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SQE1 !!! > Ethics and Professional Conduct > Flashcards

Ethics and Professional Conduct Flashcards

1
Q

What are the 5 bodies who regulate solicitors?

A 
Law Society
Solicitors Regulation Authority
Solicitors Disciplinary Tribunal
Legal Services Board
Legal Ombudsman
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2
Q

Who are the Law Society?

A

The professional body that represents solicitors in England and Wales. They lobbies government on legal issues and changes in the law, produces guidance and support solicitors. They also try and improve the relationship of solicitors with the public.

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3
Q

Who are the Solicitors Regulations Authority?

A

They control entry to the profession and training requirements. Handle professional conduct complaints and can investigate the firm or solicitor involved.

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4
Q

Who are the Solicitors Disciplinary Tribunal?

A

Hear applications regarding allegations against solicitors of unbefitting conduct and / or professional misconduct. Independent of SRA and Law Society. Can strike solicitors off the roll, suspend the solicitor from practice, reprimand the solicitor or impose an unlimited fine.

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5
Q

Who are the Legal Services Board?

A

This is an overarching regulator for various ‘approved regulators’ of the legal profession such as the Bar Council.

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6
Q

Who is the Legal Ombudsman?

A

Deals with complaints against solicitors and other legal professions. Can only hear complaints from individuals and smaller companies and organisations about services a lawyer has provided. Do not deal with conduct complaints.

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7
Q

What are the 7 SRA mandatory principles?

A

Solicitor must act in a way that:

  1. Upholds the rule of law
  2. Upholds public trust
  3. With independence
  4. With honesty
  5. With integrity
  6. In a way that encourages equality, diversity and inclusion
  7. In the best interests of each client
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8
Q

What happens if 2 of the mandatory principles conflict?

A

The principle that safeguards the wider public interest takes precedence.

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9
Q

What is the SRA view on Discrimination?

A

You must not act unfairly by allowing your personal views affect your professional relationships and the way in which you provide your services.

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10
Q

What is the SRA obligation to disabled clients or employees?

A

To provide a reasonable adjustment to ensure that all disabled clients or employees are not placed at a substantial disadvantage compared to those who are not disabled.

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11
Q

What standard to adjustments for disabled clients or employees need to be?

A

‘Reasonable’.

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12
Q

What is the SRA view on abuse of position?

A

You must not abuse your position by taking unfair advantage of clients or others.

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13
Q

What is the SRA view on misleading others?

A

You must not mislead others or attempt to mislead. Mislead can be through a affirmative act or an omission.

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14
Q

What is an undertaking?

A

A statement to someone who reasonably relies on it that you or a third party will do something, refrain from doing something or cause something to be done.

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15
Q

Can an undertaking be given orally?

A

Yes can be oral or in writing.

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16
Q

Does an undertaking need to include the word undertaking?

A

No.

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17
Q

What is best practice regarding an undertaking?

A

Should be given by a solicitor, in writing, clearly intended to be an undertaking, given with the client’s authority, recorded on file and a register of undertakings within the firm.

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18
Q

What happens if the undertaking is based on a future event and it becomes apparent that event will not occur?

A

You must inform the other party right away.

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19
Q

What are the consequences of a breach of undertaking?

A

A solicitor is personally bound to comply with an undertaking whether it was given orally or in writing.

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20
Q

Who can enforce an undertaking?

A

The court, not SRA, LeO, SDT.

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21
Q

What are the remedies for breach of an undertaking?

A

The party whom the undertaking was given can seek compensation.

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22
Q

What are the SRA views on mishandling evidence?

A

You must not misuse or tamper with evidence.

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23
Q

What are the SRA views on compensating a witness?

A

You must not provide or offer to provide any benefit to a witness if the benefit is dependant upon the nature of evidence of outcome of the case. You can pay expenses or loss of earning just not financial benefits.

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24
Q

What is the SRA view on wasting time?

A

You must not waste the courts time and all assertions made must be properly arguable.

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25
Q

What is the SRA views on complying with orders?

A

You must comply with court orders which place obligations on you and your client and must not place yourself in contempt of court. You must also fully advise your client to comply with any orders.

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26
Q

What is the SRA views on drawing courts attention to relevant law?

A

You must draw the courts attention to all relevant cases and statutory provisions. If your opponent fails to mention a case you should disclose it even if this negatively affects your case.

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27
Q

What are the SRA rules on receiving instructions from a client?

A

You must only act for a client on instructions from a client or from someone properly authorised to provide instructions on their behalf.

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28
Q

Can you take instructions from an authorised person other than the client?

A

If you have reason to suspect the authorised person’s instructions do not represent your client’s wishes you must not act unless you are satisfied they do.

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29
Q

What should you do if a clients instructions cannot be ascertained?

A

You have a legal authority to act in the clients best interests.

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30
Q

What is the SRA view on a competent and timely manner?

A

You must ensure the service is competent and delivered in a timely manner. You must maintain your role and keep you professional skills and knowledge up to date.

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31
Q

How should you customise your service to each client?

