also often used to overcome practical difficulties in many areas of practice to smooth the path of a transaction or to speed up its progress. Undertakings are given and accepted, because solicitors are professional persons whose word is to be relied upon.

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45
Q

Examples of undertakings include:

A
  • an undertaking by a seller’s solicitor in a property transaction to forward part of the sale proceeds to procure the discharge of the seller’s mortgage on the property;
  • an undertaking to the court that a document will be filed on behalf of a client by a particular date;
  • an undertaking to hold money to another firm’s order prior to the occurrence of a specific event.
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46
Q

CCS 1.3 on undertakings

A

Paragraph 1.3 of the Code of Conduct for Solicitors, RELs and RFLs (‘CCS’) states:

CCS 1.3: You perform all undertakings given by you, and do so within an agreed timescale or if no timescale has been agreed then within a reasonable amount of time.

Warning:

  • Failure to perform an undertaking can be a serious disciplinary offence, with the solicitor(s) concerned being investigated by the SRA for professional misconduct.
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47
Q

CCS 1.3 on undertakings

A
  • An undertaking can be given by any individual in a law firm provided it can be reasonably relied upon by the recipient. An undertaking could be given by a partner, a qualified lawyer, an apprentice, secretary or any other individual in the firm.
  • An undertaking does not have to be given in writing. An oral statement can amount to an undertaking.
  • The word ‘undertaking’ does not have to be said or written for a statement to amount to an undertaking. Junior solicitors should be wary when promising to deliver copies or originals of documents to a third party: NEVER promise to do something which is outside your control.
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48
Q

Undertakings: Good practice

A
  • It is advisable for law firms to maintain an effective system of recording when undertakings have been given and when they have been discharged.
  • Firms will usually have procedures in place to procure that undertakings are complied with. For example, if your firm gives an undertaking to pay another firm’s costs, your firm will usually require your client to put the firm in funds to cover the relevant amount before you give the undertaking. In such circumstances, electronic accounting safeguards will be put in place so that the money reserved to cover the undertaking is not inadvertently used on the client’s behalf to pay for something else.
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49
Q

Undertakings: Good practice

A
  • Firms often distinguish between everyday transactional undertakings and undertakings to pay another party’s costs. Firms will usually have internal policies as to who can give the latter type of undertaking, which is often restricted to partners or senior lawyers only.
  • Undertakings are specifically enforceable, so most firms will try to maintain a register of undertakings given, recording what has been promised to whom and by who.
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50
Q

Form of undertakings

A

Undertakings must be drafted carefully. The form of any undertaking should be ‘SMART’:

  • Specific: be clear as to what is involved
  • Measured: it must be capable of quantification
  • Agreed: both sides must agree the wording
  • Realistic: within solicitor’s control
  • Timed: must not be of unlimited duration

Any ambiguity in an undertaking will be construed in favour of the recipient.

51
Q

Dealings with the court

A

Under Section 50(1) Solicitors Act 1974, a solicitor is an ‘officer of the court’.

Consequently, solicitors should, at all times, conduct themselves in a manner which befits a member of the profession, with an overriding duty to the court. This is reflected in CCS 2, which includes paragraphs which require that you do not waste the court’s time, do not place yourself in contempt of court and only make assertions or put forward statements, representations or submissions to the court or others which are properly arguable.

52
Q

Misleading the court

A

CCS 1.4: You do not mislead or attempt to mislead your clients, the court or others, either by your own acts or omissions or allowing or being complicit in the acts or omissions of others (including your client).

  • A solicitor would not normally be guilty of misconduct if they inadvertently misled the court. Under the SRA’s Indicative Behaviours (which preceded CCS) if, during the course of proceedings the solicitor became aware that they had inadvertently misled the court, they must, with their client’s consent, immediately inform the court. If the client did not consent, the solicitor must stop acting for that client.
53
Q

Misleading the court

A
  • In addition, and again under the SRA’s former Indicative Behaviours, if a solicitor became aware that a client had committed perjury or misled the court or attempted to mislead the court, then the solicitor had to cease to act unless the client agreed to disclose the truth to the court.
  • The extent to which the Indicative Behaviours are relevant to interpretation of CCS is not yet clear, but it is anticipated that solicitors will continue to act in accordance with them until the SRA produces guidance to the contrary.
54
Q

How might you mislead the court?

A

You might mislead the court if you do ANY of the following:

  • draft documents or construct facts supporting your client’s case which are not properly arguable;
  • make any allegation of crime, misconduct or fraud unless it is material to your client’s case and you have reasonable grounds for doing so;
  • call a witness whose evidence you know is untrue.
55
Q

Dealing with the court

A

CCS 2 contains more detailed provisions regarding your duty to the court. For example:

CCS 2.1: You do not misuse or tamper with evidence or attempt to do so.

