Professional Conduct Flashcards
Do solicitors owe a duty to promote the public good?
Yes.
Do the principals apply in both public and personal life?
Yes.
What are the 4 key documents for professional conduct?
- SRA Principles
- Code of Conduct for Solicitors (CCS)
- Code of Conduct for Firms (CCF)
- SRA Account’s Rules
How do you refer to SRA principles?
Principle 1, 2 etc.
What do codes refer to?
Rules in the CCS and CCF.
What are the 7 SRA principles?
- Uphold rule of law and administration of justice
- Uphold public trust and confidence in the profession
- Act with independence
- Act with honesty
- Act with integrity
- Encourage DEI
- Act in best interests of each client
Who does the CCS apply to?
Individuals authorised by the SRA to provide legal services (incl. paralegals, apprentices).
Does wider public interest, or your individual take precedence if there is a conflict?
Wider public interest.
What conduct, outside of workplace conduct is captured by the CCS?
Any conduct which touches realistically upon your practice of the profession, in a way that is demonstrably relevant.
Who oversees your compliance with CCS?
You – use your own judgement.
What does the CCF do?
Sets out the standards and business controls the SRA expects of firms.
What is the main aim of the CCF?
Create and maintain the right culture and environment for the delivery of competent and ethical legal services.
Does the CCF contain all the rules within the CCS?
Yes – and more.
What additional 3 rule categories does the CCF have that the CCS does not have?
- Regulates systems and controls firms must have in place to comply with the SRA’s rules
- Responsibilities of managers of a firm
- Requirement to have a compliance officer for legal practice (COLP) and compliance officer for finance administration (COFA)
What are the 8 priority risks for the legal profession identified by the SRA?
- AI
- Anti money laundering
- Client money
- Diversity in the profession
- Information and cyber-security
- Integrity and ethics
- Meeting legal needs (e.g., affordability)
- Standards of service
What additional 6 requirements has the SRA introduced into the CCF and CCS to combat priority risks?
- Keep client money safe
- Not take unfair advantage of clients
- Ensure solicitor instructions reflect client wishes
- Address DEI
- Provide a fair complaints procedure
- Provide clear information the client can understand about the service they will receive and how much it will cost
What 3 CCS codes broadly and specifically relate to keeping knowledge up to date?
- Ensure service is competent and timely
- Maintain competence and keep professional skills up to date
- Keep up with and follow law and regulation governing the way you work
What CCF code relates to keeping knowledge up to date?
Firms must ensure that managers and employees are competent to carry out their role, and keep their professional knowledge and skills, as well as understanding of the legal, ethical and regulatory obligations up to date.
What are the 3 codes that regulate supervising client matters (e.g., for a trainee)?
- When you supervise or manage others you:
(a) remain accountable for the work carried through them
(b) you effectively supervise client work - You ensure the individuals you manage are competent for their role, and keep everything up to date (knowledge etc)
- You have an effective system for supervising client matters.
What are the 3C’s of client care?
- Customer due diligence (CDD)
- Conflict checks
- Client care letters.
In what 3 circumstances must you carry out CCD?
- When establishing a business relationship
- Carrying out an occasional transaction
- If you suspect money laundering or terrorist financing.
What basic information is typically associated with identifying a client?
Name, email, address etc.
What 3 things can verification include?
- Obtaining original documents (e.g., passport)
- Conducting electronic verification
- Obtaining information from other regulated people.
What is the general rule regarding whether you can act before CDD is completed?
Generally, you can’t.
Do you need to do conflict checks for existing clients?
Yes.
Is conflicting work with a client in another country at your same firm a potential conflict?
Yes.
What searches should you carry out for a conflict check?
- Clients name (+ parent or subsidiary companies)
- Clients company number (+ that of parent/subs)
- Names of counterparties (incl. company information).
What 3 conflict checks might also be extended to/additionally carried out?
- Company name and number of company being bought
- Names of all directors on either side (+subs/parents)
- The name of the matter.
Is there a single standard conflict check?
No, each firm manages it differently.
When should you send a client care letter?
At the beginning of the matter.
How do firms typically deal with client care letters for repeat business?
They send them annually, and shorter letters for each new matter.
What are the 5 broad categories of content that is included in client care letters?
- Confirming client instructions and options
- General info on each party’s responsibilities
- Costs information
- Explanation of who will be dealing with the matter
- Complaints procedure.
