Ethics and Professional Conduct Flashcards
What are the 7 SRA principles
- RoL and proper administration of justice
- public trust and confidence in the solicitors’ profession
- independence
- honesty
- integrity
- encourages EDI
- best interests of each client
If 2 SRA principles conflict, which ones take precedence
Those which safeguard the public interest over the interests of an individual client
Principles: difference between honesty and integrity
Integrity is wider than dishonesty so you can lack integrity without being dishonest
Examples of breaching principle 5 integrity
Wilful/reckless disregard of standards/rules/requirements/obligations/ethics
Taking unfair advantage of clients/3rd parties
Knowingly/recklessly causing harm/distress
Misleading clients/3rd parties
- Conflict requirements
6.1 Dont act if there is an own interest conflict or a significant risk of such a conflict.
6.2 You do not act in relation to a matter or particular aspect of it if you have aconflict of interest or a significant risk of such a conflict in relation to that matter or aspect of it (current clients) UNLESS conditions satisfied
6: exceptions for own conflict?
none
- Conflict: conditions to satisfy 6.2
a. clients have substantially common interest
b. clients are competing for the same objective, (aka. Commercial except(ion)
AND
1. clients have given informed consent in writing
2. where appropriate, put in place effective safeguards to protect confidential info
3. AND you are satisfied it is reasonable for you to act for all clients
6: confidentiality requirements
6.3 keep affairs of current/former clients confidential unless disclosure is required or permitted by law or the client consents.
6: examples of when disclosure of confidential information is permitted by law
- Statutory requirement (eg. to HMRC)
- statutory duty (eg. Proceeds of Crime act/MLATR 2017)
- court order
- acting for client under power of attorney/as court appointed deputy
- in compliance with notice served by the LeO under s147 re facilitating investigation of complaint
6: in SRA guidance, when may disclosure be justified even if its a breach of confidentiality
- Clients indicated intention to commit suicide/serious self harm (ask client first then disclose to relevant authorities if they don’t consent)
- Preventing harm to children/vulnerable adults
- Preventing commission of a criminal offence
6: disclosure requirements
6.4make client aware of all information material to the matter of which you have knowledge (with exceptions
6: adverse interests requirements
6.5 Dont act for a client where they have an interest adverse to the interest of another current or former client of you or your business or employer, for whom you or your business or employer holds confidential information which is material to that matter (exceptions)
6: when can you act for a client who has adverse interests under 6.5?
a. effective measures have been taken which result in the being no real risk of disclosure of the confidential information
b. current or former client whose information you or your business or employer holds has given informed consent, given or evidenced in writing to you acting, including to any measures taken to protect information.
What can a firm do if a client refuses to pay
May exercise a lien over the clients property until the outstanding fees are paid
6: when DONT you have to make a client aware of all info you have knowledge of?
- Disclosure prohibited by legal restrictions imposed in interests of national security/prevention of crime
- Client gives informed consent in writing
- Reason to believe that serious physical or men injury will be caused to client/another if info is disclosed
- info contained in a privileged document, mistakenly disclosed.
Under the Code what are the requirements under 1: : Maintaining trust and acting fairly
- Dont unfairly discriminate by allowing your personal views to affect your professional relationships
- Dont abuse your position by taking unfair advantage of clients
- Perform all undertakings within an agreed/reasonable time
- Dont mislead/ attempt to mislead clients
- Treat colleagues fairly and with respect.
Code para 2: what are the requirements re evidence?
- Dont misuse/tamper
- Dont seek to influence the substance of evidence
Code para 2: what are the requirements re witnesses?
Dont offer to provide any benefit to witnesses dependent upon the nature of their evidence
Code para 2: what are the requirements re the court?
- only make assertions that are properly arguable
- dont place yourself in contempt of court
- Dont waste the court’s time
- Draw courts attention to law/procedural irregularities of which you are aware, and which are likely to have a material effect on the outcome of the proceedings
Para 3: Requirements re taking instructions
Only on instructions from the client ,OR someone properly authorised to provide instructions on their behalf
What should be done if a solicitor suspects instructions are given under duress/undue influence?