CCS 2.2: You do not seek to influence the substance of evidence, including generating false evidence or persuading witnesses to change their evidence

CCS 2.3: You do not provide or offer to provide any benefit to witnesses dependent upon the nature of their evidence or the outcome of the case.

CCS 2.4: You only make assertions or put forward statements, representations or submissions to the court or others which are properly arguable.

56
Q

Dealings with the court

A

Also:

CCS 2.5: You do not place yourself in contempt of court, and you comply with court orders which place obligations on you.

CCS 2.6: You do not waste the court’s time.

CCS 2.7: You draw the court’s attention to relevant cases and statutory provisions, or procedural irregularities of which you are aware, and which are likely to have a material effect on the outcome of the proceedings.

57
Q

Summary

A

· Undertakings are given and accepted, because solicitors are professional persons whose word is to be relied upon. They are often used to overcome practical difficulties to smooth the path of a transaction or to speed up its progress.

· CCS 1.3 requires solicitors to perform all undertakings given by them, and to do so within an agreed timescale or if no timescale has been agreed then within a reasonable amount of time.

· Failure to perform an undertaking can be a serious disciplinary offence and most firms have systems in place to ensure that undertakings are complied with.

58
Q

Summary

A

· A solicitor is an ‘officer of the court’ and they should conduct themselves in a manner which befits a member of the profession, with an overriding duty to the court.

· CCS 1.4 contains a requirement that solicitors do not mislead the court.

· CCS 2 contains a number of requirements to ensure that they not waste the court’s time and only make assertions which are properly arguable.

59
Q

Dealing with Clients and other people

A

As a legal professional, you will deal with many different people including: clients, members of the public, the court, and other professionals including barristers, medical or other technical experts, social workers, lawyers on the other side of your transaction, officials at the Land Registry and Companies House.

The SRA have issued a lot of rules and guidance notes on how legal professionals should deal with their clients. We will touch on some key themes in this element.

We will also consider some of the regulations relating to a solicitor or other legal professional’s dealings with other people and the court in this element.

60
Q

Dealing with clients

A

Some key provisions of the Principles and CCS related to dealing with clients include:

Principle 7: You must act in the best interests of each client

CCS 3.2: You ensure the service you provide to clients is competent and delivered in a timely manner.

CCS 4.2: You safeguard money and assets entrusted to you by clients and others.

61
Q

Your service and competence

A

CCS 3.2: You ensure the service you provide to clients is competent and delivered in a timely manner.

An important part of providing a good service to your clients is to ensure that you are competent to do so.

You need to ensure that you are competent to carry out the work you are required to do:

  • You should not send work to a client unless it has been checked by your supervisor.
  • If you do not know how to do the work, you must get help from someone.
62
Q

Your service and competence

A
  • You also need to ensure that you keep your legal knowledge up to date in order to comply with CCS 3.3 and CCS 7.1.

CCS 3.3: You maintain your competence to carry out your role and keep your professional knowledge and skills up to date.

CCS 7.1: You keep up to date with and follow the law and regulation governing the way you work.

63
Q

Your service and competence

A

CCS 3.4: You consider and take account of your client’s attributes, needs and circumstances.

You also need to ensure that you take account of your client’s attributes, needs and circumstances when providing legal advice. You will not be taking account of your client’s needs, if you attempt to provide a service you are not competent to perform.

64
Q

Your service and competence

A

Your managers also have an obligation to ensure that you are competent to carry out your work.

CCS 3.5: Where you supervise or manage others providing legal services:

(a) you remain accountable for the work carried out through them; and

(b) you effectively supervise work being done for clients

CCS 3.6: You ensure that the individuals you manage are competent to carry out their role and keep their professional knowledge and skills, as well as understanding of their legal, ethical and regulatory obligations, up to date.

65
Q

Safeguarding money and assets

A

CCS 4.2: You safeguard money and assets entrusted to you by clients and others.

As a solicitor or legal professional, you may be entrusted with money or assets belonging to another person.

You might be entrusted with client’s money – in which case you need to comply with the SRA Accounts Rules to ensure that you protect that money. You will also need to comply with other legal obligations, eg anti- money laundering regulations.

66
Q

Undertakings

A

In addition, as a trusted third party, there are often situations where you give another party your word or promise that you will do something. If the other party relies on your promise, you have to do what you promised to do. This is called an ‘undertaking’.

Undertakings are often used to overcome practical difficulties in transactions. Undertakings are given and accepted because solicitors are professionals whose word can be relied on.

An example of an undertaking is an undertaking to the court that a document will be filed on behalf of a client by a particular date.

