Mixed topics Flashcards
What are the ‘same objective’ conditions to get past a conflict of interest?
- informed consent by both parties to continue acting for them (evidenced in writing)
- safeguards in place to protect client’s confidential info
- satisfied as to the reasonableness for acting for both clients
When can a solicitor bring a claim against a client for non payment of bills?
1 month after bill of costs was delivered
Exc: immediate action can be brought if the client is going bankrupt, leaving E&W or about to commit any other act that would delay the solicitor from obtaining payment
What kind of advertising is not allowed by a firm?
A solicitor or firm must not make unsolicited approaches to members of the public to advertise its legal services. This means that a firm cannot advertise its services in a targeted or intrusive way.
Sending letters to particular people (the victims of the accident) based on information known about them is a targeted approach and is therefore prohibited
What is the difference b/w assault and battery?
Assault is an act which causes reasonable apprehension of unlawful force (apprehension of a battery)
Battery is the intentional direct application of unlawful force (no need for actual harm to occur; only )
Assault: Apprehension
Battery: Force
What is a prohibited referral fee?
A ‘prohibited referral fee’ is the payment or receipt of referral fees in claims for damages following personal injury or death.
The Code also prohibits referral fees (and all payments relating to referrals or introductions) in respect of clients who are the subject of criminal proceedings
Is providing a client care letter mandatory?
The SRA does not require a formal client care letter, but a solicitor must provide all required client care information to the client. Furthermore, a solicitor must give clients information in a way they can understand
Can an undertaking by a solicitor always be in writing?
No. It can be verbal as well
Can the CoA depart from its own decision?
The Court of Appeal is bound by its own decisions in civil cases but there are exceptions to this rule
In criminal cases the Court of Appeal has a generous discretion to depart from one of its own decisions where it is convinced that the case was wrongly decided
What kind of charges against a solicitor must be reported to the SRA?
The SRA Code of Conduct for Solicitors states that solicitors must notify the SRA promptly if they are subject to any criminal charge, conviction, or caution
Where are summary offences tried and what are max punishment for these offences?
A summary only offence may be tried only in Magistrates’ Court
The maximum sentence that may be imposed in Magistrates’ Court for a single offence is six months’ imprisonment
How is a mortgage protected for registered land?
A mortgage is a burden on the land as it gives the mortgagee the right to repossess and sell the land in the event the borrower defaults.
For registered property, it is protected by a notice on the charges register
Does a magistrate’s court have a jury trial?
No
Only Crown Court has jury trials
In some limited case the HC also has jury trials (defamation, fraud etc.)
A man stole a bicycle and was caught. He was charged with a single summary only theft offence.
If the man is convicted, what is the maximum sentence the judge could impose?
A summary only offence may be tried only in Magistrates’ Court.
The maximum sentence that may be imposed in Magistrates’ Court for a single offence is six months’ imprisonment
A defendant is charged with two offences that are triable either way. He wants advice from his solicitor about which court he should go to in order to minimise his penalty and what the maximum penalty would be.
What is the correct advice to give to the defendant?
Because the defendant has been charged with two offences, he is best off in the Magistrates’ Court - in which a sentence of up to 12 months could be imposed along with an unlimited fine
A thief is charged with theft of £100 from a supermarket till. To access the till, the thief used a penknife to wedge open the till to access the money. The statute that applies provides ‘a defendant will commit such an offence if he uses a weapon in the course of carrying out a theft’.
What presumptions can be made about the meaning of the statute if the literal meaning of the words are ambiguous?
The judge can make a presumption in favour of the defendant
because there may be a presumption in favour of the defendant in a criminal trial, but this is rebuttable when there is a relevant legal rule. This accords with the presumption of innocence of the defendant and the burden of proof being placed on the prosecution
There has been a mix up with the diary at a busy solicitor’s firm, where a client at the Crown Court does not have a representative. The supervisor who deals with diary allocation has gone home sick. The legal secretary deals with this issue and asks a qualified solicitor, who is a trial advocate at the Magistrates’ Court but who is not a barrister, to go to the Crown Court to deal with the hearing.
Can the solicitor properly represent the client in Crown Court?
Yes, if the solicitor has higher rights of audience.
(no automatic right in CC)
A law firm is investigating a complaint raised by a member of staff. The staff member has complained that she is being treated unfairly by another colleague. She says that they both grew up in the same town but had been educated at different schools. The staff member says that the colleague is openly critical about the school that she attended and tells other colleagues that they should not include her in their teams because she will clearly not be clever enough as her educational background is poor.
Does the firm need to investigate a complaint based on this type of behaviour?
The SRA Codes of Conduct provide that solicitors and firms must not unfairly discriminate by allowing their personal views to affect their professional relationships. The firm has a duty to ensure compliance with SRA requirements and must investigate this complain
(edu is not protected characteristic under the equality act, so it is not an offence)
A solicitor representing a client in litigation becomes aware that the client has committed perjury on a material point while testifying the previous day.
Which of the following statements best describes what the solicitor should do?
The solicitor should immediately attempt to convince the client to tell the truth and then refuse to continue to act if the client does not agree.
(informing the court of the perjury is not the recommended course of action under the Code of Conduct, so it is not the best answer)
A law firm hires a marketing company to help them with their publicity. The firm specialises in group claims in equality and employment-related matters, and are taking action against a large supermarket in an equal pay matter. The firm decides to pay for an advertising campaign on a local radio station to publicise their services.
Is this publicity allowed?
Yes, because radio advertising is a permitted form of publicity.
What is the maximum sentence a Magistrates’ Court may impose for a single summary only or either way offence?
For a summary offence, 6 months; for an either way offence, 6 months
max 12 months in total for multiple offences
To what court is an appeal from Crown Court taken?
Court of Appeal (Criminal Division)
Criminal courts go straight to CoA
Which of the following courts is/are not subject to horizontally binding precedent, that is, not bound by earlier decisions of the same court?
Supreme Court
or
CoA (Criminal Division)
A woman is the beneficiary under a trust. Recently, she realised that the trustee has not been investing trust funds properly, as the funds have not grown as expected. The woman would like to commence proceedings against the trustee and instructs a solicitor. The solicitor estimates the value of the claim at £225,000. The client lives in Manchester and does not like to travel. The trustee works out of London.
In which court should the client’s solicitor issue the claim?
The claim should be issued in the High Court of Justice, Manchester District Registry, Chancery Division. Generally, claims exceeding £100,000 are issued in the High Court. The High Court has registries in most large towns and cities, and the claimant should indicate on their claim form the district out of which they wish the claim to issue. As the client lives in Manchester, Manchester would be the best registry. And the Chancery Division of the High Court is the division that handles equity and trusts
Is written consent of a client required for a valid referral agreement?
No
But the agreement MUST be in writing
