Ethics Flashcards

1
Q

What type of breach will likely results in an investigation or sanctions from the SRA?

A

serious breaches

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2
Q

With respect to complaints, what must the solicitor inform its clients of at the time of engagement?

A

(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

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3
Q

What happens when a client’s complaint is not resolved to their satisfaction (via firm’s own procedure) within 8 weeks?

A

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

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4
Q

How should client’s complaints be dealt with?

A

promptly, fairly, free of charge

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5
Q

What are the conditions of bringing a claim to the Legal Ombudsman?

A

*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

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6
Q

When can the Legal Ombudsman be used without going through solicitor’s own complaints procedure?

A

(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

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7
Q

What is the time limit of bringing a complaint to the Legal Ombudsman?

A

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

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8
Q

What can the LeO do?

A

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

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9
Q

What may a LeO determination direct a solicitor or firm to do?

A

(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

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10
Q

What is the effect of a complainant accepting or rejecting a determination?

A

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

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11
Q

What will the LeO do if it finds that an initial complaint was unjustified?

A

it may still make a determination against the firm/individual if the complaint was not dealt with property

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12
Q

How will the SRA determine whether to carry on an investigation when it receives an allegation of professional misconduct?

A

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?

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13
Q

What will the SRA do when it decides to carry out an investigation?

A

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

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14
Q

What can the SRA do following a finding of professional misconduct?

A

(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

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15
Q

When is the SRA likely to refer a matter to the Solicitors Disciplinary Tribunal?

A

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

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16
Q

What powers does the SDT have?

A

(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

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17
Q

Where can be decisions of the SDT be appealed?

A

administrative court

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18
Q

What is the SRA Compensation Fund and how is this relevant to a solicitor’s duties?

A

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

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19
Q

What are the 7 SRA Principles?

A

(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

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20
Q

Examples of breaching Principle 1

A

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

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21
Q

Examples of breaching Principle 2

A

solicitors getting involves in fraudulent investment schemes; making offensive posts on social media

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22
Q

Examples of breaching Principle 4

A
  • 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
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23
Q

Examples of breaching Principle 5

A
  • 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
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24
Q

How should firms/solicitors advertise their services?

A

accurately and ensure it is not misleading

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25
Q

Can solicitors cold-call potential clients?

A

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

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26
Q

What must an SRA-authorised body display on its website?

A

SRA number and SRA digital badge - must be displayed in a prominent place

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27
Q

When can solicitors enter into referral arrangements with third parties?

A

when they are satisfied that they can act independently (e.g. their freedom to refer clients to other providers is not restricted) + referrals are in the client’s best interests

28
Q

How should solicitors go about making referral arrangements with third parties?

A

(1) ensure clients are informed of any financial or other interests which the solicitor, the solicitor’s business or employer has in referring the client to another person/body
(2) ensure that any client referred to the solicitor by an introducer was not acquired in a way which would breach the SRA’s regulatory arrangements
(3) fee-sharing agreement must be in writing

29
Q

When can a solicitor not receive payments relating to a referral or make payment to an introducer?

A

in respect of clients who are the subject of criminal proceedings

30
Q

What should a solicitor do if it suspects that the instructions received from a client do not represent the client’s wishes - i.e. duress or undue influence?

A

solicitor must not act unless they have satisfied themselves that they do

31
Q

What constitutes a ‘significant gift’ from a client?

A

(1) more than £500
(2) it is worth more than 1% of the client’s current estimated net estate
(3) it might become valuable at some point
(4) it provides a benefit to an individual which is more valuable than his relationship to the deceased reasonably justifies

32
Q

What should a solicitor do when drafting a will which includes a significant gift to the solicitor?

A

as this may give rise to an own interest conflict, solicitor should not act unless the client agrees to take independent legal advice on making the gift

*equally applicable when gift is made to a member of solicitor’s family or member of your firm/their family

33
Q

What does the duty to act in the client’s best interests entail?