67
Q

Undertakings

A

CCS 1.3: You perform all undertakings given by you, and do so within an agreed timescale or, if no timescale has been agreed, then within a reasonable amount of time

Failing to comply with an undertaking can be a serious disciplinary offence, with the solicitor being investigated by the SRA for professional misconduct. Most law firms have strict procedures that must be followed before an employee gives an undertaking

68
Q

Dealing with the court

A

In order to comply with Principles 1 and 2, solicitors and legal professionals must act with integrity when dealing with the court.

Principle 1: act in a way that upholds the constitutional principle of the rule of law, and the proper administration of justice.

Principle 2: act in a way that upholds public trust and confidence in the solicitors’ profession and in legal services provided by authorised persons.

69
Q

Dealing with the court

A

CCS 2 contains more detailed provisions regarding your duty to the court. For example:

CCS 2.1: You do not misuse or tamper with evidence or attempt to do so.

CCS 2.2: You do not seek to influence the substance of evidence, including generating false evidence or persuading witnesses to change their evidence.

70
Q

Summary

A

· As a legal professional you will deal with many different people including clients, members of the public, the lawyers on the other side of a transaction and the court.

· The parties you deal with will trust that your behaviour meets a professional standard.

· Your clients will rely on your legal knowledge being up to date and trust that you can provide a competent service.

· You are obliged under CCS to ensure you provide a competent service and keep your knowledge up to date. Your managers are obliged under CCS to ensure your work is effectively managed.

· You must keep money or assets that clients entrust to you safe.

· Other professionals will trust you to keep your word when you give them an undertaking.

· You must act with integrity when dealing with the court.

71
Q

Other ethical issues: publicity, introductions and referrals

A

In this element we will consider:

  • the SRA’s requirements in relation to publicity;
  • the SRA’s requirements in relation to introductions and referral arrangements; and
  • an introduction to the requirements under the Bribery Act 2010.

Before working through this element, please read the paragraphs 5.1, 5.2 and 8.8 and 8.9 of the Code of Conduct for Solicitors, RELs and RFLs (‘CCS’) and the SRA Transparency Rules both of which can be found on the SRA website here:

https://www.sra.org.uk/solicitors/standards-regulations/

72
Q

CCS requirements in relation to publicity

A

The SRA’s key concern is that firms’ publicity is not misleading.

CCS 8.8: you ensure that any publicity in relation to your practice is accurate and not misleading, including that relating to your charges and the circumstances in which interest is payable by or to clients.

Publicity is defined in the SRA Glossary as including:

‘all promotional material and activity, including the name or description of your firm, stationery, advertisements, brochures, websites, directory entries, media appearances, promotional press releases, and direct approaches to potential clients and other persons, whether conducted in person, in writing or in electronic form, but does not include press releases prepared on behalf of a client’.

73
Q

Unsolicited approaches

A

Solicitors are not permitted to publicise their firm by making unsolicited approaches in person or telephone calls to members of the public, with the exception of current or former clients:

CCS 8.9: you do not make unsolicited approaches to members of the public, with the exception of current or former clients, in order to advertise legal services provided by you, or your business or employer.

The types of marketing approaches which would tend to demonstrate non-compliance with 8.9 CCS (adopted for Firms) are where you approach people:

  • in the street
  • at ports of entry (i.e. to the UK)
  • at hospitals
  • at the scene of an accident.
74
Q

SRA Transparency Rules

A

The SRA Transparency Rules (‘Transparency Rules’) contain further regulations on the information solicitors should make available to clients and potential clients. A copy of the Transparency Rules can be found on the SRA web-site here:

https://www.sra.org.uk/solicitors/standards-regulations/transparency-rules/

You should familiarise yourselves with the provisions of the Transparency Rules including the following:

  • Costs information – Rule 1, and
  • Regulatory information – Rule 4.
75
Q

Costs information – Rule 1

A

Authorised bodies who publish the availability of certain services to individuals and businesses must publish certain costs information on their websites. The services to individuals are listed in Rule 1.3 and include:

  • conveyancing of residential property
  • collection and distribution of assets following a person’s death
  • immigration applications
  • immigration matters
  • road traffic offences
  • certain advice to employees on unfair and wrongful dismissal.

The services in relation to businesses are listed in Rule 1.4 and include:

  • certain advice to employers on unfair dismissal and wrongful dismissal;
  • debt recovery up to the value of £100,000; and
  • certain advice in relation to licensing applications for business premises.
76
Q

What costs information must be published?

A

The costs information which must be published is listed in Rule 1.5 and includes:

  • the total cost of the service or, where not practicable, the average cost or range of costs;
  • the basis for the charges, including hourly rates or fixed fees;
  • the experience and qualifications of anyone carrying out the work, and their supervisors;
  • a description of, and the cost of, any likely disbursements;
  • whether any fees or disbursements attract VAT, and if so, the amount of VAT;
  • details of what services are included in the price displayed, including the key stages of the matter and the likely timescales for each stage and details of any services that might be expected to be included in the price displayed but are not; and
  • if the firm uses conditional fee or damages based agreements, the circumstances in which clients may have to make any payments themselves for the services.

