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Professional Conduct & Ethics > Complaints > Flashcards

Complaints Flashcards

1
Q

what obligations do firms have regarding the complaints procedure?

A
  • Solicitors must establish, maintain and participate in the complaints procedure
  • Information about the firm’s complaints procedure must be on the website or made available on request if there is no website
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2
Q

what information must the solicitor tell the client about the complaints procedure?

A
  • Solicitors must tell clients in writing at the time of engagement about:
    o The client’s right to complain about the solicitor’s services and charges
    o How and to whom complaints are made
    o That they have the right to complaint to the legal ombudsman
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3
Q

how much complaints be dealt with?

A
  • Complaints must be dealt with promptly and free of charge
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4
Q

what must the firm do if they complaint is not resolved?

A

If a client’s complaint is not resolved within 8 weeks of making the complaint, the solicitor must tell the client in writing:
o About their right to complaint to the Legal Ombudsman (LO), how to do this and the timescales; and
o If the complaints procedure has been exhausted;
 That the solicitor cannot settle the complaint;
 The name of a suitable and approved ADR body; and
 Whether the solicitor agrees to use the proposed ADR

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5
Q

what does the legal ombudsman deal with?

A
  • The LO deals with complaints against solicitors, barristers, legal executives, licensed conveyances and patent attorneys
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6
Q

Does a client need to have suffered a loss to make a complaint to the legal ombudsman?

A

No

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7
Q

who cannot make a complaint to the legal ombudsman?

A
  • The following clients cannot make a complaint to LO:
    o Enterprises with more than 10 staff and a turnover of more than £2m
    o Clubs and associations with a net income of less than £1m
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8
Q

what must a complaint to the legal ombudsman relate to?

A
  • The complaint must relate to the services the solicitor (etc) offered, provided or refused to provide
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9
Q

what must the client do before making a complaint to the legal ombudsman?

A

The client must first use the solicitor’s internal complaints procedure, unless:
o The complaint has not been resolved within 8 weeks of being made to the solicitor; or
o There are exceptional reasons for it to be considered sooner or without it being made to the solicitor first; or
o In-house resolution is not possible due to irretrievable breakdown in the relationship

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10
Q

what are the timescales for making a legal ombudsman complaint?

A

Complaint must be brought within:
o 1 year of act or omission; or
o 1 year from when the complainant should have reasonably known there was a cause for complaint

LO has discretion to extend the time limits if it would be fair

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11
Q

even if the complaint to the LO is unjustified, what might happen?

A
  • Even if the complaint is unjustified, the LO can still take action against the firm / report the solicitor to the SRA is they have delayed dealing with the complaint
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12
Q

what is the process for a legal ombudsman complaint?

A
  1. LO will accept the complaint if they consider it necessary
    * If the complaint includes allegations of professional misconduct it will also be reported to the SRA
  2. Both sides will be given the opportunity to make representations
  3. There will be a hearing if it would be unfair not to have one
  4. A determination will be sent to parties and SRA. The determination may direct the solicitor or their firm to (there can be more than 1):
    * Apologise
    * Pay compensation
    * Rectify and pay for the error
    * Take and pay for any specified actions
    * Limit the solicitor’s fees
    * The total value of B, C and D is capped at £50k
  5. The complainant has a time limit to respond and can reject or accept the determination
    * Accept  it is legally binding and can be enforced through the courts, but they cannot start additional legal proceedings
    * Reject  can pursue other legal remedies
  6. The outcome will then be sent to the solicitor and SRA
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13
Q

what determinations can the legal ombudsman make?

A
  • Apologise
  • Pay compensation
  • Rectify and pay for the error
  • Take and pay for any specified actions
  • Limit the solicitor’s fees
  • The total value of B, C and D is capped at £50k
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14
Q

what happens if the client accepts the legal ombudsman’s decision?

A

it is legally binding and can be enforced through the courts, but they cannot start additional legal proceedings

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15
Q

what happens if the client rejects the legal ombudsman’s decision?

A

they can pursue other legal remedies

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16
Q

how are breaches of professional misconduct investigated?

A

by the SRA using the approach in the enforcement strategy

17
Q

what is the SRA process for investigating a breach?

A
  1. SRA will decide whether to investigate by applying SRA applies Assessment Threshold test:
    a. Has there been a potential breach of StaRs based on the allegations?
    b. If the breach sufficiently serious that if proved would be capable of regulatory action?
    c. Is the breach capable of proof?
  2. If they investigate, the accused person/firm will be notified and given a timeframe to respond
  3. May serve a notice requiring the solicitor to provide documents/files in their possession (this is a statutory power)
    o StaRs add that they are obliged to provide this information
  4. Examples of possible action (b – d to be agreed with the individual):
    a. NFA with or without issuing advice or warning
    b. Financial penalty or written rebuke (capped at £25,000)
    c. Control how the solicitor or the firm practices (i.e. conditions on their practising certificate or suspension)
    d. Refer the matter to the Solicitors Disciplinary Tribunal (SDT) (if the SRA doesn’t feel its powers are sufficient to deal with the matter)
18
Q

what is the SRA’s threshold to decide whether they will investigate?

