General Ethics and Professional Conduct

Question 1

7 SRA principles

Answer 1

Individuals and firms must 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

in conflict of principles: principles which safeguard the wider public interest take priority over the interest of an individual client

Question 2

you are representing a client in a court trial and an old case later comes up that is disadvantageous to your client. what do you do?

Answer 2

you have a duty not to mislead the court, your client, or others by acts or omissions

so you must disclose this to the court

YOU DO NOT NEED YOUR CLIENT’S CONSENT FOR THIS

Question 3

what happens if you find yourself in a position where the opposing party has no legal representation?

Answer 3

you have a duty not to abuse your position or take unfair advantage of your client or others

So you must not take advantage of the unrepresented party’s lack of legal knowledge

If they produce a badly drafted document, you should suggest they find a lawyer.

If they do not, you need to maintain a balance between acting in your client’s best interest and not taking advantage of the opponent’s lack of legal knowledge and drafting skills

Question 4

Can you tell a prospective client that they have a strong case in order to get the work, when they don’t?

Answer 4

no - you have a duty not to mislead a client or other people

Question 5

Can you tell a client that their case is going well when it is going badly?

Answer 5

no - you have a duty not to mislead a client

Question 6

Can you make false representations to prospective purchasers of your client’s company that this is a good deal?

Answer 6

no - you have a duty not to mislead other people

Question 7

can you refuse to take on a client because they do not share your political views?

Answer 7

no - because:

Principle 6: You must act in a way that encourages equality, diversity and inclusion

CCS 1.1 ‘You do not unfairly discriminate by allowing your personal views to affect your professional relationships and the way in which you provide your services.’

Question 8

A client is blind and requires a special software to review the documents you send them. Can you refuse this because it will incur expense for your firm? Otherwise, can you accept but require the client to contribute to the expenses?

Answer 8

No to both - because:

CCS 3.4 ‘You must consider and take account of your client’s attributes, needs and circumstances.

Principle 6: You must act in a way that encourages equality, diversity and inclusion

Question 9

what is an undertaking?

Answer 9

a statement given by a solicitor to someone who reasonably relies on it that the solicitor or a third party will do or not do something

warning:
- can be orally or in writing
- does not have to have the word ‘undertaking’ - so careful what you promise to anyone
- can be given by ANYONE in a law firm provided it can be reasonably relied upon by the recipient

Question 10

what is the requirement for solicitors in relation to undertakings?

Answer 10

You must perform all undertakings given by you in reasonable time or within the agreed timescale

Question 11

what happens if a solicitor fails to perform an undertaking?

Answer 11

Failure to perform an undertaking can be a serious disciplinary offence, with the solicitor(s) concerned being investigated by the SRA for professional misconduct

Question 12

what are some things a lawyer should be weary of when giving an undertaking?

Answer 12

• do not promise something you are not certain you can deliver (limit the scope of what is involved and limit it to what the solicitor can control)
• make undertaking of limited duration
• careful in drafting it
• careful what you ‘promise’ - undertakings can be oral and can be given by anyone

Question 13

what do you do if you inadvertently mislead the court?

Answer 13

you must, with your client’s consent, immediately inform the court

If the client did not consent, you must stop acting for that client

Question 14

can you call a witness or refer to witness evidence which you know is untrue or unsubstantiated?

Answer 14

no - you have a duty not to mislead the court

Question 15

can you draft documents or construct facts supporting your client’s case which are not properly arguable

Answer 15

no - you have a duty not to mislead the court

Question 16

what do you do if you become aware that a client had committed perjury or misled the court or attempted to mislead the court?

Answer 16

ask the client to disclose the truth to the court

if the client refuses, stop acting for the client because you would be misleading the court

Question 17

solicitor’s duties to the court

Answer 17

• You do not mislead the court
• You do not misuse or tamper with evidence or attempt to do so
• You do not seek to influence the substance of evidence, including generating false evidence or persuading witnesses to change their evidence
• You do not provide or offer to provide any benefit to witnesses dependent upon the nature of their evidence or the outcome of the case.
• You only make assertions or put forward statements, representations or submissions to the court or others which are properly arguable.
• You do not place yourself in contempt of court, and you comply with court orders which place obligations on you.
• You do not waste the court’s time.
• You draw the court’s attention to relevant cases and statutory provisions, or procedural irregularities of which you are aware, and which are likely to have a material effect on the outcome of the proceedings. (you do not need your client’s consent to do this)

Question 18

what are your duties to your clients?