A

duty to account, obligation to safeguard money and assets entrusted to the solicitor by clients, obligation not to hold client money unless working in an authorised body, duty not to take advantage of the client, confidentiality, disclosure, solicitor should never seek to rely on implied authority to bind its client

34
Q

When can a client terminate the retainer?

A

any time and for any reason

35
Q

When can a solicitor terminate the retainer?

A

solicitor would need to justify a decision to terminate the retainer having regard to their obligations under the SRA regime - e.g. complying the client’s instructions would involve the solicitor breaching the law or the requirements of professional conduct, there has been a breakdown of confidence within the solicitor/client relationship

36
Q

Can a solicitor hold onto client’s property already in their possession?

A

yes, under liens - e.g. hold onto client papers until fees are paid + solicitor may apply for a charging order over any personal property of the client recovered or preserved by the solicitor within litigation proceedings

37
Q

What obligations [regarding skills/knowledge] are imposed on solicitors?

A

solicitors must maintain their competence to carry out their role and keep their professional knowledge and skills up to date + solicitors must ensure that individuals they manage are competent to carry out their role and keep their professional knowledge and skills, as well as an understanding of their legal, ethical, and regulatory obligations up to date

38
Q

What obligations [regarding costs] are imposed on solicitors?

A

clients must be provided with the best possible information about how their matter will be priced and the likely overall cost of a matter and any costs incurred at the time of engagement and when appropriate as matter progresses

e.g. explain how fees are calculated, if and when they are likely to change, warn client about other payments which the client may be responsible for (e.g. court and counsel fees in litigation) - details of the solicitor’s charge-out rate will rarely be sufficient

in the context of litigation, it is good practice to advise client that they may still be liable to pay their own solicitor’s costs (regardless of win/lose)

39
Q

VAT and solicitor fees

A

if solicitor fails to quote with VAT, the price the client pays will be deemed to include VAT

40
Q

What are the formalities that need to be complied with for a solicitor to obtain payment?

A

(a) bill must contain enough information for the client to be satisfied that the bill is reasonable, and also provide details of the period to which the bill relates
(b) bill must be signed by the solicitor or on the solicitor’s behalf by an employee authorised to do so OR the solicitor/authoritsed employee may sign a covering letter which refers to the bill
(c) bill must be delivered by hand to the client, by post to the client’s home business address or last known address, or by email if the client has agreed to this method and provided an appropriate email address

41
Q

When can solicitors charge interest on an unpaid bill?

A

for non-contentious matters, a solicitor may charge interest on the whole or the outstanding part of an unpaid bill with effect from one month after delivery of the bill

for contentious matters, interest may be charged on an unpaid bill where the solicitor expressly reserves this right in the retainer or the client later agrees for a contractual consideration to pay interest

42
Q

When can a solicitor commence a claim to recover costs due?

A

after one month since the solicitor delivered the bill

but High Court has the power to allow the solicitor to commence within the one-month period where it is satisfied that the client is about to leave the country, be declared bankrupt or do anything else which would prevent or delay the solicitor obtaining their fees

43
Q

When can a client apply to challenge a bill?

A

within one month from the date of bill’s delivery

client may still apply within 12-months of delivery but this would require permission of the court for the bill to be assessed

44
Q

How does the court consider whether the costs have been reasonably incurred by the solicitor?

A

in non-contentious proceedings, with reference to
(1) complexity of the matter + difficulty/novelty of the question raised
(2) skill, labour, specialised knowledge and responsibility involved
(3) number and importance of the documents prepared or considered, without regard to length
(4) amount of value of any money or property involves
(5) whether any land involved is registered

in contentious proceedings, with reference to
(1) conduct of the parties
(2) amount or value of any money or property involved
(3) importance of the matter to the parties
(4) particular complexity of the matter or difficulty/novelty
(5) skill, effort, specialised knowledge and responsibility involved

45
Q

How could a solicitor discharges its duty to ensure that clients are in a position to make informed decisions about the services they need, how their matter will be handled and the options available to them?

A

discuss whether the potential outcomes of the client’s matter are likely to justify the expense or risk involved, make clear the responsibilities of the solicitor and client during the matter, confirmation of type and frequency of communication with the client, likely timescales for agreed work

46
Q

What is the duty of confidentiality?