The cost information published must be clear and accessible and in a prominent place on the website (Rule 1.6).

77
Q

Regulatory information – Rule 4

A

What costs information must be published?

  • An authorised body must display in a prominent position on its website, its SRA number and the SRA’s digital badge (Rule 4.1).
  • An authorised body’s letterhead and emails must show its SRA authorisation number and the words ‘authorised and regulated by the Solicitors Regulation Authority’ (Rule 4.2).
78
Q

Introductions and referrals

A

In this element, “introduction” relates to a relationship you/a law firm has with a third party where the third party introduces or refers business TO YOU/THE LAW FIRM, for example:

A firm of estate agents agrees to refer property sellers and buyers to a law firm’s residential property department. The law firm agrees to pay the estate agent £X plus VAT in respect of each such introduction.

A law firm runs a client recommendation incentive scheme which rewards all members of its staff for recommending the firm to friends and relations, who go on to instruct the firm. A secretary at the law firm recommends her cousin’s building firm to the construction litigation department. Her cousin’s building firm goes on to instruct the law firm and the secretary receives £250 from the law firm when her cousin’s firm pays its first bill.

79
Q

Introductions and referrals

A

“Referral” refers to an arrangement you/ a law firm might have with a third party TO WHOM you may refer or introduce clients. For example:

Your firm might have an arrangement with a surveyor’s firm whereby the surveyor pays your firm £x for each client your firm introduces to the surveyor.

80
Q

CCS 5.1

A

CCS 5.1 applies to introductions, referrals and fee sharing arrangements. The SRA’s main concern is to preserve the independence and integrity of the solicitor and/or the firm.

CCS 5.1: in respect of any referral of a client by you to another person, or of any third party who introduces business to you or with whom you share your fees, you ensure that:

(a) clients are informed of any financial or other interest which you or your business or employer has in referring the client to another person or which an introducer has in referring the client to you;

(b) clients are informed of any fee sharing arrangement that is relevant to their matter;

(c) the fee sharing agreement is in writing;

(d) you do not receive payments relating to a referral or make payments to an introducer in respect of clients who are the subject of criminal proceedings; and

(e) any client referred by an introducer has not been acquired in a way which would breach the SRA’s regulatory arrangements if the person acquiring the client were regulated by the SRA.

81
Q

Introducer

A

Introducer is defined in the SRA Glossary as:

‘any person, business or organisation who or that introduces or refers clients to your business, or recommends your business to clients or otherwise puts you and clients in touch with each other’.

82
Q

Introductions

A

An introduction is where:

  • a third party introduces a client to you, in return for which you make a payment (or agree to make a payment) to that third party (either within your firm or outside);
  • in most cases, the payment is a fixed fee or calculated with reference to the amount being charged to the client as a percentage of your gross or net fees; and
  • the third party may be another lawyer, but not necessarily so.

Introduction arrangements will often take the form of express, contractually binding written agreements, but even informal or tacit arrangements are caught by CCS 5.1.

The SRA’s main objective is the preservation of the firm’s / individual solicitor’s independence.

83
Q

Referrals

A

Applying Principle 7, you must only act in your client’s best interests when referring a client to a third party. The SRA’s concern is whether you are or may be motivated to make the referral because of some financial or other benefit, rather than because the third party is the best person to advise or support the particular needs and circumstances of your client.

84
Q

Personal injury cases

A

Section 56(1) of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (‘LASPO’) prohibits solicitors from referring or receiving referrals in respect of a claimant’s claim for damages in respect of personal injury or death to each other in consideration for a referral fee. The prohibition includes making or receiving referrals through intermediaries, like claims management companies, unless the payment is genuinely for services provided.

CCS 5.2: Where it appears to the SRA that you have made or received a referral fee, the payment will be treated as a referral fee unless you show that the payment was not made as such.

A ‘referral fee’ is defined as ‘a referral fee as defined within section 57(7) LASPO’, which is essentially a prohibited referral fee under section 56 LASPO.

The onus is on you/the law firm/the referrer to prove that any such payment was made/received in consideration for the provision of services or for any genuine reason other than a referral fee (s 57(7) LASPO).

85
Q

Commissions received from third parties

A

If you gain any tangible benefit by making the referral (financial or otherwise), there is a danger of an own interest conflict (see CCS 6.1). You need to satisfy yourself (and it is likely that your firm’s Compliance Officer for Legal Practice (‘COLP’) will also need to be satisfied) that the referral is motivated purely for the benefit of the client and that any financial benefit to you/your firm is very much a by-product of the process.

86
Q

General Commissions

A

Under CCS 5.1(a), you must properly inform your client of any financial or other interest (including an introduction fee) which you or your business or employer has in referring the client to another person.

