Ethics and Professional Conduct Flashcards
SRA Principles?
The SRA Principles comprise the fundamental tenets of ethical behaviour that the SRA expects those they regulate to uphold. The Principles apply to individuals and firms. All individual lawyers who provide legal services to client must comply with them. Please pause this recording to read them.
Individual lawyers have duties to four categories of people?
· Firstly their clients. The 7th Principle is to act in the best interests of your client. CCS contains many obligations in respect of a solicitor’s duties to their client, some of which are listed on the slide.
· Secondly third parties – the legal profession must uphold public trust and confidence in the solicitor’s profession. They have a duty to their clients but also the court, and to the public generally. They must not mislead their clients or the court or other people and that includes members of the public they come across even in their private lives. They must not take unfair advantage of other people. If they undertake to do something, they must meet that undertaking – and this obligation applies not only to lawyers but to all members of staff in a law firm.
· Thirdly their colleagues: this relates to their responsibility to maintain their competence but also, if they supervise others, they must ensure that the work being done is correct and the people they manage are competent.
· Fourthly, they owe duties to the SRA and other regulators: they must cooperate with the SRA and they must ensure they can justify that their actions demonstrate compliance with the SRA’s rules.
Code of Conduct for Firms (CCF) requirements for firms?
CCF requires firms to have systems in place to ensure compliance and manage risk. The SRA does not prescribe what systems, but firms must have effective governance structures, systems and controls to ensure that they comply with the SRA’s requirements and they must keep records to demonstrate compliance. Key obligations on firms in relation to the systems they must have in place are listed on this slide.
Who are the ‘managers’?
a member of an LLP; a director of a company; a partner in a partnership; or in relation to any other body, a member of its governing body.
Who is responsible for ensuring compliance with CCF?
managers’.
Professional Indemnity insurance?
the SRA requires that law firms take out professional indemnity insurance
insurance should provide adequate and appropriate cover
SRA has included requirements in CCS and CCF to ensure that legal professionals take steps to address these risks to the integrity of the legal profession. What does this include?
* to keep client money safe (CCS 4.2),
* not to take unfair advantage of clients (CCS 1.2),
* to ensure solicitors’ instructions reflect their client’s wishes (CCS 3.1),
* to address EDI (CCS1.1 CCF 1.5),
* to provide a clear complaints procedure (CCS 8.2-8.5), and
* to provide clear information the client can understand about the service they will receive and how much it will cost (CCS 8.6 and 8.7).
o There are also requirements to ensure you keep your legal knowledge up to date and that the work of junior lawyers is properly supervised
Keeping your knowledge up to date obligations?
CCS 3.2: You ensure that the service you provide to clients is competent and delivered in a timely manner.
CCS 3.3: You maintain your competence to carry out your role and keep your professional knowledge and skills up to date
CCS 7.1: You keep up to date with and follow the law and regulation governing the way you work.
o The following is imposed on firms under CCF:
CCF 4.3:You ensure that your managers and employees are competent to carry out their role, and keep their professional knowledge and skills, as well as understanding of their legal, ethical and regulatory obligations up to date
provisions in CCS and CCF on supervising client matters?
CCS 3.5: where you supervise or manage others providing legal services:
* (a) You remain accountable for the work carried out through them; and
* (b) You effectively supervise work being done for clients
CCS 3.6: You ensure that the individuals you manage are competent to carry out their role, and keep their professional knowledge and skills, as well as understanding of their legal, ethical and regulatory obligations, up to date.
CCF 4.4: You have an effective system for supervising clients’ matters.
o A Firm is responsible for ensuring that the Firm has a system in place for supervising client’s matters in order to achieve CCF 4.4.
This means that appropriate procedures need to be in place for suitable persons to check the quality of work undertaken for clients regularly. Although most persons supervising client files will have a legal qualification, such persons do not necessarily have to be legally qualified. As long as they have suitable experience, knowledge and competence to deal with any issue which may arise and such persons have clear guidance as to when and to whom issues outside their competence or authority should be referred ‘upwards’, they are permitted to supervise client matters.
What does the SRA consider to be the key risks to the legal profession?
