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SQE 1 Flashcards > Professional Conduct (Client Relationships and Firm Regulation) > Flashcards

Professional Conduct (Client Relationships and Firm Regulation) Flashcards

1
Q

To whom can a client complain?

A
  • Law Firm
  • Legal Ombudsman
  • SRA
  • SDT (Solicitor Disciplinary Tribunal)
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2
Q

What can the Legal Ombudsman do?

A

Require the solictior to…
* Apologise
* pay compensation
* correct an error
* take action
* pay costs of the complain
* limit firm fees

However, no power to discipline the lawyer (e.g. fine)

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3
Q

What can the SRA do?

A
  • Issue a warning to the firm
  • impose sanctions
  • reprimand the solicitor for misconduct
  • order the solicitor to repay costs
  • impose restrictions on ability to practice
  • institute SDT proceedings
  • Revoke recognition of a firm
  • Close down a firm
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4
Q

What can the SDT do?

A
  • Strike a solicitor from the roll
  • Suspend a solicitor
  • Impose a fine
  • award costs against a party to the proceedings
  • make a restriction order

The SDT cannot award compensation!

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5
Q

Can I act for a client who wants be to do something dishonest?

A

No. You cannot do something dishonest or illegal. You must refuse.

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6
Q

Can I allow personal views to affect provision of legal services?

A

No. CCS 1.1 ensures that personal views cannot impact provision of services.

For example, somone who is strongly religious cannot allow such views to stoop compliance with the need to act in the best interests of their client

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7
Q

What constitutes misleading a client contrary to CCS 1.4?

A
  • Telling a prospective client they have a strong case to get work when they don’t.
  • Telling them the case is going well when it is going badly.
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8
Q

What should you do if you are opposing someone without a lawyer?

A

If they are clearly at a disadvanatge (e.g. drafting documents with errors due to their lack of legal knowledge) you should contact the individual on the other side and suggest that they instruct a lawyer. Failing to do so puts you at risk of breaching CCS 1.2-** ‘you do not abuse your position by taking unfair advantage of clients or others’.

**

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9
Q

What are the rules on undertakings?

A
  • Undertakings are given by solicitors and are to be relief upon
  • CCS 1.3 requries solicitors to perform all undertakings, and to do so within the agreed timescale or reasonable amount of time.
  • Failure can lead to sanctions.
  • Do not make undertakings that you (a) cannot complete; or (b) are outside your control.
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10
Q

When is there a breach of CCS 1.4 regarding misleading the court?

A
  • Becoming aware of an inadvertent mistake and failing to inform the court
  • Becoming **aware of a client perjury/misleading the court **and failing to cease to act or (if the client agrees) disclose to the court
  • Drafting documents and arguments that are not properly arguable
  • Making allegations of misconduct that are not material the the case
  • calling witnesses whose evidence is known to be untrue.
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11
Q

Can a solicitor publicise their firm?

A
  • Solicitors cannot publicise their firm by making unsolicited approaches in person or telephone to the public. For example, standing with leaflets on the street.
  • They can however approach **former or current clients. **
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12
Q

Can I take a referal fee?

A

Solicitors cannot refer or recieve referrals for a claimants claim for damages in respect of personal injury or death to each other in consderation of a referall fee

For other cases, follow CCS 5,1 ensuring the client is informed of any financial interest due to referral.

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13
Q

To whom foes the duty of confidentiality apply?

A

Current and Former Clients.

This includes clients of a firm you used to work for, and continues after their death.

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14
Q

What are the exceptions to the duty of confidentiality?

A
  • Where law requires disclosuire (e.g. HMRC, NCA)
  • To comply with a court order
  • Cases involving children where you discover child abuse (sexual/physical)
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15
Q

What is the duty of dislcoure?

A

You must make your client aware of any information material to their case of which you have knowledge.

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16
Q

What are the exceptions to the duty of disclosure?

A
  • If you believe disclosure could cause serious physical or mental harm to the client or another person
  • Disclosure is prohibited by law
  • The client gives informed consent
  • The information is contained in a priviledged document that you know of only due to mistaken disclosure
  • Prohibited by the duty to another client
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17
Q

What should a solicitor do if their duty to another client (e.g. X, a former client) prevents the disclosing material to a new client (Y)?

A

The splicitor should not act for Y unless they obtain Ys consent to the information not being disclosed to them, and to continue to act is still in their best interest.

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18
Q

What if disclosure and confidentiality duties conflict?

A

The duty of confidentiality takes precedence.

However,you may have to cease acting for the party who you refuse to disclose information to since you cannot act in their best interest.

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19
Q

What if a client has an adverse interest to a former or current client?

A

You do not act if the new client has an interest adverse to itnerests of former or current clients for whom you hold confidential information for, unless…

  • Effective measures are taken to ensure no risk of disclosure (e.g. another lawyer in the firm with information barriers) ; or
  • The current/former client has given informed consent
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20
Q

Can I act if I have a personal ‘own interest’ conflict?

A

No

For example, I cannot act if the case includes a financial interest of mine or someone close me me.

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21
Q

Can I act for two clients in a dispute between the two?

A

No unless an exception applies:

(1) SCI Exception: The clients have a subtantially common interest; and the clients have** strong consensus on how to achieve it**; or

(2) CSO Exception: Clients have the same objective, which** if attained by one, makes it unattainable to the other client**.

In addition, for SCI and CSO, the clients have to (a) give informed consent; (b) safeguards are inplace to ensure confidentiality; and (c) it is reaosnable to act.* For example, different lawyers from the same firm acting for each bidder in an auction.*

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22
Q

When should a conflict check be carried out?

