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FLK1 > Ethics > Flashcards

Ethics Flashcards

1
Q

What are the seven mandatory principles for solicitors?

A

Solicitors must act:

To uphold the rule of law and proper administration of justice.
In a way that maintains public trust in the profession.
With independence.
With honesty.
With integrity.
To promote equality, diversity, and inclusion.
In the best interests of each client.

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2
Q

What happens if two principles conflict?

A

The principle safeguarding the wider public interest takes precedence.

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3
Q

Can a solicitor discriminate based on personal views?

A

No, solicitors must not allow personal views to affect professional relationships or decisions.

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4
Q

What is a solicitor’s duty towards unrepresented parties?

A

Solicitors must not take unfair advantage of unrepresented parties, such as including onerous terms in agreements and misleading them about their rights.

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5
Q

What constitutes misleading another party or the court?

A

Misleading includes both action and omission, such as failing to correct an opponent’s error about key facts.

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6
Q

How should a solicitor handle matters outside their expertise?

A

A solicitor should not accept cases they are not qualified to handle unless they can acquire the necessary knowledge promptly.

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7
Q

What are the two main types of conflicts of interest?

A

Own interest conflicts: Between the solicitor (or their firm) and the client.
Client conflicts: Between two or more clients.

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8
Q

How can a solicitor act when there is a conflict between clients?

A

Solicitors can act if:

The clients have a substantially common interest.
They are competing for the same objective, provided safeguards and client consent are in place.

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9
Q

How does the duty of confidentiality apply after representation ends?

A

The duty continues even after the solicitor-client relationship ends, including after the client’s death.

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10
Q

Can a solicitor pay a witness to testify?

A

No, except for legitimate expenses like travel or lost wages.

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11
Q

What must a solicitor do if their client commits perjury during a trial?

A

They must urge the client to correct their testimony. If the client refuses, the solicitor must cease representation.

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12
Q

Can a solicitor receive financial benefits from a client’s instruction?

A

Only with the client’s informed agreement. For example, referral fees to ancillary service providers must be disclosed and approved.

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13
Q

What incidents must a solicitor report to the SRA?

A

Events such as insolvency, criminal charges, cautions, or false information provided to the SRA.

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14
Q

Can a solicitor prohibit a client from reporting a dispute to the SRA in a settlement?

A

No, settlement agreements cannot include such provisions.

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15
Q

Can a solicitor approach potential clients directly to offer services?

A

No, solicitors cannot make unsolicited approaches to advertise services, except to current or former clients

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16
Q

What cost information must a solicitor provide to a client?

A

Solicitors must give the best possible cost estimate at the outset and update it as necessary, ensuring clarity about fees and VAT.

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17
Q

What is an undertaking, and how is it enforced?

A

An undertaking is a written or oral promise by a solicitor or a member of their firm to do something. It is personally binding on the solicitor and enforceable in court.

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18
Q

Can support staff inadvertently create enforceable undertakings?

A

Yes, if support staff make promises on behalf of the solicitor, they can be interpreted as undertakings if the other party relies on them.

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19
Q

What is a solicitor’s duty when the court is unaware of material case law?

A

The solicitor must bring relevant case law or statutes to the court’s attention, even if it undermines their client’s case.

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20
Q

Can a solicitor represent a client they know committed a crime but pleads not guilty?

A

Yes, as long as the client does not assert innocence or provide false evidence.

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21
Q

What are the responsibilities of supervising solicitors?

A

They must ensure effective oversight of junior solicitors and non-solicitor staff, including during absences like holidays.

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22
Q

What happens if a junior solicitor breaches rules under poor supervision?

A

The supervising solicitor may be held accountable for failing to provide proper guidance and oversight.

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23
Q

Can solicitors refer clients to businesses they have a financial interest in?

A

Yes, but they must disclose their interest to the client, ensure the referral is in the client’s best interest, and obtain client consent.

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24
Q

Are referral fees allowed in criminal or personal injury cases?

A

No, solicitors cannot pay or receive referral fees in these cases

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25
Q

How should a solicitor handle a conflict discovered during representation?

A

The solicitor must inform the affected clients and assess whether they can continue acting. In many cases, they must cease representing one or both clients.

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26
Q

Can a solicitor draft a will for a client that includes a significant gift to the solicitor?

A

Only if the client takes independent legal advice about the gift, or if the solicitor is a relative and the gift is similar to others in the will.

