Legal Services - FLK1 Flashcards
1
Q
What is the definition of legal services
A
All manner of advice, assistance and representation relating to the law
2
Q
What types of scenarios does legal services cover
A
- Representation before the Supreme Court
- Completion of an online court form
- Negotiation of a multi-million pound contract
- Writing a will etc
3
Q
Give an example of a situation where it can be difficult to identify a legal service
A
Provision of online information
4
Q
Name the 5 different ways legal services are provided
A
- Technology, ie case management systems
- Gather information or carry out online triage
3.Online document preparation - Online predictive case outcomes
- Contract management
- Dispute resolution
5
Q
What is the role of a regulator
A
To protect the public
6
Q
Those who provide services to the public in the UK are not subject to regulation. True or false?
A
False
7
Q
What are some of the things that a regulator does
A
- Set standards for the delivery of a service
- Set pricing levels
- Deal with complaints from members of the public
- Have oversight of the qualification / training of individuals delivering service
8
Q
What legislation covers the regulation of legal services in England?
A
Legal Services Act 2007
9
Q
How do you differentiate between “reserved legal activities” and those which are not
A
Under the Act, reserved legal activities are subject of regulation & they are authorised whilst the latter is not
10
Q
Why is the concept of reserved legal activities risk based?
A
They comprise those types of legal work where the risk to the public is the greatest
11
Q
Reserved legal activities is only preserved for solicitors and barristers. True or false?
A
False
12
Q
What section of the LSA 2007 sets out the 6 types of reserved legal activities?
A
Section 12
13
Q
What are the 6 types of reserved legal activities
A
- Exercise of right of audience
- Conduct of litigation
- Reserved instrument activities
- Probate activities
- Notarial activities
- Administration of oaths
14
Q
What does it mean by exercising a right of audience
A
Right to appear before and address a court, the right to call a witness and the right to examine a witness
15
Q
What does conduct of litigation mean (3 things)
A
- issuing proceedings before a court
- commencing, prosecuting and defending proceedings
- performing ancillary functions in relation to proceedings, eg entering appearances
16
Q
What are 4 reserved instrument activities
A
- Preparing and lodging an instrument (legal document)
- Dealing with the transfer or charge of land
- Relating to real or personal estate
- Relating to court proceedings
17
Q
What is a probate activity
A
Preparing probate papers (docs needed to grant of probate or grant of letters of administration or docs to oppose such a grant)
18
Q
What is a notarial activity
A
Certifying and authenticating documents
19
Q
What is an administration of oath
A
The power to administer an oath
Eg, when a document, such as an affidavit, is required to be sworn
20
Q
Under what section of the LSA 2007 can reserved legal activities only be carried out by those who are authorised or exempt
A
Section 13
21
Q
Under what section of the LSA 2007 must a person be authorised to carry out a particular reserved legal activity by a relevant approved regulator
A
Section 18
22
Q
Who is the approved regulator for solicitors per LSA 2007
A
The Law Society
23
Q
Who carries out the regulatory function for solicitors in practice
A
SRA
24
Q
SRA deals with authorisation for all reserved legal activities except notarial activities. True or false?
