Ethics and Professional Conduct - ALL Flashcards
What are the SRA’s seven mandatory principles?
A solicitor must 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.
Where does the principle requiring solicitors to behave in a way that upholds the constitutional principle ofthe rule of law, and the proper administration of justice come into play?
Primarily in the solicitor’s relationship with the courts i.e. in Dispute Resolution and Proceedings Before Courts, Tribunals, and Inquiries.
What type of behaviour would breach the principle that a solicitor must behave in a way that upholds public trust and confidence in the solicitors’ profession?
If a solicitor is convicted of a criminal offence (that is not minor). The solicitor could be potentially struck off. Serious offences for the purposes of this principle include: * dishonesty (e.g. theft of client money/fraudulent schemes/submitting false expense claims/dishonest election related crimes)* serious sexual offences * **GBHSanctions** depend on the facts and the degree of seriousness in each case. SRA assesses how far public trust has been undermined.
What does the principle of independance require?
Lawyers must be able to give impartial advice. Example: referring all clients to the same estate agent in return for a referral fee would be a breach/where a firm is put under the control of an unregulated third party its independance may be at risk.
What is the difference between the principles of honesty and integrity?
Honesty: don’t tell liesIntegrity: do the right, moral, ethical thing in all circumstances. The two principles can overlap. It is possible to act without integrity while still being honest. Note, an act of a solicitor in their personal life could mean that they have failed to act with honesty or integrity. Examples of breaches:* ignoring rules and being reckless to consequences* taking on new partners without vetting and subsequently discovering they had committed fraud in conveyancing transactions * taking advantage of someone without legal knowledge* backdating documents* misleading the courts.
Is the requirement for a solicitor to act in a way that encourages equality, diversity, and inclusion limited to compliance with the Equality Act?
No, the duty is broader.
What does the principle to act in the best interests of each client require?
- Avoid conflicts of interests* Keep client information confidential * Disclose important information to the client* Deliver competent and timely service
Which principle prevails when two or more principles conflict?
The principle which safeguards the wider public interest outweighs the individual client’s interests. Where relevant, the solicitor should inform their client of the circumstances in which their duty to the court and other professional obligations take precedence over their duty to the client.
What are the 3 rules regarding discrimination in the context of the provision of legal services?
- You must not unfairly discriminate by allowing your personal views to affect your professional relationships and the way in which you provide your services2. Firms are required to monitor, report, and publish workforce diversity data, as prescribed by the SRA.3. 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.
Is discrimination permitted if requested by a client?
No.Example: if a client asked you to not instruct a certain chambers because they are all women, this would not be permitted.
Is the duty to provide reasonable adjustments to disabled clients and employees absolute?
No.Adjustments only have to be ‘reasonable’, so the firm does not have to accommodate the needs of disabled clients and employees in all cases e.g. if it is cost prohibitive Examples of reasonable adjustments:* Ensuring that clients can access the firm’s premises easily* Providing sign language services* Providing specialist equipment for employees.
How might a solicitor abuse their position?
By taking unfair advantage of clients or others. Examples of abuse of the solicitor’s fiduciary position:* offering to sell a client an expensive car when you know they have come into money * throwing weight around to gain an advantage or get out of something * “I’m a solicitor”* taking advantage of an unrepresented client * oppressive/domineering tactics
How can a solicitor mislead others?
- affirmative acts* omissions (e.g. failing to inform someone that their understanding/view is incorrect)* being complicit in the acts or omissions of others (including your client)
What is the scope of the duty not to mislead?
You must not mislead or attempt to mislead your client, the court, or others. * Examples: Attempting to cover tracks by forging/backdating documents, saying you haven’t heard back when you haven’t started working on something.A solicitor must take particular care not to mislead an unrepresented counterparty e.g. telling them terms are standard and you would accept them if you were them if they are not actually in that party’s best interests.
What is an undertaking?
An undertaking is:* 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.
When must an undertaking be performed?
- Within the agreed timescale. * If there is no agreed timescale, within a reasonable amount of time.
Who can give an undertaking?
Anyone in the firm, including support staff.
Who is bound by an undertaking?
The individual giving the undertaking and their firm.
Does a solicitor or firm have to give an undertaking?
No but if they do, they must perform it.
If an undertaking relates to the payment of fees, is it valid if the person giving the undertaking does not have the funds?
No, this is not a prerequisite for the undertaking and does not affect the validity of the undertaking, which will still be binding even if the solicitor is not in funds.To protect the solicitor giving the undertaking, they should ensure fees are cleared in the client account at the time of giving the undertaking.
What are the 6 elements of best practice in giving an undertaking?
- Given by a solicitor (should be a clear policy about who can give undertakings given to the other side to ensure reasonable reliance cannot be placed on undertakings accidentally given)2. In writing (reduces chance of mishearing and is proof of what was actually said)3. Clearly intended to be an undertaking (i.e. ‘I undertake…);4. Given only with the client’s express authority5. Recorded on the file and on a register of undertakings in the firm (if anyone else deals with it in the future, they know the firm is bound)6. Clear in its terms (an ambiguous undertaking will be construed against the party that gave it
What 9 steps should a firm or regulated person take when giving an undertaking?
- Have a clear policy on who can give undertakings 2. Prescribe the manner in which undertakings may be given3. Where possible, prepare standard undertakings, with clear instructions that any departure be authorised in accordance with supervision and management responsibilities4. Operate a system whereby terms are checked by another fee earner5. Ensure all staff understand that they need the client’s agreement before giving an undertaking6. Ensure all staff understand the undertakings they give when exchanging contracts on the sale or purchase of land and the undertakings required to complete such transactions 7. Have a clear policy on how compliance will be monitored and maintain a central record to ensure and monitor compliance (i.e. when given and when discharged)8. Copy each undertaking and attach it to the relevant file; label the file itself9. Confirm oral undertakings (given or received) in writing
What are the 3 elements of bad practice in giving an undertaking?
- Given by any member of staff in a legal firm2. Given orally (typically on the telephone)3. Given inadvertently (i.e. without using the word ‘undertaking’).
What are 4 types of dangerous undertakings?
- To give money that has not yet been received (and may never be received, making the firm liable)2. To forward a document not yet in your possession3. To clear a client’s debt to someone (open ended and potentially extrememly costly)4. To do something the client has not yet agreed to.