Legal Services Flashcards
What is the general prohibition?
No person may carry on regulated activity in the UK unless they are authorised or exempt from authorisation
What is the designated professional body exemption?
If there is a regulated activity, the financial services are marketing act exempts incidental activity of members of certain designated professional bodies, which includes the SRA.
This is a limited exception, if a solicitor provides financial services which:
- arise out of or are complementary to legal services provided and
- the manner and scope of the provision is incidental to the provision of legal advice and
- the solicitor does not receive any compensation without accounting to the client for it the service will be exempted.
What are regulated activities?
Advising
- advise on prospects
Dealing as agent
- deal on behalf of client eg signing docs, purchasing on behalf
Arranging
- arranging for sale etc, may be through stockbroker
Managing
- exercise of discretion
Safeguarding
- act as trustee/safeguarding
- looking after
What is the required mental state for a person to commit the offence of concealing?
Actually know or suspect that proceeds were from criminal conduct.
Subjectively know or suspect
What factors do firms need to take into account when deciding what level of indemnity insurance?
- firms client value
- value of matters taken on each year
- historical claims of firm
When can direct discrimination be justified?
Only where in relation to age or disability and is a proportionate means of achieving a legitimate aim
Who is responsible for a solicitors training in regard to ML?
The firm
Can a firm directly discriminate?
Generally no,
Exception for age and disability if proportionate means of achieving legitimate aim
What is the required mental stage for a solicitor to commit the offence of failure to report?
Should have known or been suspicious
- objective test
What are the protected characteristics under the equality act?
- age
- sex
- disability
- marriage/CP status
- gender reassignment
- maternity
- religion
- sexual orientation
What are direct offences under POCA?
Arrangement
Acquisition, use or possession
Concealment
How long must records be kept of nominated officers investigation?
5 years after end of relationship
Includes discussions, advice sought & received,
How does a solicitor commit the offence of tipping off?
Making a disclosure which may prejudice any investigations into the client
Indirect offence
Discloser to 3rd party that SAR or other report made
In a firm, what staff need to have ML training?
- all relevant staff
- client facing or senior support staff
- solicitors
Does a freelance solicitor need to have indemnity insurance?
Only if carrying out reserved legal activities
What are the methods for funding?
Private funding
Conditional fee arrangement
Damaged based agreement
Third party funding
Before the event insurance
After the event insurance
Union cover
Civil legal aid
Criminal legal aid
What are the features of a conditional fee arrangement?
- agree if succeed, solicitor entitled to standard fees (recoverable from other side plus disbursements) plus % success fee (uplift) payable by client
- if nothing recovered, client may have to pay other sides costs and disbursements and their own disbursements.
- success fee cannot be more than 100% of usual fee
- agreement should contain definition of success and when payable/what is payable if lose