Extra ethics Flashcards
1
Q
Whom does the Code of Conduct not apply to?
A
Litigants in persons
2
Q
Difference between integrity and honesty principles
A
Integrity is broader
3
Q
Liability re undertaking
A
- Personal - must never carry out a promise which they cannot guarantee they can fulfil at the time
- May be sued personally by recipient and may also face disciplinary action
Enforceable in court
4
Q
When should undertakings be performed
A
Time agreed or within reasonable time
5
Q
What must solicitors draw the court to re relevant details
A
- Relevant cases and statutory provisions
- Procedural irregularities of which they are aware
- Which are likely to have a material effect on the outcome of proceedings
6
Q
What must a solicitor do re any financial benefit they receive as a result of their instructions
A
Account to client for it, unless they have agreed otherwise
7
Q
What must solicitor do re any referral scheme
A
- Clients informed, and
- Any such fee sharing agreement is in writing
8
Q
What must a solicitor ensure re clients obtained by introducers
A
That they were not obtained in an unsolicited manner e.g. cold calling
9
Q
Can a solicitor receive payments relating to a referral or make payments to an introducer re clients subject of criminal proceedings?
A
NO
10
Q
When are referral fees not permitted
A
- Where the legal services relate to a claim or potential claim for damages for personal injury or death, or
- Where the legal services relate to any other claim or potential claim for damages arising out of circumstances involving personal injury or death
11
Q
How will SRA treat payment of referral fee
A
Will treat it as such unless solicitor shows otherwise
12
Q
A
13
Q
Whom does prohibition on referral fees re personal injury NOT apply to
A
Defendants!
14
Q
Only when can solicitor refer, recommend or introduce a client to a separate business
A
where the client has given informed consent to the solicitor or authorised body doing so
15
Q
When must a form take out and maintain adequate + appropriate indemnity insurance
A
If it carries out reserved legal activities
16
Q
Exceptions to conflict of interests
A
- Clients have substantially common interest in relation to matter (clear common purpose + strong consensus on how it is to be achieved), or
- Clients competing for same objective, and
- Conditions met
17
Q
Conditions to be met re exception to conflict rule
A
- All clients given informed consent, given or evidenced in writing
- Solicitor has put effective safeguards in place to protect clients’ confidential info, where appropriate
- Solicitor is satisfied it is reasonable for them to act for all
18
Q
Exceptions to client confidentiality
A
- Required or permitted by law
- Client consents
- Where solicitor is being used by client to perpetrate fraud or any other crime
19
Q
Justifications that may be taken into account as mitigation against regulatory action following breach of confidentiality rules
A
- Where a client has indicated their intention to commit suicide or serious self-harm.
- Preventing harm to children or vulnerable adults.
- Preventing the commission of a criminal offence.
20
Q
Disclosure rule
A
Solicitor must make the client aware of all information material to the matter of which they have knowledge
21
Q
Exceptions to duty of disclosure
A
- The disclosure of the information is prohibited by legal restrictions imposed in the interests of national security or the prevention of crime.
- The solicitor’s client gives informed consent, given or evidenced in writing, to the information not being disclosed to them.
- The solicitor has reason to believe that serious physical or mental injury will be caused to their client or another if the information is disclosed, or
- The information is contained in a privileged document that the solicitor has knowledge of only because it has been mistakenly disclosed.
