Ethics - Part 1

Question 1

What are the SRA principles?

Answer 1

1. Act in a way that upholds rule of law and proper administration of justice
2. Public trust and confidence in profession
3. With independence
4. Honesty
5. Integrity
6. Encouraging equality, diversity and inclusion
7. Best interests of client

Question 2

In what ways are solicitors expected to maintain trust and act fairly?

Answer 2

• Not unfairly discriminate by allowing personal views to affect professional relationship and service you provide
• Not abuse position by taking unfair advantage of clients
• Perform all undertakings you commit within agreed timescale (or if none, within reasonable time)
• Not to mislead or attempt to mislead the court, clients and others via both own acts or omissions including those of others (including clients)

Question 3

What is the standard of service and competence expected of solicitors?

Answer 3

• Only act on clients instructions or someone properly authorised to do so on their behalf. Do not act unless satisfied that the client is acting on their own free well
  + overriding duty to protect client’s best interests, even if impossible to ascertain their best wishes (but still have legal authority to act)
• Provide competent and timely service
• Keep up to date with professional knowledge and skill to maintain competence to carry out role
• Take into consideration client’s attributes, needs and circumstances

If supervise/manage others providing legal services
* vicarioulsy accountable for their work
* ensure they are effectively supervised
* ensure individuals you manage are competent and maintain their knowledge up to date

Question 4

What additional standards are set on firm managers/supervisor?

Answer 4

• Vicarioulsy accountable for their work
• Ensure individuals are managed effectively and supervised when carrying out client work
• Competent and maintain their own knowledge
• Not act as a manager / emplotee in business that holds themselves out to be a solicitor’s firm unless it is an authorised body

Question 5

How are solicitors expected to act vis-a-vis client money and assets?

Answer 5

• Properly account to client for any account for benefits received as results of their instructions
• Not accept any benefit except where they have consented.
• Safeguard client money and assets
• Not personally hold client money unless sole practitioner (must still keep money segregated from own)

Question 6

Steps solicitors must undertake where they have referred client to third party, or been introduced by third party to a client

Answer 6

• Ensure client is informed of any personal or business interests in referring client to a third party
• Client is informed of any fee sharing arrangement that is relevant to their matter (and that the fee sharing arrangement is in writing)
• Not to receive / make payments relating to referral or introduction of client subject to criminal proceedings
• Ensure that client is acquired in way that does not contravene SRA’s regulations (hold client = same SRA-conduct standard).

Question 7

What is the presumption for referral fees received by a solicitor?

Answer 7

Payment in treated as a referral fee unless contrary is shown

Question 8

A solicitor may only refer or divide a client’s matter with a separate business, if they obtain __________ from client?

Answer 8

Informed consent!

Question 9

What additional obligations are imposed on solicitors carrying out reserved legal services activities in a non-commercial body?

Answer 9

1. Need to ensure body takes and maintains indemnity insurance
2. Insurance provides adequate and appropriate cover in respect of both reserved and non-reserved activities

Question 10

Duty of _____ overrides duty of ______

Answer 10

Duty of confidentiality overrides duty of disclosure

Question 11

What two duties underpin solicitor’s overarching duty to avoid conflicts of interest?

Answer 11

1. Never act where there is a personal conflict or a significant risk
2. Not act where conflict of interest or significant risk of one between clients (unless exceptions apply)

Question 12

When can a solicitor still act, notwithstanding risk of conflict between separate clients’ interests?

Answer 12

• If client’s have substantially common interest
• Client’s are competing for the same objective (i.e. auction)

Provided
* Informed consent evidenced in writing
* Effective safeguards are placed to protect their respective confidential information
* Satisfied that it is reasonable to act for all clients
* Ensure to account for any prospect of future conflict arising

Question 13

What are the limits on solicitors’ duty of disclosure?

Answer 13

• Client gives informed consent in written waiving right to information being disclosed to them.
• Reason to believe it would cause physical or mental injury to client or another party.
• Information acquired via mistaken disclosure of a privileged document.

Question 14

Can a solicitor take on a new client even where their interests conflict with those of a former client?

Answer 14

No. The duty to act in best interest of former client and keep their information confidential is everlasting.

Unless
* Former client’s or new client’s informed has been given
* Ensure effective measures are taken to safeguard former client’s confidential information

Question 15

What procedure should solicitors undertake to ensure they avoid conflicts of interests?

Answer 15

Conduct a conflict check whenever receiving new instructions both by new and existing clients.

If firm has overseas office, must also check client work there.

Question 16

What information are solicitors’ obliged to disclose to clients at the time engagement regarding complaints handling?

Answer 16

1. Ensure clients are informed in writing about their
   * right to complain to you and your services and charges
   * how such complaint can be made and to whom
   * right to complain to the Legal Ombudsman and when they can do so

Question 17

If a client wants to raise a complain about your services, who should they first complain to?

Answer 17

Firm itself - expected under SRA regulations for firms to have their own internal complaint mechanism

Question 18

If complaint is not resolved to client’s satisfaction, what next steps must a solicitor undertake?

Answer 18

If 8 weeks have passed..

Inform client in writing of
1) Right to complain to Legal Ombudsman (timeframe / contact details)

AND
2) If all internal complaints procedures have been exhausted that
* inform them you cannot settle complaints but instead suggest name of ADR body (& whether you agree to use scheme operate by that body)

Question 19

To which members of the public can solicitors make unsolicited approaches to advertise their legal services w/ out breaching SRA code?

Answer 19

current and former clients

Question 20

What is an exception to the rule require solicitors to disclose any material information they are aware of that would be of use to their client?

Answer 20

If solicitor acquires knowledge of the information in a mistakenly disclosed document that is privileged.

Question 21

Where a solicitor is aware that the COLP has chosen not to report, what they suspected to be a serious breach of SRA rules, what obligation do they have, if any?

Answer 21

Solicitor still holds personal responsibility to ensure that serious potential breaches of SRA’s regulatory arrangements are reported.

Follow-up on matter or report matter directly to the SRA.

Question 22

Within what time must a solicitor comply with an undertaking?

Answer 22

Within reasonable time, provided no agreed timescale has been given.

Question 23

Under the Code of Business rules, how long must records made under these be retained?

Answer 23

At least 6 years from the date record was made

Question 24

When concluding a contract of insurance, what requirement must a solicitor comply with?

Answer 24

1) Provide client with a statement of the client’s demands and needs;
2) If any personal recommendation is given, must provide a personalized explanation as to why it is the best option for them.
* recommendation requires solicitor to have a good-grasp/experience with the sector.

same idea for a regulated credit agreements

Question 25

What is one key point to note about the prohibition of referral fees in personal injury cases?

Answer 25

Prohibition only applies to claimant clients!
* unless defendant makes a counterclaim.
* note that even an indirect commission from ie. ATE firm is prohibited

Question 26

Where a solicitor refers a client to a separate business, what steps must be complied with?

Answer 26

Client must give informed consent.
* consent is also needed where a firm decides to split client’s matter with a separate business

Question 27

What is a ‘separate business’ in the context of client referrals/recommendations?

Answer 27

body that is connected in someway to solicitior/firm.

Question 28

What is required for a solicitor’s conduct in their private life to amount to a breach of SRA’s Code of Conduct?

Answer 28

The conduct must touch realistically upon the individual’s practice of the profession and in a way that is demonstrably relevant.