Professional Conduct Flashcards
What are the seven mandatory principles?
A solicitor must act:
- In a way that upholds the constitutional principles of the rule of law, and the proper administration of justice.
- in a way that upholds public trust and confidence in the profession and in legal series proved by authorised persons.
- With independence
- With honesty
- With integrity
- In a way that encourages equality, diversity and inclusion.
- In the best interest of the client
What happens if two or more of the mandatory principles come into conflict?
Safeguarding the wider public interest takes precedent over the individual clients interests.
Where relevant the solicitor should inform the client of the circumstances in which their duty to court and other professional obligations outweigh the duty to the client.
What are undertakings? What if it is breached?
Statement given to someone who relies on it that you/3rd party will do something/cause something to be done/refrain from doing something.
- Breach
- must be performed at agreed time/reasonable time
- court can enforce it and damages
What should you do if the court or opponent does no mention relevant law or there is a procedural irregularity?
Have duty to draw the courts attention to relevant law which are likely to have material effect on the outcome of the proceedings.
Even if this harms your case.
What to consider when taking instruction?
- Are you taking instructions from someone else
- Then must not act unless you are satisfied these represent your clients wishes
- Should investigate
What to do if taking instruction for 2+ clients?
- Can agree with all clients to take instruction from one as the matter progresses
- But be sure at the outset that both agree
- to instruct solicitor; and
- instructions repress the wishes of both
What should you do if client is unable to give instructions as matter is ongoing?
- Can still act
- must act in best interest of clients
What are the solicitors obligation regarding their service?
That
- service is delivered in timely manner
- you maintain you competence to carry out service
For example
- if very busy should not take on new case
How must service be customised for clients?
must consider and take account of each clients
- attributes
- needs; and
- circumstances
May include:
- providing updated by phone to illiterate clients (as well as by email or post)
- client purchasing first home may need more information compared to sophisticated client
Can solicitors/firms financially benefit as result of clients instructions?
Must properly account to client for financial benefit unless the client has already agreed otherwise.
What are solicitor/firms duty towards client money and assets?
Must safeguard them
- for example not lose title deeds
What are the requirements solicitors or firms must follow in respect to referrals and introductions?
Counts for referrals or introductions both ways
- Clients must be informed of interest
- finical or other interest - Fee Sharing Agreements must be in writing
- and clients must be informed - No Payments in Respect to Criminal Proceedings
When are referral fees prohibited?
Payment of receipt of referral fees for:
- criminal proceedings;
- personal injury claims;
- death claims: and
- ancillary claims arising out of same circumstances (eg. uninsured loss recovery claim resulting from the accident)
What actions involving a ‘separate business’ requires clients consent?
- referring, recommending or introducing the client to a separate business, or
- dividing a clients matter between you and a separate business or allowing the clients matter to be so divided
What is the requirement that solicitors must only associated with authorised bodies?
- must not be a manager, employee, member or interest holder
- of business that has name which includes ‘solicitors’ or describes its work in ways that suggests it is a law firm
- unless it is an authorised body by SRA
If there is a conflict can another solicitor in a firm act?
Generally no conflict covers the firm
Clients cannot consent
What might give rise to an own interest conflict?
Any financial interest in clients business
Solicitor is beneficiary in the clients will
- extends to solicitors family or member of firm
Personal Relationship
- client is in claim against someone solicitor has personal relationship with
Commercial Relationship
-in business adverse to clients business
Employment claims of former employees
- if prospective client was former employees of solicitors firm and is bringing action against firm
Solicitors own conduct in question
- if client asks advice for rectifying mistake made by that solicitor in matter and one of the options is bringing professional negligence claim
What must a solicitor/firm do in relation to a conflict of interest?
Must not act if there is conflict or significant risk of conflict
Unless exception applies
- substantially common interest
- competing for same objective exception
When might the substantially common interest apply and what are the requirements/
Where clients have:
- clear common purpose in relation to a matter or particular aspect of a matter
- and there is a strong consensus on how it should be achieved
Conditions
- clients have giving informed consent, given or evidenced in writing
- where appropriate effective safeguards are put in place to protect confidential information
- you are satisfied that it is reasonable to act for all clients
When might competing for same objective exception apply to conflict of interest?
- two or more clients
- are completing for an objective which if attained by one will make it unattainable for other
May apply to asset, contract or business opportunity
Conditions
- clients have giving informed consent, given or evidenced in writing
- where appropriate effective safeguards are put in place to protect confidential information
- you are satisfied that it is reasonable to act for all clients
What should a solicitor consider to be satisfied that it is reasonable to act in a conflict of interests?
- whether the clients will benefit (ie. cheaper or more convenient)
- whether there will be extensive negotiations between clients
- whether there is an imbalance in knowledge or bargaining power between clients
When is disclosure permitted in relation to duty of confidentiality?
- client consents
- disclosing will to an attorney appointed under lasting power of attorney (unless power forbids this)
- solicitor is being used by client to perpetrate a crime or fraud
- statutory requirements (eg tax affairs)
- statutory duty (money laundering)
- court order or police warrant
When might a breach of duty of confidentiality be justified?
- disclosure to prevent the commission of a crime that will result in serious bodily harm
- disclosure where the client has indicated they intend to commit suicide or serious self-harm
- to protect a child or vulnerable adult
HOWEVER
- not justified after the event
What is the duty of disclosure to clients?
Must ensure that client is aware of all information material to retainer of which the individual lawyer/firm is aware.
What are the exceptions to duty to disclose to client?
- client gives informed consent, in writing or evidenced in writing
- you have reason to believe the disclosure would cause serious physical or mental injury to a person
- legal restrictions imposed of national security of the prevention of a firm (AML, anti-terror)
- you only have knowledge of information because it is contained in privileged documents which have been mistakenly disclosed to you
When might duty of confidentiality and duty of disclosure conflict?
Must not act for A in matter where A has adverse interest to current or former client for whom your firm has confidential information which is material to A in that matter
Exceptions
- effective measures have been taken such as safeguards; OR
- B gives informed consent given or evidenced in writing including to any measures taken to protect their information
What must you notify SRA of
- Yourself
- criminal stuff
- insolvency
- material change in your info - Frim
- financial/insolvency
- change in info of firm or managers - You/Others Breaches
- serious breaches
- facts that reasonable may give rise to serous breach
What must you do if you make a mistake that effects a clients matter?
Must be honest and open with client
If they suffer loss or harm as a result must:
- put matter right if possible; and
- explain fully and promptly what happened and the likely impact
If requested by SRA
- must investigate whether anyone may have claim against you
- provide SRA with a report of outcome of your investigation and notify relevant persons that they may have claim
What must firms/solicitors do at beginning of retainer?
- Must identify client
- Inform clients of regulation
- whether and how the services are regulated
- how this effects protection available to client
- correctly represent that business or employer is regulated by the SRA (or not) - Ongoing information on matter
- make sure they understand and are in position to make informed decision about the services they need
4.. ongoing pricing and costs
- including likely overall cost
- likelihood of having to pay other sides legal fees
- Clients right to complain
- in writing
- how and to whom to complain
