Ethics and Professional Conduct Flashcards
what do the SRA Principles comprise of?
the fundamental tenets of ethical behaviour that we expect all those that we regulate to uphold
who the SRA Principles apply to?
all individuals we authorise to provide legal services (solicitors, Registered European Lawyers/RELs and Registered Foreign Lawyers/RFLs), as well as authorised firms and their managers and employees.
For licensed bodies (non-UK-lawyer ownership/management e.g. alternative business service provider), these apply to those individuals, and the part of the body (where applicable), involved in delivering the services we regulate in accordance with the terms of your licence
should the Principles come into conflict, which should take precedence?
those which safeguard the wider public interest (such as the rule of law, and public confidence in a trustworthy solicitors’ profession and a safe and effective market for regulated legal services) take precedence over an individual client’s interests
where your duty to the Court or other professional obligations outweigh your duty to the Client, you should tell them (where appropriate)
list the SRA Principles…
You act:
- in a way that upholds the constitutional principle of the rule of law, and the proper administration of justice.
- in a way that upholds public trust and confidence in the solicitors’ profession and in legal services provided by authorised persons.
- with independence.
- with honesty.
- with integrity.
- in a way that encourages equality, diversity and inclusion.
- in the best interests of each client.
what does the SRA Code of Conduct contain?
Code of Conduct for Solicitors and the Code of Conduct for Firms = SRA Code of Conduct
what duties to firms/solicitors have regarding complaints?
they must have a complaints procedure
solicitors must ensure the client is informed of at the time of engagement:
(a) their right to complain about the solicitor’s services and charges;
(b) how complaints may be made and to whom; and
(c) any right they have to make a complaint to the Legal Ombudsman and when they can make such complaint.
when a client makes a complaint, and it has not been resolved to their satisfaction within 8 weeks, what must a solicitor do?
the solicitor must ensure the client is informed in writing:
(a) of any right they have to complain to the Legal Ombudsman, the timeframe for doing so and full details of how to contact the Legal Ombudsman; and
(b) if a complaint has been brought and the complaints procedure has been exhausted:
(i) that the solicitor cannot settle the complaint;
(ii) the name and website address of an alternative dispute resolution (ADR) approved body (can be found via the The
Chartered Trading Standards Institute) which would be competent to deal with the complaint; and
(iii) whether the solicitor agrees to use the scheme operated by that body
how must a client complaint be dealt with?
promptly, fairly and free of charge
does a client have to have suffered loss for the Legal Ombudsman to make a determination against the solicitor
no
can a complainant use the Legal Ombudsman service if they have not gone through the solicitor’s own complaints procedure?
no, not usually
can go straight to the LeO if:
(a) the complaint has not been resolved to the complainant’s satisfaction within eight weeks of being made to the solicitor; or
(b) the LeO considers that there are exceptional reasons to consider the complaint sooner, or without it having been made first to the solicitor; or
(c) the LeO considers that in-house resolution is not possible due to irretrievable breakdown in the relationship between the solicitor and the complainant.
The complaint should be brought no later than:
* one year from the act/omission; or
* one year from when the complainant should reasonably have known there was cause for complaint.
LeO has a discretion to extend the time limits to the extent it considers fair
what is the LeO’s process in resolving a complaint?
it can do so in whichever way it feels appropriate, including informal resolution
it can decide an investigation is necessary - both parties will be given an opportunity to make representations
A hearing will be held only where the LeO considers that the complaint cannot be determined fairly without one.
A ‘determination’ will then be made and sent to the parties and the SRA (as the approved regulator), with a time-limit for response by the complainant.
the complainant then accepts/rejects/fails to respond to the determination
if accepted = binding and final + can be enforced by the complainant through the high court and county court
if rejected = both parties remain free to pursue other legal remedies (such as suing for negligence).
if the resolution of a complaint involves a legal question, it may refer the matter to the court
if professional misconduct found - may refer to SRA
what may a ‘determination’ direct a firm/solicitor to do following a complaint?
are there any limits on the determination?
