Legal Services Flashcards
What are the 6 types of legal work defined as “reserved legal activities”?
(1) exercise of right of audience (i.e. appearing before and addressing a court)
(2) the conduct of litigation (e.g. issuing proceedings; commencing, prosecuting, defending those proceedings)
(3) reserved instrument activities (preparing and lodging formal legal documents dealing with transfer of land, relating to real or personal estate or an instrument relating to court proceedings)
*excludes wills or testamentary instruments, letter or power of attorney, transfer of stock containing no trust or limitation of the transfer
(4) probate activities
(5) notarial activities
(6) administration of oaths
Who can carry out reserved legal activities?
those who are authorised or exempt (for rights of audience: a person will be exempt if a court grants that person a right of audience in a particular case + for probate activities, employee can act under the supervision of an authorised person)
*carrying on a reserved legal activity when unauthorised and not exempt will lead to a criminal offence + punishable by up to 2 years’ imprisonment
*carrying on exercise of right of audience and conduct of litigation places individual in contempt of court
What is the Legal Services Board?
oversees the regulation of all lawyers in England and Wales + a body can only act as a regulator for reserved legal activities if approved by the Legal Services Board
*main function is to monitor the way in which regulators operate + make recommendations for improvement, impose penalties, withdraw approval where necessary
What are the regulatory objectives which the Legal Services Board (and its approved regulators - including SRA) are under a duty to promote?
*protect and promote the public interest
*support the constitutional principle of the rule of law
*improve access to justice
*protect and promote the interests of consumers
*promote competition in the provision of services in the legal sector
*encourage an independent, strong, diverse, and effective legal profession
*promote and maintain adherence to the professional principles of independence and integrity, proper standards of work, observing the best interests of the client and the duty to the court, and maintaining client confidentiality
What body is the approved regulator for barristers + what reserved legal activities can it authorise?
Bar Standards Board + cannot authorise notarial activities
What body is the approved regulator for chartered legal executives + what reserved legal activities can it authorise?
CILEx Regulation + cannot authorise notarial activities
What body is the approved regulator for licensed conveyancers + what reserved legal activities can it authorise?
Council for Licensed Conveyancers + can authorise to conduct reserved instrument activities, probate activities and the administration of oaths
What body is the approved regulator for patent & trademark attorneys + what reserved legal activities can it authorise?
IP Regulation Board + cannot authorise probate and notarial activities
What body is the approved regulator for cost lawyers + what reserved legal activities can it authorise?
Costs Lawyers Standards Board + can authorise rights of audience, conduct of litigation, and administration of oaths
What body is the approved regulator for notaries?
Master of the Faculties
What approach to regulation does the SRA take?
a risk-based approach - therefore SRA focuses on misconduct most likely to harm public interest
*when considering risk, SRA takes into account probability (likelihood of a negative impact occurring) and impact/potential harm caused
What is the SRA’s Risk Outlook?
annual publication by the SRA setting out its view of the most significant risks affecting the profession
What does the SRA expect firms to do in relation to risk management?
identify, monitor, and manage all material risks
When are you eligible to apply for SRA authorisation as a licensed body?
if you are a licensable body and have at least one manager that is an authorised person
*licensable body = a non-authorised person is a manager of the body or an interest holder (i.e. holds shares) and/or another body X is a manager of the body and non-authorised persons are entitled to exercise, or control the exercise of, at least 10% of voting rights in X
When are you eligible to apply for SRA authorisation as a a recognised sole practice?
if you are a solicitor who is the sole principal in practice
When are you eligible to apply for SRA authorisation as a recognised body?
if you are a legal services body in which all the managers and interest holders are legally qualified
*legal services body = where at least 75% of the body’s managers are legally qualified, the proportion of shares and voting rights held by legally qualified persons is at least 75% and managers who are not legally qualified are approved by the SRA (at least one manager must be a solicitor)
*can be partnership, LLP, company
What is the effect of SRA authorisation for recognised bodies?
they will be entitled to carry on all reserved legal activities (except notarial activities) and immigration work
*business of the recognised body will be limited to:
(a) professional services of the sort provided by individuals practising as solicitors and/or lawyers or other jurisdictions, and
(b) other services set out in annex 2 of the SRA Authorisation of Firms Rules: e.g. ADR, financial services, estate agency
*will need a Compliance Officer for Legal Practice and a Compliance Officer for Finance and Administration (approved by SRA)
What is the effect of SRA authorisation for licensed bodies?
they become entitled to carry out the same range of activities as a recognised body in accordance with the terms of the licence granted by the SRA + they must have a Head of Finance and Administration, and a Head of Legal Practice
What does the SRA authorisation process for firms involve?