* Anti-money laundering
* Safeguarding client money
* Promoting diversity in the profession
* Information and cyber security
* Integrity and ethics
* Meeting legal needs
* Providing a high professional standard of service.
Who does the SRA require law firms to appoint?
The SRA requires law firms to appoint both a Compliance Officer for Legal Practice(‘COLP’) and a Compliance Officer for Finance and Administration(‘COFA’).
Role of COLP?
The role of the COLP is to ensure the firm complies with its legal and statutory obligations.
Role of COFA?
The role of the COFA is to ensure the firm complies with the SRA Accounts Rules 2019.
Who has the responsibility of compliance?
COLPS and COFAs do not have sole responsibility for compliance. Compliance is ultimately the responsibility of the owners and managers of the firm.
Requirements for those to supervise work undertaken by the firm?
Firms must have a manager or employer or procure the services of an individual who has practised as a lawyer for a minimum of three years, to supervise the work undertaken by the firm.
When does the requirement to have a COLP and a COFA operate?
must at all times
COLP responsibilities?
* to ensure the firm complies with all the terms and conditions of authorisation by the SRA;
* to ensure the firm complies with its statutory obligations;
* to record any failures to comply with the firm’s authorisation or statutory obligations and make records available to the SRA; and
* to report any material failure to the SRA as soon as is practicable.
COFA responsibilities?
* ensure that the firm complies with the SRA Accounts Rules 2019;
* report any serious breaches of the SRA Accounts Rules 2019 to the SRA promptly.
Who is eligible to be a firm’s COLP or COFA?
o ALL of the following criteria must be satisfied. The COLP or COFA must:
* be a manager or employee of the authorised body;
* consent to the designation;
* not be disqualified from acting as a Head of Legal Practice (as defined in the Legal Services Act 2007 (‘LSA’)) or Head of Finance and Administration (as defined in the LSA) under section 99 LSA; and
* in the case of a COLP, be an individual who is authorised to carry on reserved legal activities by an approved regulator.
Can someone be both a COLP and COFA?
o Yes, it is possible for the same person to fulfil both roles provided they have the necessary skills and fulfil all the criteria, but it is likely that this will only be the case for sole practitioners and some small firms.
Managers’ responsibility for compliance?
Under the SRA Code of Conduct for Firms (‘CCF’) 8.1 managers have responsibility for compliance by the Firm with CCF. This responsibility will be joint and several with other managers of the firm.
COLPs and CCF?
o The COLP is responsible (with the firm’s managers) for ensuring that appropriate systems are in place to minimise the risk of non-compliance with CCF.
o Meeting the standards in CCF 2 (Compliance and business systems) and CCF 4 (Service and competence) will be a major part of the COLP’s role. At the heart of these standards is the requirement that there must be a clear and effective governance structure and reporting lines: CCF 2.1.
o In addition, systems and controls need to be maintained, and the COLP will be expected to monitor, identify risk and take all reasonable steps to ensure:
* compliance with the terms and conditions of the Firm’s authorisation (CCF 9.1(a));
* compliance by the Firm, managers, employees and persons with an interest in the Firm, with the SRA’s regulation as it applies to them (CCF 9.1(b));
* the Firm’s managers and interest holders and those employed or contracted with do not cause or substantially contribute to a breach of the SRA’s regulatory arrangements (CCF 9.1(c)); and
* a prompt report is made to the SRA of any serious breach of the terms and conditions of the Firm’s authorisation or the SRA’s regulatory arrangements, which apply to the Firm, managers or employees (CCF 9.1(d)).
Do managers or owners need SRA approval?
o Firms must ensure the SRA has approved any manager or owner of the firm under Part 4 of the SRA Standards and Regulations (AFR 9.1).
Exceptions to anagers or owners needing SRA approval?
* a sole principal whose practice has been authorised as a recognised sole practice is not required to be approved as a manager of that practice;
* if the SRA is satisfied that a manager of an authorised body is not involved in any of the following:
* * day to day strategic management of the authorised body;
* * compliance by the authorised body with the SRA’s regulatory arrangements; or
* * the carrying on of reserved legal activities or the provision of legal services in England and Wales,
the SRA may decide that the authorised body is not required to comply with AFR 9.1.