87
Q

Rules re introductions and referrals

A

Clients must be:

  • informed of any financial or other interest which the introducer has in referring the client to you: CCS 5.1(a)
  • informed of any fee sharing arrangement which is relevant to their matter: CCS 5.1(b)

In addition:

  • you are not permitted to pay to an introducer a fee for referring clients who are the subject of criminal proceedings or whose costs are partly or wholly being publicly funded: CCS 5.1(d).
  • arrangements with introducers must be in writing: CCS 5.1(c).

Any client introduced by a third party must not have been acquired in a way that would breach the SRA’s regulatory arrangements, if the person acquiring the client were regulated by the SRA.

88
Q

Introductions and referrals: good practice

A

When managing and monitoring an introduction or referral, it is good practice to:

  • make a statement to your client, preferably in writing, that your advice will be independent;
  • provide confirmation to your client that any information disclosed to you will be confidential (especially confidential from the introducer/fee sharer); and
  • where you may also be acting for the introducer on the same matter, you regularly monitor any potential client conflict issues as they might mean you will have to cease acting for one of the parties.
89
Q

Bribery Act 2010

A
  • Under the Bribery Act 2010 (‘BA 2010’) it is an offence for a UK citizen or resident to pay or receive a bribe directly or indirectly.
  • Companies and partnerships (including LLPs) can also commit offences where a bribe is paid on their behalf.
  • Many law firms have anti-bribery policies designed to prevent their staff committing offences under BA 2010. The next slide sets out examples where there could be a risk of a member of staff committing an offence.
90
Q

How does BA 2010 affect solicitors?

A

Due diligence: law firms must ensure that the firm’s business contacts have an anti-bribery policy, and that they understand and comply with it. For example, if your firm retains an enquiry agent or ‘private detective’ to obtain information or evidence on your behalf/on behalf of a client, your firm needs to be satisfied that such information is not obtained as the product of a bribe, or the firm and/or the instructing fee earner(s) may be guilty of an offence.

91
Q

Corporate hospitality/gifts and entertainment:

A

Organisations should seek to prevent giving or receiving gifts, hospitality or payments dressed-up as ‘expenses’, in situations where such payment or receipt influences a business decision (eg to instruct a firm). There is a fine line between what is permitted to legitimately develop a business relationship and what amounts to a bribe. To mitigate the risk of committing an offence under the BA 2010, law firm and other organsations should ensure that their staff understand and implement its anti-bribery policy. Such policy should, for example, contain clear guidance as to the financial limit of any such gift or payment.

92
Q

Summary 1

A

· CCS 8.8 requires that a firm’s publicity must be accurate and not misleading.

· CCS 8.9 states that solicitors must not make unsolicited approaches to member of the public to advertise their services.

· The SRA Transparency Rules contain further regulations on the information solicitors should make available to clients and potential clients.

93
Q

Summary 1

A

· CCS 5.1 contains requirements regarding solicitor’s arrangements with third parties regarding introductions, fee sharing and referrals. These requirements are designed to ensure that solicitors preserve their integrity and act in the best interests of the clients when introducing clients to third parties and accepting instructions referred by third parties.

· Section 56(1) of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (‘LASPO’) prohibits solicitors from referring or receiving referrals in respect of a claimant’s claim for damages in respect of personal injury or death to each other in consideration for a referral fee.

94
Q

Summary 2

A

Under the Bribery Act 2010 (‘BA 2010’) it is an offence for a UK citizen or resident to pay or receive a bribe directly or indirectly. Many law firms have anti-bribery policies designed to ensure that their staff do not commit offences under BA 2010, for example in relation to appointing enquiry agents or receiving corporate hospitality or gifts.

95
Q

Dealing with Confidential Information

A

Lawyers deal with a large amount of confidential information about their clients and other people they deal with. There are a number of legal obligations you have to comply with to protect the confidential nature of the information you deal with. In this element we consider two areas:

  • Data Protection Act 2018
  • Duty of Confidentiality under the SRA’s Code of Conduct for Solicitors, RELs and RFLs (‘CCS’)
96
Q

Data Protection Act 2018

A

The Data Protection Act 2018 controls how ‘personal data’ about individuals is used by organisations.

Personal data’ means information about a particular living individual. This might be anyone, including a customer, client, employee, partner, member, supporter, business contact, public official or member of the public.

It doesn’t need to be ‘private’ information. Information which is public knowledge or is about someone’s professional life can be personal data.

‘Personal data’ does not include truly anonymous information. However, if you could still identify someone from the details, or by combining it with other information, it will count as personal data.