(1) SRA will check basic eligibility requirements are met
(2) an investigation into the firm will be carried out (so that the SRA is satisfied that the firm is suitable to carry out reserved legal activities - meeting a standard to maintain public confidence)
(3) SRA may grant blanket authorisation, authorise the provision of selected legal services, or refuse application
What does the SRA authorisation process of individuals involve?
(1) admission as a solicitor - e.g. accepted into the profession and name on roll of solicitors kept by the SRA
(2) obtain a practising certificate [practicing without a certificate is a criminal offence]
What does the SRA consider when deciding whether an individual is suitable for admission?
Assessment of Character and Suitability Rules + the overriding need to protect the public and the public interest, and maintain public trust/confidence in the solicitors’ profession
*likely to refuse if applicant has committed most serious conduct: e.g. criminal offence resulting in custodial or suspended sentence, involing dishonesty, fraud, perjury, bribery; offence of violent/sexual nature; associated with obstructing course of justice or with terrorism; demonstrating signs of discrimination towards others
*likely to refuse if applicant appears on the Violent and Sex Offender register (most serious conduct)
*may refuse if serious criminal conduct
*non-criminal conduct wil also be considered: e.g. plagiarism or cheating in assessment, evidence that applicant has sought to avoid responsibility for debts, dishonestly managed finances, been declared bankrupt
*applicant must disclose all matters, regardless of where it has taken place, which are relevant to the assessment of character and suitability, AND provide further information requested by the SRA
Who is eligible to apply for a practising certificate and what does the certificate entitle the solicitor to do?
an admitted solicitor if their name is on the roll, have sufficient knowledge or written and spoken English or Welsh, and are not suspended from practice as a solicitor
*certificate entitles them to carry on all reserved activities
For which courts do solicitors need extra qualifications to exercise rights of audience?
higher courts: Crown Court, High Court, Court of Appeal and Supreme Court
*will need Higher Courts (Civil Advocacy) Qualification or Higher Courts (Criminal Advocacy) Qualification
When must a solicitor renew their practising certificate?
annually - 31 Oct
*a fee is payable on renewal of certificate
Does the SRA have discretion when issuing practising certificates?
yes - can refuse applications or impose conditions (at any time) on an existing certificate - but a decision by the SRA to refuse an application or to impose conditions can be made the subject of an application for a review by the SRA or appealed to the High Court
How/when can a solicitor practice outside of authorised firms?
(1) as a freelance solicitor if:
*their practice consists entirely of carrying on activities which are not reserved legal activities (family, employment, personal injury, general legal advice), or
*any reserved legal activities are provided through an authorised body, or
*must have practised for a minimum of 3 years since admission, is self-employed and practise in their own name, takes out indemnity insurance, does not employ anyone in connection with services provided, holds limited categories of client money
(2) in-house solicitors (can deliver reserved legal activities to their employer, but not general public)
(3) non-commercial organisations - not-for-protfits, charities, community interest groups and independent trade unions: can provide reserved legal activities to the public on behalf of the organisation + will be covered by wider insurance arrangements that organisation has in palce
What is the purpose of professional indemnity insurance?
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 - therefore aims to protect public by ensuring they are not left without compensation
What does professional indemnity insurance cover for solicitors?
civil claims against a solicitor in the course of their practice
What must an SRA-authorised firm do in relation to indemnity insurance?
*must take out and maintain professional indemnity insurance that is adequate and appropriate for its practice and meets the specific requirements set out in the Rules [may need firm to go beyond minimum considering number and type of clients, history of claims, estimate of the level of claims that could be made]
*must be taken out with a participating insurer [regulated by FCA and have agreement with SRA]
What is the minimum figure for the sum insured as per SRA Rules?
*for recognised and licensed bodies, the sum insured for any one claim (exclusive of defence costs) must be at least £3million
*at least £2million in all other cases (sole practice)
*firm must not exclude or attempt to exclude liability below the minimum level of cover
What are the rules for professional indemnity insurance in relation to individual solicitors?
take out and maintain professional indemnity insurance that provides adequate and appropriate cover in respect of services they provide
*freelance solicitors and solicitors in a non-commercial body (for latter, sufficient for the non-commercial body to have adequate/appropriate qualifying insurance) must comply with this requirement if they provide reserved legal services to the public
*however, adequate/appropriate requirements applies to all services that the solicitor provides
*freelance solicitors and solicitors in a non-commercial body can exclude/limit liability to clients below the minimum amount
*freelance solicitors providing reserved legal services to the public must inform their clients that they are not required to meet the SRA’s minimum T&Cs
What happens if a firm cannot effect qualifying insurance at the end of the policy period?
(1) minimum T&Cs will extend cover for a maximum of 90 days + firm must inform SRA that they have entered this extended priod
(2) after 30 days [extended policy periond], if no cover can be found, firm must notify SRA and cannot take on new work (the next 60 days is known as the cessation period)
(3) if at the end of the 90 days, insurance cover still cannot be secured, firm must cease practising
What are the transparency requirements (between solicitor and client) in relation to insurance?
