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Constitutional and Administrative and EU Law > Legal Services > Flashcards

Legal Services Flashcards

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1
Q

what are the different types of legal work which are defined as ‘reserved legal activities’ s 12 Legal Services Act 2007

A
  1. the exercise of a right of audience
  2. the conduct of litigation
    - Media Protection Services Ltd v Crawford (one of the directors laid down info in front of the mags which led to the issuing of summons)
    - JK v MK and E- Negotiation Ltd
    (husband and wife used online divorce facilitator, h&w submitted the docs themselves to the court - online divorce facilitator not at fault)
  3. reserved instrument activities (preparing and lodging an instrument (formal legal document) dealing with the transfer or charge of land relating to real or personal
    estate or an instrument relating to court proceedings)
    wills and POA excluded
  4. probate activities
  5. notarial activities (certifying and authenticating certain docs)
  6. the administration of oaths
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2
Q

under s 13 Legal Services Act 2007 reserved legal activities can only be carried out by those who are _________ + __________

how does a person become the above?

what happens if they carry out legal services when they are not the above?

A

authorised and exempt

authorisation comes from regulator

section 19 deals with exempt

offence is punishable by up to two years’ imprisonment + rights of audience / conduct of litigation = may also be found in contempt of court > Re Balli

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3
Q

under s 19 LSA = certain persons are exempt from the general rule that you cannot provide reserved legal activities unless you are authorised

who is exempt

A

rights of audience a person will be exempt if a court grants that person a right of audience in a particular case e.g. McKenzie friend (litigants in person)

probate activities = exemption allows an employee to act under the supervision of an authorised person

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4
Q

who is responsible for the regulation of all lawyers in the UK?

what are their aims?

A

Legal Services Board

s1 LSA

  • public interest;
  • rule of law;
  • improving access to justice;
  • protecting and promoting the interests of consumers;
  • promoting competition in the provision of services in the legal sector;
  • encouraging an independent, strong, diverse, and effective legal profession;
  • increasing public understanding of citizens’ legal rights and duties;
  • promoting and maintaining adherence to the professional principles;
  • promoting the prevention and detection of economic crime.
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5
Q

who are the eight different regulators that sit below the LSB and what is their relationship with the LSB.

A
  1. SRA
  2. Bar Standards Board
  3. CILEx Regulation
  4. Council for Licensed Conveyancers
  5. Intellectual Property Regulation Board (patent attorneys + trade mark attorneys)
  6. Costs Lawyers Standards Board
  7. Master of the Faculties (Notaries)
  8. Institute of Chartered Accountants in England and Wales (carrying out probate activites)
  • individual regs = same objectives as LSB
  • LSB can make recommendations for
    improvement, impose penalties for deficiencies or ultimately withdraw approval
  • LSB must consent to any regulatory changes made by the individual regulators
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6
Q

some providers carry out work which falls outside the LSA, but they are nonetheless subject to legal regulation, what are they?

A
  1. Claims management companies – regulated by the FCA
  2. Immigration advisers – regulated by the Office of the Immigration Services Commissioner
  3. Insolvency practitioners – regulated by the Insolvency Practitioners Association.
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7
Q

give examples of unregulated legal services

A

will writing, family law advice and employment law advice

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8
Q

As an approved regulator the SRA is able to authorise firms as well as individuals. Only certain types of businesses are eligible for authorisation, what are they?

A
  1. recognised sole practice
  2. recognised body
  • at least 75% of the body’s managers are legally qualified
  • proportion of shares and voting rights held by legally qualified persons is at least 75%
  • managers who are not legally qualified are approved by the SRA
  • at least one manager must be a solicitor (or registered European lawyer)
  • may take the form of partnerships, LLPs, companies
  1. licensed bodies
    - at least one manager authorised by the SRA or another approved regulator
    - has to be a licensable body
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9
Q

what are the COLP and COFA called in a licensed body?

A

Head of Finance and Administration (HOFA)
+
Head of Legal Practice (HOLP)

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10
Q

to be a licensed body:

a) at least on manager authorised by the SRA or another approved regulator

and

b) has to be a licensable body

what is a licensable body?

A

A body (‘B’) will be a ‘licensable body’ if a non- authorised person (ie someone not authorised by the SRA or another approved regulator):

(a) is a manager of B; or
(b) is an interest holder of B (eg a person who holds shares in it or is entitled to exercise any voting rights).