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27
Q

Can a solicitor disclose information about a deceased client’s will?

A

No, they must maintain confidentiality and cannot share details with beneficiaries until the client’s death.

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28
Q

What precautions should a solicitor take to prevent confidentiality breaches by support staff?

A

They must ensure staff are properly trained, supervise their work, and protect client information from being inadvertently disclosed.

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29
Q

How should a solicitor adjust their communication with clients?

A

They must tailor their communication to suit the client’s attributes, such as providing clear explanations or using alternative formats for clients with disabilities.

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30
Q

What should a solicitor do if they suspect a client’s representative (e.g., a power of attorney holder) is acting improperly?

A

They should investigate and, if necessary, refuse instructions that are not in the client’s best interests.

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31
Q

What should a solicitor do after accidentally disclosing sensitive client information?

A

They should request the third party to return or destroy the information, report the incident to their COLP, and inform the client.

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32
Q

Can a solicitor include confidentiality clauses in dispute settlements?

A

They may include clauses to protect confidentiality but cannot prevent the client from reporting matters to the SRA or Legal Ombudsman.

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33
Q

What is a solicitor’s duty when another solicitor breaches regulations?

A

They must report the breach to their firm’s Compliance Officer for Legal Practice (COLP), who is responsible for informing the SRA.

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34
Q

Is a solicitor responsible for ensuring the COLP reports a breach?

A

No, unless the solicitor knows the COLP will not act. In such cases, the solicitor must report directly to the SRA.

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35
Q

What must a solicitor inform clients about complaints?

A

At the outset of a retainer, clients must be informed in writing about the complaints procedure, their right to complain to the Legal Ombudsman, and the steps to do so.

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36
Q

How must solicitors handle complaints?

A

Complaints should be handled promptly, fairly, and at no cost to the client. If unresolved within eight weeks, clients must be informed of their rights to escalate the complaint.

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37
Q

Can a solicitor claim they acted improperly because their employer instructed them to do so?

A

No, solicitors must maintain independence and cannot use company directives as a defense for breaching the Solicitors Regulation Authority (SRA) Standards.

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38
Q

How does the principle of public interest affect solicitor decision-making?

A

If a conflict arises between client interest and public interest (e.g., reporting a serious crime), the public interest takes precedence.

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39
Q

Can solicitors accept instructions they find morally objectionable?

A

Yes, solicitors must separate personal views from their professional duties and not refuse representation solely because of a client’s beliefs or conduct unrelated to the case.

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40
Q

What should a solicitor do if they realize their client’s representative is exploiting the client’s assets?

A

Investigate the matter and, if necessary, refuse to carry out the representative’s instructions to protect the client’s best interests.

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41
Q

What measures should a supervising solicitor take to ensure proper oversight during their absence?

A

They must arrange for effective supervision, such as delegating responsibilities to another qualified solicitor, to ensure ongoing compliance.

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42
Q

Who is accountable for the work of non-solicitor staff in a law firm?

A

The supervising solicitor and the firm itself are accountable for ensuring non-solicitor staff adhere to ethical and regulatory standards.

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43
Q

When can solicitors refer clients to ancillary businesses they own?

A

Solicitors can refer clients only if they disclose their ownership interest, obtain client consent, and ensure the referral is in the client’s best interest.

44
Q

What happens if a solicitor is suspected of paying or receiving a prohibited referral fee?

A

The solicitor bears the burden of proving the referral fee was not prohibited under SRA rules.

45
Q

Can a solicitor represent two clients with potential opposing interests?

A

Only if exceptions apply, such as a substantially common interest or competing for the same objective, and informed client consent is obtained in writing.

46
Q

How can conflicts of interest be mitigated within a firm?

A

By implementing information barriers (e.g., preventing the team working for one client from accessing another client’s confidential information).

47
Q

How should a solicitor handle client information overheard at a social gathering?

A

The solicitor has a duty to treat overheard information as confidential and disclose it to the client if it is material to their representation.

48
Q

Can a solicitor disclose confidential information to protect a vulnerable person?

A

Yes, disclosure is justified if it is necessary to prevent harm to a vulnerable person.

49
Q

What is required if a solicitor receives a financial benefit related to a client’s instruction?

A

They must disclose the benefit to the client and obtain their informed consent to retain it, unless otherwise agreed in advance.

50
Q

What should a solicitor do if they accidentally lose a client’s property, such as a deed?