*solicitors must be open with clients about their professional indemnity insurance - e.g. information to be made available includes details of the insurer, territorial coverage of insurance
*general rule to ensure that enough info is provided for the client to be put in a position to make informed decisions (e.g. esp if client’s claim exceeds amount of cover)
What is the continuing competence obligation?
all solicitors must maintain competence to carry out role - reflect, identify, plan and address, keep an up-to-date record of their learning and development activity, evaluate effectiveness of such activities
How is disability defined under Equality Act 2010?
person has 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
*e.g. HIV
generally, threshold for substantial + long-term is high
What conduct is prohibited under the Act?
(1) direct discrimination
(2) indirect discrimination
(3) disability discrimination
(4) victimisation
(5) harassment
What constitutes direct discrimination?
where an individual is treated less favourably than others [comparator can be real or hypothetical] because of a protected characteristic
*assumption that individual has the characteristic suffices
*perpetrator’s intention is irrelevant
*any disadvantageous treatment is sufficient (no tangible/material loss needed)
*protected characteristic does not need to be the sole/main reason so long as it was a cause/influence
can only be justified in the context of age
What constitutes indirect discrimination?
*where conditions imposed apply to everyone (has universal application), but have the effect of prejudicing members of a particular group (e.g. requirement to work full time could disadvantage women who tend to bear a greater part of domestic and childcare responsibilities than men)
*can be justified if condition is shown to be a proportionate means of achieving a legitimate aim
does not apply to pregnancy/maternity
What constitutes disability discrimination?
*disabled individual is treated unfavourably [no comparator] because of something arising in consequence of their disability
*can be justified if unfavourable treatment can be shown to be a 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
What constitutes victimisation?
an individual is victimised if they are subject to a detriment because
*they do a protected act, or
*perpetrator believes that the individual has done, or may do, a protected act
protected act:
*bringing proceedings under the Act
*giving evidence or information in proceedings under the Act
*doing anything which related to the provisions of the Act
*making an allegation that another person has done something in breach of the Act
victim does not need to have a protected characteristic
What constitutes harassment?
when an 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 - unwanted conduct must:
*relate to a protected characteristic (except pregnancy/maternity & 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
What is the duty imposed to make adjustments for disabled persons?
(1) where a provision, criterion, or practice puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, the requirement is that reasonable steps must be taken to avoid the disadvantage
(2) where a physical feature puts a disabled person at a subtantial disadvantage, the requirement is that reasonable steps must be taken to avoid the disadvantage
(3) where a disabled person would, but for, the provision of an auxiliary aid, be at a substantial disadvantage in comparison with persons who are not disabled, the requirement is that reasonable steps must be taken to provide the auxiliary aid
*substantial disadvantage: requires more than minor/trivial
What is a service provider (e.g. solicitor) prohibited from doing under the Act?
*discriminate or victimise by not providing services as to the terms on which the service is provided, by terminating the provision of services, or by subjecting the user to any detriment
*harrasing the person to whom the service is provided
- e.g. refusing to act for a client, providing services on less advantageous terms, terminating retainer because of a protected characteristic [does not apply to marriage/civil partnership and age where the individual is under 18]
*as firm can be held vicariously liable for an employee’s acts, firm should take reasonable steps to prevent the particular act of discrimination or acts of that description [prior]
What is a service provider’s duty to make adjustments for disabled people?
take reasonable steps to avoid disadvantage or adopt a reasonable alternative method of providing service
*cost of making adjustments cannot be passed onto those using the service
*this is a general duty, therefore it does not matter whether the service provider is already providing services to disabled people - they must anticipate the possibility of disabled people using its services
in considering what is reasonable - take into account: cost of making the adjustment, nature of service provided, size of firm
*individual can only bring a claim if they are affected by failure to make adjustments
How can a client make a claim under the Equality Act 2010?
*claim will be made to County Court
*initial burden of proof is on the claimant to show a prima facie case of discrimination
*court can then make a finding that there has been a breach of the statute, unless the defendant is able to prove otherwise
*court can grant any remedy which the High Court could make in tort or judicial review cases - usually damages (if firm and employee are found liable, claimant does not receive double compensation)
What is an employer prohibited from doing under the Act?
*discriminate against or victimise a prospective employee - e.g. in the arrangements made for deciding to whom to offer employment, as to terms on which employment is offered, by not offering employment
*harass a person who has applied to it for employment
*discriminate against or victimise an employee - access to opportunities for promotion, transfer or trianing, or for receiving any other benefits, facility or service; by dismissing employee; by subjecting employee to any detriment [physical/financial consequences are not needed to prove detriment]
*harass an employee
exception: occupational requirements - employer can show that because of the nature of the job, only people with particular protected characteristics are able to do it [requierment must be proporionate to achieving a legitimate aim]
What is an employer’s duty to make adjustments for disabled employees/prospective employees?
requirement arises only if employer knows or ought reaosnably to know that the individual is disabled and likely to be disadvantaged = therefore not an anticipatory duty
How can an employee make a claim under the Equality Act 2010?
