Ethics & Professional Conduct

Question 1

What are solicitors/firms required to do in regard to complaints?

Answer 1

1. Ensure that there is a procedure put in place for handling complaints.
2. All client’s must be informed in writing at the time of engagement about:

• Their right to complain
• How to make a complaint and to whom
• Their right to make a complaint to the Legal Ombudsman and when this can be made.

Question 2

What is the timeline for resolving a client’s complaint?

Answer 2

8 weeks.

Question 3

What types of client can complain to the Legal Ombudsman?

Answer 3

• Individuals
• Micro-enterpises (fewer than 10 staff and a turnover of less than £2million)
• Charities
• Clubs and associations with a NET income less than £1million
• Personal representatives/beneficiaries of a person’s estate.

Question 4

Client’s must make a complaint using the solicitor/firm’s own complaints system before making a complaint to the Legal Ombudsman. What are the exceptions to this?

Answer 4

• The complaint has not been resolved within 8 weeks
• LO considers there to be exceptional circumstances
• LO considers there to be an irretrievable breakdown in relationship between client and solicitor/firm.

Question 5

What is the deadline for making a complaint?

Answer 5

• 1 year from the act/omission
• 1 year from when the complainant should reasonably have known there was cause for complaint.

However, the LO has discretion to extend time limits.

Question 6

Process of Legal Ombudsman’s investigation

Answer 6

• Both parties given an opportunity to make representations.
• A hearing may be held if necessary
• A determination will be made and sent to both parties.
• Complainant will either accept/reject/or fail to respond to the LO’s determination.

Question 7

What sanctions can a Legal Ombudsman enforce?

Answer 7

• Apology
• Pay compensation for any loss/inconvenience caused
• Correct the error/omission (capped at £50,000)
• Take any action in the interests of the complainant (capped at £50,000)
• Pay complainants costs of bringing the complaint
• Limit the solicitor/firm’s fees.

Question 8

What happens if the Legal Ombudsman’s determination accepted/rejected by the complainant?

Answer 8

• Accepted/No response = binding on all parties and final.
• Rejected = both parties free to pursue other legal remedies.

Question 9

What is the SRA’s test for a breach of professional conduct?

Answer 9

Three stage test:

1. Has there been a potential breach of the SRA standards based on allegations made?
2. Is that potential breach sufficiently serious, that if proved, warrants regulatory action?
3. Is the breach capable of proof?

Question 10

What sanctions can the SRA enforce?

Answer 10

• Take no further action
• Impose a financial penalty (maximum £25,000)
• Control how solicitor/firm practices
• Refer matter to the Solicitors Disciplinary Tribunal where sanctions are not sufficient.

Question 11

What are the powers of the Solicitor’s Disciplinary Tribunal?

Answer 11

• Strike solicitor off the roll
• Suspending a solicitor/imposing restrictions on how they practice
• Impose an unlimited fine
• Reprimand the solicitor
• Require payment towards costs

Question 12

What is the SRA Compensation Fund?

Answer 12

• A discretionary fund of last resort where a solicitor/firm does not have insurance to cover the fine.
• Subrogated claim - the SRA can pursue the defaulting solicitor to recover the amount paid out of the fund.

Question 13

What are the 7 SRA principles?

Answer 13

1. Uphold the rule of law and proper administration of justice.
2. Uphold public trust in the profession
3. Independence
4. Honesty
5. Integrity
6. Encourage equality, diversity and inclusion
7. Client’s best interests

Question 14

What is the SRA’s two stage test for dishonesty?

Answer 14

1. What was the solicitor’s genuine knowledge or belief as to the facts at the time?
2. In view of the solicitor’s genuine knowledge/belief, would their conduct be deemed dishonest by the standards of ordinary decent people?

Question 15

What information must a firm publish when advertising?

Answer 15

• Total cost of service, or if not possible, the average cost or range of costs and details of any disbursements.
• The basis of the charge - hourly or fixed rate.
• What services are included in the price.
• The experience and qualifications of anyone carrying out the work.
• Whether VAT is payable.
• Typical timescales and key stages.
• If a CFA is used, when the client may be required to pay.

Question 16

What are the SRA’s rules on targeted advertising?

Answer 16

Solicitors cannot target individuals or groups of individuals - i.e., a solicitor working in private client law cannot visit a care home and advertise their will-writing services as this is targetted.

However, advertisements in newspaper/tv will not count.

Note: Current or former clients do not count as ‘members of the public’ and so a solicitor can approach them.

Question 17

Can solicitors enter into an arrangement with a third-party?

Answer 17

Yes. But they must inform all client’s of any financial interst they have in the arrangement.

Note: Referral fees are prohibited in claims for personal injury or death.

Question 18

Can a solicitor accept a gift from a client?

Answer 18

Yes. However, a solicitor should carefully consider any gift more than £500 to determine if it is a significant gift in the circumsatnces.

A gift will be considered significant if:

• It is more than 1% of the client’s current estimates net estate.
• It might become valuable at some point.

Question 19

What is meant by a ‘fiduciary relationship’?

Answer 19

Where one party has a duty to act in the best interests of the other party.

The solicitor-client relationship is fiduciary in nature.

Question 20

Explain what a rebuttable presumption of undue influence is in relation to a fiduciary relationship.

Answer 20

Where a fiduciary relationship exists (i.e., between a client and their solicitor), there will be a presumption of undue influence.

This means that due to the solicitor’s superior knowledge of the law, there will be a presumption that they took advantage of the client’s ignorance for their own advantage.

However, this presumption is rebuttable, meaning that the solicitor can dispute the presumption but must be able to prove that they did not exercise such influence (e.g., ensuring the client took independent legal advice).

Question 21

When can a client terminate their solicitor’s instruction?

Answer 21

At anytime and for any reason.

However, they may become liable for the solicitor’s legal costs for the work carried out prior to the termination.

Question 22

When can a solicitor terminate their contract with a client?

Answer 22

The solicitor must have a good reason for the termination:

• Complying with the client’s instructions would result in the solicitor breaching the law or the SRA code of conduct.
• The solicitor cannot obtain proper instructions from the client.
• There has been an irrevocable breakdown in confidence within the relationship.

Question 23

When can the contract between a solicitor and a client be terminated by law?

Answer 23

The law will automatically terminate a contract where:

• The solicitor becomes bankrupt; or
• The client loses mental capacity after the contract has commenced.

Question 24

What is the difference bewteen contentious business and non-contentious business?

Answer 24

Contentious business: work done in relation to proceedings (work done after issue)

Uncontentious business: work done before proceedings have been issued.