Ethics and Professional Conduct Flashcards
What are the SRA principles and how many of them are there?
7, and they are the fundamental tenets of ethical behaviour expected of firms and individuals who are involved in the provision of legal services.
What happens when two or more principles come into conflict?
The principle which safeguards the wider public interest (such as the rule of law, and safe and effective market for regulated legal services) takes precedence over an individual client’s interests.
Are disabled clients or employees expected to contribute towards the costs of reasonable adjustments?
No, you have a legal obligation to provide reasonable adjustments to ensure that disabled clients and employees are not placed at a substantial disadvantage compared to those who are not disabled, and you must NOT pass on the costs of these adjustments to others.
What is an undertaking?
A statement (given orally or in writing) whether or not it includes the word 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.
Do the SRA, LeO and SDT have the power to enforce an undertaking?
No, but any breach may be a breach of professional conduct which may lead to sanctions against the solicitor.
Can you compensate a witness?
You can compensate their legitimate travel costs or earnings they would lose by not attending work, but you must not provide or offer to provide any benefit to a witness if the benefit is dependent upon the nature of the evidence or the outcome of the case.
Must you inform a client of any fee sharing agreements?
Yes, all fee sharing agreements with a third party must be in writing. Additionally, the client must be informed of any fee sharing arrangement that is relevant to their matter. They must be informed of any financial or other interest which you or your business or employer has in referring the client to another person, or which am introduced has in referring the client to you.
Can you receive or make payments relating to a referral if the client is subject to criminal proceedings?
No, you must not receive or make payments relating to a referral, or make payments to an introduced in respect of clients who are the subject of criminal proceedings.
What is a prohibited referral fee?
Currently, the LASPO prohibits the payment or receipt of referral fees in claims for damages following personal injury or death.
What does LASPO stand for?
Legal Aid, Sentencing and Punishment of Offenders Act 2012
What is considered a separate business?
A business (1) which you own or are owned by or actively participate in or control or are otherwise connected with, and (2) which is not an authorised body , an authorised non-SRA firm, or an overseas practice.
What are reserved legal activities as defined by the Legal Services Act 2007?
- The exercise of a right of audience (the right to appear before and address a court, including the right to call or examine witnesses)
- Conducting litigation (issuing, commencing, prosecuting, or defending proceedings before any court in England or Wales, or performing in ancillary functions in relation to these proceedings)
- Preparing instruments relating to real or personal estate
- Preparing probate papers
- Notarial activities
- Administration of oaths
What is are COLPs?
Compliance officers for legal practice
What are COFAs?
Compliance officers for finance and administration
What are the two types of conflict?
- Conflicts between the solicitor (or firm) and the client (own interest conflict)
- Conflicts between two or more current clients (conflicts of interest). This type of conflict of interest is also sometimes known as client conflict to differentiate it from own interest conflict.
What is a retainer?
The contract between the solicitor and the client to carry out the agreed legal services, usually in return for the payment of the solicitor’s legal fees, plus any VAT. If a solicitor does not indicate that the legal fees are subject to VAT, the fees are deemed to include the VAT.
What does LeO, LSB, SRA and SDT stand for?
Legal ombudsman
Legal services board
Solicitors regulation authority
Solicitor’s disciplinary tribunal
What are some examples of own interest conflicts?
- Any financial interest
- Solicitor a beneficiary in client’s will
- Personal relationships
- Commercial relationships
- Employment claim of former employee
- Solicitors own conduct in question
What are the exceptions that apply to conflicts of interests?
- Substantially common interest exception - 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.
- Competing for the same objective exception - where two or more clients are competing for an objective which, if attained by one client, will make that objective unattainable to the others.
What conditions need to be met before you act with the conflict exceptions?
- The clients have given informed consent, given or evidenced in writing, to you acting.
- Where appropriate, you put in place effective safeguards to protect your clients’ confidential information.
- You are satisfied that it is reasonable for you to act for all the clients
What are the two reasons you would have to disclose confidential information for?
- When is it required or permitted by law
- When the client consents
How long does the duty of confidentiality last?
It continues despite the end of the retainer and even after the death of the client (when the right to enforce or waive the duty passes to the client’s personal representatives). Therefore, the term client also includes former clients.
What is a consequence of breaching the duty of confidentiality?
It is a breach of professional conduct and the solicitor may be disciplined by the SRA or the SDT. The client may also sue the solicitor for breach of this duty.
What is the duty of disclosure?
Any individual who is advising a client must make that client aware of all information material to that retainer of which the individual is aware.