(a) apologise;
(b) pay compensation (together with interest) for any loss suffered and/or inconvenience/ distress caused;
(c) ensure (and pay for) the putting right of any error or omission;
(d) take (and pay for) any specified action in the interests of the complainant;
(e) pay a specified amount for the costs of the complainant in pursuing the complaint;
(f) limit the solicitor’s fees (including requiring that all or part of any amount paid is refunded, with or without interest, or that all or part of the fees are remitted).
There is a limit of £50,000 on the total value that may be awarded in respect of compensation and the costs in
respect of (c) and (d) above.
The limit does not apply to (a), (e) or (f) above, or to interest on compensation for loss suffered.
what does the SRA base its decision to or not to investigate on?
three step Assessment Threshold Test:
(1) has there been a potential breach of the SRA Standards and Regulations based on the allegations made;
(2) is that potential breach sufficiently serious that, if proved, is capable of regulatory action;
(3) is the breach capable of proof?
what is the SRA procedure in investigating potential misconduct?
if the SRA decide to investigate, they will notify the solicitor and their employer (if necessary)
Notice will be given to that individual or firm setting out the
allegation and facts in support and other relevant information and inviting them to respond with written recommendations within a specified time period.
what powers does the SRA have in conducting an investigation into potential misconduct?
to serve a notice on a solicitor requiring the delivery of a file or documents
the solicitor must respond promptly and provide any docs requested
what sanctions may the SRA impose following a finding of misconduct
the SRA’s approach is set out in the SRA Enforcement Strategy:
(a) Take no further action with or without issuing advice or a warning about future conduct
(b) Impose a financial penalty or written rebuke
(c) Control how the solicitor practises
(d) Refer the matter to the Solicitors Disciplinary Tribunal
what is the max financial penalty the SRA can impose following a finding of professional misconduct?
£25,000
what are the financial penalties the SRA may impose against a firm for a finding of professional misconduct for specific breaches
The SRA introduced a fixed penalty scheme for specified breaches by firms, eg a failure to provide
information or documents to the SRA when requested.
Under the scheme the penalty is £750 for a first breach and £1,500 for a continuation of that breach or a subsequent
breach of the same kind.
who can make an application to the SDT?
the vast majority of applications are made by the SRA - when the SRA is satisfied that there is a realistic prospect of the SDT making an order in respect of the allegation and it is in the public interest to make the application
any person may make an application directly to the SDT without first making a complaint to the SRA (except where
the Solicitors Act 1974 expressly provides otherwise)
what is the procedure of the SDT?
The SDT does not have powers of investigation nor will it collect evidence itself.
An application to the SDT must be made in the prescribed form, supported by evidence (this will be prepared by the panel solicitor, or the SRA’s advocate where the applicant is the SRA).
The SDT will consider the application and, if satisfied that there is a case to answer, will fix a hearing date.
Either party may be represented at the hearing by a solicitor or counsel.
Evidence is given on oath and witnesses may be called.
the SDT makes an order (judgment) which takes
effect once it is filed with the Law Society
Where (unusually) an application is made directly to the SDT, the SDT may refer the matter to the SRA for investigation before proceeding with the application. If the SRA finds the complaint is substantiated, the SRA may take over on the applicant’s behalf or use it’s own powers to deal with the matter
what powers does the SDT have?
Section 47 Solicitors Act 1974 gives the SDT power to make such order as in its discretion it thinks fit, including the following:
(a) striking a solicitor off the roll (once struck off the SDT may also restore a solicitor to the roll);
(b) suspending a solicitor from practice or imposing restrictions upon the way in which a solicitor can practise;
(c) imposing an unlimited fine payable to HM Treasury;
(d) reprimanding the solicitor;
(e) requiring the payment by any party of costs or a contribution towards costs.
which court would you appeal an order of the SDT?
the Administrative Court
what is the SRA Compensation Fund?
a discretionary fund of last resort to make grants
to persons whose money has been stolen or otherwise not accounted for as the result of an act or omission of those regulated by the SRA (‘a defaulting practitioner’), and to relieve losses for which SRA authorised bodies should have had insurance but did not.
