Professional Conduct Flashcards
SRA principles
Act:
1. in a way that upholds the constitutional principle of the rule of law and the proper administration of justice
2. in a way that upholds public trust and confidence in the solicitor’s profession and in legal services provided by authorised persons
3. with independence
4. with honesty
5. with integrity
6. in a way that encourages equality, diversity and inclusion
7. in the best interests of each client
Own conflict of interest
Any situation where your duty to act in the best interests of any client in relation to a matter conflicts, or there is a significant risk that it may conflict with your own interests in relation to that or a related matter.
No exceptions.
E.g.
- Financial interest of yours or someone close to you
- A personal or business relationship of yours
- relationship between solicitor: if they are on the other side, consider declining to act or passing it to another lawyer in your firm if you feel it would hinder your independence.
Conduct issues to consider in a property matter:
- are you authorised to act on your client’s account
- Provide a competent and timely service
- would you have any conflict of interest
- duty of confidentiality
- duty of disclosure
Conflicts which do not involve your own interest
A situation where your separate duties to act in the best interests of two or more clients in the same or related matter conflict e.g. acting for both seller and buyer
Exceptions to conflicts of interest
You do not act in relation to a matter or a particular aspect of it if you have a conflict of interest or a significant risk of such a conflict in relation to that matter unless:
a) Clients have a substantially common interest in relation to the matter or the aspect of it as appropriate; or
b) The clients are competing for the same objective
AND:
i. all clients have given informed consent in writing to you acting;
ii. there are appropriate safeguards in place to protect your client’s confidential information
iii. You are satisfied it is reasonable for you to act for all the clients
Competing for the same objective
Any situation where two or more clients are competing for the same objective which if attained by one client will make that objective unattainable to the other client or clients. e.g. auction
Substantially common interest
A situation where there is a clear common purpose between the clients and a strong consensus on hot it is to be achieved. e.g. two people buying a property together
Can you act for a buyer and a lender?
Generally permitted in a residential transaction but not in a commercial transaction.
Commercial: buyer and lender
Acting for both is unusual. This is because lenders and borrowers often have a different approach as to how they would resolve issues which arise during the transaction.
Makes it impossible to act even-handedly for both parties. In addition, the same solicitor cannot negotiate with him or herself the terms of a loan agreement or security document.
Residential: buyer and lender
Common to act for both because there is unlikely to be any conflict of interest between these parties.
They will not tend to negotiate terms or form of the loan or security documentation and a standard form of certificate of title approved by the Law Society and Council for Mortgage Lenders will be used.
Duty of confidentiality
Duty applies to current and former clients.
Former clients include clients of a firm you used to work for and clients that used to instruct you but now instruct a different firm. Also continues after a client’s death.
Does not apply where disclosure is required or permitted by law.
Duty of disclosure
If acting for a buyer you must report to your client on the extent and results of your investigations and any limitations or matters which were not covered.
Limited exceptions: if you believe that disclosing the information could cause serious physical or mental harm to your client or another person or disclosure is prohibited by legal restrictions.
