Ethics Flashcards
What type of breach will likely results in an investigation or sanctions from the SRA?
serious breaches
With respect to complaints, what must the solicitor inform its clients of at the time of engagement?
(a) their right to complain
(b) how complaints may be made and to whom
(c) any right they have to make a complaint to the Legal Ombudsman and when they can make such a complaint
must be in writing
What happens when a client’s complaint is not resolved to their satisfaction (via firm’s own procedure) within 8 weeks?
solicitor must ensure that the client is informed, in writing
(a) of any right they have to complain to the Legal Ombudsman, the timeframe for doing so and full details of how to contact the Legal Ombudsman
(b) if a complaint has been brought and the complaint procedure has been exhausted
(i) that they cannot settle the complaint
(ii) the name and website address of an ADR approved body which would be competent to deal with the complaint, and
(iii) whether the solicitor agrees to use the scheme operated by that body
How should client’s complaints be dealt with?
promptly, fairly, free of charge
What are the conditions of bringing a claim to the Legal Ombudsman?
*client does not need to suffer any loss - the fact that solicitor has provided services which are not of quality reasonably to be expected of a solicitor is sufficient
complaint must relate to an act/omission by the solicitor
When can the Legal Ombudsman be used without going through solicitor’s own complaints procedure?
(a) complaint has not been resolved to the complaint’s satisfaction within 8 weeks of being made to the solicitor
(b) LeO considers that there are exceptional reasons to consider the complaint sooner, or without it having been made first to the solicitor
(c) LeO considers that in-house resolution is not possible due to irretrievable breakdown in relationship between the solicitor and the complainant
What is the time limit of bringing a complaint to the Legal Ombudsman?
no later than
(a) one year from act/omission, or
(b) one year from when the complainant should reasonably have known there was cause for complaint
however, LeO has discretion to extend the time limits to the extent it considers fair
What can the LeO do?
make a determination
hearing may be held if the LeO considers that the complaint cannot be determined fairly without it + if an investigation is considered necessary, both parties will be given an opportunity to make representations
What may a LeO determination direct a solicitor or firm to do?
(a) apologise
(b) pay compensation (limit of £5,000)
(c) ensure the putting right of any error or omission
(d) take any specified action in the interests of the complainant
(e) pay a specified amount for the costs to the complainant in pursuing the complaint
(f) limit the solicitor’s fee - requiring that all/part of any amount paid is refunded
What is the effect of a complainant accepting or rejecting a determination?
accepting: it becomes binding on the parties and final + may be enforced through the High Court or County Court by the complainant [neither party may start or continue any legal proceedings in respect of the subject matter of the complaint]
rejecting: both parties are free to pursue other legal remedies - e.g. sue for negligence
What will the LeO do if it finds that an initial complaint was unjustified?
it may still make a determination against the firm/individual if the complaint was not dealt with property
How will the SRA determine whether to carry on an investigation when it receives an allegation of professional misconduct?
SRA focuses on serious breaches of the Code/Standards + applies a 3-step test:
(1) has there been a potential breach of the SRA Stansards and Regulations based on the allegations made?
(2) is that potential breach sufficiently serious that, if proved, is capable of regulatory action?
(3) is the breach capable of proof?
What will the SRA do when it decides to carry out an investigation?
inform the solicitor/firm + invite them to respond
SRA has the power to serve a notice on a solicitor requiring the delivery of a file or documents in possession of the solicitor to the SRA, and CoC imposes an obligation on solicitors to respond promptly to the SRA and provide information and documents in response to such request
What can the SRA do following a finding of professional misconduct?
(a) take no further action with or without issuing advice or a warning about future conduct
(b) impose a financial penalty or written rebuke (max £25,000)
(c) control how the solicitor practices by imposing conditions or suspending the solicitor’s practising licence
(d) refer the matter to the Solicitors Disciplinary Tribunal
When is the SRA likely to refer a matter to the Solicitors Disciplinary Tribunal?
when it is satisfied that there is a realistic prospect of the SDT making an order in respect of an allegation and it is in the public interest to make the application - however, it is possible for individuals to make an application directly to the SDT without first making a complaint to the SRA
What powers does the SDT have?
(1) strike a solicitor off the roll - can only be done by the SDT
(2) suspend a solicitor from practice or impose restrictions upon the way in which a solicitor can practice
(3) impose an unlimited fine payable to HM Treasury
(4) reprimand the solicitor
(5) require the payment by any part of costs or a contribution towards costs
SDT does not have powers of investigation nor will it collect evidence itself
Where can be decisions of the SDT be appealed?
administrative court
What is the SRA Compensation Fund and how is this relevant to a solicitor’s duties?
a discretionary fund of last resort to make grants to persons whose money has been stolen or otherwise not accounted for as a result of an act/omission of those regulated by the SRA
solicitors are under an obligation to ensure clients understand the regulatory protections available to them - including eligibility to claim under the Fund
What are the 7 SRA Principles?
(1) act in a way that upholds the constitutional principle of the rule of law, and the proper administration of justice
(2) act in a way that upholds public trust and confidence in the solicitors’ profession and in legal services provided by authorised persons
(3) act with independence
(4) act with honesty
(5) act with integrity
(6) act in a way that encourages equality, diversity, and inclusion
(7) act in the best interests of each client
Examples of breaching Principle 1
solicitor commits a criminal offence; in presenting a client’s case, misleads the court; accepts clients even if to do so would breach the law
Examples of breaching Principle 2
solicitors getting involves in fraudulent investment schemes; making offensive posts on social media
Examples of breaching Principle 4
- taking or using someone else’s money without their knowledge or agreement
- lying to, or misleading someone (telling a client that their case is going well when it has failed)
- knowingly bringing a false case to a court
- helping other people to act improperly
- giving false information to the firm’s insurer
- misleading a court, tribunal, or regulator
- lying on a CV and misleading partners in the firm
- backdating or creating false documents
Examples of breaching Principle 5
- displaying a wilful or reckless disregard of standards, rules, legal requirements and obligaions, and ethics
- taking unfair advantage of clients or third parties
- knowingly and recklessly causing harm or distress to another
- misleading clients or third parties
- putting personal financial interests before those of the client
- accepting a loan from a client and failing to ensure they took independent advice
- sexual misconduct
How should firms/solicitors advertise their services?
accurately and ensure it is not misleading
Can solicitors cold-call potential clients?
CoC prohibits a solicitor from making unsolicited appraoches to individual members of the public which, even if permitted by law, may feel unwelcome or intrusive - distinguish between e.g. sending leaflets to all homes in a large geographic area + selectively distributing leaflets to only specific homes or individuals based on wider information (e.g. single-parent homes)
*exception: current or former clients
What must an SRA-authorised body display on its website?
SRA number and SRA digital badge - must be displayed in a prominent place