Are client care letters obligatory?
No, but they are a good way to demonstrate regulatory compliance.
What are the 11 pieces of client care letter guidance recommended by the SRA?
- Explain what will happen
- Explain cost
- Explain when will happen
- Explain client action items
- Include contact details
- Does letter show clear purpose
- Keep it concise
- Use plain English
- Prioritise information
- Make easy to read
- Have you considered the needs of vulnerable clients?
Is there a specific CCS or CCF provision regarding terminating work with a client?
No, your judgement.
Can you terminate a retainer on grounds of self-interest?
No, must treat client fairly, best interests, honesty and integrity.
Provide 3 examples of what might be a ‘good reason’ to terminate a client relationship.
- Cannot obtain clear instructions
- Acting would break the law or code
- Client failed to pay bills (and you had an agreement in writing).
What are 3 circumstances when you cannot accept instructions?
- Would breach the law or codes
- When you cannot provide a competent service
- When you are not authorised to act on a client’s behalf (e.g., daughter comes to instruct you on mother’s will).
What is the difference between honesty and integrity?
Honesty = telling the truth, integrity = truth, no omissions, being careful and accurate, not taking unfair advantage etc.
Can you let your personal views affect your professional relationships and the way you provide your services?
No.
Can you take advantage of another party’s lack of legal knowledge?
No.
Should you recommend that an unrepresented party obtains a lawyer?
Yes.
What are 2 examples of misleading a client?
- Telling a prospective client they have a strong case when they don’t
- Telling the client that the case is going well when it isn’t.
Would you be misleading the court if you did not disclose a case or statutory provision that goes against your argument?
Yes.
What’s an example of misleading others?
Making false representations to a third-party about the client (e.g., this is a good deal).
What are the 3 key reasons the SRA prioritises DEI?
- Effective administration of justice
- Improving access to services
- Allowing the most talented people to become solicitors and progress in their careers.
What 5 things MUST solicitors do with respect to DEI?
- Reasonable adjustments
- Encourage DEI at all workforce levels
- Collect, report and publish data about the workforce
- Uphold reputation of the profession in personal life and treat people fairly, with dignity and respect
- Be fair and inclusive in their interactions with people they meet and deal with in the course of their work.
What 5 things MAY a solicitor do with respect to DEI?
- Produce a statement about EDI for their workforce
- Monitor and analyse diversity of staff and clients
- Draft and implement EDI policy outlining employers’ approach to recruitment, retention and progression
- Attract best staff with a good recruiting policy
- Encourage senior leaders to identify and remove EDI barriers.
What is an undertaking?
Orally or in writing, whether or not it says ‘undertake’, to someone who places reliance on it about something you will do or not do.
Provide 3 undertaking examples.
- Seller’s solicitor holding money, promising to forward it to discharge the mortgage
- Telling the court you’ll file a document on behalf of a client by a particular date
- To hold money to another firm’s order prior to occurrence of an event.
What happens if you fail to perform an undertaking?
Serious disciplinary offence, SRA investigation.
Who can give an undertaking?
Any individual provided it can be reasonably relied upon by the recipient (e.g., partner, secretary).
What is best practice in terms of optional firm policy for undertakings?
- Maintain effective system of recording when undertakings have been given/discharged
- Procedures to ensure undertakings are complied with (E.G., money must be in the client account at first instance)
- Having certain undertakings reserved for more senior lawyers.
What is the SMART form of undertakings?
Specific – clear
Measured – capable of quantifying
Agreed – both sides agree wording
Realistic – within solicitor’s control
Timed – must not be of unlimited duration.
Is a solicitor guilty of misconduct if they accidentally mislead the court?
No.
What should a solicitor do if they become aware of misleading the court?
- Get client consent to inform
- Inform the court.
What should a solicitor do if they find out their client misled the court/they don’t consent to rectifying the mistake?
Cease to act unless the client agrees to disclose the truth.
Provide 3 examples of how you might mislead the court.
- Draft documents/construct facts which are not properly arguable
- Make any allegation of crime, misconduct or fraud unless it is material to your client’s case and you have reasonable grounds for doing so
- Call a witness whose evidence you know is untrue.
Is it misleading the court if you misuse/tamper with evidence/try to?
Yes.
Is it misleading the court if you try and seek to influence the substance of evidence? E.G., persuade a witness to change theirs?
Yes.