*at Employment Tribunal (can award unlimited compensation)
*tribunal can make declarations of the employee’s rights or make recommendations that the employer must take specified steps
*prospective employee can submit questions to the employer to help determine whether they have a claim
*employee must participate in a conciliation process through the Advisory, Conciliation and Arbitration Service to see if the claim can be settled
How are barristers protected under the Act?
(1) protected from discrimination by members of chambers or clerks of chambers in which they are tenant or pupils [those who have applied for tenancy or pupillage are also protected]
(2) protected from discriminatory treatment at the hands of solicitors instructing them - solicitors must not discriminate by subjecting them to a detriment, harass, or victimise them
What is positive action?
action taken to address the disadvantages suffered by those who share a protected characteristic that results in less favourable treatment of those who do not share that characteristic
*there is no requirement for positive action to be taken, but if it is, the following criteria must be met:
*(a) firm must reasonable think: person who share the PC suffer a disadvantage connected to the characteristics; persons who share the PC 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 disproportioantely low
*(b) action must be proportionate to achieving (i) enabling/encouraging persons who share the PC to overcome or minimise disadvantage, (ii) meeting those needs, or (iii) enabling/encouraging persons who share the PC to participate in that activity
in relation to recruitment and promotion, where the person with the PC is as qualified as the others - positive action can be used as a tie-breaker
When can you carry on a regulated activity in the UK? + what are the consequences of breach?
when authorised or exempt
*breach is a criminal offence and penalty is up to 2 years’ imprisonment or unlimited fine
*breach will also render unenforceable any resulting agreement
What is the test for a regulated activity?
(1) are you in business?
(2) is there a specified investment, or does the specified activity relate to information about a person’s financial standing or administering a benchmark?
(3) is there a specified activity?
(4) is there an exclusion?
What are specified investments?
*shares, stocks, debentures, loan stock, bonds, government securities, insurance contracts, regulated mortgage contracts, home reversion/home purchase plans/deposits, credit agreements
*key exclusions: interests in land, shares in the share capital of open-ended investment companies or building societies incorporated in the UK, National Savings products
What are the types of specified activities?
(1) dealing as agent [i.e. dealing on behalf of a client + committing the client to transactions]
(2) arranging [solicitor involved as the contact between client and life company/stockbroker]
(3) managing [active participation + applies only to discretionary management]
(4) safeguarding
(5) advising - on the specific investement (cf general advice on respective merits of investing in shares rather than making a deposit with the bank)
(6) lending money on/administering a regulated mortgage contract
What is the exclusion of introducing?
solicitor simply introduces client to an authorised person and has no further role in this aspect of the client’s matter - cannot act as a means of communication between client and ATP (this would be arranging)
What is the exclusion of using an authorised third party?
where transaction is to be entered into based on the advice of an ATP
*solicitor retains an ongoing role
exclusion not available if the solicitor receives from any person other than the client any pecuniary award or other advantage arising out of the client entering the transaction, for which the solicitor does not account to the client
What is the exclusion of execution-only?
advice has not been sought from the solicitor (negative requirement)
*e.g. client has a clear idea of what they want, does not ask for advice on merties - common: client is an investor
exclusion not available if the solicitor receives from any person other than the client any pecuniary award or other advantage arising out of the client entering the transaction, for which the solicitor does not account to the client
What is the exclusion of acting as trustee/personal representative?
*available when a member of the firm is a trustee/PR but activity is actually carried out by other members of the firm
*exclusion does not apply if solicitor is remunerated for what is done in addition to any remuenration received as trustee/PR - however remuneration calculated by reference to time spent is permitted
What is the professional/necessary exclusion?
*when it is not possible for the other services of the professional to be provided unless the regulated activity is also provided
*exclusion is not available if activity is remunerated separately
What is the take-over exclusion?
*concerned with a transaction to acquire or dispose of shares in a body corporate or for a transaction entered into for the purposes of such an acquisition/disposal:
(a) shares must consist of or include 50% or more of the voting shares in the body, and
(b) acquisition/disposal is between parties each of whom is a body corporate, a partnership, a single individual, or a group of connected individuals
*can meet 50% threshold by adding together shares already held and to be acquired
*even if the criteria has not been strictly met, exclusion can still apply if it is shown that the object of the transaction is reasonably regarded as being the acquisition of day-to-day control of the affairs of the body corporate
What are the applicable exclusions for dealing as agent?
ATP, execution-only, professional/necessary, takeover
What are the applicable exclusions for advising?
professional/necessary, acting as trustee/PR, takeover
