Ethics and Professional Conduct Flashcards
When duties conflict
Principle which safeguards public interest takes precedence
How to avoid undertakings
‘I will use my best endeavours to do X’
If undertaking cannot be satisfied
Receiver must be notified
Breach of undertaking
Court order for enforcement of compensation, damages for breach of contract and disciplinary action
Authority to give undertaking
Not all employees will have authority from the firm to give undertakings (e.g. paralegals and trainee solicitors)
Own interest conflict
Between solicitor (or firm) and client. A complete bar to acting.
Conflict of interest/client conflict
Between two or more current clients. Cannot act if there is a conflict or a significant risk of conflict.
Disabled clients or employees
Reasonable adjustments
Substantial disadvantage
Costs must NOT be passed on
Misleading others
Must not mislead or attempt to mislead clients, court or others. Can be through acts or omissions
Where other party is a LiP, take care not to mislead them
Compensating witnesses
Can pay legitimate travel expenses and loss of earnings. Cannot pay if payment dependent on nature of evidence or outcome of the case.
Relevant law
Must draw the court’s attention to relevant law if it is likely to have a material effect on the outcome - even if it would harm your client’s position
Competent and timely service
Service provided to client must be competent and delivered in a timely manner.
I.e. should have the time to take on a new job and/or this should be in an area of law you have knowledge in.
Financial Benefit
Must make the client aware if you receive a financial benefit as a result of their instructions
Holding client money
Must not hold client money in your own business account rather than a client account UNLESS this relates to advance payment of fees and expenses you have incurred on client’s behalf
Interest
Must inform client of any financial or other interest you, your business or employer has in referring client or that an introducer has in referring client to you
Fee Sharing Arrangements
In writing
Client must be informed
Can be with non-lawyers
Referral or introducer fees in criminal proceedings
Prohibited - cannot make or receive referral payments or make payments to introducers
Prohibited Referral Fee
LASPO 2012 prohibits payment or receipt of referral fees in claims for damages following PERSONAL INJURY OR DEATH and ancillary claims arising from same circumstances
Reserved Legal Activities
Rights of audience, conducting litigation, preparing instruments, preparing probate papers, notarial activities, administration of oaths
Separate Businesses
SEPARATE BUSINESS = one you own, are owned by, actively participate in or control or otherwise connected to which is NOT an authorised body, non-SRA authorised firm or overseas practice
Cannot refer, recommend or introduce a client to a separate business or divide a client’s matter with the separate business save for when you have the client’s informed consent
Compliance Officers for Legal Practice (COLPs)
Deal with compliance with SRA Code of Conduct
Compliance Officers for Financial and Administration (COFAs)
Deal with compliance with SRA Account Rules
When to consider conflicts of interest?
Before the retainer is created - is there conflict or significant risk of conflict
Conflict - before retainer
Decline to act
Conflict - during retainer
Inform all clients
Limited retainer
Firm advises on the aspects where there is no conflict and advises client to see independent legal advice on conflicted area
Financial interest and own interest conflict
Usually an own interest conflict, however if solicitor’s ability to advise not undermined by financial interest then no conflict
Exceptions to refusing to act for two clients where there is a conflict between them
- Substantially Common Interest
- Competing for the Same Objective
Disclosure of client’s affairs
Can only do so if required or permitted by law or if the client consents
When does duty of confidentiality end?
It doesn’t - continues despite end of retainer and even after client’s death
LPP v Duty of confidentiality
LPP = confidential communications between lawyer and client. LPP is absolute.
Duty of confidentiality = all confidential information not just communications
Duty of disclosure
You must inform your client of all information material to that retainer - i.e. may affect their decision making in some way
Conflict between duty of disclosure v confidentiality
If your duty of disclosure to one client would breach your duty of confidentiality to another you must refuse to act
Notifying SRA of certain events: Solicitors
Must notify SRA if subject to any criminal charge, conviction or caution, insolvency or material changes to information provided to SRA that is or may be false/misleading/inaccurate
Duty to inform SRA of potential breaches
Discharged if information provided to COPA or COFA on the understanding they will provide it to the SRA
Admitting mistakes to clients
Must notify the client and if they have suffered harm or loss you must put matters right
Client care letter
- Identify client
- How services regulated
- In a way they can understand
- Likely overall cost and time it is likely to take
Complaints Handling
Must inform clients of their right to complain, how and to whom complaints are made and any right they have to complain to Legal Ombudsman
If complaints procedure exhausted after 8 week period, client must be provided with details of ADR approved body
Complaints must be dealt with promptly, fairly and free of charge
Unsolicited approaches
Permitted unless they are targeted at a particular group and/or instrusive.
May approach current or former clients
Acting for two clients competing for the same objective but different levels of knowledge and bargaining power
Solicitor should decline to act for both clients even though exception applies