Answer 18

SRA Principle 7: You must act in the best interests of each client

CCS:

• You ensure the service you provide to clients is competent and delivered in a timely manner
• You consider and take account of your client’s attributes, needs and circumstances
• You maintain your competence to carry out your role and keep your professional knowledge and skills up to date
• You safeguard money and assets entrusted to you by clients and others
• You only act for clients on instruction from the client, or from someone properly authorised to provide instructions on their behalf. If you have reason to suspect that instructions do not represent your client’s wishes, you do not act unless you have satisfied yourself that they do

Question 19

who can you accept instructions from?

Answer 19

You can only act for clients on instruction from the client or from someone properly authorised to provide instructions on their behalf

if you have reason to suspect that instructions do not represent your client’s wishes, you cannot act unless you have satisfied yourself that they do

Question 20

if you are acting for spouses on a matter, and the husband only comes to the meeting with you, what must you do?

Answer 20

you need to be sure that you have authority to act for both of them

So, if your instructions come from one spouse, ensure that you have confirmation in writing from the other spouse that they are happy for you to act on their behalf

If you have reason to believe that the instructions do not represent the wishes of your client, you cannot act.

Question 21

what do you do if a director of a company gives you instructions to act on a matter?

Answer 21

you need to be sure that you have authority to act for the company

(1) conduct a Companies House check to determine if the director is in fact a director of the company

(2) Ask for evidence that the director is authorised to instruct the firm on behalf of the company (e.g., board resolution giving them authority)

Question 22

what do you do if one of many PRs instructs you

Answer 22

you need to be sure that you have authority to act for all PRs collectively

ask the PR for written confirmation from the other PRs that they are happy for you to act on their behalf and to be instructed by that PR

Question 23

what are your duties when you supervise or manage other people?

Answer 23

CCS 3.5: Where you supervise or manage others providing legal services:
(a) you remain accountable for the work carried out through them; and
(b) you effectively supervise work being done for clients

CCS 3.6: You ensure that the individuals you manage are competent to carry out their role and keep their professional knowledge and skills, as well as understanding of their legal, ethical and regulatory obligations, up to date.

Question 24

what is the main requirement when it comes to the firm’s publicity?

Answer 24

any publicity in relation to your practice is accurate and not misleading

including that relating to your charges and the circumstances in which interest is payable by or to clients

Question 25

can solicitors make unsolicited approaches in person or telephone calls to members of the public in order to gain new clients?

Answer 25

no

(but it is possible to ‘solicit’ existing clients)

Question 26

what is an introduction? are they allowed?

Answer 26

introduction = a third party introduces a client to you, in return for which you make a payment (or agree to make a payment) to that third party (either within your firm or outside)

is it allowed = yes but you must inform your client of any financial or other interest the introducer has in referring the client to you (inform them you are paying a fee)

Question 27

what is a referral? is this allowed?

Answer 27

An arrangement you/ a law firm might have with a third party TO WHOM you refer or introduce clients

is it allowed = yes but you must inform your client of any financial or other interest which you or your firm has in referring the client to another person (inform them of the referral fee)

why = if you gain any tangible benefit by making the referral (financial or otherwise), there is a danger of an own interest conflict. So, you must satisfy that it is motivated purely for the client’s benefit and any financial benefit to you/firm is a by-product

Question 28

when is it prohibited to pay or accept a fee for introductions / referrals? (3)

Answer 28

(1) client claiming damages for PI/death

(2) criminal client

(3) client whose costs are wholly or partly publicly funded

(you CAN act if such clients were introduced to you but you cannot pay / accept a fee)

Question 29

good practice for introductions and referrals

Answer 29

(1) inform your client that you received a referral fee / payed an introduction fee

(2) make a statement to your client, preferably in writing, that your advice will be independent

(3) provide confirmation to your client that any information disclosed to you will be confidential

(4) where you also act for the introducer on the same matter, regularly monitor any potential conflict issues

Question 30

What must a solicitor be weary of when receiving gifts from clients?

Answer 30

• the SRA does not prevent solicitors from receiving gifts from clients
• But solicitor risks breaching the Bribery Act 2010 (it is an offence for someone to pay or receive a bribe). It is safer to reject gifts from clients in situations where they can be seen to influence a business decision (e.g., deciding to instruct a firm, or where you are acting for two clients and one sends you a gift). Check the firm’s anti-bribery policy on financial limits of gifts or payments from clients
• Solicitors must act with independence (SRA principle 3) = a solicitor that receives a very generous gift may compromise their independence (for example, they may be inclined not to broach bad news with the client that might put an end to such hospitality)
• solicitors must act in the best interests of their clients (SRA principle 7) = if other clients were to know that the client gave a gift, they might reasonable wonder if that client were to receive preferential treatment in the legal services they receive possibly at the expense at the other clients who may have to wait longer for their work.
• There is a question of degree = if the work required for the transaction is modest, then a modest gift like a bottle of wine would likely be appropriate

Question 31

What is the duty of confidentiality?

