Professional Conduct Flashcards
Can you accept referral and fee sharing payments in relation to civil matters?
Yes, but the client must be made aware of them and the arrangement must be in writing
Can you accept referral and fee sharing payments in relation to criminal matters?
No
Can you accept referral and fee sharing payments in relation to civil matters for PI?
No - cannot pay or receive
Who can give an undertaking?
Anyone in the firm can be in writing or oral need not include the word ‘undertaking’
Can you accept a commission from a third party?
Yes but need to satisfy the firm’s Compliance Officer for Legal Practice that the referral is in the interest of the client and the client is aware of the payment.
What is an ‘own interest conflict’?
One that directly affects you:
- financial interest of you / someone close
- personal / business relationship
- your role as an employee
- Your own conduct
Can you act where there is an own interest conflict?
No - there are no exceptions
What is a conflict of interest?
“Any situation where your separate duties to act in the best interests of two or more clients in the same or related matter conflict”
Can you act where there is a conflict of interest?
No - unless one of the two exemptions apply
What are the two exceptions to conflict of interest?
- Substantially common interest exception
- Competing for the same objective exception
AND - informed consent from all clients
- safeguards are put in place
- reasonable for you to act for all clients
What is required for the “Substantially common interest exception”
- clear common purpose
- strong consensus as to how to achieve the common purpose.
- clients have given their consent in writing
- safegaurds have been put in place
- you are satisfied that it is reasonable for you to act
What is required for the “Substantially common interest exception”
an objective which, if obtained by one client will make that objective unattainable to all other clients including
- liquidation,
- auction or
- tender
- but not a public takeover
AND
- informed consent from all clients
- safeguards are put in place
- reasonable for you to act for all clients
When is the duty of confidentiality overridden?
- Statute (HMRC etc.)
- Reporting requirements (Money Laundering etc.)
- To defend a claim brought against you by the client
- Abuse of children
Talk to COLP first
What is the duty of discosure?
you must make a client aware of all information material to the matter of which you have knowledge
Does the duty belong to the solicitor or to the firm?
The solicitor, therefore no obligation to make client aware of all info held by the firm that you’re not aware of.