A
True
25
What section of LRA 2007 lists the circumstances in which a person is exempt for each of the reserved legal activities
Section 19
26
Give some examples of when a person is exempt from reserved legal activities
1. rights of audience - a person will be exempt if court grants that person a right of audience
2. probate - exemption allows an employee to act under an authorised person
3. charities and trade unions
27
What is the Legal Services Board (LSB) responsible for
Overseeing the regulation of all lawyers in England and Wales. it was created by LSA 2007
28
Name two statutory responsibilities of the LSB
1. To ensure standards of regulation
2. To oversee and coordinate the regulation of legal services
29
Name 8 objectives of the LSB per s.1 LSA 2007
1. protect and promotor public interest
2. support constitutional principles of rule of law
3. improve access to justice
4. protect & promote interest of consumers
5. promote competition
6. encourage strong, independent, diverse & effective legal profession
7. increase public understanding of legal rights and duties
8. promote integrity, best interests of the client and client confidentiality
30
How does the LSB monitor individual regulators (4 ways)
1. monitor how they operate and exercise control over them
2. make recommendations for improvement
3. impose penalties for deficiencies
4. withdraw approval
31
What 4 types of matters must regulated individuals comply with
1. Education and training requirements
2. Code of conduct
3. Framework to practice
4. Provision for disciplinary and enforcement action
32
The various providers of legal services don't need to be subject to regulation approved by LSB. True or false
False - each approved regulator is linked to a particular profession or specialisation
33
Who regulates the work of solicitors
SRA
34
What does a barrister do
Advocates in the criminal and civil courts and provide expert legal advice and documentation
35
Can barristers be instructed directly by clients or through solicitors
Directly through clients
36
Who is the approved regulator for barristers
Bar Standards Board
37
What types of reserved legal activities can a barrister do
Everything apart from notarial activities
38
What does a chartered legal executive
1. Draft documents, prepare cases etc and often specialise in a particular area of law
2. Can't work independently so work under a solicitor in a firm
3. Can be involved in ownership of firm
39
Who is the approved regulator for chartered legal executives
CILex
40
What type of reserved legal activities can chartered legal executives do
Everything apart from notarial activities
41
What does a licenced conveyancer do
Deal with property transactions
42
Who is the approved regulator for licenced conveyancers
Council for Licenced Conveyancers
43
What type of reserved legal activities can a licenced conveyancer do
Reserved instrument activities, probate activities and administration of oaths
44
What is does a patent attorney do
Specalise in intellectual property
45
What reserved legal activities can a patent attorney do
Everything apart from probate and notarial activities
45
Who regulates patent attorneys
Intellectual Property Regulation Board
45
What is a trade mark attorney
Specialise in trade mark law and practice
46
Who regulates trade mark attorneys
Intellectual Property Regulation Board
47
What types of reserved legal activities can trade mark attorneys do
Everything apart from probate and notarial activities
48
What is a cost lawyer
Specialist in legal fees and costs
49
Who is the approved regulator for costs lawyers
Costs Lawyers Standards Board
50
What reserved legal activities can costs lawyers do
Exercise rights of audience, conduct litigation and administer oaths
51
What does a notary do
1. Authenticate and certify signatures and documents
2. Deal with POA, bills of exchange and docs dealing with foreign property & international finance
52
Who is the approved regulator for notaries
Master of the Faculties
53
What types of reserved legal activities can notaries do
Everything except rights of audience and conducting litigation
54
Sometimes there might be a regulatory overlap where the individual works in a law firm, true or false
True. For example, a barrister might work in a law firm where the barrister is regulated by BSB and the firm is authorised by SRA
55
Name 3 examples of providers that carry out work that falls outside LSA 2007
1. Claims management companies
2. Immigration advisers
3. Insolvency practitioners
56
Name 3 examples of legal services that are not subject of regulation
1. will writing
2. family law advice
3. employment law advice
57
Why might a firm decide to operate unregulated
To maximise profits and provide low quality service, plus they might mimic their own type of regulation in terms of code of conduct etc
58
When and how was SRA established
By the Law Society in 2007 to separate its regulatory and representative function
59
What does the SRA do
Protects the public by ensuring that solicitors meet high standards and by acting when risks are identified
60
How many members comprise the SRA
5 Solicitors and 6 lay members so 11 in total
61
Where is the headquarters of SRA
The Cube, Birmingham
62
What are the 8 principles that govern SRA
1. upholding constitutional principle of rule of law and proper administration of justice
2. upholding public trust and confidence
3. independence
4. honesty
5. integrity
6. encouraging equality, diversity and inclusion
7. best interests of each client
63
Name 4 functions of SRA