Can you offer or provide any benefit to witnesses dependent on their evidence/case outcomes?
No.
Are you breaching duty to the court if you put forward statements/arguments etc that are not properly arguable?
Yes.
Does the level of service the SRA expects of legal professionals apply to in-house lawyers and lawyers in other settings?
Yes.
Can proper authorisation be given for you to take instructions from somebody else on your client’s behalf?
Yes.
What is an ‘introducer’?
An entity who introduces/refers/recommends/puts you in touch with clients.
What is an ‘introduction’?
Somebody introduces you, in exchange for consideration.
What is a referral agreement within the legal context?
That you/your firm will refer/introduce clients to other bodies (e.g., property surveyors).
What 5 things must you ensure of when acting as a referrer?
- Clients are informed of any relevant financial interest
- Clients are informed of fee sharing agreement
- Fee sharing agreement is in writing
- You do not accept intros/refer if client is for criminal proceedings
- Any client referred by an introducer was not acquired contrary to SRA regulations.
Can you refer a client to a third-party if you don’t think they’re good?
No, principle 7 – best interests of the client.
Can referral fees be used in respect of personal injury damages claims?
No.
How can you reconcile the own interest conflict when accepting a referral for a fee?
Satisfy yourself that it is genuinely in client best interest and there is no other motivation.
Do arrangements with introducers have to be in writing?
Yes.
What are 3 good practice points when managing/monitoring an introduction or a referral?
- Make a statement to your client, preferably in writing, that your advice will be independent
- Provide confirmation to your client that you are still confidential
- Regularly monitor potential client interest issues in circumstances where you may also be acting for the introducer on the same matter as this may mean you have to stop acting for one of the parties.
Does there have to be an actual conflict for there to be a conflict of interest?
No, significant risk is enough.
What is an own interest conflict?
When your duty to act with best interests of the client but it conflicts with acting in best interests of yourself.
Are there any exceptions to own-interest conflicts?
No.
What type of conflict is it, if someone asks you for advice in relation to a dispute with your employer?
Own interest.
What type of conflict is it, if you are asked to carry out due diligence on a company your spouse owns shares in?
Own interest.
What type of conflict is it, if you are asked to advise on a claim against your friend?
Own interest.
What type of conflict is it, if you are asked to give advice about something bad that you yourself did?
Own interest.
What is the definition of a general conflict of interest?
Where your separate duties to act in the best interests of two or more clients in the same or related matter conflict.
What 2 exceptions are there to the conflict rule?
- Substantially common interests
- Competing for the same objective.
How is a substantial common interest defined?
A situation where there is a clear, common purpose between the clients and a strong consensus on how this can be achieved.
Can the substantial common interest exception apply if there is more than minimal negotiation needed?
No.
Can substantial common interest apply if all the key terms are agreed, just the finer ones need negotiating?
Yes.
What is competing for the same objective defined as?
Two+ clients competing for something which only one can obtain (once obtained, becomes unattainable).
What 3 criteria must the substantially common interest and same objective exception both meet?
- All clients have given informed consent in writing
- You put in place effective safeguards to protect client confidential information
- You are satisfied it is reasonable for you to act for all the clients.
Do substantially common interest and same objective exceptions both have the same three baseline criteria that must be met?
Yes.
Can clients agree that no structural safeguards are needed to protect their confidentiality, waiving one of the three conditions of the substantial interest and same objective exceptions?
Yes.
What are two examples of safeguards for confidentiality, in order to use the conflicts exceptions?
- There must be separate fee earners
- There must be established structural information separation.
Can the same lawyer act for two clients under one of the conflict exceptions if they agree in writing?
Yes, if they agree to waive that structural safeguards are needed to protect their confidentiality.
What are the 3 most important factors that the SRA gives to consider before using a conflicts exception?
- Respective knowledge/bargaining power of the clients
- Extent to which there will be negotiations between clients
- Any particular benefits to the clients (if you acted for both of them).
What is the duty of confidentiality?
That you keep the affairs of both current and former clients confidential unless disclosure is required or permitted by law or the client consents.
Can exceptions be made if clients agree in writing?
Yes, if they agree to waive that structural safeguards are needed to protect their confidentiality.
What are the 3 most important factors that the SRA gives to consider before using a conflicts exception?
- Respective knowledge/bargaining power of the clients
- Extent to which there will be negotiations between clients
- Any particular benefits to the clients (if you acted for both of them)
Does confidentiality apply after a client’s death?