97
Q

Data Protection Principles

A

The Data Protection Act contains rules called the ‘data protection principles’. The Act requires that everyone responsible for using personal data must ensure that it is:

· used fairly, lawfully and transparently

· used for specified explicit purposes

· used in a way that is adequate, relevant and limited to only what is necessary

· accurate and, where necessary, kept up to date

· kept for no longer than is necessary

· handled in a way that ensures appropriate security, including protection against unlawful or unauthorised processing, access, loss, destruction or damage

98
Q

Duty of Confidentiality

A

As a solicitor or legal professional, you owe a duty of confidentiality to your clients.

CCS 6.3: You keep the affairs of current and former clients confidential unless disclosure is required or permitted by law or the client consents

This duty applies to current and former clients. Former clients include clients of a firm you used to work for and clients that used to instruct you but now instruct a different firm. It also continues to apply after a client’s death.

99
Q

Duty of Confidentiality: Exceptions

A

There are some exceptions to the duty of confidentiality:

CCS 6.3: You keep the affairs of current and former clients confidential unless disclosure is required or permitted by law or the client consents

The duty does not apply where disclosure is required or permitted by law. A number of statutes empower the government and other bodies to require disclosure of documents, eg HMRC or the National Crime Agency, when investigating money laundering. You might also need to disclose information to comply with a court order.

100
Q

Duty of Disclosure

A

The duty of disclosure is set out in CCS 6.4

This is the principle that you make your client aware of any information material to their case of which you have knowledge.

There are exceptions to this duty, including if you believe that disclosing the information could cause serious physical or mental harm to your client or another person, or disclosure is prohibited by legal restrictions, or by the duty of disclosure to another client.

101
Q

Summary

A

As a legal professional you will deal with a large amount of confidential information.You will need to comply with a number of legal obligations to protect the confidential information. You will need to process personal data about individuals in accordance with the provisions in the Data Protection Act 2018. You have a duty under CCS 6.3 to keep the affairs of clients and former clients confidential.There are a limited number of exceptions to the duty of confidentiality. You also have a duty under CCS 6.4 to make your client aware of all information material to the matter of which you have knowledge. There are exceptions to this duty.

102
Q

Confidentiality and Disclosure

A

In this element we will consider:

  • The duty of confidentiality under CCS 6.3
  • The duty of disclosure under CCS 6.4
  • The circumstances in which you are permitted to act for clients/former clients with adverse interests under CCS 6.5.

Before working through this element, please read the paragraphs 6.3-6.5 of the Code of Conduct for Solicitors, RELs and RFLs (‘CCS’) and the SRA Guidance on Confidentiality of client information which can be found on the SRA website here:

https://www.sra.org.uk/solicitors/standards-regulations/

and here:

https://www.sra.org.uk/solicitors/guidance/confidentiality-client-information/

103
Q

Duty of confidentiality

A

One of the central tenets of the solicitor’s retainer is that all information about the affairs of its clients must be kept confidential. The duty applies to legal professionals under paragraph 6.3 of both the SRA Code of Conduct for Solicitors, RELs and RFLs (‘CCS’) and the SRA Code of Conduct for Firms (‘CCF’) (together the ‘Codes’).

CCS 6.3: You keep the affairs of current and former clients confidential unless disclosure is required or permitted by law or the client consents

This duty applies to current and former clients. Former clients include clients of a firm you used to work for and clients that used to instruct you but now instruct a different firm. It also continues to apply after a client’s death.

104
Q

Duty of confidentiality: exceptions

A

There are a number of exceptional circumstances in which the duty of confidentiality can be breached. They include:

certain statutes empower government and other bodies, such as HMRC, to require disclosure of documents and information;

the duty of confidentiality is sometimes overridden by statutory or regulatory reporting requirements, eg those provided in the Money Laundering Regulations 2017, Proceeds of Crime Act 2002 and anti-terrorism legislation;

cases where you need to reveal the information to support a defence in either a civil claim brought against you by a client (eg in relation to a claim for negligence against the firm by your client) or in a criminal prosecution;

105
Q

Duty of confidentiality: exceptions

A

Cases involving children, where you discover that a child has been sexually or physically abused, even if the client who imparts the information refuses to permit disclosure, if you believe that the child’s health (mental or physical) is in danger, you may have grounds to breach your duty of confidentiality by revealing the details to an appropriate authority.

Compliance with the above obligations can often be a difficult judgement call and it is recommended that you consult closely with your firm’s Compliance Officer for Legal Practice before proceeding. The SRA has issued some guidance in this area.

106
Q

Duty of Disclosure

A

The duty of disclosure is set out in CCS and CCF 6.4

CCS and CCF 6.4 place a personal duty on an individual solicitor to disclose to a client all information which is material to the client’s matter of which the solicitor has personal knowledge.

In CCF 6.4, the duty is limited to information of which the individual solicitor is aware and does not extend to information of which others in the firm may be aware.