Lawyer to supervise the work of the business?
o A firm must have at least one manager or employee or must procure the services of an individual who:
* is a lawyer of England and Wales and has practised as such for a minimum of three years; and
* supervises the work undertaken by the authorised body (9.4(a) and(b) AFR).
Reserved legal activities?
rights of audience,
* right to appear before and address a court
the conduct of litigation,
conducting activities in relation to reserved instruments which includes instruments relating to land and probate activities.
Notarial activities
Probate activities
Administration of oaths
Who do the SRA principles apply to?
o The Principles apply to individuals and firms.
7 SRA principles?
o The Principles require individuals and firms to act:
1. in a way that upholds the constitutional principle of the rule of law and the proper administration of justice
2. in a way that upholds public trust and confidence in the solicitors’ profession and in legal services provided by authorised persons
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
What happen if the SRA principles come into conflict?
o Should the Principles come into conflict, the principles which safeguard the wider public interest (for example the rule of law) take priority over the interest of an individual client.
What do the SRA principles relate to?
o The Principles relate to a lawyer’s relationship with their client and also the court, other professionals and the public.
When do the SRA principles apply?
o The Principles apply to legal professionals in their personal as well as their professional lives.
Code of Conduct for Solicitors, Registered European Lawyers and Registered Foreign Lawyers (‘CCS’)?
o CCS sets out the standards that the SRA and the public expect from individuals authorised by the SRA to provide legal services, including solicitors, paralegals and apprentices.
o CCS is a brief document, approximately eight pages long. It sets out a framework.
How are you compliant with the CCS?
o You are personally responsible for compliance with CCS.
o CCS 7.3 requires you to cooperate with the SRA and other regulators when they investigate concerns relating to legal services.
CCF?
o CCF sets out the standards and business controls the SRA expects of firms.
o CCF contains all the standards set out in CCS plus additional standards about the way firms run their businesses, including rules relating to:
the systems and controls firms must have in place to comply with the SRA’s rules
the responsibilities of managers of a firm
the requirement to have a Compliance Office for Legal Practice (‘COLP’) and a Compliance Officer for Finance and Administration (‘COFA’).
Limitation of acting in the best interests of your client?
o Although you must act in the best interests of each client, you must also act with independence, honesty and integrity. If the client wants to do something dishonest or illegal, you cannot help them do it.
What’s the difference between acting with honesty and acting with integrity?
o Integrity is broader than honesty.
For example, if you mislead a client or the court, you have not breached Principle 4 (honesty), but you have breached Principle 5 (integrity).
o Integrity is about being scrupulous, careful and accurate.
o The SRA might take action against an individual for lack of integrity where they have:
Taken unfair advantage of a client or a member of the public
Allowed another person to take unfair advantage of someone else
Misled another person or stood by and allowed another person to be misled
maintaining trust and acting fairly?
CCS 1.1 ‘You do not unfairly discriminate by allowing your personal views to affect your professional relationships and the way in which you provide your services.’
CCS 1.2 ‘You do not abuse your position by taking unfair advantage of clients or others.’
CCS 1.4 ‘You do not mislead or attempt to mislead your clients, the court or others, either by your own acts or omissions or allowing or being complicit in the acts or omissions of others (including your client).’
How does o ‘You do not abuse your position by taking unfair advantage of clients or others.’ apply when the other party is unrepresented?
For example, you could be instructed on a matter and find yourself opposite a party with no legal representation. You should not take advantage of the other party’s lack of legal knowledge.
o If the unrepresented party produces a badly drafted document, you should suggest they find a lawyer. If they do not, you need to maintain a balance between acting in your client’s best interest and not taking advantage of the opponent’s lack of legal knowledge and drafting skills
What does misleading the client include?
Telling a prospective client they have a strong case in order to get the work, when they don’t.
Telling them the case is going well when it is going badly.
What does misleading the court include?
Not disclosing a case or statutory provision to the court which goes against the argument you are presenting for your client.
What does Misleading others include?
Making false representations on behalf of a client to a third party. For example, telling prospective purchasers of your client’s company that it is a good or bad deal. You should not give your personal opinion on the value of a deal to anyone involved.