A

The solicitor must notify the client immediately, take steps to rectify the issue, and may be held liable for negligence.

51
Q

What should a solicitor do if their client provides false testimony?

A

The solicitor must urge the client to correct their statement and cease representation if the client refuses.

52
Q

Can solicitors decline to disclose a case law that undermines their client’s position?

A

No, solicitors must disclose all relevant case law or statutes that could materially affect the case outcome, even if unfavorable.

53
Q

Must a solicitor report minor criminal charges to the SRA?

A

Yes, solicitors must report all criminal charges, even minor ones, as they may affect public trust in the profession.

54
Q

What should a solicitor do if they know their firm’s COLP is ignoring a regulatory breach?

A

The solicitor must report the breach directly to the SRA if they know the COLP will not act.

55
Q

What happens if a solicitor’s cost estimate fails to mention VAT?

A

The firm cannot charge extra for VAT if it was not explicitly mentioned in the cost estimate provided to the client.

56
Q

Are solicitors allowed to cold-call members of the public to offer services?

A

No, solicitors cannot make unsolicited approaches to advertise their services, but they may contact former clients.

57
Q

When two Principles come into conflict, which one of them will take precedence?

A

The Principle which safeguards the wider public interest.

58
Q

Can the SRA consider a solicitor’s conduct that occurs outside of practice (that is, the solicitor’s private conduct) when deciding whether to punish the solicitor?

A

Yes

59
Q

A solicitor who works at a company has breached the SRA Standards and Regulations. Is it a defence that the company board ordered the solicitor to undertake the conduct that forms the basis of the breach?

A

No

60
Q

May a solicitor refuse to act on behalf of a client because the solicitor disagrees with the client’s religious views when the views are legal and not related to the client’s matter?

A

No, because a solicitor is not allowed to discriminate unfairly by allowing their personal views to affect their professional relationships.

61
Q

May a fast-paced law firm refuse to hire a solicitor who is over the age of 60 for fear the solicitor may be physically unable to maintain the firm’s pace?

A

No

62
Q

A firm of solicitors must purchase a £300 assistive listening device system for their conference room so that a client with hearing loss may fully participate in conferences. Can the firm bill the client for the device?

A

No, because a firm because must make reasonable adjustments to ensure a disabled client is not placed at a substantial disadvantage compared to others who are not disabled.

63
Q

A solicitor interviews a secretary who has vision loss and would require a larger-than-normal computer monitor. May the solicitor refuse to hire the secretary unless the secretary agrees to pay for the difference in cost between a regular monitor and the larger monitor?

A

No, because a solicitor must make reasonable adjustments to ensure that a disabled employee (or potential employee) is not placed at a substantial disadvantage compared to others who are not disabled.

64
Q

A solicitor is acting for a client in a transaction in which the other party is unrepresented. The solicitor warned the unrepresented party at the outset that they should hire a solicitor, but they declined. The solicitor includes unreasonable, onerous clauses in the agreement which favour the solicitor’s client and assures the unrepresented party that these are standard terms. Has the solicitor breached the Code of Conduct?

A

Yes, because the solicitor would be taking unfair advantage of the unrepresented party.

65
Q

A solicitor receives a communication indicating that an opponent’s solicitor mistakenly thinks a hearing date is the day after the actual hearing date. The solicitor does not inform the opponent’s solicitor of the mistake. Has the solicitor breached the SRA Code of Conduct?

A

Yes, because the solicitor is misleading the opponent’s solicitor by omission to act.

66
Q

In a divorce proceeding, the client tells the solicitor not to reveal to the client’s wife that the client secretly holds interests in overseas businesses. What should the solicitor do?

A

Refuse to act on the instruction and terminate the retainer if the client insists on concealing the assets.

67
Q

True or false? To be enforceable as an undertaking, a promise to do or refrain from doing something must be in writing

A

False

68
Q

True or false? A promise to do or refrain from doing something made by anyone at a solicitor’s firm could give rise to an undertaking

A

True

69
Q

During a phone call, a solicitor’s assistant informs an opponent’s solicitor that they would deliver the funds for their transaction on Wednesday. Despite the solicitor and assistant using their best efforts, the funds do not become available for delivery until two days later, on Friday. Can the firm be held responsible for breach of an undertaking?

A

Yes, because the assistant’s statement created an undertaking for which the firm is responsible.