1. controls training and admission to the profession
2. sets standards for ethical and professional behaviour
3. frames rules for handling of client money
4. take enforcement action where appropriate
64
The SRA is an approved regulator under LSA and can authorise firms and solicitors to carry out reserved legal activities. True or false
True
65
Does the LSB oversee the SRA
Yes. SRA must meet all 8 objectives of the LSB
66
What is the purpose of regulation according to the SRA
1. To protect consumers of legal services
2. support the operation of the rule of law and proper administration of justice
67
Why does the SRA take a risk-based approach to regulation
1. To meet the LSB's objectives
2. To focus on misconduct that will most likely harm the public interest
3. To target resources where the risk is the greatest
68
What do we mean by risk when referring to harm to the public interest
Combination of a certain event / potential harm and the probability that the event will occur
69
Name some examples of risk in the delivery of legal services
1. the way a firm is structured and its viability
2. a firm / individual being involved in fraud or dishonesty
3. people, systems and internal processes of a firm
4. individuals lacking the skills, knowledge or behaviours
5. the way the legal market operates
6. economic, political or legal change
70
How does the SRA identify a risk
By looking at a particular situation based on the range of information it holds, receives or can gather about those it regulates, eg a firm that receives alot of complaints
71
What are the different measures that the SRA can use to address issues or reduce risk
1. Set standards
2. Impose fines
3. Issue warning notices
4. Raise customer awareness
72
What does the SRA publish each year to reduce risk
Risk Outlook. This helps to keep the SRA proactive in addressing issues before they become problems
73
What does para 2.5 of the SRA Code of Conduct say
Firms should identify, monitor and manage all material risks to the business
74
Name 3 types of businesses that are eligible for authorisation by SRA
1. Recognised sole pratice
2. Recognised body
3. Licensed body
75
What is a recognised 'legal services body'
Where at least 75% of the shares and body's managers are legally qualified. At least 1 manager must be a solicitor
76
What are the 3 types of recognised legal services body
1. Partnership
2. LLP
3. Company
77
What is an alternative business structure (ABS)
Operate like a law firm but the ownership, control or management of ABS is not wholly in the hands of individuals who are legally qualified
78
How does a body become eligible to apply for authorisation as a licensed body
1. Must be at least 1 manager who is authorised by SRA (eg solicitor) / another approved regulator
2. Has to be a licensed body
79
In what circumstances will a body be a "licensed body"
1. non-authorised person is a manager of the body; OR
2. is an interest holder of the body, ie at least 10% of voting rights
80
What can a recognised body do once authorised by the SRA
All reserved legal activities apart from notarial activities
81
What 2 items of business are a recognised body limited to
1. Professional services like solicitors / lawyers of other jurisdictions
2. Other professional services in annex 2 of the Rules, eg/ alternative dispute resolution, estate agency and financial services
82
What are the two key roles that a recognised body should have
1. Compliance Officer for Legal Practice (COLP)
2. Compliance Officer for Finance and Administration (COFA)
83
How does a firm get authorisation to carry out reserved legal activities
Have to apply to SRA for authorisation
84
What are the SRA's 4 key outcomes when going through the authorisation process
1. clients / public confident that legal services to be delivered at requisitie standard
2. to promote public confidence in legal services
3. those who own & manage law firms should have character & competence to achieve outcomes for clients
4. individuals should meet SRA's authorisation criteria
85
Who governs the authorisation of individuals
SRA Authorisation of Individuals Regs
86
What are the 3 essentials for a person to be qualified to act as a solicitor
1. to be admitted as a solicitor
2. name on the roll
3. certificate issued by Law Society authorising them to practise as a solicitor
87
What happens to a person who practises as a solicitor without a practising certificate
Commit criminal offence
88
What does admission mean
Individual accepted into profession and name is placed on roll of solicitors with SRA
89
SRA Assessment of Character and Suitability Rules only applies to aspiring solicitors. True or False
False. Also apply to COLP and former solicitors seeking restoration to the role
90
What does Part 1 of the ACS Rules cover
1. Considers individual's character and suitability
2. Overriding need to protect the public & maintain trust and confidence
3. Nature of application's role and individual circumstances
91
What does Part 2 of the ACS Rules cover
Conduct / other behaviour SRA will consider when assessing character and suitability, ie criminal conduct or behaviour
92
What can a practising certificate entitle a solicitor to do
Carry out reserved legal activities except (1)notarial activities and (2) appearing in higher courts
93
How often must solicitors apply to the SRA to have their practising certificates renewed
Each year - due on 31st Oct with a fee payable
94
The SRA may refuse or impose conditions on existing practising certificates based on 4 factors. What are they?