Alternatively (or in addition to the above), a body (‘B’) will be a licensable body if:

(a) another body (‘A’) is a manager of B, or is an interest holder of B; and

(b) non- authorised persons are entitled to exercise, or control the exercise of, at least 10% of the voting rights in A.

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11
Q

how does the SRA authorise individuals to undertake regulated legal activities

A

admitted as a solicitor, name is on the roll and has practicing certificate

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12
Q

what are the SRA Assessment of Character and Suitability Rules?

give examples

A

conduct the SRA will consider when looking at admission of a sol

criminal conduct - most serious / serious

other behaviours:
* dishonest, violent, threatening or harassing or discriminatory behaviour towards others;
* plagiarism or cheating
* evidence that the applicant has deliberately sought to avoid responsibility for their debts, dishonestly managed their finances, been declared bankrupt or cannot
satisfactorily manage their finances;
* the applicant has been made the subject of serious disciplinary or regulatory findings or sanctions.

must disclose all to the SRA (even if they took place overseas)

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13
Q

in which courts can a sol not exercise their rights of audience?

how would they obtain them?

A

Crown Court, High Court, Court of Appeal and Supreme Court

the Higher Courts Qualification (either civil or criminal advocacy versions)

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14
Q

the SRA may refuse to issue a practicing certificate full stop or impose conditions on one. can you appeal this?

A

yes - application for a review by the SRA or
appealed to the High Court

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15
Q

which solicitors work outside authorised firms?

A
  1. freelance solicitors - ordinarily would need to be authorised as a regulated sole practitioner, but not necessary if:

(a) their practice consists entirely of carrying on activities which are not ‘reserved legal activities’
(for example, family, employment or personal injury work and general legal advice);

(b) any reserved legal activities are provided through an authorised body; or

(c) certain requirements are met. e.g. must have practised as a solicitor for a minimum of three years since admission, be self- employed and practise in their own name,
take out indemnity insurance in respect of all the services they provide, does not employ anyone in connection with those services and only holds limited categories of client money.

  1. in-house solicitors - able to give legal advice to the company but not to the general public
  2. non-commercial organisations - includes not- for- profit bodies, charities, community interest groups and independent trade unions - sols working within this organisations are allowed, on behalf of the
    organisation, to provide reserved legal activities to the public
  • covered in the wider insurance arrangements they will have in place
  • SRA requires the sol to have professional indemnity insurance that is ‘adequate and appropriate’ for the work they are carrying out
  1. other organisations - but cannot undertake reserved legal activities
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16
Q

what is professional indemnity insurance?

A

caters for the possibility that the insured may be guilty of a breach of professional duty which gives rise to financial loss or damage to a third party

the insurer will indemnify the insured in respect of the loss or damage

17
Q

indemnity insurance policies usually need to be renewed each year. their cover is normally in respect of claims made during
the year, rather than events occurring during the year

true / false?

what is the impact?

A

True

A firm therefore needs to be forward
thinking. It will need to have insurance in place in future years to cover claims based on negligent acts occurring today.

18
Q

the SRA requires firms to have qualifying indemnity insurance at all times. what happens if a firm cannot effect new qualifying insurance at the end of the previous policy?

A

the minimum terms and conditions will extend the cover for a maximum of 90 days

the firm must inform the SRA that it has entered this extended policy
period

the firm can use this time to try to find insurance cover

After 30 days, if no cover can be found, the firm must notify the SRA and cannot take on new work.

If, at the end of 90 days, insurance cover still cannot be secured the firm must cease practising.

19
Q

the SRA requirement to take out ‘adequate and appropriate’ indemnity cover applies to who….

A

SRA authorised firms
freelance sols providing reserved legal services
sols in non-commercial organisations providing reserved legal services to the public

20
Q

what duties do sols have regarding their indemnity insurance and clients

A

must be open with their client

21
Q

the SRA’ indemnity insurance rules provide a minimum requirements for the insurance cover, what are they and if they are not adequate and appropriate, what might a firm do?

A

For recognised and licensed bodies the sum
insured for any one claim (exclusive of defence costs) must be at least £3 million and at least £2 million in all other cases.

get ‘top up’ cover

22
Q

who is not bound by the SRA’s minimum indemnity insurance requirements?