70
Q

During a phone call, an assistant for the buyer’s solicitor informs the seller’s solicitor that they will use their best efforts to deliver the funds for their transaction on Wednesday. Despite using their best efforts, the funds do not become available for delivery until two days later, on Friday. Can the solicitor be held responsible for breach of an undertaking?

A

No, because the assistant promised only to use best efforts

71
Q

A solicitor for a buyer tells the seller’s solicitor that the buyer will pay half of the seller’s solicitor’s fees on completion of the sale. On the day of completion, the buyer’s solicitor has not received funds from the buyer to pay the seller’s solicitor’s half fee. Does the buyer’s solicitor have to pay the seller’s half fee out of firm funds?

A

Yes, because the solicitor made an undertaking to pay the fee.

72
Q

May a solicitor offer to pay a witness for travel expenses incurred in getting to court?

A

Yes

73
Q

A solicitor would like to call a witness to an accident. The witness will have to miss a day of work as the witness’s travel time plus the time needed to testify will likely be eight hours. May the solicitor offer to compensate the witness for lost wages?

A

Yes

74
Q

A defendant’s solicitor in a criminal case would like to call an eyewitness to the offence charged. May the solicitor offer to pay the witness a £500 success fee if the defendant is found not guilty?

A

No

75
Q

May a solicitor suggest to a witness that they leave certain facts out of their testimony as they might be damaging to the solicitor’s client?

A

No, because a solicitor’s duties to the court and the public prevent the solicitor from seeking to influence the substance of evidence.

76
Q

A solicitor’s opponent in litigation fails to mention a relevant case that goes against the solicitor’s client’s case and which likely will have a material effect on the outcome of the case. Must the solicitor bring the case to the attention of the court?

A

Yes, because a solicitor has a duty to make a court aware of relevant case law and statutes that will likely have a material effect on the outcome of the case.

77
Q

What should a solicitor do if during a mitigation hearing they discover that the court is mistaken as to important information about the client’s criminal record?

A

Immediately urge the client to correct the information and cease to act if the client refuses.

78
Q

May a solicitor represent a criminal defendant who tells the solicitor that he committed the crime charged but nevertheless wants to plead not guilty?

A

Yes, provided the client does not make statements or give evidence asserting innocence.

79
Q

What should a solicitor do if during trial they discover that their client committed perjury while testifying?

A

Immediately urge the client to tell the truth and refuse to continue representing the client if they do not agree.

80
Q

The adult child of an elderly person attends the solicitor’s office, explains their parent would like to sell their home but is too feeble to come to the solicitor’s office, and instructs the solicitor on the parent’s behalf. What should the solicitor do?

A

The solicitor should investigate the circumstances, including visiting the parent at home, if necessary, before accepting the instruction.

81
Q

What should a solicitor do if a client asks the solicitor to draft a will for the client, leaving all of her estate to her spouse, and asks the solicitor to draft a similar will for her husband?

A

Draft the will for the woman, but not for her husband, as nothing indicates the wife was authorised to instruct a solicitor for her husband.

82
Q

What should a solicitor do if a husband and wife attend the solicitor’s office, ask the solicitor to assist in the conveyance of their jointly owned home, and direct the solicitor to take instruction only from the husband going forward?

A

Ensure that the wife truly wants to sell the home and agrees to allowing the solicitor to take instruction only from the husband.

83
Q

What should a solicitor do if a person holding a valid power of attorney for a mentally incompetent client instructs the solicitor to execute a transaction the solicitor does not believe is in the best interest of the mentally incompetent person?

A

Refuse the instruction, as the original client remains the client, and the solicitor owes a duty to look after the client’s best interests.

84
Q

If a solicitor works at a firm, who is responsible for ensuring the solicitor keeps up-to-date on developments in the law relating to the solicitor’s services?

A

Both the solicitor and the firm.

85
Q

A solicitor who has spent the past 10 years of their career working on commercial transactions gets a call from a client. The client says their spouse was just arrested for a serious fraud offence and needs a solicitor to attend them within the next 24 hours. Should the solicitor accept the instruction?

A

No, because a solicitor must provide competent representation, and it does not appear the solicitor would be competent under the circumstances.

86
Q

Which of the following statements is true regarding a solicitor’s duty to customise service for a client?

A

A solicitor has a duty to take account of each client’s attributes and deliver information in a way that is suitable for that client.

