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Legal Services 1 Flashcards

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1
Q

Reserved legal activities

A

S12 Legal Services Act 2007 -
exercise of right of audience -
call and examine witness

Conduct of litigation -

Reserved instrument activities -
formal legal document, dealing with transfer of land. Wills and LPA excluded

Probate activities -

Notarial activities -
certifying

Administration of oaths -
affidavits.

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2
Q

Authorisation

A

Law Society regulator
SRA carries out regulatory function.

Exempt-
McKenzie friend - court grants person right of audience in particular case.

Criminal to carry out if not authorised or exempt (up to 2 years).

Charities and indépendant trade unions also exempt.

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3
Q

Legal Services Board (LSB)

A

Approves regulators.

Duties -
public interest
constitutional principles
access to justice
consumers
promoting cmopettion
strong, diverse profession
public understanding of legal rights and duties.
promoting and maintaining adherence to professional principles
promoting detection of economic crime.

May suggestions, penalise or withdraw approval

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4
Q

Regulated providers

A

Barristers - advocates in criminal and civil courts.

Solicitors

Chartered legal executives -

Licensed conveyancers -
property

Patent attorneys -
patents and IP.

Trade mark attorneys -

Costs lawyers -
legal fees and costs

Notaries

Chartered accountants - probate activities by Institute of Chartered Accountants

Regulators overlap - may overlap.

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5
Q

Outside Act

A

Still subject to specific regulation

Claims management companies
Immigration Advisers

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6
Q

Unregulated providers

A

Will writing, family and will advice.

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7
Q

SRA

A

Governed by board of nine members
Five lay and four solicitors.

Principles -
1 - upholds constitutional principle of rule of law and administration of justice
2 - upholds public trust and confidence
3- independence
4- honesty
5- integrity
6- equality, diversity
7 - best interest of client.

Under oversight of LSB

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8
Q

Risk-based regulation

A

Helps to decide on limitations needed to be put in place.

Authorises firms as well as individuals.

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9
Q

Eligible businesses

A

Recognised sole practice -
sole solicitor.

Recognised body -
all managers and interest holders are legally qualified.
75% of body managers qualified. Voting rights held by at least 75%.
Managers not qualified still subject to SRA approval.

Partnerships -

LLP -

Companies -

Licensed bodies -
(ABS alternative business structures)
Not wholly in control by those who are qualified.
At least one manager authorised by SRA or another approved regulator.

Will be licensed body if a non-authorised person is;
Manager
Interest holder (shares)
Or
another body is a manager or interest holder
non-authorised persons entitled to exercise of control at least 10% of voting rights.

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10
Q

Effects of authorisation

A

Once authorised can cary out reserved legal activities *except notarial.

As well as immigration work.

Business limite dot -
profession services of sort provided bt individuals practising as solicitor and lawyers of other jurisdictions

Must have
COLP (compliance officer for legal practice) and COFA (compliance officer for finance and administration)

Once authorised licensed body carry out same range as recognised body.

Licensed body have
-HOFA (Head of finance and Admin)
-HOLP - (head of legal practice)

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11
Q

Authorisation process

A

Apply -
SRA check basics and carry out investigation.
Risk-based approach.

To;
remind confident in service
promote public confidence
competence, character and willingness to achieve right outcome

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12
Q

Individuals

A
  • admitted as solicitor
    -on the roll
    -has in force a certificate issued by society authorising to practice (practising certificate)

Admission -
Placed on roll.
Apply to COLP, new and former solicitors.

Part 1 - overriding need for public protection

Part 2 -
criminal conduct
other conduct

Part 3-
aggravating and mitigating factors

Most serious.- criminal offence, custodial or suspended involving dishonesty, perjury, fraud, bribery, violence or sexual nature, or obstructing course of justice.

Serious - caution been accepted or criminal offence not in above.

Failure to disclose taken into account.

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13
Q

Practising certificate

A

Can apply if name on roll.
English and Welsh
Not suspended.

Carry out all reserved activities (except notarising).

Higher right of auidence (Crown, High, CA and SC).
Unless Higher Courts Qualification (criminal or civil).

Pro bono -
fine if through authorised firm.
If not rely on exemption.

Renew certificate each year.
fee payable

Must inform promptly of material changes.

If in public interest may refuse or impose conditions.

May impose if;

-unsuitable in certain activities
-put clients at risk (or likely)
-will not comply with monitoring or compliance
-take steps to reach regulatory objectives.

Can appeal to SRA or High Court.

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14
Q

Working outside authorised firms

A

Freelance solicitors -
Not required to be authorise Dif;
not carrying out reserved legal activities
provided through authorised body
minimum of three years since admission, self-employed practicese on own and take out indemnity insurance

Must still notify SRA intent to practice.

