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FLK1 > Ethics and Professional Conduct > Flashcards

Ethics and Professional Conduct Flashcards

1
Q

Solicitors Regulation Authority (SRA)

A

Regulates solicitors
Enforces regulations

Serious allegations can be referred to the SDT

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2
Q

Solicitors Disciplinary Tribunal (SDT)

A

Independent of the Solicitors Regulation Authority

Powers to:
Reprimand
Fine
Strike off roll of solicitors

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3
Q

Legal Services Board (LBT)

A

Reviews performance of regulators such as SRA and Bar Standards Board

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4
Q

SRA Standards and Regulations 2019

A

Seven mandatory principles

SRA codes of conduct for solicitors and firms

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5
Q

SRA Standards and Regulations 2019: Seven mandatory principles

A
  1. Act in a way that upholds rule of law and proper administration of justice
  2. Act in a way that upholds public trust and confidence in the solicitors’ profession and the legal services it provides
  3. Act with independence
  4. Act with honesty
  5. Act with integrity (moral, ethical etc)
  6. Act in a way that encourages equality. diversity and inclusion
  7. Act in best interests of each client (avoid conflicts of interest)

When principles conflict, the principle which safeguards wider public interest takes precedence

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6
Q

SRA Rules

A
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7
Q

SRA Codes

A

Must not unfairly discriminate by allowing personal views to affect professional relationships and services

Must not mislead (or attempt to mislead) clients, the court or others

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8
Q

Undertaking

A

A statement (oral or in writing) to do something or not to do something that another person relies on

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9
Q

Rules on undertakings

A

Must perform all undertaking within agreed time or a reasonable time if not agreed

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10
Q

Authority to act

A

Must only act on instructions from client, unless client properly authorised someone else

Must not act unless satisfied that authorised person’s instructions represent client’s wishes

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11
Q

Fee-sharing arrangements

A

Must be in writing

Client must be informed

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12
Q

Any payments for referral or introduction is prohibited where client is subject to criminal proceedings

A
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13
Q

Must not pay or receive referral fees in relation to claims for damages following personal injury or death

A
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14
Q

Required compliance officers

A

Compliance officer for legal practice matters (COLP)

Compliance officer for financial matters (COFA)

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15
Q

Types of conflict of interest

A

Own interest conflict = between you and the client

Conflict of interest/client conflict = between clients

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16
Q

Common own interest conflicts

A

Financial interest in client

Substantial gift from client: usually must not act (unless client has taken independent advice with regard to making the gift)

Financial interest in other side

Own employment

Personal relationship with other side

Business transaction with client

Own mistake in matter

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17
Q

Solicitor must NOT act when there is an own interest conflict or a significant risk of an own interest conflict. There are no exceptions to the rule i.e by gaining informing consent from the client

A
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18
Q

Client conflict

A

Must not act if there is a significant conflict between clients or a significant risk of conflict UNLES exceptions apply

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19
Q

Client conflict exceptions

A

Exception 1: clients have substantially common interest

Exception 2: clients are competing for same objective

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20
Q

Conditions for exceptions

A

Clients informed consent given or evidenced in writing

Where appropriate, safeguards to ensure confidentiality

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21
Q

Duty of confidentiality

A

Must keep client’s affairs confidential unless disclosure is (1) required or permitted by law or (2) client consents

BUT there are various exceptions: disclosure under a court order, statute requires you to disclose information e.g. to HMRC or money laundering authorities, preventing or anticipating crime, preventing client from committing suicide, protecting children or vulnerable persons

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22
Q

Confidentiality and legal professional privilege

A

Legal professional privilege = applies only to confidential communications between solicitor and client only

Duty of confidentiality = applies to all of clients affairs

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23
Q

Duty of disclosure

A

Must disclose to client any information material to retainer BUT there are limited exceptions

Exceptions:
Disclosure would cause serious injury to a person

Disclsoure would violate a statute relating to nationals security

Come into privileged information mistakenly given to you

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24
Q

Legal professional privilege is ABSOLUTE so if information is privileged it CANNOT be disclosed even if there is an exception to confidentiality

A
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25
Q

Confidentiality v disclosure

A

Confidentiality is prioritised over disclosure e.g. if acting for client A but hold information on previous client B who is now in dispute with client A and which you are representing client A

26
Q

Events triggering the duty to notify the SRA

A

Criminal charge, conviction, or caution
Insolvency proceedings

27
Q

Reporting breaches to SRA

A

Must report any facts capable of amounting to serious rbeach

Must report any facts that should be brought to its attention so that it may investigate

28
Q

Reporting to compliance officer

A

Duty satisfied if solicitor reports to compliance officer on the understanding they will report to SRA

29
Q

Admitting mistakes to client

A

Must be open and honest with client

If client suffers loss or harm, must put matters right (if possible) and explain options

