Ethics FLK 1 Flashcards
Why is a lawyer not acting in the best interest of a client if they encourage them to pursue a case against a bankrupt defendant?
Dispute WS1
- As there is very limited prospect of success
- It is important to take full instructions at the first interview so that they can give preliminary advice on issues such as liability and quantum
- Essential to determine whether a client has a cause of action and likelihood of success
What are the ethical considerations of a statement of case?
*A solicitor must not mislead the court and should only include assertations in the statement of case that are properly arguable
*E.g. filter out client’s responses, if there is no evidence that the other side acted fraudulently, the solicitor shouldn’t add it in unless they have proper evidence
What If a client files a statement of case and then tells their solicitor that it contains a material error, what should the solicitor do?
- Solicitor should advise the client to amend the statement of case and if the client refuses to do so, should cease to act
In order to keep client confidentiality, the solicitor should not inform the court or any other party of the reasons why they are no longer representing their client.
Just say ‘professional reasons’
Disputes
What is the obligation that the solicitor must provide the best possible information? When must this be provided and what does it include?
A solicitor must provide the best possible information
* At the time of engagement
* When appropriate as the client’s matter progresses
This includes information about
* The likely overall costs (solicitor’s fees and disbursements)
* Any costs incurred
Disputes
How does a solicitor determine what is meant by ‘best possible information’?
The intention is for solicitors and firms to exercise their own judgement and best practice includes:
* Explain how fees are calculated
* If and when they are likely to change
* Warn the client about any other payments he may be responsible for, i.e. disbursments
* Explain availability of any sources of funding such as public funding, insurance etc.
Disputes
Is providing your client with details of hourly rate alone sufficient?
No, likely to be insufficient alone. Need to explain how fees are calculated etc.
Disputes - CFA Success Fees
What should a solicitor do prior to informing the client about success fees?
A solicitor should carry a full risk assessment prior to agreeing the level of the success fee.
Even if a client suggests that a success fee well excess of the one solicitor originally set. The solicitor should not simply accept this. Must act in a manner which
1.Principle 2 : Upholds public trust and confidence in the solicitor’s profession
2. Principle 4: You must act with honesty
3. Principle 5: You must act with integrity
4. Principle 7: You must act in the best interests of the client
Does a solicitor need to rely upon counsel’s advice?
Yes, a solicitor is entitled to rely upon counsel’s advice but must not do so blindly
* If counsel’s advice is obviously or glaringly wrong the solicitor must reject this
Where a solicitor and counsel are both sued by a client in negligence, the solicitor is likely to seek an indemnity or contribution from counsel
Disputes
Should a solicitor communicate directly with a party who is represented by a lawyer?
No - you should not communicate with another party who has lawyers instructed.
It is only acceptable in the following circumstances
* To request name and address of their lawyer
* If the other party’s lawyer consents
* If there are exceptional circumstances
Disputes
How should a solicitor draft a particulars of claim?
In accordance with Principle 1 - a solicitor must uphold the rule of law and the proper administration of justice.
A solicitor must not
* Mislead or attempt to mislead the court
* Allow or be complicit in the misleading acts of others
* Therefore a solicitor should only make assertations / statements / representations that are properly arguable in a statement of case
Disputes
If a client has filed a statement of case and subsequently tells you that it contains a material error which will mislead the court, what must you do?
- Advise the client to amend the statement of case
- If the client refuses, cease to act
- Although it would be in your client’s best interests not to tell the court (as you must act in the best interest of each client) this conflicts with your duty under principle 1of holding the rule of law and administration of justice
- If you have to cease acting, you must not inform the court or any other party of the reasons why in order to keep your duty of confidentiality.
Where two or more principles conflict, the one which takes precedence is the one which serves the public interest
Where two or more principles conflict, which one takes precedence?
The one that best serves public interest
Disputes
If you receive confidential material by mistake, what should you do?
You should immediately return the papers without reading them.
Principle 1: You must uphold the rule of law and the proper administration of justice
Principle 5: You must act with integrity
Disputes
If the solicitor does read the confidential material received by mistake, what is the opponent entitled to?
Make an application to the court for an injunction restraining that solicitor from continuing to act in the litigation which will be granted at the court’s discretion
Disputes
What is the link between duty of disclosure to your client and recieving mistaken material?
Where you have received a document that is privileged, and that you have knowledge of only because it has been mistakenly disclosed - you do not have the obligation to disclose this information.
