Ethics and Professional Conduct Revision

Question 1

If a solicitor is aware that any person or body (including themselves) has committed a serious breach of a regulatory arrangement, they must ensure that a prompt report is made to the SRA or other approved regulator, as appropriate. Any obligation to provide information to the SRA is satisfied if the solicitor provides the information to their firm’s COLP (compliance officer for legal practice) or COFA (compliance officer for finance and administration), as and where appropriate, on the understanding that they will provide the information to the SRA

Question 2

Once a solicitor provides information to the COLP on the understanding that the COLP will report the matter to the SRA, the solicitor has no duty to check that a report was made

Question 3

The duty of confidentiality to clients is owed by everyone in the firm

Question 4

The duty of confidentiality continues despite the end of the retainer and even after the death of the client

Question 5

A ‘prohibited referral fee’ is the payment or receipt of referral fees in claims for damages following personal injury or death even if the client consents. The SRA Code of Conduct for Solicitors, RELs and RFLs also prohibits referral fees (and all payments relating to referrals or introductions) in respect of clients who are the subject of criminal proceedings even if the client consents

Question 6

There is no rule requiring the client’s advance written consent to a referral arrangement

Question 7

The ‘substantially common interest’ exception does not apply to sellers and buyers in conveyancing transactions, as the parties have different goals in relation to the matter

Question 8

It is a term of the contract (the retainer) between the solicitor and client that the client will give the solicitor appropriate instructions. If not, the solicitor is justified in terminating the retainer

Question 9

Fee sharing arrangements with a third party must be in writing and the client must be informed of any fee sharing arrangement that is relevant to their matter but written consent is not required

Question 10

The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) prohibits the payment or receipt of referral fees in claims for damages following personal injury or death. An example would be a solicitor paying a claims management company for referral to the firm of a personal injury client. When it appears to the SRA that a solicitor or firm has made or received a prohibited referral fee, the payment will be treated as a prohibited referral fee unless the solicitor or firm demonstrates otherwise

Question 11

A solicitor may act for more than one client in relation to the same matter, subject to the conflict rules and exceptions

Question 12

When a solicitor is acting for more than one client in relation to the same matter, the solicitor needs to obtain informed consent that safeguards are not required and ensure each client agrees as to what confidential information can be shared with the other

Question 13

When considering whether to act for two clients in the same or a related matter, the consideration extends to whether there is an actual conflict or a significant risk of a conflict arising

Question 14

If during a mitigation hearing a solicitor discovers that the court is mistaken as to important information about the client’s criminal record, they must immediately urge the client to correct the information and cease to act if the client refuses

Question 15

If during trial a solicitor discovers that their client committed perjury while testifying they must immediately urge the client to tell the truth and refuse to continue representing the client if they do not agree.

Question 16

Both an individual solicitor and their firm are responsible for ensuring the solicitor keeps up to date on the developments in the law relating to the solicitor’s services

Question 17

A solicitor CAN keep a fee paid to the solicitor for referring a client to an ancillary service provider, such as an estate agent provided the solicitor informs the client and the client agrees

Question 18

A solicitor CAN refer a client to a company for ancillary services (such as surveying property) if the solicitor owns an interest in the other business

Question 19

If one solicitor in a firm is barred from representing a client because of a conflict of interest, other solicitors in the firm who have not worked on the other client’s case MAY NOT take up the conflicting interest case.

Question 20

Limited retainer - example

Answer 20

A solicitor and client agree that the solicitor will work on the client’s matter in which there is a conflict of interest, but only on aspects in which there is no conflict.

Question 21

A solicitor CAN act for two clients with a potential conflict of interest if they are competing for the same objective (such as to purchase the same asset)

Question 22

What are some acceptable justifications for breaching the duty of confidentiality owed to a client?

Answer 22

1. When the breach is necessary to prevent the commission of a criminal offence that will result in serious bodily harm BUT not to prevent any criminal offence
2. When the breach is necessary to protect a vulnerable person

Question 23

What are some exceptions to the duty to disclose to the client all information material to the retainer?

Answer 23

1. When the client gives informed consent in writing or evidenced by a writing
2. When national interests require nondisclosure to prevent the commission of a crime
3. When the information is from a privileged document accidentally disclosed to the solicitor
4. When the solicitor has reason to believe disclosure will cause serious injury to a person

Question 24

A solicitor has a near absolute duty to disclose any information material to the retainer of which the solicitor is aware i.e. even if discovered during a social/personal event

Question 25

When a firm of solicitors opens a new office, what are some permissible ways of informing current clients, former clients, and the local public of the opening

Answer 25

1. Telephoning current clients
2. Placing an advert in the local newspaper
3. Distributing leaflets to all the homes in the community
4. Telephoning former clients

Question 26

The impact of the SRA’s transparency rules on solicitors - example

Answer 26

The transparency rules require solicitors with websites to display information about pricing with regard to certain services, such as **residential conveyancing, motoring offences, and probate

Question 27

Solicitors are required to consider the client’s best interests when making any referral or introduction

Question 28

Indirect discrimination on the grounds of any of the protected characteristics is justifiable if the firm has used proportionate means to achieve a legitimate aim

Question 29

A solicitor must not mislead or attempt to mislead the client, the court, or others

This standard can be breached by affirmative acts, by omissions, or by being complicit in the acts or omissions of others (including the client)

Question 30

Disclosure is justified in certain circumstances, such as where disclosure will prevent the commission of a criminal offence that will result in serious bodily harm.

Question 31

The SRA have issued specific guidance for situations where a solicitor is drafting a will for a client and the client proposes to make a gift of significant value to the solicitor or a member of the solicitor’s family or firm. When this occurs, there is usually an own interest conflict (and the solicitor must refuse to act) unless the solicitor is satisfied that the client has taken independent legal advice with regard to making the gift. However, if the gift is not of significant value, either in itself or in relation to the estate, then there is not an own interest conflict.

Question 32

There is no need for an exception where there is no significant risk of conflict in the situation

Question 33

In circumstances where there can be no negotiation, the assumption is that a conflict does not exist

Question 34

When considering whether to act for two clients in the same or a related matter, the consideration extends to whether there is an actual conflict or a significant risk of a conflict arising.

Question 35

The SRA Code of Conduct for Solicitors, RELs and RFLs states that solicitors must notify the SRA promptly if they are subject to any criminal charge, conviction, or caution (subject to the Rehabilitation of Offenders Act 1974)

Question 36

A solicitor is permitted to refer the clients to their separate business for ancillary services as long as they have the client’s informed consent to do this. Informed consent means the solicitor should tell the client about their interest in the separate business.

Question 37

A solicitor must not act for a client in a matter where that client has an interest adverse to the interest of another current or former client for whom the solicitor (or their business or employer) holds confidential information which is material to that matter, unless: (1) effective measures have been taken which result in there being no real risk of disclosure of the confidential information (for example, putting structural safeguards in place so that the claimant’s team does not have access to the manufacturer’s files); or (2) the current or former client whose information the solicitor holds has given informed consent, given or evidenced in writing, to the solicitor acting, including to any measures taken to protect their information.

Question 38

A conflict of interest covers the entire firm, not just individual solicitors within the firm