1. Solicitor unsuitable to undertake certain activities / engage in certain business
2. Solicitor putting interest of clients at risk
3. Solicitor not complying with SRA's regulatory arrangements
4. Solicitor to take steps in line with regulatory objectives
95
What can an individual do to challenge SRA's decision to refuse or impose conditions on practising certificate
Application for review by SRA or appeal to High Court
96
What is a freelance solicitor
One who works on their own
97
In what 3 circumstances does a freelance solicitor NOT have to be authorised as a sole practitioner
1. their practice doesn't fall within remit of reserved legal activities
2. any reserved legal activities are provided through authorised body
3. Certain requirements are met (eg, solicitor practised for min 3 years)
98
Where authorisation is not required for a freehold solicitor, do they still need to notify the SRA about their intention to practice?
Yes
99
What is an in-house solicitor
Provide legal services to a company (not the public) or local authority
100
What is a non-commercial organisation
1. not-for-profit bodies
2. charities
3. community interest groups
4. independent trade unions
101
Do non-commercial organisations need to be authorised by SRA
No
102
Why do solicitors need professional indemnity insurance
Breach of financial duty giving rise to loss or damage to a 3rd party
103
What does professional indemnity insurance cover
1. civil claims made against a solicitor in the course of their practice
2. negligence on part of solicitor
3. legal costs of solicitor defending a claim
4. client's legal costs if defence is unsuccessful
104
What happens if indemnity insurer does not accept the claim or amount of cover
Solicitor has to cover the shortfall
105
How often are indemnity policies written and renewed
Annually
106
What is the central purpose of indemnity insurance
To protect the public by ensuring they are not without compensation. Also helps to maintain confidence in the profession
107
What is the requirement for taking out insurance with SRA authorised firm
1. One or more participating insurer regulated by FCA
2. minimum figure for sum insured
108
What is the required insurance sum for licensed and regulated bodies
At least £3 million
109
What happens if a firm cannot effect qualifying insurance at the end of the policy
Cover extended for 90 days and firm must advise SRA accordingly. After 30 days, must get new cover otherwise they cannot take on new work. If no cover after 90 days the firm must cease trading
110
SRA requires solicitors to take out and maintain professional indemnity insurance that provides adequate and appropriate cover. Who does this apply to
1. SRA authorised firms
2. Freelance solicitors
3. Solicitors in non-commercial organisations
111
What types of matters must solicitors disclose to clients about professional indemnity insurance
1. information about firm's layer of professional indemnity insurance
2. freelance solicitors have to tell clients that they aren't required to meet SRA's min terms and conditions
3. information so that clients in a position to make informed decisions about services they need
112
What is the point of the Equality Act 2010
So that everyone is treated fairly and to stop discrimination
113
What are the 9 protected characteristics defined in s.4 of 2010 Act
1. Race
2. Religion and belief
3. Sex
4. Sexual orientation
5. Age
6. Disability
7. Gender reassignment
8. Marriage / civil partnership
9. Pregnancy and maternity
114
What is the definition of race
Colour, nationality or ethnic or national origins
115
What is sexual orientation in section 12
1. Persons of the same sex
2. Persons of the opposite sex, or
3. Persons of the same sex and opposite sex
116
What is the definition of disability in section 6
1. physical or mental impairment
2. impairment has substantial and long term adverse effect on their ability to carry out normal day-to-day activities
117
Why is it that some discrimination cases based on disability fall?