What are the SRA’s requirements on Equality Diversity Inclusion?
o Principle 6: You must act in a way that encourages equality, diversity and inclusion.
o CCS 1.1 ‘You do not unfairly discriminate by allowing your personal views to affect your professional relationships and the way in which you provide your services.’
o CCS 1.2 ‘You do not abuse your position by taking unfair advantage of clients or others.’
o CCS 3.4 ‘You consider and take account of your client’s attributes, needs and circumstances.’
Guidance on the SRA’s approach to EDI?
Provide reasonable adjustments to disabled clients and employees to make sure they are not at a substantial disadvantage compared to those that are not disabled.
* You must not pass on the costs of providing these adjustments to others.
Encourage diversity at all levels of the workforce.
Collect, report and publish data about the diversity of your workforce.
Uphold the reputation of the profession in your professional and personal life and treat people fairly and with dignity and respect.
You should ensure your personal views do not have a negative impact on others. This includes expressing extreme personal, moral or political opinions on social media.
Be fair and inclusive in your interactions with people you meet and deal with in the course of your work.
What must firms do to comply with the SRA’s obligations on equality, diversity and inclusion?
· have a complaints procedure and make sure complaints including those of discrimination, harassment and victimisation are dealt with promptly, fairly and effectively.
Do solicitors have to perform all undertakings?
o CCS 1.3 requires solicitors to perform all undertakings given by them, and to do so within an agreed timescale or if no timescale has been agreed then within a reasonable amount of time.
o Failure to perform an undertaking can be a serious disciplinary offence and most firms have systems in place to ensure that undertakings are complied with.
What is an undertaking?
‘a statement, given orally or in writing, whether or not it includes the word ‘undertake’ or ‘undertaking’ to someone who reasonably places reliance on it, that you or a third party will do something or cause something to be done, or refrain from doing something’.
When can an undertaking be given?
o An undertaking can be given by any individual in a law firm provided it can be reasonably relied upon by the recipient. An undertaking could be given by a partner, a qualified lawyer, an apprentice, secretary or any other individual in the firm.
Form of undertakings?
The form of any undertaking should be ‘SMART’:
o Specific: be clear as to what is involved
o Measured: it must be capable of quantification
o Agreed: both sides must agree the wording
o Realistic: within solicitor’s control
o Timed: must not be of unlimited duration
What happens if there is ambiguity in the undertaking?
Any ambiguity in an undertaking will be construed in favour of the recipient.
What is a solicitor considered to be?
an ‘officer of the court’
What happens if a solicitor inadvertently misleads the court?
o A solicitor would not normally be guilty of misconduct if they inadvertently misled the court. Under the SRA’s Indicative Behaviours (which preceded CCS) if, during the course of proceedings the solicitor became aware that they had inadvertently misled the court, they must, with their client’s consent, immediately inform the court. If the client did not consent, the solicitor must stop acting for that client.
What happens if a solicitor becomes aware that their client has mislead the court?
, if a solicitor became aware that a client had committed perjury or misled the court or attempted to mislead the court, then the solicitor had to cease to act unless the client agreed to disclose the truth to the court.
Examples of misleading the court?
draft documents or construct facts supporting your client’s case which are not properly arguable;
* make any allegation of crime, misconduct or fraud unless it is material to your client’s case and you have reasonable grounds for doing so;
* call a witness whose evidence you know is untrue.
Other duties to the court?
CCS 2.1: You do not misuse or tamper with evidence or attempt to do so.
CCS 2.2: You do not seek to influence the substance of evidence, including generating false evidence or persuading witnesses to change their evidence
CCS 2.3: You do not provide or offer to provide any benefit to witnesses dependent upon the nature of their evidence or the outcome of the case.
CCS 2.4: You only make assertions or put forward statements, representations or submissions to the court or others which are properly arguable.
CCS 2.5: You do not place yourself in contempt of court, and you comply with court orders which place obligations on you.
CCS 2.6: You do not waste the court’s time.
CCS 2.7: You draw the court’s attention to relevant cases and statutory provisions, or procedural irregularities of which you are aware, and which are likely to have a material effect on the outcome of the proceedings.
How should you deal with clients?
Principle 7: You must act in the best interests of each client
CCS 3.2: You ensure the service you provide to clients is competent and delivered in a timely manner.
