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.
When is the duty of disclosure overridden?
- prohibited by law (national security / prevention of crime)
- informed consent of client in writing to info not being disclosed to them
- reason to believe serious physical or mental injury may be caused to another
- info is in a privileged doc that you only know about because it has been mistakenly disclosed
What happens if you worked for X and they refuse for you to share info gained from their case that is relevant to Y?
Must not act for Y unless informed consent is given
Which takes precedence, the duty to disclose, or the duty of confidence?
The duty of confidence
What are adverse interests?
You can’t work for someone who is looking to sue another client/previous client of the firm unless:
- measures can be taken to protect the confidential information;
- the other client has given permission in writing
Are solls allowed to make unsolicited approaches to potential customers?
No with the exception of former clients
What info is required to be on a website?
- SRA number
- SRA badge
What info is required to be on a letter?
SRA authorisation umber and the words “Authorised and regulated by the solicitors regulation authority”
What is the role of the Compliance Officer for Legal Practice (COLP)
ensure compliance with:
- T&C’s of authorisation by SRA
- Statutory obligations
- record failures of above
- report material failure to SRA
What is the role of the Compliance Officer for Finance Administration (COFA)
- ensure the firm complies with the SRA accounts rules
- report breaches to SRA
When do you need to re-tell clients about their rights if they complain?
8 weeks of the making of the complaint:
- Legal ombudsman
- suggest ADR
What should you do if you have instructions to act but the client has been taken ill and cannot be reached during a transaction?
you are subject to the overriding obligation to act in your client’s best interests. By exercising their legal authority to act in the client’s best interests and professional judgement, the solicitor can continue to handle the case and make decisions that are the most advantageous to the client.
For personal injury cases and damage-based agreements, what is the most that that is recoverable?
25% of
- general damages for pain, suffering and loss of amenity
&
damages for pecuniary loss other than future losses
Solicitors may not make unsolicited approaches members of the public to advertise except when?
- former or current clients
- in order to advertise legal services
Solicitors may not make unsolicited approaches members of the public to advertise, who are not members of the public?
- Businesses such as companies or non-profits
- directors, members, employees of a company acting in their role as representing the company.
When must a Barrister accept a case
- Cab-Rank Must accept immediately if:
- its a field they work in
- a court they normally appear at
- for usual rate
What is the period for a defence under POCA after a submission to the NCA?
- 7 clear days
OR - 31 days if initial refusal followed by no further steps by the NCA
If a solls gives an undertaking to do something without a specific timescale, when must that thing be done by?
Within a reasonable time
Does a Solls need to use the works ‘undertaking’ for something to be an undertaking?
No
What insurance is required for PI work
“adequate & appropriate”
What insurance is required for non-PI work
£3m for any one claim
What insurance is required for non reserved legal activities?
No SRA requirement
What costs increase should clients be informed of?
All cost increases