Answer 31

You must keep the affairs of current and former clients confidential UNLESS disclosure is required or permitted by law or the client consents

duty of confidentiality takes precedence over the duty to disclose

Question 32

what are the exceptions to duty of confidentiality? (6)

Answer 32

1- client gives informed consent to disclosure in writing

2- statutory bodies that are empowered to require disclosure (e.g., HMRC)

3- statutory or regulatory reporting requirements (e.g., money laundering regulations)

4- where you need to reveal the information to support a defence in either a civil claim brought against you by a client (e.g., professional negligence claim)

5- cases involving children, where you discover that a child has been sexually or physically abused

6- disclosure to comply with a court order

Question 33

what is the duty of disclosure?

Answer 33

A personal duty on an individual solicitor to disclose to a client all information which is material to the client’s matter of which the solicitor has knowledge

this extends to information you acquire outside of business

this does not extend to information which others in the firm may be aware of

Question 34

what are the exceptions to duty of disclosure? (4)

Answer 34

1- disclosure of the information is prohibited by legal restrictions imposed in the interests of national security or the prevention of crime

2- client gives informed consent, given or evidenced in writing, that you will not disclose all material information to them

3- you have reason to believe that serious physical or mental injury will be caused

4- the information is contained in a privileged document that you have knowledge of only because it has been mistakenly disclosed

Question 35

can a solicitor disclose to X material information to their case which they obtained while acting for Y?

Answer 35

your duty of confidentiality to Y overrides your duty of disclosure to X

you must not disclose the information

you can ask X to give their informed written consent that you do not disclose the information to them. If X refuses, you cannot act for X anymore, If X accepts, you can act but you may also be breaching your duty to act in X’s best interests by not revealing the information. So you may need to stop acting.

But you can refer X’s case to another lawyer in your firm

Question 36

what is the rule for acting for clients with adverse interests

Answer 36

you cannot act where a client has an interest which is adverse to the interest of another current or former client of your firm for whom your firm holds confidential or material information (but there are 2 exceptions)

adverse interests = the parties are opposing in a matter (negotiations or disputes)

example = ‘You work for X LLP. Client A has been served with a claim for breach of contract by a supplier and wishes to instruct you in the case. The search of X LLP’s database reveals that another employee of X LLP gave advice to the supplier, client B six months ago on possible issues with their supply contract.’

Question 37

what are the 2 exceptions allowing your firm to act for 2 clients with adverse interests?

Answer 37

(1) EFFECTIVE MEASURES have been taken which result in there being no real risk of disclosure of the confidential information - including

• Systems that identify the potential confidentiality issues.
• Separate departments and staff handling cases
• Separate servers (and printers) so that information cannot be cross accessed.
• Information being encrypted and password protected.
• Individuals are aware of who else in the firm is working on the respective matters so that they know who they can and cannot discuss the matter with.
• Appropriate organisational policies and training for staff.

OR

(2) the current or former client whose information you or your firm holds has given informed consent in writing to you acting, including to any measures taken to protect their information

Question 38

what are the requirements regarding informing your clients?

Answer 38

• you must give the client certain information to ensure they are properly informed (client care letters are good practice)
• you must be transparent with your clients
• you must give clients information in a way they can understand
• you must give information in a timely manner
• you must give clients the ‘best possible information’ about how their matter will be priced both at the time of engagement and during the matter
• you must clients are in a position to make informed decisions about the services they need, how their matter will be handled and the options available to them
• you must ensure that clients understand whether and how the services you provide are regulated
• you must inform your client in writing about your firm’s complaints procedure

Question 39

what do you do if you received a letter of advice from the other side’s solicitors which is addressed to the opponent but was mistakenly sent to you?

Answer 39

• we have a duty to disclose information which is material to our client’s case
• an exception is information contained in a privileged document that we have knowledge of only because it was mistakenly disclosed
• we must not reveal the contents to the client
• we must return the letter to the other side’s solicitors

Question 40

what do you do if you act for a client in a dispute, but the database shows you that you have acted for the opposing party before in an unrelated matter?

Answer 40

You do not act for a client in a matter where that client has an interest adverse to the interest of another current or former client of you or your business or employer, for whom you or your business or employer holds confidential information which is material to that matter, unless:

(a) effective measures have been taken which result in there being no real risk of disclosure of the confidential information; or

(b) the current or former client whose information you or your business or employer holds has given informed consent, given or evidenced in writing, to you acting, including to any measures taken to protect their information.