A

You must consider and take into account each of the client’s attributes, needs and circumstances.

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32
Q

What are the supervisory requirements?

A

You remain accountable to the people you supervise and the work carried out by them.

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33
Q

What are the training and guidance requirements?

A

You must ensure individuals you manage are competent in their role and they keep their professional knowledge and skills up to date.

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34
Q

What should you do if you receive a financial benefit as a result of clients instructions?

A

You must properly account to the client for that financial benefit unless the client has already agreed otherwise.

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35
Q

What are the SRA rule regarding safeguarding money and assets?

A

You must safeguard money and assets entrusted to you by clients and others.

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36
Q

What are the SRA rules on holding clients money?

A

You must not personally hold client money unless it relates to advance payment of fees and expenses. Any money held for disbursements must relate to costs or expenses incurred by you on your clients behalf and for which you are liable.

37
Q

What are prohibited referral fees?

A

Payment or receipt of referral fees in claims for damages following personal injury or death are prohbited.

38
Q

What are the SRA views regarding only associating with authorised bodies?

A

You must not be a manager, employee, member or interest holder of a business which has a name which includes the word solicitors or describes its work as a solicitors firm however they are not an authorised body.

39
Q

What is the requirements regarding an annual return?

A

You must deliver to the SRA an annual return in the prescribed form.

40
Q

What is the SRA rules on indemnity insurance when practising with non-commerical body?

A

If you are carrying out any reserved legal activities in a non-commercial body (not for profit) you must ensure the body takes out and maintains indemnity insurance.

41
Q

What are the requirements for firms regarding a business system?

A

A firm must have an effective governance, arrangements, systems and controls in place.

42
Q

What are the business requirements regarding records?

A

A business must keep and maintain records to demonstrate compliance with the SRA’s regulatory arrangements.

43
Q

What are the business requirements regarding accountability?

A

A firm must remain accountable for compliance with the SRA’s regulatory arrangements even where the firm’s work is carried out through others.

44
Q

What are the business requirements relating to the monitoring of business affairs?

A

The firms must actively monitor its financial stability and business viability. It must also identify, monitor and manage all material risks to its business included those which may arise from the firms connected practice.

45
Q

What are the roles of managers in a firm?

A

Responsible for the firm’s compliance with the code of conduct. If there are multiple managers, the responsibility must be joint and several.

46
Q

What are the roles of the Compliance Officers for Legal Practice (COLP)?

A

Ensure the firms compliance with the terms and conditions with the firms authorisations. Ensure the firms employees comply with the SRA regulatory arrangements and ensure there are no breaches to the SRA’s regulatory arrangements.

47
Q

What are the roles of the Compliance Officers for Finance and Administration (COFAs)?

A

Ensure the firm and its managers and employees comply with any obligations imposed upon them under the SRA Accounts rules. Ensure that a prompt report is made to the SRA of any serious breach of the SRA account rules.

48
Q

What are the 2 types of conflicts?

A

Own Interest Conflicts

Client Conflicts

49
Q

What is an own interest conflict?

A

Exists between a solicitor and client when a duty to act in the best interests of the client in relation to any matter conflicts.

50
Q

What are examples of own interest conflicts?

A 
Any financial interest
Personal relationship
Commercial relationship
Employment
Your own contact in the matter
51
Q

Can you act in an own interest conflict matter?

A

No.

52
Q

What is a client conflict?

A

Exist when you owe separate duties to act in the best interests of two or more clients in relation to the same or related matters and those duties conflict.

53
Q

Can you act in a client conflict?

A

Only when there is one of the following exceptions:
Substantially Common Interest
Competing for the Same Objective Exception

54
Q

What is the Substantially Common Interest Exception?

A

Where there is a clear common purpose in relation to a matter or particular aspect of it between the clients and a strong consensus on how it is to be achieved.

55
Q

What is the Competing for the Same Objective Exception?

A

Where two or more clients are competing for an objective which if attained by one client will make that objective unattainable to the other.

56
Q

What are the conditions to the exception rules for client conflicts?

A

Clients must give informed consent given in writing.
Effective safeguards are put in place to protect clients confidentiality.
You are satisfied it is reasonable for you to act for both clients.

57
Q

What is the general business interest?

A

Can act for two businesses who’s main business was the same provided it was unrelated issues advising on.

58
Q

Can other solicitors in the same firm act?

A

Generally no - the conflict provisions cover the firm and no just the individuals within it.

59
Q

When should you consider a conflict?

A

At the beginning before the retainer is created and further throughout the retainer.

60
Q

What should you do if a conflict arises before a retainer is created?

A

Refuse to act.

61
Q

What should you do if a conflict arises during the retainer?

A

The solicitor should inform all clients and decline acting if appropriate. Can continue to act for one client however has to be aware that their duty of confidentiality for the previous client is protected.

62
Q

What is a limited retainer?

A

The firm only acts on the aspects where there is no conflict and advises the client to take independent legal advice on the conflict area. This must be clearly defined in the client care letter.