A

solicitor must keep the affairs of current and former clients confidential unless disclosure is required or permitted by law, or the client consents + applies to all information regardless of source

duty stands when the client dies - the right to enforce or waive the duty passes to the client’s personal representatives

47
Q

When and how should a solicitor seek consent for disclosure?

A

when it is necessary and in the client’s best interest + client must understand exactly what information will be disclosed, when and to whom, and the purpose of disclosure

48
Q

When is disclosure required or permitted by law?

A

(a) pursuant to a stautory requirement
(b) statutory duty (POCA, Money Laundering)
(c) under a court order or permitted by a police warrant
(d) where a solicitor is acting for a client under a power of attorney or as a court appointed deputy
(e) in compliance with a notice served by the LeO (production of information to facilitate investigation of a complaint)

49
Q

What circumstances justify disclosure?

A

(a) where a client has indicated their intention to commit suicide or serious self-harm [SRA still advises that solicitor should consider seeking consent first]
(b) preventing harm to children or vulnerable adults
(c) preventing the commission of a criminal offence

there will still be a breach of the duty of confidentiality but such circumstances may serve as mitigation in the context of disciplinary action

50
Q

What is the duty of disclosure?

A

solicitor must make the client aware of all information material to the matter of which the solicitor, personally, has knowledge

51
Q

What are the exceptions to the duty of disclosure?

A

(a) disclosure of information is prohibited be legal restrictions imposed in the interest of national security or the prevention of crime
(b) the client gives informed consent, given or evidenced in writing, to the information not being disclosed to them
(c) solicitor has reason to believe that serious physical or mental injury will be caused to the client or another if the information is disclosed
(d) information is contained in a privileged document that the solicitor has knowledge of only because it was mistakenly disclosed

52
Q

What should a solicitor do if it receives documents destined for another [mistake]?

A

receiving solicitor must return papers to the originating solicitor without reading them or otherwise making use of the information contained therein

no duty to disclosure + you should cease acting for the client

53
Q

How should a solicitor deal with a potential conflict between duty to disclose and duty of confidentiality?

What are the exceptions?

A

solicitor must not act for a client in a matter where that client has an interest adverse to the interest of another current/former client for whom confidential information which is material to the matter is held

  • it is not realistic to suggest that a solicitor could separate sets of information in his/her mind, therefore where it is likely that clients will wish/need information to be kept confidential, a solicitor cannot personally act for both clients

adverse interest: clients litigate against each other, are on opposing sides of a negotiations [must be on the same matter]

exceptions:
(a) effective measures have been taken which result in there being no real risk of disclosure of the confidential information - this is a high bar, but examples include information barriers, physical separation within buildings, information being encrypted and password protected, use of separate servers
(b) current/former client whose information is held has given informed consent in writing to the solicitor, including to any measures taken to protect their information - onus on the solicitor to ensure that client has understood

54
Q

When must a solicitor refuse to act on the grounds of professional embarrassment?

A

when information which cannot be disclosed would cause severe embarrasment if the fact that the solicitor had agreed to act in those circumstances ever came out

55
Q

What happens when there is a confict between the client’s interests and solicitor’s own personal interests?

A

own interest conflict + the solicitor must not act under any circumstances where there is or a significant risk of an own interest conflict

e.g. financial interest of yours or someone close to you, personal or business relationship of yours, your role as an employee, solicitor asked to draft a will in which the client wishes to make a gift of significant value to the solicitor or a member of the solicitor’s family, or an employee of the solicitor’s business or their family

56
Q

What happens when there is a conflict between the interests of two or more clients?

A

conflict of interest + solicitor must not act in relation to a matter of particular aspect of it if there is a conflict of interest or a significant risk of such a conflict in relation to that matter or aspect of it

this must involve 2 or more current clients

57
Q

What are the exceptions to the prohibition of acting when there is a conflict of interest?

