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FLK1 & 2 - Professional Conduct & Ethics > Client Care > Flashcards

Client Care Flashcards

1
Q

must solicitors use a client care letter?

A
  • There is no obligation to have a client care letter but it is good practice to have one
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2
Q

what are the key things a solicitor must do in terms of client care

A
  • Must maintain competence to carry out roll and keep professional knowledge up to date
  • Must give clients information in a way they can understand so they can make informed decisions about the service they need, how the matter will be handled and options available to them (clients should be informed of potential risks and costs)
  • Must be honest with client if things go wrong, explain what has happened and the likely impact, attempt the remedy the issue if they have suffered harm/loss
  • Must ensure the service is delivered in a competent & timely manner
  • Must be informed about the solicitors’ duties and responsibilities and any limitations and conditions
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3
Q

what must a solicitor do if they delegate work?

A
  • If the solicitor delegates work, they must effectively supervise as they remain accountable for the work
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4
Q

what is a personal obligation on the solicitor?

A
  • Must maintain competence to carry out roll and keep professional knowledge up to date
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5
Q

what must a solicitor do if something goes wrong?

A
  • Must be honest with client if things go wrong, explain what has happened and the likely impact, attempt the remedy the issue if they have suffered harm/loss

If requested to do so by the SRA, you must investigate whether anyone has a claim against you and inform the SRA and the relevant person

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6
Q

what information must the client be informed of and how must this be delivered?

A
  • Clients should be informed of potential risks and costs
  • Must be informed about the solicitors’ duties and responsibilities and any limitations and conditions
  • Client protection i.e. how the firm is regulated
  • Must give clients information in a way they can understand so they can make informed decisions about the service they need, how the matter will be handled and options available to them
  • Must ensure the service is delivered in a competent & timely manner
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7
Q

who can a solicitor take instructions from?

A
  • A solicitor must only act on instructions from the client(s) or from someone authorised to provide instructions on their behalf
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8
Q

in litigation, what can happen if a solicitor acts without proper authority?

A

o In litigation, a solicitor takes steps without proper authority, they will usually be personally liable for the costs

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9
Q

what can the solicitor do if they have legal authority to act on the client’s behalf but do not have instructions?

A
  • If the solicitor has legal authority to act on behalf of the client (i.e. in COP) and cannot obtain their instructions, they must act in their best interests
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10
Q

can a solicitor refuse to act?

A

yes, but not on the basis of discrimination.

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11
Q

when should a solicitor refuse instructions?

A
  • Solicitors should refuse instructions where:
    o They do not have capacity or expertise
    o The instructions would constitute a breach of the StaRs
    o They cannot act in the client’s best interest, i.e. (there is a conflict of interest or own interest conflict or confidentiality issue)
    o They suspect the instructions are not the client’s actual wishes
    o It appears someone in the firm may be called as a witness in the case
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12
Q

if the solicitor suspects the instructions are not the client’s wishes, when are they able to act?

A

the solicitor can only act in this instance if they can satisfy themselves that the instructions are genuine

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13
Q

when would a firm be able to act if they suspect the firm may be called to give evidence?

A

The solicitor can only act if they can comply with P1 (rule of law), 3 (independence) & 7 (best interests of client)

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14
Q

what must a solicitor do if the client wants them to act in a way that is disadvantageous to them?

A
  • If there is no evidence of undue influence/duress and the client insists on you acting for them in a way that appears to be disadvantageous to them, the consequences should be explained and consent to proceed obtained in writing
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15
Q

what should the solicitor do if they suspect there has been undue influence/duress?

A
  • If they suspect there has been undue influence/duress, they can ask the High Court to provide the client protection under its inherent jurisdiction
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16
Q

what information must the client be told about in terms of the protection offered to them?

A
  • Clients must understand whether and how the services are regulated
  • Clients must understand regulatory protections available to them (i.e. SRA Compensation fund)
17
Q

what is the retainer?

