Ethics Flashcards
What does 8.2 of the code of conduct say about how solicitors should establish/maintain/participate in a complaints handling procedure?
Solicitor must establish or maintain or participate in a procedure for handling complaints in relation to the legal services they provide
What does 8.3 of the code require solicitors to inform their client about at the time of engagement?
- Their right to complain about solicitor services and charges
- How complaints are made and to whom
-Any right they have to make a complaint to the legal ombudsman and when to make a complaint
What does a solicitor have to ensure if a complaint is not resolved within 8 weeks of it being made?
- Client is informed in writing of any complaint to ombudsman, timeframe for doing so and full details of how to contact ombudsman and
-if a complaint has been brought and complaints procedure has been exhausted, that the solicitor canot settle the complaint, the name and website for ADR schemes to deal with issues and if sol agrees with scheme operated bu the body
What does the legal ombusman do
1st point of contact over SRA and deals with issues made by micro enterprises, small charities/clubs associations and personal reps/estate beneficaries
When can the legal ombusdman be used
If the solicitors own complaint proecure has been exhuasted and complaint not resolved to clients satisfaction, in house resolution is not possible or exceptional reasons to go to LeO
What are the possible legal ombudsman outcomes?
- apology
-compensation (capped at 50k, can includes any costs/errors made), complaint costs or limit fees made
What are potential sanctions the SRA can impose
- no further ction
-financial penalty
-control how solicitor practices
-referral to SDT
What does the solicitors disciplinary tribunal do?
Hears amd determines applications. Application must be made in a prescribed form with evidence. Can be applied to directly be will usually refer to SRA.
What is the difference between an SDT order and judgement?
Order- available after hearing. Shorter. Takes effect when filed with law society
Judgement- Longer, explains reasons, 7 weeks after hearing it is usually available and filed with gazette
What powers do the SDT have?
-Striking off
-Suspension
-Unlimited fine to treasury
-Costs payable
How do you appeal from SDT?
To Adminstrative court
Can you have a case in negligence against a solicitor as well as SRA/SDT?
Yes if theres an overlap and would help to compensate the client.
What is the SRA compensation fund?
The SRA Compensation Fund is a discretionary fund. Solicitors contribute to the fund through a levy added to the practising certificate fee. Max claim 2 million.
What are the 7 SRA principles?
You act:
1- in a way that upholds the constitutional principle of the rule of law, and the proper administration of justice.
2- in a way that upholds 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- in a way that encourages equality, diversity and inclusion.
7- in the best interests of each client.
What is more important regarding the SRA principles - duty to wider public or indivdual client
Public
What is the objective dishonesty test?
1- What was the solicitors genuine knowledge of the facts at the time?
2- In view of solicitors knowledge or being at the time, was conduct dishonest by standard of ordinary decent people?
Can solicitors cold call?
Only former or current clients
Which specified services do the SRA require cost transparency about?
For individuals-
- Resi
- Uncontested UK probate
-Summary motoring offences - Employment tribunals (unfair dismissal
- immigration (not asylum)
For biz-
- Debt recovery up to 10k
- Defending wrongful dismissal
- Licensing premises
What does cost info have to include?
- Total or average cost
- Charge basis
-Included services - Experience and qualifications of sol
- VAT payable
- Typical time scales
- Conditional fee circumstances
Are 3rd party referral schemes ok?
Yes if client is aware about its existence
What is an introducer
Someone who introduces your business
True or false - a solicitor cannot represent any non SRA regulated firm as SRA regulated
true
True or false - a solicitor does not have a duty to keep information relating to the identity of their client
False
Can a solicitor act for a third party on behalf of a client
Yes if solicitor is satisfied proper authorisation has been given
What scenarios can a solicitor refuse to act?
- Concerns around duress
- Where a solicitor cannot act in a clients best interests
- If a gift given by a client is too significant, generally worth man than 1% of clients net estate, potential value and more valuable than the relationship reasonably justifies
- conflict of interest
- risk of misleading court
- prior client info is relevant to the new clients case
What are the general duties a solicitor has to their client
- act with reasonable care and skill
- Duty to not take advantage
-confidentiality - disclosure
-cost information
When can the retainer be terminated
- By client for any reason
- By solicitor if it is justified with a good reason such as a lack of proper instructions
- By law, if solicitor is bankrupt or client loses mental capacity
What must a solicitor do on termination of the retainer
- Confirmation in writing of end
- Possible options for client
- Paperwork copied if original file is given to different solicitor
What is a lien
A legal right that allows a creditor to retain a debtors property until payment. Property can include client papers. Court does have power to force return of papers, or for sol to get a charge over any personal property until fees are paid.
Why does a cost estimate given by a solicitor have to be accurate
Because they may be held to the estimate if they go over it. Usually charge out rate info is sufficent
What must be done is a solicitor cannot agree on a precise cost estimate figure?
- A ceiling figure must be given or a review date where parties will re visit the costs position
Is a client care letter explicitly required?
No but is usually the chosen method to make sure there is proof of the necessary info in writing
Do the SRA place restrictions on fee amounts?
Yes which vary according to contenious and non contentious business. See 5.6.1 for further info in textbook
What are the general options available for solicitors fees
-Hourly rate
- Fixed fee
- Variable fees (such as conditional fee agreements, or damaged based agreements depending on a percent of damages solicitor will takes)
- Contingency fee arrangement (if non contentious)
What formalities need to be in a solicitors bill?