It is funded by mandatory contributions by all solicitors and SRA-authorised bodies.
how much may an applicant be awarded from the SRA Compensation Fund?
The Fund does not pay out sums of more than £2 million per claim (unless the SRA is satisfied that there are exceptional circumstances in the public interest that justify a higher sum).
Where there are multiple related or connected claims, the SRA may impose a cap of £5 million on the total amount paid.
what duties does a solicitor have to their client if they do something wrong?
they must be open and honest
the solicitor should tell the client about their error immediately
a breach of which SRA principle will be considered the most severe and attract the greatest sanction?
honesty
in determining whether a solicitor’s conduct is dishonest, the SRA adopts a two-stage test, what is it?
(1) What was the solicitor’s genuine knowledge or belief as to the facts at the time?
(2) In view of the solicitor’s knowledge or belief at the time, was their conduct dishonest by the standards of ordinary decent people? - This is an objective test. There is no requirement that the solicitor knew or understood that
their behaviour was dishonest.
what do the courts understand the difference between honesty and integrity to be?
Wingate and another v SRA and Malins v SRA [2018] EWCA Civ 366
which case for a solicitors duty to uphold the rule of law and the proper administration of justice and what does it say?
SRA v Farrimond [2018]
committing a serious offence like attempted murder is wholly incompatible with being a solicitor
which case for the principle of honesty and what does it say?
committing a criminal offence and dishonesty may overlap but one is not a prerequisite for the other
Bultitude v Law Society [2004] - sol breached solicitors accounting rules but argued he was not dishonest because he did not have the intention to permanently deprive (the necessary intention for theft)
held that proof of dishonesty did not depend on proving an intention permanently to deprive
which case for the principle of integrity and what does it say?
Wingate and another v SRA and Malins v SRA [2018]
Integrity is a broader concept than honesty. In professional codes of conduct the term
‘integrity’ is a useful shorthand to express the higher standards which society expects
from professional persons and which the professions expect from their own members.
To take one example, a solicitor conducting
negotiations or a barrister making submissions to a judge or arbitrator will take particular care not to mislead. Such a professional person is expected to be even
more scrupulous about accuracy than a member of the public in daily discourse
the SRA Transparency Rules require those advertising their services to provide information about costs. to which services are these rules applicable and what information regarding costs is required?
The specified services in relation to individuals are:
* residential conveyancing,
* uncontested probate (where all assets are within the UK),
* motoring offences (summary only offences),
* employment tribunals (claims for unfair or wrongful dismissal),
* immigration (excluding asylum applications).
The specified services in relation to businesses are:
* debt recovery (up to £100,000),
* employment tribunals (defending claims for unfair or wrongful dismissal),
* licensing applications for business premises.
The information on the costs must include the following:
(a) the total cost of the service or cost estimate and disbursements
(b) the basis for the charges (including any hourly rate or fixed fees);
(c) what services are included within the displayed price and details of any services which might reasonably be expected to be included in the price but are not;
(d) the experience and qualifications of anyone carrying out the work (and their supervisors);
(e) whether VAT is payable on the fees or disbursements and, if so, if this is included in the price;
(f) typical timescales and the key stages of the matter;
(g) if conditional fee or damages-based agreements are used, the circumstances in which clients may have to make any payments themselves for the services received (including
from any damages).
where must the costs information be published according to the SRA Transparency Rules?
prominent place on the website which is accessible, clearly signposted and easy to find.
if the firm doesn’t have a website - info must be made available upon request
what should a solicitor consider before making an unsolicited approach? consider para 8.9 of the SRA Code of Conduct
they must have all the relevant consents required by the relevant date protection legislation
data protection legislation allows people to request their details are not used for direct marketing purposes - this should be complied with
sols are not able to make unsolicited approaches to members of the general public that even if permitted by law, feel unwelcome and intrusive
what is the intention behind para 8.9 of the SRA Code of Conduct?
intended to prevent direct or specifically targeted approaches to members
of the public in person, by phone or other means
which of the following would and would not be considered an unsolicited approach and therefore prohibited under para 8.9 of the SRA Code of Conduct?
