Ethics and Professional Conduct

Question 1

When duties conflict

Answer 1

Principle which safeguards public interest takes precedence

Question 2

How to avoid undertakings

Answer 2

‘I will use my best endeavours to do X’

Question 3

If undertaking cannot be satisfied

Answer 3

Receiver must be notified

Question 4

Breach of undertaking

Answer 4

Court order for enforcement of compensation, damages for breach of contract and disciplinary action

Question 5

Authority to give undertaking

Answer 5

Not all employees will have authority from the firm to give undertakings (e.g. paralegals and trainee solicitors)

Question 6

Own interest conflict

Answer 6

Between solicitor (or firm) and client. A complete bar to acting.

Question 7

Conflict of interest/client conflict

Answer 7

Between two or more current clients. Cannot act if there is a conflict or a significant risk of conflict.

Question 8

Disabled clients or employees

Answer 8

Reasonable adjustments
Substantial disadvantage
Costs must NOT be passed on

Question 9

Misleading others

Answer 9

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

Question 10

Compensating witnesses

Answer 10

Can pay legitimate travel expenses and loss of earnings. Cannot pay if payment dependent on nature of evidence or outcome of the case.

Question 11

Relevant law

Answer 11

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

Question 12

Competent and timely service

Answer 12

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.

Question 13

Financial Benefit

Answer 13

Must make the client aware if you receive a financial benefit as a result of their instructions

Question 14

Holding client money

Answer 14

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

Question 15

Interest

Answer 15

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

Question 16

Fee Sharing Arrangements

Answer 16

In writing
Client must be informed
Can be with non-lawyers

Question 17

Referral or introducer fees in criminal proceedings

Answer 17

Prohibited - cannot make or receive referral payments or make payments to introducers

Question 18

Prohibited Referral Fee

Answer 18

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

Question 19

Reserved Legal Activities

Answer 19

Rights of audience, conducting litigation, preparing instruments, preparing probate papers, notarial activities, administration of oaths

Question 20

Separate Businesses

Answer 20

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

Question 21

Compliance Officers for Legal Practice (COLPs)

Answer 21

Deal with compliance with SRA Code of Conduct

Question 22

Compliance Officers for Financial and Administration (COFAs)

Answer 22

Deal with compliance with SRA Account Rules

Question 23

When to consider conflicts of interest?

Answer 23

Before the retainer is created - is there conflict or significant risk of conflict

Question 24

Conflict - before retainer

Answer 24

Decline to act

Question 25

Conflict - during retainer

Answer 25

Inform all clients

Question 26

Limited retainer

Answer 26

Firm advises on the aspects where there is no conflict and advises client to see independent legal advice on conflicted area

Question 27

Financial interest and own interest conflict

Answer 27

Usually an own interest conflict, however if solicitor’s ability to advise not undermined by financial interest then no conflict

Question 28

Exceptions to refusing to act for two clients where there is a conflict between them

Answer 28

• Substantially Common Interest
• Competing for the Same Objective

Question 29

Disclosure of client’s affairs

Answer 29

Can only do so if required or permitted by law or if the client consents

Question 30

When does duty of confidentiality end?

Answer 30

It doesn’t - continues despite end of retainer and even after client’s death

Question 31

LPP v Duty of confidentiality

Answer 31

LPP = confidential communications between lawyer and client. LPP is absolute.

Duty of confidentiality = all confidential information not just communications

Question 32

Duty of disclosure

Answer 32

You must inform your client of all information material to that retainer - i.e. may affect their decision making in some way

Question 33

Conflict between duty of disclosure v confidentiality

Answer 33

If your duty of disclosure to one client would breach your duty of confidentiality to another you must refuse to act

Question 34

Notifying SRA of certain events: Solicitors

Answer 34

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

Question 35

Duty to inform SRA of potential breaches

Answer 35

Discharged if information provided to COPA or COFA on the understanding they will provide it to the SRA

Question 36

Admitting mistakes to clients

Answer 36

Must notify the client and if they have suffered harm or loss you must put matters right

Question 37

Client care letter

Answer 37

• Identify client
• How services regulated
• In a way they can understand
• Likely overall cost and time it is likely to take

Question 38

Complaints Handling

Answer 38

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

Question 39

Unsolicited approaches

Answer 39

Permitted unless they are targeted at a particular group and/or instrusive.

May approach current or former clients

Question 40

Acting for two clients competing for the same objective but different levels of knowledge and bargaining power

Answer 40

Solicitor should decline to act for both clients even though exception applies