- Enough info for the client to be satisifed it is reasonable and with info on the period the bill covers
- Signed by sol or on sol behalf
- Delivered by hand, post, address or email if agreed by client to be email.
What are interm statute bills
Bills that are self contained final bills in respect of work covered
When do statute interim bills arise
If there is authority for issuing such bills in a natural break in lengthy proceedings, but there is little authority to what amounts as a natural break
By agreement w client and law society says this should explicit in the retainer with a time limit
What is an interim bill on account
Requests for payments on account of a final bill. Doesnt need to represent final figure but also cannot sue client for non payment
When can a solicitor charge interest on a bill
Contentious - only when right expressly reserved in retainer or later agreed to OR if client doesnt pay solicitor then solicitor may be awarded fees w interest
Non contentious - interest on whole or outstanding part of unpaid bill w effect from one month after delivery of the bill providing the client has been given notice to challenge the bill
What is assessed when a client wants to challenge a bill
If the bill is assessed by a judge or district judge within a month of delivery, it can be assessed depending on nature of proceedings.
Contentious -
- Party conduct
-value involved
-importance of matter
-complexity - skill and effort
-time spent - place and circumstances of work
Non contentious -
- complexity
-skill
-time spent
-importance of docs prepared
-value
-land registered
-approval of testor to amount of costs and cost undertakings
When are non contentious business agreements enforceable
- it is in writing
- signed by client
- contain all terms of agreement
When are contentious business agreements enforceable
- agreement states it is a contentious agreement
- agreement is in writing
- agreement is signed by the client
- agreement contains all the terms
When does over charging warrant a report to sra
If the costs are redcued by more than 50%
When can client confidentiality be broken
If the client consents
If it is required or permitted by law (intent to commit suicide, prevent harm to kids or vulnerable adults or to prevent commission of a crim offence)
When does a solicitor not have to disclose information relating to a matter to a client
- Legal restrictions on interest
- phys or mental injury to client likely if disclosed
- Info is in a privileged doc that sol has knowledge of only as it has been mistakenly disclosed
-informed consent given to not disclose
When can a solicitor act for a client regarding an adverse interest with confidential info
If effective measures have been taken resulting in there being no real risk of disclosure of confidential info
The current or former client whose info is held has given informed consent given in or evidenced with writing to the solicitor acting, including any measures to protect their info
True or false - where legal professional privelige applies, a solicitor can refuse to disclose comms between himself and a client
TRUE
Can a solicitor act if there is a substantially common interest between clients/competing for same objective
Yes
What conditions are there that a solicitor must follow if acting for two clients under the common interest exception
a - all clients have given informed consent in writing to the solicitor acting
b- effective safeguards are put in places to protect clients confidential info if appropriate
c- sol satisfied is is reasonable to act for all clients
What is an own interest conflict and can a solicitor act with it
Where a solicitors interest conflcits with the clients best interests, and no it is not actable
Is a solicitor obliged to give or accept an undertaking
No
Is the undertaking binding on the solicitor or the firm
Solicitor
If a solicitor agrees to undertake something out of their control, are they still liable to it?
Yes
Does an undertaking done on behalf of a client give rise to liability by the client, or is the solicitor liable?
Solicitor is liable
Whose authority must the solicitor get before agreeing to any undertakings
The clients
Who can enforce an undertaking
Courts or SDT
Who has the power to enforce an undertaking
The court
Give some examples where there are breaches to the court in the course of litigation
- calling a witness the solicitor knows is lying
- acting for a client even if they know the client has comitted perjury
- constructing facts to support the case of the client/drafting docs containing statements the solicitor does not think is properly arguable in court
Does a solicitor have to consult with the client about choice of barrister?
Not always, and have to be careful about possible discrimination.
Who is liable for counsel fees
the solicitor but will request money on account to pay for the counsel
When does a solicitor have to notify the SRA of any breaches automatically
a- sol is subject to a crim charge, conviction or caution
b- sol is made bankrupt/ debt relief order
c- sol is aware of a material change in info about them or their practice previosuly given to SRA
d- sol is aware previous info provided to SRA about them or practice is false or misleading
What is a COLP and COFA and who gives them the power to carry out their roles
COLP- Compliance office for legal practice
COFA- Compliance officer for finance and admin
SRA approved to carry out this role.
What is a COLP’s requirements?
- ensure compliance with ts and cs of firms authorisation
- ensure compliance with SRA’s regulatory arrangements
- ensure firm managers and employees/business holders do not cause or contribute to a breach of SRA regulatory arrangements
- Prompt report made to the SRA of any facts or matters COLP reasonably believes are amountable to a serious breach of ts and cs of firm or sra regulation
- ensure SRA knows asap of reports COLP believes should be investigated
What are COFA’s requirements?
- ensure firm and managers comply with any obligations imposed on them by SRA account rules
- ensure prompt report made to SRA of any facts or matters that COFA reas believe are capable of amounting to a serious breach
- ensure SRA is informed promptly of any facts or matters COFA reasonably believes should be brought to attention in order that it may investigate whether a serious breach or its reg arrangements has occurred or exercise its regulatory powers