Because the term "substantial and long term adverse effect" sets a high threshold
118
What is gender reassignment
People who are proposing to undergo / undergoing / have gone through treatment for reassigning their sex. NB - person doesn't need to be under medical supervision to be covered under the Act
119
Pregnancy and maternity is treated differently as a protected characteristic, why
Excluded from some elements of the Act and subject to specific protection
120
What is direct discrimination
When a person is treated less favourably than someone else in the same situation due to one of the protected characteristics
121
What are the 3 elements of direct discrimination
1. Comparator
2. Less favourable
3. Protected characteristic
122
What is the defence of justification of direct discrimination re age
If the treatment was a proportionate way of achieving a legitimate aim
123
Can direct discrimination be defended or justified
No, apart from age
124
What is the definition of indirect discrimination per section 19
Occurs where conditions are imposed which apply to everyone but prejudice members of a particular group.
125
What is the defence or justification for indirect discrimination
The action is a proportionate means of achieving a legitimate aim
126
Will discrimination under pregnancy and maternity fall under direct or indirect discrimination
Direct
127
What is the definition of disability discrimination under s15 of the Act
To treat a disabled person less favourably not only because of the disability itself but also because of something arising from that disability
128
How do you defend or justify disability discrimination
The action is a proportionate means of achieving a legitimate aim
129
What is victimisation per s27 of the 2010 Act
A victimises B if A subjects B to detriment because B does a protected act of A believes that B has done, or may, do a protected act
130
What is a protected act in terms of victimisation
1. Bringing proceedings under the Act
2. Giving evidence / information in proceedings under the Act
3. Doing anything which is related to provisions under the Act
4. Making an allegation that another person has done something in breach of the Act
131
What is harassment under 26
Where an individual is subjected to an unwanted conduct which could violate the person's dignity, or creating an intimidating, hostile or degrading environment for the individual
132
What is unwanted conduct in the context of harassment
1. Relating to protected characteristic
2. Sexual nature
3. Sexual nature / related to gender reassignment or sex
133
S20 of 2010 Act imposes a duty to make reasonable adjustments for disabled persons. What's the consequence of not doing so?
Discrimination
134
What are the 3 requirements for making reasonable adjustments for disabled persons
1. Provision, criterion or practice
2. Physical features
3. Provision of auxiliary aid
135
S29 says it's unlawful for service providers to do 2 things, what are they
1. to discriminate or victimise by not providing service / terms on which service is provided / refusing to act for a client
2. Harass the person to whom service is provided
136
S109 of the 2010 Act talks about vicarious liability, what does this mean
A firm will be held liable for the actions of an employee as if the employer themselves did it (even without firm knowledge)
137
What is a firm's defence to vicarious liability
By showing they took steps as were reasonable to prevent the act(s) of discrimination
138
s29 says that a service provider should make reasonable adjustments for disabled person, otherwise it's discrimination. In what ways should they do this?
1. To take reasonable steps to avoid the disadvantage / adopt alternative method of providing the service
2. No requirement to change nature of service
3. Applies irrespective of whether firm is already providing services to disabled people
139
What factors should a firm consider when deciding what adjustments are "reasonable"
1. Cost of making the adjustment
2. Nature of service being provided
3. Size of the firm
140
How can a client make a claim for discrimination
To the county court. Burden of proof lies with claimant to show prima facie case of discrimination - burden then shifts to defendant
141
What are the remedies for discrimination
1. Damages
2. Declaration
3. Injunction
142
Under Part 5 of 2010 Act, employees are protected from discriminatory behaviour from employers. What 4 things must an employer not do
1. Discriminate against / victimise prospective employee
2. harass a person who has applied to it for employment
3. Discriminate against or victimise an employee
4. harass an employee
143
An employer should not discriminate against or victimise an employee by subjecting them to any detriment. What do we mean by detriment
Established if a reasonable employee would / might take the view that they had been disadvantaged in the circumstances in which they had to work
144
What is the exception to disability discrimination
Where an employer is able to demonstrate that, because of the nature of the job, only people with a protected characteristic are able to do it - has to be a proportionate means of achieving a legitimate aim. NB - unlikely to be relevant to law firms
145
What can an employee to do make a claim against an employer for discrimination
Make a claim to an Employment Tribunal
146
What are the steps to resolving a discrimination claim
1. Submit questions to the employer
2. Participate in a conciliation process through Advisory, Conciliation and Arbitration Service to see if claim can be settled
3. Employment Tribunal - unlimited compensation can be offered
147
What can an Employment Tribunal do re discrimination cases
1. Compensation - for financial loss, eg loss of earning, loss of promotion etc
2. Make declarations of employee's rights / recommend employer take steps to rectify issue
148
A person must not discriminate against / harass / victimise a barrister. The Act protects the barristers from....
