Ethics Flashcards
What are the seven mandatory principles?
A solicitor must act
- In a way that upholds the constitutional principle of the rule of law and the proper administration of justice
- In a way that uphold public trust and confidence in the solicitor profession and legal services provided by authorised people
- Independence
- Honesty
- Integrity
- In a way that encourages equality, diversion and inclusion
What happens when two or more principles coming to conflict?
The principal which safeguards the wider public interest takes precedent over an individual client interest
We are relevant solicitor of form their clients of the circumstances in which their duty to the court or other professional obligation outweighs of duty to the client
What does maintaining trust and acting fairly involve?
You must not unfairly discriminate by allowing personal views to affect professional relationships and the way which you provide services
Required to monitor report and publish workforce diversity
Legal obligation to provide reasonable adjustments to ensure disabled clients and employees are not place a substantial disadvantage compared to those who are not disabled.
Cost cannot be passed on
Only need to be reasonable adjustments and do not need to accommodate the needs of all clients or employees
You must not abuse your position by taking unfair advantage of clients or others
Must not mislead others or attempt to mislead others or the court. this can be done by act or a mission or being complicit in the acts or omissions of others
What is an undertaking?
Undertaking is a statement to someone who places reasonable reliance on it that or a third-party will do something or cause something to be done or refrain from doing something
If give an undertaking must perform it
Undertaking should be given by solicitor in writing clearly intended to been an undertaking given only with clients express authority recorded on the file and on a register of undertakings and clear in the terms
What are the consequences of a breach of an undertaking?
Solicitor is personally bound to comply with the undertaking whether they given orally or writing
Can be enforced by the court and the party seeking to rely on the undertaking may seek compensation for any losses incurred
The SRA do not have the power to enforce an undertaking, but any breach may be a breach of professional conduct which may lead to sanctions
What must undertakings be?
Smart
Specific
Measurable
Agreed
Realistic
Time
Where might ethical issues coming to play in relation to dispute resolution court proceedings trial enquiries?
Must not use tamper with evidence or attempt to do so
Must also not seek to influence the substance of evidence
Must not provide or offer any benefit to the witness if it is contingent on the nature of the evidence
Respect for court you must not waste court time and any statements must be properly arguable
Must comply with orders and not place yourself in contempt
Must draw attention to relevant law
What ethical issues arise in relation to service to clients and competence?
Must only act for client on instructions from the client or someone if properly authorised to provide instructions on their behalf.
If any reason to suspect that the authorised person instructions don’t represent the wishes of the client do not act unless satisfied that they do
If clients instructions cannot be obtained or ascertained and you have legal authority to act for client despite this overriding obligation is to protect clients best interests
Service provided must be in a tiny tiny manner must maintain competence to carry out your role and keep your professional knowledge and skills up-to-date
Must consider and taken into account client attributes and circumstances
Acting as a supervisor or manager to provide legal services must remain accountable for the work carried out by them and affect to be supervised the work being done.
Firm must have an effective system in place or supervising clients matters and must ensure the individuals who are managed our comp to carry out their role they keep their knowledge and skills up-to-date and they understand their legal ethical and regulatory obligations .
What ethical issues may arise when handling client money and assets?
If receive financial benefit as a result of clients instructions, you must probably cancel the client for that financial benefit unless the clients are already agreed otherwise
Must save money and assets and trusted by clients and others
Must not personally hold client money unless it is relates to advance payments of fees and expenses annual inform client in advance of where and how the money will be held. Any money help disbursements must relate to cost or expensive incurred by you on the clients behalf and for which you are liable .
What ethical issues arise in relation to referrals and introductions?
Must ensure that you follow the standard when refer client to another person or a body or when a third-party introduces business to you or whether you share fees with third-party
Client must be informed of any financial or other interest which you or your business or employer has referring the client to another person or which an introducer has in referring the client to you for example estate agency fees for referral of clients to conveyancing services the fee must be made clear to the client as could compromise the solicitors, independence and duty to act in their best interest
Agreements with third-party and the client must be informed of any sharing arrangement
You must not receive or make payments relating to a referral or make payment to introduced and respective clients who are subject of criminal proceedings
What is a prohibited referral fee?
Payment or receipt of referral fees in claims following personal injury or death are prohibited by statute also applies to ancillary claims arising from the same circumstances
If it appears to the SRA that you have made or received a prohibited referral fee will be treated as a prohibited referral fee unless you can demonstrate otherwise so should retain records and management information to demonstrate any payments are not referral fees
What ethical issues arise when referring client to separate business?
Separate business is a business which 1) is solicitor owns or are owned by or actively participate in or control or otherwise connected with and 2) which is not an authorised body and authorised non-SRA or an overseas practice
Need clients consent to:
Refer recommend or introduce to a separate business or
Dividing clients between you a separate business or allow the clients matter to be divided
What other business requirements must solicitors comply with?
Must only associate with authorised bodies cannot be a manager, employee et cetera of a business that has a name which includes the word solicitor or describes it in a way that suggest as a solicitor/ unless it is an authorised body
Practice certificate must complete and deliver SRA annual return in the prescribed form
If carrying out any any reserved activities and a non-commercial body you must ensure the body takes out and maintain indemnity insurance and insurance must be appropriate respective services provide
Regulated services exercising audience conduct mitigation instruments relating to real estate, preparing probate papers no notary activities or administrations of oaths
What is the role of manager in an SRA authorised firm?