In-house
Can supply to employer but not public

Non-commercial -
not for profit bodies, charities etc. -
Allowed on behalf to provide reserved legal activities to public.
Indemnity insurance that is adequate and appropriate.

Other -
unregulated but cannot carry out reserved legal activities.

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15
Q

Professional indemnity insurance

A

Breach of professional duty.

legal costs of defending, and if unsuccessful client costs.

To ensure public compensation.

SRA rules -
participating insurers - FCA and SRA approved.

One sum - at least £3m (recognised and licensed) and £2m in all other cases.

Must be continuous.

If cannot extent will carry on for 90 days. Must inform SRA. If after 30 no cover found firm must notify SRA and not take on new work.
If still cannot be secured must cease practising.

SRA require to produce evidence -
Adequate and appropriate cover.
Applies to;
SRA authorised firms
Freelance solicitors
Solicitors in non-commercial organisations.

Firm look at what is adequate and appropriate on factors.

Firms cannot exclude or limit liability below minimum level.
Does not apply to freelance and non-commercial bodies.

Must be open with clients.
Freelance must inform not required to meet minimum.

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16
Q

Equality Act 2010

A

Remedy - individual action against wrongdoer

Protected characteristics -

Race

Religion and belief

Sex

Age

Disability -
substantial and long term-adverse effect.

Gender reassignment

Marriage/civil partners

Pregnancy and maternity -

17
Q

Prohibited conduct

A

Direct discrimination -
Discriminates because of protected characteristic.

Three elements

Comparator -
must be different than to a hypothetical person or actual comparator

Less favourable -

Protected characteristic - must be the reason. not sole of main but must have an influence.

Indirect discrimination -
A person discriminates against another if A applies to B a provision or practice which is discriminatory in relation to a protected characteristic of B’s.

-it puts or would put persons with whom B shares characteristics at particular disadvantage

-puts or would put B at disadvantage

-Cannot show to be a proportionate means of achieving a legitimate aim.

Universal application but has adverse effect on B.
Balance with aims.
Must justify why.

18
Q

Disability discrimination

A

A treats B unfavourably because of something arising in consequence of B’s disability.

Justified if proportionate means to achieving an aim.

Must have known, or reasonably be expected to know they have a disability

19
Q

Victimisation

A

A victimises B if A subjects to B a detriment because
- B does a protected act
- A believes B has done or may do a protected act.

‘Protected act’ -
bringing proceedings
giving evidence
doing anything related to provisions in the act.
making allegations

Does not need protected characteristic.

20
Q

Harassment

A

Specific form (s26) of unwanted conduct which has effect of violating individual dignity or creating intimidating, hostile, degrading, humiliating or offensive environment

Must -
relate to protected characteristic
be of sexual nature or
be of sexual nature related to gender reassignment and result in less favourable treatment.

21
Q

Duty to make adjustments

A

Positive duty to make reasonable adjustments for disabled. Failure is discrimination

Three requirements;
Provision, criterion or practice - puts at substantial disadvantage, must take reasonable steps.

Physical features -
physical feature - reasonable steps

Provision of auxiliary aid -
Without provision be at disadvantage.
Reasonable steps to provide auxiliary aid.

Substantial
More than minor or trivial.

22
Q

Solicitors

A

Unlawful behaviour -
Service provider - person connected with provision of services.

s29 unlawful for provider to;
discriminate or victimise
by not providing service
or by terminating provision.

Vicarious liability -
acts done by employer treated as done by employee.

Will also discriminate if fail to make adjustments (s29).

Must have in place before individual comes e.g. ramps.

Making a claim -
To county court.
Burden on to show prima facie discrimination.
Burden then shifts to D.

Grant any remedy High Court could make in tort or judicial review.
usual damages.

23
Q

Solicitors as employees

A

Employer must not -
discriminate, victims
when offering employment
by not offering
terms of employment
in way it affords opportunities
dismissing
harassing.

Detriment - reasonable employee would take view they had been disadvantaged..

Occupational -
because of nature of job, only protected allowed to do it.
Must show proportionate means of achieving legitimate aim.

Again, must make adjustments.

Making a claim -
Employment Tribunal.
Conciliation through Advisory, Conciliation and Arbitration Service.
Compensation but in position as if wrong had not occurred.
-financial loss, injury to feelings.

Barristers - protected as well.

24
Q

Positive actions

A

Not unlawful.

Requirement -
person who shares characteriser suffer disadvantage connected
or
have needs that are different to those who don’t share it
or
disproportionately low engage

Show some basis - e.g. survey.
Proportionate means of
-enabling to overcome disadvantage
-meeting needs
-encouraging participation.

Can treat more favourably when ‘as qualified’ if have protected characterisitic.
Tie-breaker situation.

25
Q

Professional conduct

A

Para 7.1 -
Keep up to date with law.

1.1 do not unfairly discriminate

Extends to personal capacity as well as professional.

Law (74 decks)

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