A
  • Retainer = contract between lawyer and client (usually the client care letter (CCL) and terms of business)
18
Q

what must be established with the client on initial instruction?

A

Important to identify client i.e. instructed by a director – in a personal capacity or on behalf of the company?

19
Q

what governs the relationship between the lawyer and the client? Give an example.

A
  • The relationship is governed by express terms, implied terms & StaRs

Example - duty of reasonable care and skill is implied by statute
o Therefore, a solicitor can be sued for breach of contract if they breach this implied term (NB: this does not apply to advocacy work)
o However, a solicitor and advocate can be sued in negligence

20
Q

even if permitted by the retainer, what should a solicitor always do?

A
  • Even if the retainer allows the solicitor the bind the client in certain situations, they should always take express instructions
21
Q

what must the retainer comply with?

A

the consumer contract regulations

22
Q

what do the consumer contract regulations set out?

A
  • The regulations set out the information that must be included in the contracts and they draw a distinction between ‘on-premises contracts’ and ‘off premises contracts’
23
Q

what is an on-premises contract?

A

o ‘on-premises contracts’ i.e. concluded at the solicitor’s place of business

24
Q

what is an off-premises contract?

A

o concluded elsewhere such as client’s home. Even if the client accepted by telephone the next day, this would still be off-premises

25
Q

what is the requirement in relation to off-premises contracts?

A

 With off-premises contracts, client must be informed about their right to cancel without any reason or incurring any liability within the cancellation period

26
Q

what must agreed at the start of the retainer?

A

fees and costs

27
Q

what are the charging methods?

A

o Hourly rate  client charged for time spent on file
o Fixed fee  may be fixed fee + VAT + disbursements
o Variable fees  contingency fees
 Once the fee is agreed it cannot be changed at a later date unless the client agrees
o Other methods  i.e. agreeing to accept shares in the company

28
Q

what is the position regarding payment on account before work starts?

A

o Contentious business - a solicitor can require the client to pay a reasonable sum on account of costs. If they do not pay, the solicitor can terminate the retainer
o No equivalent right in non-contentious business, provision would need to be included in the retainer

29
Q

when can the client terminate the retainer?

A

at any time

30
Q

when can the solicitor terminate the retainer?

A

only if there is a justifiable reason, i.e.:
o The instructions would breach StaRs or the law
o The solicitor cannot obtain instructions
o The relationship has broken down (i.e. client will not accept advice)
o They haven’t paid bill on account in a reasonable time

31
Q

when is the retainer terminated by law?

A

automatic termination where:
o Solicitor is declared bankrupt
o Solicitor or client loses mental capacity
o If the solicitor works in a firm, this has less impact as a colleague can take over

32
Q

if the client terminates the retainer, how much do they pay?

A
  • The client will usually have to pay for work up until termination
33
Q

what should the solicitor do upon termination of the retainer?

A
  • It is good practice for a solicitor to confirm in writing that the retainer has been terminated (and give notice if they are terminating), possible options to pursue matter (if appropriate) and return any property
  • If the matter is ongoing but client has instructed another solicitor, it may be advisable to keep a copy of the file (i.e. for any future negligence claims)
34
Q

what is a lien?

A
  • Lien = a legal right of a creditor to retain debtor’s property until payment is made
35
Q

what are the types of lien?

A

common law (/ general) lien & equitable lien

36
Q

when would a common law lien be used?

A
  • If the client terminates their retainer and fails to pay the outstanding fees owed, the solicitor can exercise a general lien over any of the client’s retained property
  • This is usually the client’s file
  • The court (and the SRA if they have been involved) have the power to order the papers are given to the client, if necessary
37
Q

when would an equitable lien be used?

A
  • If the client obtains a monetary award in litigation, the solicitor can take their fees from the amount before paying it to the client
38
Q

when can a charging order be used?

A
  • If money or other property has been recovered in the proceedings, the solicitor can apply for a charging order over this property
  • They will need to demonstrate that they will not recover their costs without it

FLK1 & 2 - Professional Conduct & Ethics (8 decks)

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