A

freelance sols - they must inform their clients of this

23
Q

what are the protected characteristics under the equality act?

A
  1. race (colour, nationality + ethnic/national origins)
  2. religion and belief - not a viewpoint (belief must be genuinely held relate to a substantial part of human life, attain
    a certain level of cogency and be worthy of respect)
  3. sex
  4. sexual orientation (covers attraction as well as behaviour)
  5. age
  6. disability - someone has a disability if:
    * they have a physical or mental impairment; and
    * the impairment has a substantial and long- term adverse effect on their ability to carry out normal day to day activities
    - note HIV is deemed to be a disability
  7. gender reassignment
  8. marriage/CPs
  9. pregnancy/maternity
24
Q

the EA 2010 outlaws certain kinds of unequal treatment, and categorises them as prohibited conduct, what are they?

A

Direct Discrimination
* A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others
* three elements - actual/hypothetical comparator, less favourably, because of protected characteristic
* obvious / overt discrimination
* note - where the protected characteristic is age there is no discrimination if the treatment was a proportionate way of achieving a legitimate aim (s 13(2) Equality Act 2010)

Indirect Discrimination
* where conditions are imposed which apply to everyone, but which have the effect of prejudicing members of a particular group
* possibility of justifying the action on the basis that it is a proportionate means of achieving a legitimate aim.
* ID doesn’t apply to pregnancy/maternity – only DD

Disability discrimination
* In addition to claim under DD or ID
* It is discrimination to treat a disabled person less favourably not only because of the individual’s disability itself but also because of something arising from, or in consequence of, that disability
* No need for comparator
* Can be justified if proportionate means of achieving a legitimate aim
* perpetrator must have known, or reasonably be expected to have known, that the disabled person had a disability

Victimisation
* A person (A) victimises another person (B) if A subjects B to a detriment because B does a protected act, or A believes that B has done, or may do, a protected act.

A protected act is any of the following:
 bringing proceedings under the Act;
 giving evidence or information in
proceedings brought under the Act;
 doing anything which is related to the
provisions of the Act;
 making an allegation that another
person has done something in breach
of the Act.

The victim does not need to have a protected characteristic in order to receive protection from victimisation under the Act.

Harassment
* individual is subjected to a specific form of unwanted conduct which has the effect of violating the individual’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for the individual
* the unwanted conduct must
* relate to a protected characteristic (except pregnancy/ maternity and marriage/ civil partnership);
* be of a sexual nature; or
* be of a sexual nature or related to gender reassignment or sex and result in less favourable treatment because of the individual’s rejection of or submission to the conduct.

25
Q

is less favourable treatment judged objectively or subjectively?

A

objectively but motive may be relevant when looking at remedies

26
Q

in what circumstances does the EA impose a duty to make reasonable adjustments?

what are the reasonable adjustments?

A

for disabled people

  1. provision, criterion and practice
  2. physical features
  3. provision of auxiliary aid

where one of these is present (or not present for the provision of an aux aid) and it puts the disabled person at a substantial disadvantage in comparison to people who are not disadvantaged, reasonable steps must be taken to avoid the disadvantage

failure to comply with the above = discrimination

substantial disadvantage - ‘more than minor or trivial’

26
Q

when a person is directly discriminated against because of their protected characteristic, does the protected characteristic have to be the only / sole reason for the discrimination?

A

no but it must be an influence

27
Q

Under s 29 it is unlawful for a service provider to do what

A
  • to discriminate or victimise:
    ∘ by not providing the service
    ∘ as to the terms on which the service is provided
    ∘ by terminating the provision of the service, or
    ∘ by subjecting the user of the service to any detriment.
  • Or to harass the person to whom the service is provided.

applies to all legal service providers (even if unregulated)

applies to all the protected characteristics except marriage/ civil partnership and
age, where the individual is under 18 years of age

28
Q

how may a firm be held liable for the actions of it’s employees regarding the EA

A

Under s 109 Equality Act 2010 acts done by an employee are treated as if done by the
employer regardless of whether the firm new

vicarious liability- only arises in respects of an act of discrimination which was committed by an employee in the course of their employment

possible defence in that a firm will be able
to avoid vicarious liability if it can show that they took such steps as were ‘reasonable’ to
prevent the particular act of discrimination or acts of that description

However, those steps must have been taken BEFORE the discriminatory act occurred

29
Q

a service provider will be considered to have discriminated against a disabled person if they fail to make __________

however there is no duty to fundamentally change the _________________________

the ______ of the above cannot be _________ onto those using the service

who can bring a claim for the above?

what factors will be considered when looking at whether the above is reasonable?