63
Q

What is professional embarrassment?

A

A solicitor can decline to act due to the firm not being in a position to act in the best interests of the client.

64
Q

What are the exceptions to the duty of confidentiality?

A

Disclosure is required or permitted by law

The client consents.

65
Q

When is disclosure of confidential information generally accepted?

A

Client consents
Solicitor discloses the client’s will to an attorney under LPA
Solicitor is being used to commit a crime or fraud
Statutory requirements to do so e.g. tax affairs to HM Revenue & Customs
Statutory Duty to do so e.g. Money Laundering provisions
The is a court order or police warrant requiring disclosure

66
Q

When may a breach be justified?

A

Disclosure to prevent criminal offence that will result in serious bodily harm
Where the client has confirmed they will commit suicide or bodily harm
To protect a child or vulnerable adult.

67
Q

When will disclosure not be justified?

A

After the event.

68
Q

Who owes a duty of confidentiality to a client?

A

Everyone in the firm not just the solicitor.

69
Q

When does the duty of confidentiality end?

A

Indefinitely, after retainer has ended and even clients death.

70
Q

What is the consequence to the breach of confidentiality?

A

Solicitor may be disciplined by SRA or SDT. Client can sue the solicitor for breach of this duty.

71
Q

What is the duty of disclosure?

A

An individual who is advising a client must make the client aware of all information material to that retainer of which individual is aware.

72
Q

What are exceptions to the duty of disclosure?

A

Client giving consent in writing
Reason to believe disclosure would avoid serious physical harm or mental injury to a person
Legal restrictions imposed in the interest of national security or prevention of crime.

73
Q

Can you act for new clients who have an interest adverse to previous clients?

A

Yes, as long as effective measures have been taken which result in no real risk of disclosure and the former client gives informed consent.

74
Q

Can you prevent anyone from providing information to the SRA?

A

No.

75
Q

How must you respond to an enquiry from the SRA?

A

Provide full and accurate explanations, information and documents in response to any requests or requirements.
Ensure the relevant information is available for inspection by the SRA.

76
Q

When must remedial action be taken by solicitors upon a breach?

A

Promptly.

77
Q

When must solicitors notify the SRA?

A

They are subject to a criminal charge, conviction or caution
A relevant insolvency event involving you
A change to information about you or the practice that was previously provided could be misleading or false.

78
Q

When must firms notify the SRA?

A

Indicators of serious financial difficulty
Any insolvency event relating to the firm
The firms intention or awareness that it will cease to operate as a business
Any change to information recorded on the register.

79
Q

What defines a serious breach?

A

No written guidance from the SRA however they have formulated a list of allegations that are always taken seriously:
Abuse of trust
Dishonesty
Taking unfair advantage of clients or others
Misuse of client money
Sexual or violent misconduct
Criminal behaviours

80
Q

What factors will be seen as aggravating factors to a serious breach for the SRA?

A

Deliberately or recklessly disregarding their obligations
Demonstrating a lack of honesty or integrity
Taking advantage of a persons vulnerability
Causing harm that could have been reasonably anticipated to arise from the misconduct
Demonstrating a pattern of repeated misconduct

81
Q

Does the solicitor have to inform the SRA directly?

A

Any obligation to provide information to the SRA is satisfied if you provide the information to firm’s COLP or COFA on the understanding they will provide the information to the SRA.

82
Q

Do you have an obligation to admit mistakes to clients?

A

You must be honest and open with clients if things go wrong. If the client suffers loss or harm then you must put matters right.

83
Q

What is the obligation when identifying the client?

A

You must identify the client who you are acting for in relation to any matter.

84
Q

What obligations do you have regarding informing the client of regulation?

A

You must inform the clients whether and how the services you provide are regulated and how this affects the protection available for your client. This includes explaining what activities will be carried out by yourself, a regulated person and which services are regulated.

85
Q

What obligations are there regarding informing the client about legal services?

A

You must give clients information in a way that can understand and must ensure they are in a position to make an informed decisions about the services they need how their matter will be handled and the options available to them.

86
Q

What obligations are there regarding keeping the client informed about pricing and costs?

A

You must ensure that clients receive the best possible information about how their matter will be priced. Additionally they must be provided with a likely overall cost at the time of engagement and when their matter progresses.

87
Q

What are a firms obligations regarding complaint handling?

A

Need to inform the client of their right to complain at the time of engagement. If a complaint has not been dealt with after 8 weeks then the client can refer this to the Legal Ombudsmen. Complaints must be dealt with promptly, fairly and free of charge.

88
Q

What are a firms obligations in relation to publicity?

A

All publicity must be accurate and not misleading. There must be no unsolicited approaches such as targeted or intrusive. The exception is you can approach current and former clients to advertise your legal services.

89
Q

What are a firms obligations with regards to transparency rules?

A

Firms must display their prices and service information if they publish that you work in conveyancing, probate, motoring offences, immigration, employment tribunals, debt recovery, licensing applications. Firms must also display a badge confirming they are regulated.

SQE1 !!! (16 decks)

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