CCS 4.2: You safeguard money and assets entrusted to you by clients and others.
service and competence?
o CCS 3.2: You ensure the service you provide to clients is competent and delivered in a timely manner.
o An important part of providing a good service to your clients is to ensure that you are competent to do so.
o You need to ensure that you are competent to carry out the work you are required to do:
· You should not send work to a client unless it has been checked by your supervisor.
· If you do not know how to do the work, you must get help from someone.
· You also need to ensure that you keep your legal knowledge up to date in order to comply with CCS 3.3 and CCS 7.1.
o CCS 3.3: You maintain your competence to carry out your role and keep your professional knowledge and skills up to date.
o CCS 7.1: You keep up to date with and follow the law and regulation governing the way you work.
o CCS 3.4: You consider and take account of your client’s attributes, needs and circumstances.
Managers’ service and competence?
o Your managers also have an obligation to ensure that you are competent to carry out your work.
CCS 3.5: Where you supervise or manage others providing legal services:
you remain accountable for the work carried out through them; and
you effectively supervise work being done for clients
o CCS 3.6: You ensure that the individuals you manage are competent to carry out their role and keep their professional knowledge and skills, as well as understanding of their legal, ethical and regulatory obligations, up to date.
Safeguarding money and assets?
o CCS 4.2: You safeguard money and assets entrusted to you by clients and others.
Dealing with the court obligations?
o Principle 1: act in a way that upholds the constitutional principle of the rule of law, and the proper administration of justice.
o Principle 2: act in a way that upholds public trust and confidence in the solicitors’ profession and in legal services provided by authorised persons.
o CCS 2 contains more detailed provisions regarding your duty to the court. For example:
o CCS 2.1: You do not misuse or tamper with evidence or attempt to do so.
o CCS 2.2: You do not seek to influence the substance of evidence, including generating false evidence or persuading witnesses to change their evidence.
SRA’s requirements on publicity?
· o CCS 8.8: you ensure that any publicity in relation to your practice is accurate and not misleading, including that relating to your charges and the circumstances in which interest is payable by or to clients.
· CCS 8.9: you do not make unsolicited approaches to members of the public, with the exception of current or former clients, in order to advertise legal services provided by you, or your business or employer.
types of marketing approaches which would tend to demonstrate non-compliance with 8.9 CCS?
· in the street
· at ports of entry (i.e. to the UK)
· at hospitals
· at the scene of an accident.
Costs information for services?
o Authorised bodies who publish the availability of certain services to individuals and businesses must publish certain costs information on their websites. The services to individuals are listed in Rule 1.3 and include:
· conveyancing of residential property
· collection and distribution of assets following a person’s death
· immigration applications
· immigration matters
· road traffic offences
· certain advice to employees on unfair and wrongful dismissal.
o The services in relation to businesses are listed in Rule 1.4 and include:
· certain advice to employers on unfair dismissal and wrongful dismissal;
· debt recovery up to the value of £100,000; and
· certain advice in relation to licensing applications for business premises.
What costs information must be published?
o The costs information which must be published is listed in Rule 1.5 and includes:
· the total cost of the service or, where not practicable, the average cost or range of costs;
· the basis for the charges, including hourly rates or fixed fees;
· the experience and qualifications of anyone carrying out the work, and their supervisors;
· a description of, and the cost of, any likely disbursements;
· whether any fees or disbursements attract VAT, and if so, the amount of VAT;
· details of what services are included in the price displayed, including the key stages of the matter and the likely timescales for each stage and details of any services that might be expected to be included in the price displayed but are not; and
· if the firm uses conditional fee or damages based agreements, the circumstances in which clients may have to make any payments themselves for the services.
o The cost information published must be clear and accessible and in a prominent place on the website (Rule 1.6).
What costs information must be published? - Regulatory information
· An authorised body must display in a prominent position on its website, its SRA number and the SRA’s digital badge (Rule 4.1).
· An authorised body’s letterhead and emails must show its SRA authorisation number and the words ‘authorised and regulated by the Solicitors Regulation Authority’ (Rule 4.2).
Introduction?
“introduction” relates to a relationship you/a law firm has with a third party where the third party introduces or refers business TO YOU/THE LAW FIRM