30
Q

At the outset of the matter what must the client be informed of

A

Right to complain

Procedure for complaining within the firm

Right to complain to legal ombudsman and when

30
Q

At the outset of the matter what must the client be informed of

A

Right to complain

Procedure for complaining within the firm

Right to complain to legal ombudsman and when

30
Q

At the outset of the matter what must the client be informed of

A

Right to complain

Procedure for complaining within the firm

Right to complain to legal ombudsman and when

31
Q

Clients complaint procedure

A

Cannot go to legal ombudsman straight away MUST use firm’s complaint procedure first

If complaint not resolved within 8 weeks then can go to legal ombudsman

8 weeks after unresolved complaint MUST inform client in writing of:
1. Right to complain to legal ombudsman and timeframe
2. Full details of how to contact legal ombudsman

32
Q

Legal ombudsman

A

Not a regulatory authority

Doesn’t have the jurisdiction to investigate conduct complaints

33
Q

Handling client complaints

A

Must be handled promptly, fairly and free of charge

34
Q

Details to be included in a client care letter

A

The identity of the client

The basis for the solicitor’s costs and the likely overall cost

The procedure for submitting complaints to the firm

The client’s right to complain to the Legal Ombudsman

35
Q

A solicitor must draw the court’s attention to relevant cases and statutory provisions, and any procedural irregularities of which they are aware, and which are likely to have a material effect on the outcome of the proceedings.

A
36
Q

A solicitor must not make or offer to make payments to witnesses dependent upon their evidence or the outcome of the case.

A
37
Q

If a solicitor is aware that any person or body (including themselves) has committed a serious breach of a regulatory arrangement, they must ensure that a prompt report is made to the SRA or other approved regulator, as appropriate. Any obligation to provide information to the SRA is satisfied if the solicitor provides the information to their firm’s COLP (compliance officer for legal practice) or COFA (compliance officer for finance and administration), as and where appropriate, on the understanding that they will provide the information to the SRA. Solicitors are not required to make their own report to the SRA (unless there is some indication that the COLP will not make a report).

A
38
Q

The duty of confidentiality to clients is owed by everyone in the firm and continues despite the end of the retainer and even after the death of the client.

A
39
Q

A solicitor must ensure that the service provided to a client is competent and delivered in a timely manner. Competency includes the need to keep professional knowledge up to date. For this reason, a solicitor should not offer legal services to clients in areas of law where they do not have appropriate levels of competency, especially in a situation where the client needs the legal services to be completed quickly.

A
40
Q

Conflict of interest rules generally apply to a whole firm, not just individual solicitors within the firm.

A
41
Q

A solicitor may represent multiple clients with a substantially common interest despite a conflict if certain requirements are met

A
42
Q

If a person admits their guilt, then they are entitled to plead not guilty and put the prosecution to proof of its case, but they must not introduce any evidence or make statements in support of their plea as this would be misleading.

A
43
Q

Where a solicitor’s duty of confidentiality to one client comes into conflict with their duty of disclosure to another client, the duty of confidentiality takes precedence

A
44
Q

Referral fees are generally permitted except in claims involving personal injury or death, or in respect of clients who are the subject of criminal proceedings.

A
45
Q

The ‘substantially common interest’ exception does not apply to sellers and buyers in conveyancing transactions, as the parties have different goals in relation to the matter.

A
46
Q

The SRA does NOT require a formal client care letter, but a solicitor must provide all required client care information to the client. Furthermore, a solicitor must give clients information in a way they can understand.

A
47
Q

A solicitor must not act if there is an own interest conflict or a significant risk of an own interest conflict

A
48
Q

An undertaking can be oral.

A
49
Q

An undertaking can be given by a member of support staff; it does not have to be given by a solicitor

A
50
Q

Clients must be informed of any fee sharing arrangement that is relevant to their matter

A
51
Q

At the time of engagement the solicitor must inform the client in WRITING of their right to complain

A
52
Q

It is a term of the contract (the retainer) between the solicitor and client that the client will give the solicitor appropriate instructions. If not, the solicitor is justified in terminating the retainer.

A
53
Q

In acting as a supervisor or manager of others providing legal services, the solicitor remains accountable for the work carried out through them and must effectively supervise work being done for clients.

A
54
Q

The solicitor/firm must account to the client for any financial benefit received as a result of the client’s instructions and can only keep the commission if the client agrees

A
55
Q

Fee sharing arrangements with a third party must be in writing, and the client must be informed of any fee sharing arrangement that is relevant to their matter

A
56
Q

The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) prohibits the payment or receipt of referral fees in claims for damages following personal injury or death. An example would be a solicitor paying a claims management company for referral to the firm of a personal injury client. When it appears to the SRA that a solicitor or firm has made or received a prohibited referral fee, the payment will be treated as a prohibited referral fee unless the solicitor or firm demonstrates otherwise.

A
57
Q

A solicitor can act for more than one defendant if there is no significant risk of conflict

A
58
Q

When considering whether to act for two clients in the same or a related matter, the consideration extends to whether there is an actual conflict or a significant risk of a conflict arising.

A

FLK1 (8 decks)

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