A
  1. SRA will decide whether to investigate by applying SRA applies Assessment Threshold test:
    a. Has there been a potential breach of StaRs based on the allegations?
    b. If the breach sufficiently serious that if proved would be capable of regulatory action?
    c. Is the breach capable of proof?
19
Q

what are examples of possible actions the SRA may impose?

A
  1. Examples of possible action (b – d to be agreed with the individual):
    a. NFA with or without issuing advice or warning
    b. Financial penalty or written rebuke (capped at £25,000)
    c. Control how the solicitor or the firm practices (i.e. conditions on their practising certificate or suspension)
    d. Refer the matter to the Solicitors Disciplinary Tribunal (SDT) (if the SRA doesn’t feel its powers are sufficient to deal with the matter)
20
Q

what obligations are on a solicitor is directed by the SRA to investigate?

A
  • 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
21
Q

what does the solicitors’ disciplinary tribunal deal with?

A
  • Deals with applications of the most serious cases of PM
22
Q

re: solicitors’ disciplinary tribunal

what is the SDT’s process?

A
  1. Party makes an application in the prescribed form with evidence
    a. This is usually the SRA but it can be anyone and they need not complain to the SRA first (but the SDT may refer the case to the SRA for investigation first)
    b. An application can be made when:
    i. There is a realistic prospect of the SDT making an order; and
    ii. It is in the public interest to make the application
  2. A hearing will be fixed if there is a case to answer
    a. There can be witness evidence that is given on oath
    b. SDT does not have powers of investigation and won’t collect evidence itself
  3. Order and Judgment given. SDT can may any order it sees fit, including:
    a. Striking the solicitor off
    b. Suspending them or imposing restrictions on their practice
    c. Imposing an unlimited fine (payable to HM Treasury)
    d. Reprimanding the solicitor
    e. Requiring payment of or contribution to costs
    o Order  sets out brief reasons for decision. Available at the end of the hearing. The Order takes effect once filed with the Law Society.
    o Judgment  detailed written reasons given approx. 7 weeks after the hearing. Given to parties, Law Society and Law Society Gazette.
23
Q

re: solicitors’ disciplinary tribunal

who usually makes an application to the SDT?

A

This is usually the SRA but it can be anyone and they need not complain to the SRA first (but the SDT may refer the case to the SRA for investigation first)

24
Q

re: solicitors’ disciplinary tribunal

when can an application to the SDT be made?

A

An application can be made when:
i. There is a realistic prospect of the SDT making an order; and
ii. It is in the public interest to make the application

25
Q

re: solicitors’ disciplinary tribunal

does the SDT have investigative powers?

A

no

26
Q

re: solicitors’ disciplinary tribunal

what orders can the SDT impose?

A

a. Striking the solicitor off
b. Suspending them or imposing restrictions on their practice
c. Imposing an unlimited fine (payable to HM Treasury)
d. Reprimanding the solicitor
e. Requiring payment of or contribution to costs
o Order  sets out brief reasons for decision. Available at the end of the hearing. The Order takes effect once filed with the Law Society.
o Judgment  detailed written reasons given approx. 7 weeks after the hearing. Given to parties, Law Society and Law Society Gazette.

27
Q

re: solicitors’ disciplinary tribunal

where is an appeal of an SDT decision made?

A
  • An appeal is made to the Administrative Court
28
Q

how is the court involved in discipling solicitors?

A
  • In any matter before the court, the court can discipline the solicitor in relation to costs and can order they pay their clients or a third parties
  • Negligence claims
29
Q

when can a solicitor be sued in negligence?

A
  • A solicitor can be sued in negligence if they have breached their duty of care and suffered a loss
30
Q

can the SRA and LO adjudicate in negligence?

A
  • The SRA and LO cannot adjudicate on negligence, but there may be an overlap
    o If there is an overlap, client complain to SRA/LO and court claim
31
Q

if the solicitor becomes aware the client is making a negligence claim, what must they do?

A
  • If the client informs the solicitor of their intention to make a complaint, consideration needs to be given as to whether a conflict of interest has arisen
    o It would be rare for a conflict not to arise
31
Q

what is the purpose of the SRA compensation fund?

A
  • Purpose of fund:
    o Compensate those who have had money stolen or not accounted for as a result of an act or omission by those regulated by the SRA
    o Relieve losses for SRA-authorised bodies that should have had insurance but did not
32
Q

how is the SRA compensation fund funded?

A
  • Funded by mandatory contributions from all solicitors/SRA-authorised bodies
33
Q

when can an application to the SRA compensation fund be made?

A
  • Applications can be made where the individual/organisation has:
    o Suffered loss due to a defaulting practitioner’s (DP) dishonesty; or
    o Suffered loss/hardship due the DP failing to account for money they received
34
Q

how much can be awarded at one time from the SRA compensation fund?

A
  • Not more than £2m will be paid per claim, unless there are exceptional circumstances in the public interest to justify this
  • Cap of £5m for connected claims
35
Q

what will the SRA seek if an award is given from the compensation fund?

A
  • The SRA will seek to be subrogated the rights of the applicant to take action against the DP to recover the money

Professional Conduct & Ethics (8 decks)

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