newspaper ads
tv ads
sending leaflets to a large geographic area
sending leaflets to specific areas based on wider info
newspaper / tv / sending leaflets to a large geographic area = permitted as not a targeted approach
sending leaflets to specific areas based on wider info = not permitted as is a targeted approach to members of the public, which is what para 8.9 intends to prevent
what do the SRA Transparency Rules require firms to put on their letterheads, websites and emails?
website:
SRA number
SRA’s ‘digital badge’
info re the firms complaints procedure
how to complain to the SRA and LeO
letterheads and emails:
SRA authorisation number
‘authorised and regulated by
the Solicitors Regulations Authority’
what duties do solicitors have in informing clients about who regulates them?
duty to inform which activities will be carried out by someone regulated by the SRA and which activities will be carried out by someone regulated by another body
must ensure it does not appear that a person is regulated by the SRA when they are not
where a solicitor refers a client to a third party e.g. an estate agent, what must the sol make the client aware of?
any financial or other interest which the solicitor, the solicitor’s business or
employer has in referring the client to another person/body (Paragraph 5.1(a))
what is a fee-sharing arrangement and what duties do solicitors have to their clients regarding fee-sharing arrangements?
where a sol makes a payment to a third party in respect of a percentage of the solicitor’s gross or net fees
clients must be informed
the fee-sharing arrangement must be in writing (Paragraph 5.1(b) and (c))
and the clients (of which the fees are obtained) must not be acquired in a way which runs contrary to the Code of Conduct (e.g. via unsolicited approaches)
in what circumstances are referral fees prohibited?
in claims for damages following personal injury or death (LASPO)
a law firm may have a separate business e.g. an estate agency. under what circumstances can the firm introduce or divide the work between themselves and the separate business?
where the client has given informed consent (Paragraph 5.3)
a solicitor’s promotional material must not be ____________ or _____________ .
misleading or inaccurate
what obligations does a solicitor have under para 8.1 of the Code of Conduct?
which case demonstrates the effects of falling foul of these obligations?
A solicitor must identify whom they are acting for in relation to any matter
P&P Property Ltd v Owen White & Catlin LLP & Dreamvar (UK) Ltd v Mishcon De Reya
no negligence on behalf of sellers sols but not carried out satisfactory ID checks on the seller, who was fraudulently selling properties he did not own. both buyers and sellers sols were in breach of trust as they had received funds for the purpose of sale/purchase of property which was no longer possible.
demonstrates important of ID checks otherwise sols can become innocent victims
what does para 3.1 of the Code of Conduct discuss.
what are the consequences of falling foul of this obligation?
which case?
about taking instructions from the client or from a third party authorised to provide instructions
sol usually personally liable for costs incurred
Warner v Masefield - issued proceedings on behalf of two trustees but only received instructions from one - firm ordered to pay the costs of the parties involved
what obligations does a sol have regarding duress / undue influence / vulnerable clients?
what steps can they take to fulfil this obligation?
If a solicitor has reason to suspect that the instructions received from a client, or someone authorised on their behalf, do not represent the client’s wishes, the solicitor must not act unless they have satisfied themselves that they do (Paragraph 3.1
could arrange an interview with the client alone
concerns of duress = may seek assistance from the High Court to provide
its protection under its inherent jurisdiction
what should a solicitor do if their client would like them to draft their will leaving a significant gift to the solicitor?
may present an own interest conflict (para 6.1)
para 6.1 prevents a sol from acting in these situations unless the sol is satisfied the client has received independent legal advice
what duties does a solicitor owe their client under their retainer?
duty of reasonable care and skill
duty to act in the client’s best interests
duty not to take advantage of the client
confidentiality
disclosure
client care and costs
in what circumstances will the implied term of reasonable care and skill not apply?
could a client issue proceedings on another basis?
the implied term does not apply to advocacy services provided before a court, tribunal, inquiry or arbitrator
negligence (applies to contentious and non-contentious)
what rights of termination does a client have?
they may terminate their retainer at any point but may be liable to pay fees for work completed upon until the point of termination