107
Q

Duty of Disclosure: Exceptions

A

There are certain situations in which the duty of disclosure does not have to be complied with, which are set out in the following sub paragraphs of CCS and CCF 6.4:

a) the disclosure of the information is prohibited by legal restrictions imposed in the interests of national security or the prevention of crime;

(b) the client gives informed consent, given or evidenced in writing, to the information not being disclosed to them;

(c) you have reason to believe that serious physical or mental injury will be caused to the client or another if the information is disclosed; or

(d) the information is contained in a privileged document that you have knowledge of only because it has been mistakenly disclosed

108
Q

Duty of Disclosure: Material

A

CCS 6.4: Where you are acting for a client on a matter, you make the client aware of all information material to the matter of which you have knowledge…

‘Material’ is not defined in the 2019 Standards and Regulations. However the 2007 SRA Code of Conduct said that it must be information which ‘might reasonably be expected to affect the client’s decision-making with regard to their matter in a way which is significant having regard to the matter as a whole’.

CCS 6.4 exists to protect clients. It will be difficult for clients to give informed instructions to their solicitor if they are not aware of all matters relevant to their case. However in the exceptions listed in 6.4(a) – (d) the solicitor will not be permitted to disclose material information to the client. In practice the circumstances set out in paragraph 6.4(a), (c) and (d) will be rare.

109
Q

Duty of Disclosure: Exceptions

A
  • It will be more common for a solicitor to find themselves in the position where their duty of confidentiality to another current or former client (X) prevents them from disclosing material information that they obtained in relation to X’s case to a new client (Y). In these circumstances, the solicitor must not act for Y unless they obtain Y’s informed consent to the information not being disclosed to them.
110
Q

Duty of Disclosure: Exceptions

A
  • Informed consent means that the client must have some understanding of the importance of the information to their case, and any prejudice there may be in non-disclosure. This will mean giving some indication of at least the broad nature of the information to be withheld and its relevance to the matter.
  • Even if the solicitor does obtain Y’s informed consent, they should only continue acting for Y if it is in Y’s best interests to do so. In practice, the solicitor is only likely to be able to continue acting for Y if the non-disclosure does not cause them any real prejudice.
111
Q

What if the duty of confidentiality and the duty of disclosure conflict?

A

There can be problems in situations when you owe a duty of confidentiality to one client and a duty of disclosure to another client in respect of the same information. In such cases, where there is a conflict between the duties of confidentiality and disclosure, the duty of confidentiality takes precedence.

Let’s consider an example:

You are a high street solicitor dealing with criminal and family matters.

112
Q

What if the duty of confidentiality and the duty of disclosure conflict?

A

Two years ago, when you were at your previous firm you defended for Mr Smith in a criminal assault case. Mr Smith lost, and was convicted, unbeknown to his wife, Mrs Smith.

You have moved law firms and Mrs Smith now wishes to instruct you in their divorce proceedings. Mrs Smith alleges she was subjected to domestic violence, which Mr Smith denies.

You discover that this Mr Smith is the same man you acted for in the criminal proceedings.

113
Q

What if the duty of confidentiality and the duty of disclosure conflict? Example

A

Let’s analyse the facts:

The confidential information is all the information and documents you have regarding Mr Smith’s conviction for assault.

CCS 6.3 requires you to honour your duty of confidentiality to Mr Smith subject to certain exceptional circumstance which do not apply here.

If you were to act for Mrs Smith, CCS 6.4 would require you to make Mrs Smith aware of the information regarding Mr Smith’s conviction, as this is clearly material to her allegation of domestic violence.

If you disclosed the information regarding Mr Smith’s conviction to Mrs Smith, you would be in breach of CCS 6.3. (The duty applies to current and former clients).

114
Q

Example continued

A

Do any of the exceptions to CCS 6.4 apply? Unlikely. The closest is CCS 6.4(b): Mrs Smith gives informed consent, given or evidenced in writing, to the information not being disclosed to them…

… but it is unlikely that Mrs Smith would give consent.

In addition you would not be acting in Mrs Smith’s best interests if you continued acting for her, because not revealing the information would cause her prejudice.

In this example, you should only continue acting for Mrs S if it is in her best interests to do so, which is not the case here.

Therefore you cannot comply with your duties under CCS 6.3 and 6.4 and you must cease to act for Mrs Smith.

115
Q

CCS 6.5: Adverse Interests

A

You do not act for a client in a matter where that client [Client A] has an interest adverse to the interest of another current or former client [Client B] of you or your business or employer, for whom you or your business or employer holds confidential information which is material to that matter”, unless:

(a) effective measures have been taken which result in there being no real risk of disclosure of the confidential information; or

116
Q

CCS 6.5: Adverse Interests

A

(b) the current or former client, B, whose information you or your business or employer holds has given informed consent, given or evidenced in writing, to you acting, including to any measures taken to protect their information.