87
Q

Which of the following is true regarding the responsibilities of a solicitor who supervises less-senior solicitors at a firm?

A

A supervising solicitor is accountable for the work of solicitors under their supervision and must be able to demonstrate effective supervision.

88
Q

A supervising solicitor goes on holiday and tells a junior solicitor to use their best judgment during that time. While the supervising solicitor is gone, the junior solicitor makes a serious but unintentional error in a client’s case. Has the supervising solicitor breached the SRA Code of Conduct?

A

Yes, because the supervising solicitor failed to ensure that the new solicitor’s work would be effectively supervised while she was on holiday.

89
Q

Which of the following is true regarding the responsibilities of a solicitor who supervises non-solicitor employees at a firm?

A

The SRA expects supervising solicitors to be accountable for the work carried out by non-solicitor staff.

90
Q

May a solicitor keep a fee paid to the solicitor for referring a client to an ancillary service provider, such as an estate agent?

A

Yes, if the solicitor informs the client and the client agrees.

91
Q

A solicitor represents a building developer in a property transaction. Usually, when the builder completes a project, property values adjacent to the builder’s project increase. If the solicitor then purchases land near the development and sells it at a profit when the development is completed, must the solicitor account to the builder for the profit?

A

Yes, because the solicitor has made a personal financial benefit as a result of the client’s instruction.

92
Q

A solicitor attends a client’s house to retrieve a deed to a property the client is selling. If the solicitor inadvertently leaves the deed in the taxi on the way back to their office, has the solicitor breached any duty?

A

Yes, the solicitor has breached the duty to protect the client’s assets through inadvertence.

93
Q

Suppose a solicitor’s best friend is an estate agent. May the solicitor refer every client in need of an estate agent to his friend if the solicitor informs the clients of their friendship and believes the estate agent is competent?

A

No, referring every client likely violates the duty of independence and to look after the best interests of the client because it is unlikely that the friend is the best choice for every client.

94
Q

May a solicitor pay a referral fee to an estate agent if the agent refers a client to the solicitor for services related to a property conveyance?

A

Yes, provided the solicitor informs the client of the fee.

95
Q

May a solicitor pay a clerk working at a police station for every client the clerk refers to the solicitor?

A

No, because a solicitor cannot pay or receive a referral fee in a criminal case.

96
Q

May a solicitor pay a referral fee to a doctor (who is not related to the solicitor) for each personal injury claimant the doctor refers to the solicitor?

A

No, because payment or receipt of referral fees is prohibited in personal injury cases.

97
Q

If the SRA believe a solicitor may have paid or received a prohibited referral fee, which of the following statements is correct?

A

The solicitor will have the burden of proving the fee was not prohibited.

98
Q

May a solicitor refer a client to a company for ancillary services (such as surveying property) if the solicitor owns an interest in the other business?

A

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

99
Q

If the solicitor owns the surveying company in the previous question with two other solicitors, may they name the surveying company “Solicitors’ Surveying, Ltd”?

A

No, because only an authorised body may include the word ‘solicitor’ in its name, and a surveying company is not an authorised body.

100
Q

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

A

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 does not involve a personal injury or death claim.

101
Q

If a solicitor takes work at a charity and plans to carry on both reserved legal activities and other legal services, must the solicitor ensure the charity takes out indemnity insurance with respect to the solicitor’s services?

A

Yes, with respect to all legal services provided by the solicitor.

102
Q

May a solicitor represent two clients in the same industry (for example, may the solicitor represent two US companies seeking to import similar products into the UK)?

A

Yes, as having a similar general business interest is not sufficient to create a related matter conflict of interest.

103
Q

True or False? If one solicitor in a firm is barred from representing a client because of a conflict of interest, other solicitors in the firm who have not worked on the other client’s case may take up the conflicting interest case.

A

False

104
Q

When should a solicitor consider conflicts of interest?

A

Both before the retainer is entered and throughout the representation.

105
Q

Which of the following best describes a limited retainer?

A

A solicitor and client agree that the solicitor will work on the client’s matter in which there is a conflict of interest, but only on aspects in which there is no conflict.

106
Q

True or false? A solicitor with a substantial stake in a company may represent the company in a risky but potentially lucrative claim because the best interests of the solicitor and the company are aligned.

A

False, there might still be a conflict of interest which would bar the solicitor from representing the company because the solicitor’s personal stake in the company may hinder the solicitor in providing impartial advice.

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