22
Q
Rule on adverse interests
A
Solicitor must not act for client 1 where they have an interest adverse to another client, for whom the solicitor holds confidential info which is material to the matter
23
Q
Exceptions to adverse interests
A
- Effective measures have been taken which result in there being no real risk of disclosure of confidential info, or
- The current / former client whose info the sol holds has given informed consent, given or evidenced in writing
24
Q
How are solicitors expected to cooperate with SRA
A
- Respond promptly to the SRA, providing full and accurate explanations, information and documents in response to any request or requirement, and
- Ensure that relevant information which is held by them, or by third parties carrying out functions on their behalf which are critical to the delivery of the solicitor’s legal services, is available for inspection by the SRA
25
What must a solicitor notify the SRA of and when
1. **Charge**, **conviction** or **caution**
2. Relevant **insolvency** event
3. Any **material changes** to *info previously provided* to SRA by them / on their behalf
4. If info provided to SRA by them / on their behalf is or may be **false**, **misleading**, **incomplete** or **inaccurate**
*Must do so **promptly***
26
What must a solicitor report to SRA and when
| breaches
1. Any facts or matters that they **reasonably believe** are capable of amounting to a **serious breach** of their regulatory arrangements
2. Any facts or matters that they **reasonably believe** should be brought to its attention in order for SRA to *investigate whether a serious breach has occurred*
*Must do so **promptly***
27
How can a solicitor satisfy their obligation to notify / report to SRA
If they provide info to firm's compliance officer, but only if this is done **on the understanding** that the compliance officer will report to the SRA
28
What must a solicitor do if a mistake is made
1. If client suffers loss/harm, put matters right if possible
2. Explain fully & promptly what has happened and likely impact
3. If requested to do so by SRA, must investigate whether anyone may have a claim against them, report to SRA and notify relevant persons
29
What must clients be informed of re complaints and when
A solicitor must ensure that clients are informed **in writing** at the time of **engagement** about:
* Their right to complain to the solicitor about their services and charges
* How a complaint can be made and to whom, and
* Any right they have to make a complaint to the Legal Ombudsman and when they can make such a complaint
30
Only what sort of complaints does LO deal with
Only deal with complaints of poor service (delayed communications, problems with fees or loss of documentation for example) and not breaches of the Principles or Code
31
LO recommended steps to be taken by client re complaints
1. Tell the lawyer of complaint
2. Give lawyer up to 8 weeks to resolve - if not, can involve LO
3. Bring complaint to LO (within 6 months)
32
Options open to LO to deal with complaints
1. Asking solicitor / firm to give apology
2. Pay compensation - up to £50k
3. Refund or effuse legal fees
33
How must solicitor's deal with complaints
Promptly, fairly & free of charge
34
What must be done if client has made complaint and it has not been resolved to client's satisfaction within 8 weeks
The solicitor must ensure that the client is informed, **in writing**:
1. Of any right they have to complain to the Legal Ombudsman, the time frame for doing so and full details of how to contact the Legal Ombudsman, and
2. If a complaint has been brought and the solicitor's complaints procedure has been exhausted:
* That the solicitor cannot settle the complaint
* Of the name and website address of an ADR approved body which would be competent to deal with the complaint, and
* Whether the solicitor agrees to use the scheme operated by that body
35
What must solicitors ensure re costs and by when
Solicitors must ensure that clients receive the **best possible information** about how their matter will be priced and, both at the **time of engagement** *and* when appropriate as their **matter progresses**, about the likely overall cost of the matter and any costs incurred
36
What must a solicitor ensure re any publicity
Must be accurate and not misleading
37
Can a solicitor approach members of the public to advertise legal services? Exception?
NO
But does not apply to current or formr clients
38
What must solicitors explain to clients re regulatory information
How solicitors are regulated and protection available to clients
39
Who has ultimate responsibility for how the firm is run & compliance with the Code
Managers
40
What liability do managers have
Joint + several
41
COLP responsibilities
Must take all **reasonable steps** to:
* ensure compliance with T&Cs of firm's authorisation
* ensure compliance by firm & managers, employees etc. with regulatory arrangements which apply
* ensure firm's managers and those they employ / contract with do not cause or substantially contribute to a breach of the regulatory arrangements
* ensure a prompt report is made to SRA of any **serious breach** of the T&Cs of firm's authorisation / regulatory arrangements which apply
42
COFA responsibilities
Take **all reasonable steps** to:
* ensure firm & managers/employees comply with any obligations re SRA Accounts Rules
* ensure prompt report is made to SRA of any **serious breach** of Accounts Rules
43
What do COLPs and COFAs have a responsibility to inform SRA of?
Any facts or matters that the COLP and COFA **reasonably believe** should be brought to the SRA's attention in order that the SRA may investigate whether a *serious breach* of its regulatory arrangements has occurred, or otherwise exercise its regulatory powers
*Promptly*
44
SRA principles
You 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.
45
What should be ensured re taking instructions from a partner
That they are properly authorised by the partners to do so, as there is no legal personality and so the partners are the clients personally
46
What to advise if we act for a Company and the shareholder/director wishes to transfer property before liquidation to spouse (also shareholder)
Advise that we cannot advise them in a personal capacity (may be TUV) - encourage them to seek independent legal advice
