Ethic and Professional Conduct

Question 1

Seven Mandatory Principles

Answer 1

1. upholding the constitutional principle of the rule of law, and the proper administration of justice.
2. upholding public trust and confidence in the solicitors’ profession and in legal services provided by authorised persons.
3. with independence.
4. with honesty.
5. with integrity.
6. encouraging equality, diversity and inclusion..
7. In the best interest of each client.

Question 2

Two or more principles are in conflict

Answer 2

The Principle safeguarding wider public interest takes precedent

Question 3

Disabled Clients or Employees

Answer 3

Reasonable adjustments not to place at a substantial disadvantage.
Costs must not be passed to others

Question 4

Misleading

Answer 4

When other party is unrepresented (informing this party that the view is not correct)

Backdating letters

Not informing the court on a case which is not in favour of your position on the case

Question 5

Undertaking

Answer 5

To be performed in agreed or reasonable amount of time

Duty to perform if anyone in the firm gave undertaking

May be oral or written

To someone who reasonable relies on it that a third party will do something

The word undertaking doesn’t need to be used

Can be enforced only by court but SRA impose sanction for breaching

Question 6

Paying to Witnesses

Answer 6

Legitimate travel expenses
Lost earnings

Question 7

Instruction from authorised person

Answer 7

Check the situations when a child or a spouse of a client are giving the instructions. You need to ascertain at the outset of the matter that they really request what the client wants and act in the best interest of the client.

Question 8

Referals and introductions

Answer 8

Client must be informed on financial or other interest

Fee sharing in wrting

Question 9

Prohibited referral payments

Answer 9

criminal proceedings

Damage following personal injury or death (plus ancillary claims)

Question 10

Reserved legal activities

Answer 10

Right of Audience
Litigation
Probate
Conveyance
Notary
Administration of Oaths

Question 11

Own interest conflicts

Answer 11

Financial interest in client
Substantial gift from a client
Financial interest in other side
Own employment
Personal relations with the other side
Business transaction with client
Own mistake in matter

Refuse to act, no exceptions

Interest in other business: may recommend to a client but client has to be informed and give informed consent (real estate agency example)

Question 12

Client conflict

Answer 12

Same matter or related matter:

Clients cannot agree on future partnership
Companies want to buy the same from a third party

Litigation
Acting for seller and buyer
Investor and target
Parties of commercial contract

General business interest is not a conflict (competitors)

You should refuse to act and client may not consent

No significant risk of conflict of interest in the event the solicitor acting for the client buying the house and the mortgage company financing the purchase

Question 13

Exceptions for client conflict

Answer 13

Substantial common interest
Competing for the same objective (liquidation or auction/tender, takeovers)

Question 14

Conditions for exceptions

Answer 14

1. Informed consent of the client in writing
2. Effective safeguards to protect confidential information (or informed consent that safeguarding is not required)
3. You are satisfied that it is reasonable to act for all the clients:

• will the clients benefit from one solicitor working for them
• will there be extensive negotiations
• is there an imbalance in knowledge or bargaining power

Question 15

When disclosure is appropriate

Answer 15

Client consents
Disclosure of clients will to an attorney
The solicitor is used to perpetrate crime or fraud
Statutory requirement (taxes)
Statutory duty (aml)
Court order
Police warrant

Question 16

When breach of confidentiality is justified

Answer 16

To prevent the commission of a criminal offence that will result in serious bodily harm

The client indicated that he wants to commit suicide or self-harm

To protect child or vulnerable adult

Disclosure after the event is not justified

Question 17

How long the duty of confidentiality lasts

Answer 17

Continues despite the end of retainer and even after the death of the client

Consent must be provided by the personal representative of the client to disclose the will

Question 18

Confidentiality v. legal professional privilege

Answer 18

LPP protects communications with the client for the purpose of obtaining/giving legal advice

May not be revealed without client permission even in court proceedings, it is absolute

Confidentiality covers all the info and dom but disclosure is possible under certain circumstances

Question 19

Exceptions to Duty of Disclosure

Answer 19

Informed client consent in writing

Disclosure would cause serious physical or mental injury to a person

National security of the prevention of crime

Knowledge was mistakenly disclosed to you in privileged documents

Question 20

Confidentiality v. Disclosure

Answer 20

Confidentiality wins unless there is consent from client to disclose

Question 21

SRA shall be notified

Answer 21

You are subject to criminal charge, conviction or caution

Relevant insolvency occured in relation to you

Material changes to information about you and practice

Firms additionally:

Serious financial difficulty
Cease operations as a legal business
Awareness of material change of info

Question 22

Complaints

Answer 22

Promptly, accurately, free of charge
8 weeks

Question 23

The burden of showing that the referral fee is not prohibited

Answer 23

The solicitor will have a burden to to prove

Question 24

May a solicitor refer a client to a company for ancillary services if the solicitor owns an interest in the other business?

Answer 24

Yes, provided the solicitor informs the client of the interest and they consent.

Question 25

May a solicitor agree to share fees with a non-solicitor (such as an estate agent)?

Answer 25

Yes, provided the solicitor informs the client of the interest, they consent, the fee-sharing agreement is in writing, and the case is not criminal in nature and doesn’t involve a personal injury or death claim.

Question 26

Working in charity - indemnity insurance

Answer 26

The charity takes an indemnity insurance only with respect to any reserved legal activities carried out by the solicitor.

Question 27

Client’s gift to a solicitor in a will

Answer 27

• insignificant gift
• significant if the client and solicitor are related and the solicitor is treated similarly to other relatives
• large gift is not considered significant if it is small in proportion to entire estate
• significant gift is ok if the solicitor is satisfied that the client has taken an independent advice with respect to a gift

Question 28

Accepting retainer from clients competing for the same object

Answer 28

• both clients informed consent in writing
• safeguarding each client confidential information
• it must be reasonable for the solicitor to act for both clients