Yes.
What exceptions to the duty of confidentiality exist?
- Statutes which empower gov/public bodies to require disclosure
- Duty is overridden by statutory/regulatory requirements (e.g., money laundering)
- Reveal is needed to support your defence in a civil claim/criminal prosecution brought against you by a client
- Children’s sexual/physical abuse/harm/poor mental wellbeing
What should you do if you aren’t sure whether a confidentiality exception applies?
Talk to your firm’s compliance officer.
What does the duty of disclosure mean?
You make a client aware of all the information that is material to the matter that you have knowledge of.
Does the duty of disclosure extend to a personal duty?
Yes.
Does the duty of disclosure extend to firm knowledge or is it limited to the knowledge of the individual solicitor?
Limited to the knowledge of the individual solicitor.
What are the 4 exceptions to the duty of disclosure?
- Disclosure is legally prohibited… e.g., national security
- Client gives informed consent, given or evidenced in writing to the information not being disclosed to them
- You have reason to believe that serious injury (incl. mental) will be caused to the client or other if information is disclosed
- The information is contained in a privileged document that you have knowledge of only because it was mistakenly disclosed.
What should a solicitor do if the duty to disclose conflicts with duty of confidentiality with a past client?
Must refuse to act, unless client gives consent NOT to have the information disclosed to them… they must have some reasonable understanding of the importance of the information to their case, and any prejudice there may be in non-disclosure.
Does duty of confidentiality or disclosure take precedence?
Confidentiality.
What is the obligation regarding adverse interests?
You do not act for a client in a matter where client 1 has an interest adverse to the interest of another client or former client of you, your business or employer, for whom you/business/employer holds confidential information which is material to the matter.
What are the exceptions to not being able to act for adverse interest?
- Effective measures have been taken which result in there being no real risk of disclosure of the confidential information
- The current or former client (whose confidential information is held), gives informed consent in writing to you acting including any measures taken to protect their confidentiality.
When is an adverse interest likely to arise?
When one party is, or is likely to become, the opposing party on a matter, whether in negotiations or some form of dispute resolution.
What type of problem would it be if a new client wants to instruct you as a defendant in a breach of contract case, and searching the database reveals that 6 months ago, another of the firm’s employees gave advice to the claimant in this case?
Adverse interests.
What are some examples of ‘effective measures’ that result in no real risk of disclosure of confidential information?
- Systems that identify potential confidentiality issues
- Separate departments handling the cases at all levels, including non-fee earning staff
- Separate servers and printers
- Information being encrypted and password protected
- Individuals in the firm being aware of who else in the organisation is working on the respective matters so that they know who they can and cannot discuss the matter with
- Appropriate organisational policies and training for staff.
What does informed consent mean in the context of adverse interests?
- Understanding of any possible prejudice that could occur
- Possibly that somebody else gets it, if you yourself are not aware of the conflict.
Can informed consent be given for an adverse interest if you have the knowledge within your own head?
Very unlikely… unless the other party agrees you can disclose to your new party.
Explain why a firm can have an adverse interest if that specific solicitor doesn’t and doesn’t ‘hold that knowledge in their head’.
Because the duty of disclosure is a personal one… as long as the confidentiality procedure prevents the acting lawyer from knowing then it should be fine.
Must law firms have an official complaints procedure?
Yes.
Must you inform clients in writing about the complaints procedure at the time of engagement?
Yes.
What is the deadline to resolve a client complaint before you have to notify them of external procedures etc?
8 weeks.
After 8 weeks of a client complaint not being resolved, what information must you include in a letter to them in writing?
- Rights to complain to the legal ombudsman, time frame and full details of how to contact them
- If a complaint has been brought and your complaints procedure exhausted
(a) that you cannot settle the complaint
(b) the name and website of an ADR body which would be competent to deal with the complaint
(c) whether you agree to use the scheme operated by that body.
What 3 things must you ensure regarding giving client mandatory information?
- That information is given in a way they can understand
- That they understand how and whether services provided by you are regulated
- That they understand the regulatory protections available to them.
Do you have to give clients information about how their matter will be handled, and the options available to them?
Yes.
What information must be provided, to ensure clients understand how/whether the services you provide are regulated?