‘Adverse interest’ is not defined in the 2019 Standards and Regulations, but the 2007 SRA Code of Conduct suggests that this arises ‘where one party is, or is likely to become, the opposing party on a matter, whether in negotiations or some form of dispute resolution’.

117
Q

CCS 6.5: Adverse Interests

A

The SRA Guidance on Confidentiality of client information, gives an example of CCS 6.5 in action:

‘You work for X and Co. Client A has been served with a claim for breach of contract by a supplier and wishes to instruct you in the case. The search of X and Co’s database reveals that another employee of X and Co gave advice to the supplier, client B six months ago on possible issues with their supply contract.’

It is likely that A will have an interest which is adverse to the former client B for whom the firm holds confidential information. This will prevent you from acting for client A, unless either of the exceptions on 6.5(a) or (b) apply.

118
Q

CCS 6.5 (a)

A

CCS 6.5(a):effective measures have been taken which result in there being no real risk of disclosure of the confidential information.

The SRA guidance states that the test for such measures, sometimes known as information barriers, is quite high. The measures must protect one client’s information from the other client, and you as their solicitor. Examples of effective measures include a combination of:

  • Systems that identify the potential confidentiality issues.
  • Separate departments handling the cases, at all levels, including non fee earning staff.
  • Separate servers (and printers) so that information cannot be cross accessed.
119
Q

CCS 6.5 (a)

A
  • Information being encrypted and password protected.
  • Individuals in the firm being aware of who else in the organisation is working on the respective matters so that they know who they can and cannot discuss the matter with.
  • Appropriate organisational policies and training for staff.
120
Q

CCS 6.5 (b)

A

Or 6.5(b): the current or former client, [B], whose information you or your business or employer holds has given informed consent, given or evidenced in writing, to you acting, including to any measures taken to protect their information.

In order to give informed consent, B will need an understanding of any possible prejudice that could occur.

If the firm puts in placed measures to protect B’s information, it would be necessary for someone else in the firm to seek that consent, as you will be unable to do so without B’s confidential information being disclosed to you.

121
Q

CCS 6.5: an example

A

Would CCS 6.5 enable you to act for Mrs Smith on her divorce in the previous example?

You are a high street solicitor dealing with criminal and family matters.

Two years ago, when you were at your previous firm you defended for Mr Smith in a criminal assault case. Mr Smith lost, and was convicted, unbeknown to his wife, Mrs Smith.

You have moved law firms and Mrs Smith now wishes to instruct you in their divorce proceedings. Mrs Smith alleges she was subjected to domestic violence, which Mr Smith denies.

You discover that this Mr Smith is the same man you acted for in the criminal proceedings.

122
Q

CCS 6.5: example

A

You do not act for a client in a matter where that client [Mrs Smith] has an interest adverse to the interest of another current or former client [Mr Smith] of you or your business or employer, for whom you or your business or employer holds confidential information which is material to that matter”, unless:

(a) effective measures have been taken which result in there being no real risk of disclosure of the confidential information; or

(b) the current or former client,[Mr Smith], whose information you or your business or employer holds has given informed consent, given or evidenced in writing, to you acting, including to any measures taken to protect their information.

123
Q

Duty of disclosure: personal knowledge

A

Note that the duty of disclosure under CCS 6.4 relates to information ‘of which you have knowledge’ – ie the duty is personal.

  • In the example of Mr and Mrs Smith, another lawyer at your new firm, who does not have the knowledge about Mr Smith’s conviction could act for Mrs Smith on her divorce, provided “effective measures were taken which result in there being no real risk of disclosure of confidential information” (CCS 6.5(a)).
  • Some firms would allow another lawyer to act for Mrs Smith.
  • Some firms might take the view that in all the circumstances, it is not reasonable for the firm to continue acting for Mrs Smith. They might consider for example that they cannot guarantee compliance with CCS 6.5(a), and refer Mrs Smith to another firm.
124
Q

Summary

A
  • CCS 6.3 requires you to keep the affairs of current and former clients confidential unless disclosure is required or permitted by law or the client consents.
  • The duty under CCS 6.3 applies to current and former clients. Former clients include clients of a firm you used to work for and clients that used to instruct you but now instruct a different firm. The duty also continues to apply after a client’s death.
  • Under CCS 6.4, where you are acting for a client on a matter, you make the client aware of all information material to the matter of which you have knowledge.
125
Q

Summary

A
  • There are limited exceptions to the duty of disclosure under CCS 6.4, for example if your client gives informed consent to the information not being disclosed to them or if disclosure is prohibited by statute in the interests of the prevention of crime.
  • Under CCS 6.5 you do not act for a client who has an interest adverse to the interests of another current or former client for whom you hold confidential information, unless:
  • effective measures have been taken which result in there being no real risk of disclosure of the confidential information; or
  • the current or former client whose information you hold has given informed consent to you acting.
126
Q
A

SQE 1: Professional Conduct (2 decks)

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