1. Members of chambers
2. Clerks of Chambers
3. Solicitors instructing them
149
s158 contains a general provision allowing positive action which will apply to solicitors as service providers and employers. What are the 2 requirements which must be met for the action to be lawful
1. Firm must reasonably think that persons who share a protected characteristic have needs that are different / suffer a disadvantage
2. Action taken by firm is proportionate to helping people overcome disadvantage
150
What are some examples of positive action that a firm can take to address disadvantages of those who share protected characteristic
1. Firm tailoring some of its services to meet requirements of a particular group
2. Providing specific training to some of its employees
151
s159 of the Equality Act (as with s158) allows positive action to apply but in respect of recruitment and promotion only. When does this apply
Where an employer reasonably thinks that persons with a protected characteristic are disadvantaged or disproportionately under-represented. Thus, the employer can actually treat a person with the protected characteristic more favourably than others who don't BUT only if they are "as qualified" as the others
152
Can sections 158 and 159 of the Equality Act give an advantage to groups treated unfairly because of a protected characteristic
No, because this would allow for "positive discrimination"
153
Paragraph 7.1 of the SRA Code of Conduct for Solicitors, RELs and RFLs impose a duty on solicitors to do what
to keep up to date with and follow the law and regulation governing the way they work, eg Equality Act 2010. Staff training should also be provided (good management, helps firm to establish that it took steps to prevent discriminatory acts by employees and avoid vicarious liability)
154
What happens in the event of a failure to comply with the Equality Act 2010
- gives rise to additional professional conduct issues
- solicitor will likely face a separate disciplinary action (sanctions could be severe)
- solicitors are expected to do more than simply comply with the Act
155
Discrimination is contained in the Equality Act 2010. Where else is it dealt with in the context of solicitors
- SRA Code of Conduct for Solicitors
- RELs
- RFLs
- SRA Code of Conduct for Firms
156
The Code of Conduct for Solicitors and Firms reflects the prohibitions in the Act but goes beyond the Act., eg 'discrimination' is not restricted to the meaning given to it under the Act. True or false.
True - discriminatory behaviour that is not unlawful under the Act may nevertheless breach Para 1 and result in disciplinary action
157
What does SRA principle 6 require a solicitor to do
To act in a way that encourages equality, diversity and inclusion (includes conduct outside of practice, eg social media)
158
What is meant by the terms equality, diversity and inclusion
Equality - treating people fairly
Diversity - encouraging and valuing people with a broad range of different backgrounds, knowledge, skills and experiences
Inclusion - acceptance and encouraging everyone to participate and contribute
159
What two things does the SRA expect firms to do
1. to look after the wellbeing of staff and protect them from bullying, harassment, discrimination and victimisation
2. to encourage those who have experienced or witnessed such behaviour to report it to the SRA
160
It's important for firms to put policies and procedures in place fo further equality, diversity and inclusion. A determination to uphold these values should be embedded in the culture of the firm. What if a firm fails to have such a policy
May be in breach of Principle 6
161
The principles of equality, diversity and inclusion direct how a solicitor should interact with others. What else do they do
Drive the development of the profession as a whole
162
What does the SRA expect firms to do when promoting the development of a diverse profession
Monitoring, reporting and publishing data on the diversity of its workplace and putting in place measures to improve diversity
163