- Explain what activities will be carried out by you, an authorised person
- Explain which services provided by you are regulated by an approved regulator
- Ensuring you do not represent any business or employer not authorised by the SRA, including any separate business as being regulated by the SRA.
Is it required to provide costs information in writing?
No, you just have to provide the ‘best possible information’ on how matter will be priced.
What do you have to ensure regarding firm publicity?
That it is not misleading, including pricing.
Does the no misleading publicity rule apply to press releases prepared on behalf of a client?
No.
Can solicitors make unsolicited approaches to members of the public to advertise legal services?
No.
What is the exception to the no soliciting rule?
Current and former clients.
What are the 4 types of marketing approaches which tend to demonstrate non-compliance with no unsolicited approaches rule?
In the street
At ports of entry
At hospitals
At the scene of an accident.
When availability of services is published on website, for which services provided to individuals is it mandatory to include costs information on that site?
- Conveyancing
- Will execution after death
- Immigration applications
- Immigration matters
- Road traffic offences
- Certain advice to employees on unfair dismissal and wrongful dismissal.
When availability of services is published on website, for which services provided to businesses is it mandatory to include costs information on that site?
- Advice to employers about unfair/wrongful dismissal
- Debt recovery up to 100k
- Certain advice in relation to licensing applications for business premises.
What costs information must be published?
- Total cost or range/average
- Basis for charges (e.g., hourly or fixed)
- Experience/qualifications of people carrying out the work
- Description of likely disbursements
- Whether VAT is attracted, cost of VAT
- Details of what services are provided for that cost, key stages, timescales (details of what isn’t included)
- If the firm uses conditional/damages based fees, in what circumstances the client would have to pay.
In what format does the cost information have to be published?
Must be clear, accessible and in a prominent place on the website.
What regulatory information must be on the website?
- Prominently, SRA number and digital badge.
What regulatory information must be in emails/letterhead?
- SRA authorisation numbers
- The words, ‘authorised and regulated by SRA.’
SRA authorisation is required to provide what 4 activities?
- Reserved legal
- Immigration services
- Claims management services
- Regulated financial activities.
What are the 6 reserved legal activities?
- Rights to audience
- Conduct of litigation
- Reserved instrument activities
- Notarial activities
- Probate activities
- Administration of oaths.
What is a reserved instrument activity?
Preparing any instrument or transfer of charge relating to land and other instruments relating to real or personal estate.
What are the 5 key obligations firms have in relation to the systems they must have in place?
- Effective governance structures, systems and controls to comply with SRA
- Keep and maintain records to demonstrate compliance
- Actively monitor your financial and business viability - wind down when appropriate
- Identify, monitor and manage all material risks to your business
- You have an effective system in place for supervising client matters.
Do people supervising client files have to be legally qualified?
No, as long as they have suitable experience, knowledge and competence to deal with issues which may arise and there is a clear system for them to refer upwards.
What are the 5 types of managers defined in the SRA glossary?
- Sole principal in a recognised sole practice
- LLP member
- Director of a company
- Partner of partnership
- In relation to any other body, a member of its governing body.
Do COLP and COFA appointments have to be approved by the SRA?
Yes.
What are the COLP’s 4 core responsibilities?
- Ensure firm complies with all terms and conditions of SRA authorisation
- Ensure firm complies with statutory obligations
- Record any failures to comply with the firm’s authorisation or statutory obligations and make those records available to the SRA
- Report a material failure to the SRA as soon as is practicable.
What are the 2 core duties of the COFA?
- Ensure compliance with account rules
- Report serious breaches of account rules promptly.
What 4 criteria are necessary to be eligible to be a COLP or COFA?
- Be a manager or employee of the authorised body
- Consent to the designation
- Not be disqualified from acting as head of legal practice, or head of finance and administration
- For COLPs be an individual who is authorised to carry on reserved legal activities by an approved regulator.
Can someone be both a COLP and a COFA?
Yes.
Does the SRA have to approve any manager or owner of the firm?
Yes.
What are the exceptions to the rule that firms have to approve any manager?
- Sole practitioners
- If the SRA is satisfied that the manager is not involved in any of the following - day to day strategic management, compliance by the authorised body with SRAs regulatory arrangements, carrying on of reserved legal activities or the provision of legal services in England and Wales.
Firms must have at least one of these to supervise the work undertaken by the firm (not COLP or COFA).
A manager/employee/contracted individual who has practiced as a lawyer for a minimum of 3 years.