Responsible for firms compliant with the code of conduct if multiple managers that responsibility is joint & several
What is the role of a compliance officer for legal practice?
And show compliance with terms and conditions of the firms authorisation
Ensure firm managers employees comply with the applicable SRA regulatory arrangements
Ensure firms managers and those employees do not orally contribute to the breach of the SRA regulatory arrangements
And that is made of any serious breach of terms and conditions of the firms authorisation or SRA regulatory arrangement
Ensure that the SRA is properly informed of any facts or matters which the COLP reasonably believes should be brought to his attention so the SRA may investigate whether a serious breach has occurred or otherwise exercise this regulatory power
What is the role of a compliance officer for financial administration?
Firms COFA must take reasonable steps to:
Ensure that the firm and its managers employees comply with any obligations imposed on them under the SRA account rules
Ensure that prompt report is made to the SRA of any serious breach of the rules
Ensure that the SRA is probably informed of any facts or matters that the CFA reasonable should be bought with attention in order that the SRA may investigate by the serious breach of its regulatory arrangements has occurred or otherwise exercise its powers
What are the two types of conflicts?
1) conflict between the solicitor and the client (own interest conflict)
2) conflict between two or more current clients (conflict of interest)
Conflict or significant risk of conflict relates to the same matter or related matter
Conflict provisions cover the firm not just the solicitors
When should you consider conflict of interest?
Should consider whether there’s a conflict or significant of a conflict at the beginning of the matter before the retainer has been created and throughout
What should you do if if a conflict arises?
Before retainer
- should decline to act
After retainer
- should inform all clients if it’s appropriate declined to continue to act for all clients
- can continue to act for one of the clients but must be wary about the whether their duty of confidentiality is at risk
Client generally cannot consent to conflicts
Limited retainer
- If the firm identifies a conflict between clients it made decide that connect for one of the clients on the basis of a limited retainer meeting in the firm only act on the aspects where there’s no conflict and advice the clients take independent advice on the conflicted area
Professional embarrassment
- May decide that they can act even if there is a conflict or significant risk that made a client to act in any event due to professional embarrassment. This means the firm considered that can act in the best interest of the client due to considerations that are relevant to the firm.
What is a own interest conflict?
Exists where conflict between a solicitor and the client interferes with duty to act in the best interest of client in relation to a matter conflict or there is significant risk.
It may conflict with your own interests must not act.
Includes financial interests
- Gift in a will usually raises an own interest conflict but may act if the solicitor satisfied the client has taken independently with regards to making the gifts. Large gifts are always significant but smaller gift may be considered significant if it is a significant part of the estate
- if the solicitors ability to advise the client would not be undermined by the financial interest and then interest would not exist, for example, if they are drafting for their parents and they are being treated equally
Personal relationship with another
Commercial relationship with another
Employment claim of former employee or solicitors conductors question
What is a conflict between clients?
Exist separate duty to act the best interest of more client in relation to same or related matters and those duties conflict
Includes
- acting for seller and buyer on sale
- acting for investor and the scheme in which they will be investing acting for two clients who are agreeing
- commercial contract acting for clients who are seeking to separately purchase a particular asset or award of the particular contract
Can a solicitor act if there is a conflict between clients?
No, unless an exemption applies
Substantially common interest exception
- Clients have a substantially common interest when there is a clear common purpose in relation to a matter of particular asset of it between clients and a strong consensus and how it is to be achieved
Competing for the same objective exemption
- Applies for two more clients are competing for an objective which if attained by one client will make that objective on a table to the other
- Objective means an asset contract or business opportunity which the clients are seeking to acquire or recover through a liquidation or by means of an auction or tender process or through a bid or offer, which is not public
Conditions for exceptions
1) client has given informed consent given or evidenced in writing to acting
2) firm put in place effective safeguards to protect clients confidential information
- Might include separate fee earners and safeguards in place to ensure confidential information cannot pass from one solicitor in the same firm to another
- could involve acting in separate buildings or separate floors and the computer system be set up to ensure information is not available to the other solicitor not appropriate.
- If clients wants the solicitor to both of them, must ensure that the client agrees as to what information can be shared with the other and must obtain informed consent from the clients that no safeguards are required.
3) You are satisfied that is reasonable to act for clients. should consider:
- whether the client will benefit from the solicitor acting for both of them
- whether it will be there will be extensive negotiations between the clients
- whether there has been an imbalance and knowledge or bargaining power between the clients
What does the duty of confidentiality involve?
Must keep the affairs of clients confidential unless disclosure is required up permitted by law or the client consents
Disclosure is appropriate where:
- Solicitors disclosed will to an attorney appointed after a under a POA
- solicitor has been used by the client perpetrate crime or fraud
- statutory requirement
- court order of police warrant
When might breach of the duty of confidentiality be justified?
When breached to prevent harm to someone
To prevent the commissioning of a criminal offence that will result in serious body harm - disclosure after not justified
Disclosure work on its indicated they intend to commit suicide or self harm
Disclosure to protect a child or vulnerable adult