A

reasonable adjustments

no duty to fundamentally change the nature of the service

the cost of the reasonable adjustments cannot be passed onto those using the service

only the disabled individual affected by the failure to make adjustments can bring a claim

the cost of the adjustments, the nature of the service being provided and the size of the firm

30
Q

anti discriminatory provisions of the EA are also applicable in the workplace, what must an employer not do?

A
  • discriminate against or victimise a prospective employee:
    ∘ in the arrangements made for deciding to whom to offer employment
    ∘ as to the terms on which employment is offered, or
    ∘ by not offering employment.
  • harass a person who has applied to it for employment
  • discriminate against or victimise an employee:
    ∘ as to the terms of employment
    ∘ in the way it affords access to opportunities for promotion, transfer or training, or for receiving any other benefit, facility or service
    ∘ by dismissing the employee, or
    ∘ by subjecting the employee to any detriment.
  • harass an employee

detriment = disadvantaged in the circumstances in which they had to work (no need to prove physical or financial consequences)

31
Q

in what circumstance would it be lawful for an employer to discriminate?

A

The exception applies where an employer is able to demonstrate that, because of the nature of the job, only people with a particular protected characteristic are able to do it

the exception only applies where =
proportionate means of achieving a legitimate aim

32
Q

employers have a duty to make adjustments for disabled employees or prospective employees - how does this duty differ to the duty imposed on service providers?

what case

A

service providers (e.g law firms) - duty is anticipatory

employers = only required to make adjustments if they know or ought reasonably to know that the individual is disabled and likely to be disadvantaged

The Government Legal Service v Brookes UKEAT 0302/ 16

33
Q

what must be attempted before an employee takes a claim to the ET?

A

conciliation process through the Advisory,
Conciliation and Arbitration Service before proceeding to the ET

34
Q

barristers are protected from discrimination by a sol when they are receiving instructions. what must the sol not do when they are instructing the barrister?

A

A person must not, in relation to instructing a barrister:
(a) discriminate against a barrister by subjecting the barrister to a detriment;
(b) harass the barrister;
(c) victimise the barrister.

35
Q

in what circumstances might the EA allow for positive action to be taken in an attempt to address any disadvantages suffered by those with a protected characteristic?

A

2 requirements

The first requirement is that the firm must reasonably think that:

  • persons who share a protected characteristic suffer a disadvantage connected to the characteristic; or
  • persons who share a protected characteristic have needs that are different from the needs of those who do not share it; or
  • participation in an activity by persons who share a protected characteristic is
    disproportionately low.

the firm must have a reasonable basis for its belief e.g. survey showing low participation by a group

The second requirement is that the action taken by the firm is a proportionate means of achieving one of the following aims:

  • enabling or encouraging persons who share the protected characteristic to overcome or minimise that disadvantage; or
  • meeting those needs; or
  • enabling or encouraging persons who share the protected characteristic to participate in that activity.

example of positive action = providing specific training to some of its employees

similar provision in the act relating to recruitment and promotion - where an employer reasonably thinks that people with a certain protected characteristic are disadvantaged or poorly represented

only permitted where the person with the relevant characteristic is ‘as qualified as’ the others

Qualification in this context is not restricted to having passed particular examinations, but instead relates to the overall suitability of the individual for the job or promotion. In practice, it is said that an employer can make use of s159 in a ‘tie- breaker’ situation

this does NOT permit positive discrimination

36
Q

how does the EA overlap with sol’s professional conduct obligations?

A

Discriminatory acts, by their very nature, diminish trust and confidence in the
profession and therefore breach SRA Principle 2. A solicitor who fails to comply with the Act is therefore likely to be subject to separate disciplinary action.

discriminatory acts may not fall under the EA if they are not against a protected characteristic but the sol is still likely to face disciplinary action

37
Q

where do the provisions of the EA apply?
where do they not apply?

A

The Equality Act 2010 only makes discrimination unlawful in certain
contexts (eg in the provision of legal services and in the workplace).

If something is done outside of work - professional conduct action

Constitutional and Administrative and EU Law (9 decks)

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