Dont act unless satisfied instructions reflect clients wishes
Eg. arrange to interview client alone
Para 3: requirements re service to clients
- Ensure service is competent and delivered in a timely manner
- maintain competence to carry out role and keep professional knowledge and skills up to date.
- consider and take account of client’s attributes, needs and circumstances.
Para 3: requirements when you supervise or manage others providing legal services?
- remain accountable for the work carried out through them
- effectively supervise work being done for clients
Para 4: rules re client money?
- properly account to clients for financial benefit received as a result of their instructions, unless agreed otherwise.
- safeguard money and assets entrusted to you by clients and others
- Don’t personally hold client money unless authorised
Para 5: In regards to referral of client/3rd party who introduces business to yournd you share fees, what should you ensure?
- clients informed of financial/other interest which you/your business/employer has in referring client or which an introducer has in referring the client to you
- informed of any fee sharing arrangement
- fee sharing agreement is in writing
- NO referral/payments for criminal
- only refer/recommend client/share clients business where client gives informed consent
Para 8: requirements re client identification
You identify who you are acting for in relation to any matter.
Para 8: requirements re complaints handling
- Est/maintain/participate in procedure for handling complaints
- ensure clients informed in writing at time of engagement of:
right to complain
how to complain
right/how/when to complain to Legal Ombudsman - if client complaint not resolved in 8w, inform them how to complain to Legal Ombudsman
- ensure that complaints are dealt with promptly, fairly, and free of charge.
Para 8: how should you give clients information?
in a way they can understand
Para 8: what information should you give clients re costs?
Ensure that clients receive the best possible information about how their matter will be priced and, both at the time of engagement and when appropriate as their matter progresses about overall cost and any costs incurred
what does the SRA glossary define ‘costs’ as?
Solicitors fees and disbursements
What should be done if its impossible to give client a precise figure as to costs
Reasonable estimate or at least a range (eg. time +hourly rate)
If not:
Ceiling figure which cant exceed without clients permission
Review date when parties will revisit costs
Why must VAT be expressly states in info on costs
Bc if its not, the cost will be deemed inclusive of VAT (+firm looses out)
What extra info on costs must be given for litigation?
- Risk of paying someone else’s legal fees (if loose OR loosing party unable to meet costs bill)
- May still be liable for own solicitors costs (bc court assess costs OR fixed recoverable costs)
Para 8: requirements re publicity
- ensure that any publicity in relation to your practice is accurate and not misleading
- Dont make unsolicited approaches to members of the public, with the exception of current or former clients , in order to advertise legal services
Para 8: requirements re regulation
- You ensure clients understand whether and how the services you provide are regulated.
- ensure clients understand the regulatory protections available to them.
On the death of a client, who does confidentiality pass to?
PRs
Can a solicitor accept a gift from a client?
If is a substantial gift, cannot accept unless satisfied the client has taken independent legal advice
What gifts to solicitors should be considered (for substantial gifts)
Consider any gifts over £500
it can be assumed that it would be significant if:
(a) over 1% of the client’s current estimated net estate;
(b) it might become valuable at some point, especially after the death of the client
(c) it provides a benefit to an individual which is more valuable than his relationship to the deceased reasonably justifies.
What types of compliance officer must every firm have?
- A compliance officer for legal practice (COLP)
- A compliance officer for finance and administration (COFA)
For conflict, will the buyer and seller of a property have a ‘substantially common interest’ meaning the solicitor can act for both?
NO
Conflict: Can you act for buyer and lender?
Yes BUT CANT as risk as conflict will be high if:
1. mortgage is not on standard terms
2. AND solicitor doesn’t use the approved certificate of title
Timeframe for an undertaking to be completed
Within a reasonable time
Meaning of ‘substantially common interest’
clear common purpose between the clients and a strong consensus on how that purpose is to be achieved
Meaning of ‘competing for the same objective’
when two or more clients are competing for an “objective” which, if attained by one client, will make that “objective” unattainable to the other client or clients
Who has the power to enforce an undertaking?
The Court
