Code of Conduct Flashcards
Maintaining trust and acting fairly
- Do not unfairly discriminate by allowing personal views to affect your professional relationships and the way in which you provide services
- Do not abuse your position by taking unfair advantage of clients/others
- Perform everything within an agreed time scale
- Do not mislead clients
Dispute resolution and proceedings before courts tribunals and inquiries
- Do not misuse or tamper with evidence
- Do not seek to influence substance of evidence
- Do not provide any benefit to witnesses
- Only put forward statements, representations or submissions to the court which are properly arguable
Service and Competence - Who to act for?
Must only act for clients on instructions from the client or from someone properly authorised to provide instructions on their benefit.
Service and Competence - Instructions
Must explain consequences of instructions.
Service and Competence - Reasonable care and skill
If you lack time, resources or expertise to deal with the client’s matter then it would not be in the client’s best interests for solicitor to accept. Must keep professional knowledge and skills up to date.
Client money and assets - Financial benefit
Must properly account to clients for any financial benefit you receive as a result of their instructions, except where they have agreed otherwise
Client money and assets - Safeguarding money
Must safeguard money and assets entrusted to you by clients and others
Client money and assets - Information
Client must be given the best possible information as to the overall costs of the matter. Should clearly explain how costs are calculated and if and when they are likely to change. Must be provided in the client care letter.
Client money and assets - Challenging a bill
The client may be able to challenge bill at a later date.
Client money and assets - Challenging a bill - Requirements
Must apply to have the bill assessed within 1 month. Where no application is made within this month the client may still apply within 12 months but will require a leave of the court.
Client money and assets - Formalities needed for solicitor’s bill
- Must contain enough info. for client to be satisfied that it is reasonable
- Must be signed
- Must be delivered by hand to the client, by post/email
Referrals, introductions and separate businesses - Referrals
Must ensure:
- Clients are informed of any financial/other interest which you have in referring the client to another person - Clients are informed of any fee sharing arrangement that is relevant to the matter
- Do not receive payments relating to a referral
Conflict of interests - General rule
A solicitor can never act where there is a conflict between the solicitor’s own interests and the interests of a current client. Limited circumstances in which a solicitor can act where there is a conflict between 2 or more current clients
Conflict of interests - Exception
1) The clients have a substantially common interest in relation to the matter of the aspect of it as appropriate
2) The clients are competing for the same objective and these conditions are met:
- All the clients have given informed consent
- Satisfied it is reasonable for you to act
Conflict of interests - Exception - Common interest definition
A situation where there is a clear common purpose between the clients and a strong consensus as to how it is to be achieved
Confidentiality - Current and former clients
Keep the affairs of current and former clients confidential unless disclosure is required or permitted by law or the client consents.
Confidentiality - Acting for a client where that client has an interest adverse to the interest of another current/ former client
You do not act for a client where that client has an interest adverse to the interest of another current/former client unless:
- Effective measures have been taken which result in there being no real risk of disclosure of confidential info.
- The current/former client has given informed consent given or evidence in writing
Complaints handling - Time of engagement
Ensure that clients are informed at writing at the time of engagement about:
- Their right to complain to you about your service and charges
- How a complaint can be made and to who
- Any right they have to make a complain to the legal ombudsman and when they can make such a complaint
Complaints handling - When a client’s complaint has not be resolved
Ensure that when a client has made a complaint to you if this has not been resolved to the client’s satisfaction within 8 weeks following the complaint they are informed in writing of any rights they have to complain to the legal ombudsman the time frame for doing so
Complaints handling - When a complaint can be made to legal ombudsman
Cannot used legal ombudsman unless solicitor’s own complaints procedure has been used. Complaint should be brought no later than - 6 years from act/omission and 3 years from when they knew of reason to complain
Exceptions to not giving the client all the information to your knowledge
Where you’re acting for a client on a matter you make the client aware of all the information material to the matter of which you have knowledge - exception where your client gives informed consent, given or evidenced in writing to the information not being disclosed to them.
What to do if your colleague doesn’t follow the code?
If a fellow colleague doesn’t follow the code then you need to report the matter to the firm’s compliance officer is best way to go. Could report matter directly to the SRA however solicitor will discharge their duty if they report the matter to the compliance officers
Complaints procedure in writing
MUST provide information about complaints procedure in writing
Do you have to give over the files if the client hasn’t paid?
Solicitor’s have a lien over the file until their proper fees are paid - means that they can retain the file until the fees are paid for in full
Referrals to 3rd parties are they permitted?
Referrals to third parties are permitted providing that the referral is in the best interests of the client and that the client is informed of any financial benefits the firm receives as a result of the referral
Unsolicited approaches to the public
A solicitor is prohibited from making an unsolicited approach to members of the public. However a former client is an exception
Duty to disclose evidence
There is no duty to inform the court of evidence which prejudices the solicitor’s client. Also no duty to inform the prosecution of a potential witness’ evidence.
If a witnesses evidence works against defendant’s case
The solicitor is not obliged to call the witness but the solicitor must be careful to adhere to the solicitor’s duty not to mislead the court
Failure to perform an undertaking
A failure to perform an undertaking may result in disciplinary proceedings being taken against the solicitor, only the court has the power to enforce an undertaking
Who is an undertaking binding on?
If an undertaking is made by a solicitor it is binding on both the solicitor and the firm
Undertaking definition
A statement which induces reliance
Duty to draw court’s attention to cases
Solicitors are under a duty to draw the court’s attention to cases which are likely to have a material effect on the case
Cold calling
An unsolicited approach to the public
Undertaking outside the solicitor’s control
If the performance of the undertaking is outside the solicitor’s control then the solicitor will be liable for non-performance
Conflict of interest - mortgages
The same solicitor can advise both the borrower and the lender where the mortgage is on standard terms and is not negotiated
Gifts to solicitors in wills
Where a solicitor is asked to draft a will for a client which includes a gift to the solicitor which is of significant value in relation to the size of the client’s overall estate or is of significant value in itself the solicitor will usually need to cease acting if the client does not agree to taking independent legal advice
Where does the duty of confidentiality go on death?
Passes to the PRs
Obtaining knowledge after the trial
If you obtain knowledge after the trial it does not amount to complicity in misleading the court
Ceasing to act for the client
You cannot mislead the court and you also cannot disclose confidential information without the client’s consent the solicitor must cease to act
What happens if two suspects request the same solicitor?
If two suspects want the same solicitor to represent them the solicitor should speak to the 1st suspect who requested legal advice and if the suspect’s account suggests a clear conflict of interest the solicitor should decline to act for the second suspect
Admitting guilt
Even if a client admits guilt to their solicitor it would still be appropriate for the solicitor to put the prosecution to proof of its case if the solicitor considered that the prosecution case was weak. However they cannot mislead the court. Solicitor therefore cannot say anything in their client’s defence which they know to be untrue. Despite the client admitting guilt the solicitor can defend the case to the extent stated above.