A

(a) clients have a substantially common interest in relation to the matter or the aspect of it - where there is a clear common purpose between the clients and a strong consensus as to how it is to be achieved
(b) the clients are competing for the same objective

58
Q

If one of the expcetions apply, what are the conditions that must be met to act?

A

(1) all clients must have given informed consent in writing to the solicitor acting
(2) where appropriate, effective safeguards are put in place to protect the clients’ confidential information - not possible where it is one solicitor personally acting for both
(3) solicitor is satisfied that it is reasonable to act for all clients - consider where parties do not have equal bargaining power

59
Q

What is an undertaking?

A

enforceable (by court) promise (personally binding on solicitor) - can be given in writing or orally + reasonably placed reliance that you or a TP will do something or cause something to be done or refrain from doing something
*intent is irrelevent
if an undertaking is given by a solicitor, this must be performed within an agreed timescale, or if no timescale has been agreed, within a reasonable amount of time
+ breach of an undertaking is a breach of professional conduct - LeO, SRA and SDT have no power to enforce performance but may investigate the matter and impose discplinary sanctions

60
Q

What does the duty not to mislead the court entail?

A

not to mislead by own acts/omissions or allowing/be complicit in the acts/omissions of others
*solicitor must not misuse or tamper with evidence or attempt to do so
*solicitor must not seek to influence the substance of evidence, including generating false evidence or persuading witnesses to change their evidence
*solicitor must not provide or offer to provide any benefit to witnesses dependent upon the nature of their evidence or the outcome of the case
*solicitor must only make assertions or put forward statements, representations or submissions to the court or others which are properly arguable
*solicitor must not place themselves in contempt of court and must comply with court orders which place obligations on the solicitor
*solicitor must not waste the court’s time

61
Q

What must solicitors draw the court’s attention to during a case?

A

relevant cases and statutory provisions or procedural irregularities of which the solicitor is aware and are likely to have a material effect on the outcome of the proceedings - even if it works against the client’s case
(acting for the prosecution in a criminal case: additional duty to present evidence in a dispassionate manner, therefore must put all relevant facts before the court and notify the defence of evidence which may be of assistance to them)

62
Q

What duties do solicitors owe to counsel after instructing them?

A

must ensure that adequate instructions are provided to chosen barrister + ensure instructions/info/docs are provided in good time

63
Q

What must a solicitor do upon receiving advice from counsel?

A

exercise own independent judgment as to whether to rely on advice - if solicitor thinks the advice is obviously wrong, it is his duty to reject it, ask for clarification, obtain second opinion

64
Q

When is the duty to notify the SRA imposed automatically?

A

(1) solicitor is subject to a criminal charge, conviction, or caution
(2) solicitor is made bankrupt, enters an IVA, or subject to DRO
(3) solicitor becomes aware of a material change in information about them or their pratice previously provided to the SRA
(4) solicitor becomes aware the information previously provided to the SRA about them or their practice is false, misleading, incomplete, or inaccurate

65
Q

What are the key obligations placed on Compliance Officer for Legal Practice?

A

*ensure compliance with the T&C of firm’s authorisation
*ensure compliance by the firm and its managers, meployees or interest holders with SRA’s regulatory arrangements which apply to them
*ensure firm’s managers and interest holders and those they employ or contract with do not cause or substantially contribute to breach of SRA’s regulatory arrangements
*ensure that a prompt report is made to SRA of any facts or matters that COLP reasonably believes are capable of amounting to a serious breach of T&C of firm’s authorisation or SRA’ regulatory arrangements/should be brought to SRA’s attention in order that it may investigate serious breach or otherwise exercise its regulatory powers

66
Q

What are the key obligations placed on Compliance Officer for Finance & Administration?

A

*ensure firm, managers, employees comply with any obligations impsoed upon them under ths SRA Accounts Rules
*ensure that a prompt report is made to SRA of any facts or matters that COFA reasonably believes are capable of amounting to a serious breach of SRA Accounts Rules
*ensure that the SRA is informed promptly of any facts or matters that the COFA reasonably believes should be brought to its attention in order that is may investigate whether a serious breach of its regulatory arrangements has occurred or otherwise exercise its regulatory powers