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