A

A conflict check should be carried out before accepting instruction on a new matter from both new and existing clients.

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23
Q

What should a conflict check comprise of as a minimum?

A
  • Name of client
  • Parent/Subsidiary Companies
  • Names of counter party, parent, subsidiaries
  • The directors of client and counterparty
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24
Q

when should we terminate retainer/relationship with client?

A
  • Not able to obtain clear instructions from client
  • carrying on acting would break the law or breach CCS or CCF
  • Where client has failed to pay bills

You cannotterminate on the grounds of self interest!

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25
Q

Does the SRA require a care letter?

A

Sending a client care letter is not a mandatory requirement under CCS.

However, as the SRA requires that certain information is provided to clients in writing, most firms choose to send client care letters

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26
Q

What does a care letter include? What are the information requirments?

A
  • Information must be transparent and undertandable
  • Information about costs and how the case will be priced
  • Information about the complain procedure
  • Who will be dealing with the matter
27
Q

How long does a law firm have to resolve a client complain before informing them in writing of rights to complain to the Legal Ombudsman?

A

8 weeks from the making of the complaint

28
Q

When should the information (i.e. care letter) be sent?

A

At the beginning of the matter. But there is an ongoing obligation to keep clients informed.

29
Q

How to deal with repeat business when it comes to client care letters?

A

Some firms send annual client care letters to established clients and shorter letters for each instruction on a new matter.

30
Q

What is available (funding wise) at a police station?

A
  • Free legal advice through the DSCC (phone call) to everyone regardless of means
  • Face-to-Face legal advice for those facing imprisonbable offences
31
Q

How can a defendant obtain a representation order in the Magistrates or Crown Court for Legal Aid?

A

D must pass both (1) the means test; and (2) the merits ‘interest of justice’ test

32
Q

Who is ‘passported’ through the means test, to the merits test?

A
  • Ds under 18 years old
  • Those on specified welfare benefits
33
Q

What is the weighted gross annual income to be eligible for public funding for the Magistrates Court under the means test via an initial assessment?

WGAI = applicant gross annual income + partners income

Partner excluded if they are the complainant, prosetion witness or co-defendant

A

Below £12,475

34
Q

What is the weighted gross annual income to be ineligible for public funding for the Magistrates Court under the means test via an initial assessment?

A

Above £22,325

35
Q

What is the weighted gross annual income to be eligible for public funding under the means test for the *Magsitrates Court *via a full means test per Form CRM15?

A

Between £12,475 and £22,325

If between this, the full means test establishes the applicant’s annual household disposable income. They will only be funded if this is below £3,398

36
Q

For means testing in the Crown Court, what are the applicants assessed on?

A

Income and Capital including equity in properties

37
Q

After what threshold can applicants expect to contribute towards their defence costs in the Crwon Court?

A

Combined capital and equity of £30,000

38
Q

When are defendants eligible for public funding in the Crwon Court?

A

Eligible for public funding without contribution if annual hosehold disposable income is below £3,398

Eligible with contribution if if annual hosehold disposable income is between £3,399 and £37,499 **

39
Q

When is a defendant ineligible for public funding in the Crwon Court?

A

If they have an annual household disposable income over £37,500 +

40
Q

Once the means test is passed for legal public funding, when will the defendant automatically pass the merit test?

A

(1) Charged with an indictable offence; or

(2) Charged with an either-way offence that is later sent to Crown Court

41
Q

What are the various propositions that support passing the Legal Aid mertis test?

A
  • Loss of liberty
  • Loss of livelihood
  • Serious damage to reputation
  • Substantial question of law
  • Inability to understand court proceedings or present own case
  • Witnesses may need to be traced
  • Expert cross examination of prosecution witness
  • In their interest they are represented (e.g. young)
42
Q

What if the defendant fails the means or merits test?

A
  • Failing means test - no right of appeal but can submit another form if change of circumstances
  • Failing merit test in magistrates court - can submiut another, if unsuccessful appeal
  • Instruct a private solicitor and pay privaterly
  • Represent themselves
43
Q

When do origanisations need their legal services business authorised by SRA?

A

If they provide any of the below…

  1. Reserved legal services for the public
  2. Immigration services (unless authorised by oisc)
  3. claims management services (unless authorised by FCA)
  4. regulated financial activities (unless authorised by FCA)
44
Q

What types of law firms and set ups need SRA authorisation?

A
  • Sole Principal Practicioners
  • Legal Services Body (Managers are Lawyers)
  • Licensable Service Bodies (Managers are lawyers and non-lawyers)
45
Q

When may a solicitor provide legal services on behalf of bodies not authorised by the SRA?

A
  • Law Centres (e.g. Citizen Advice)
  • Legal Advice Centres
  • In House Practices
  • Multi-National Law Firms may be authorised elsewhere but have to comply with SRA regulations.
46
Q

What does it mean to supervise client matters?

A
  • CCS 3.5 means that where you supervice or manage legal services (e.g. supervising a trainee or junior) you remain accountable for the work carried out through them.
  • You must ensure the individuals are competent, keep knowledge and skills up to date.
47
Q

What does the Compliance Officer for Legal Practice (COLP) do?

A
  • Ensures firm compliance with terms of SRA authoirsation
  • Records failures to comply with authorisation and statutory obligations
  • Report material failure to the SRA
48
Q

What does the Compliance Officer for Finance and Administration (COFA) do?

A
  • Ensures the firm complies with SRA Account Rules
  • Reports serious breaches to the SRA
49
Q

Who can be a COLP or COFA

A

The following must be satisfied:

  • Manager (e.g. partner, director) or employee of the SRA
  • Consent to the designation
  • Not disqualified from acting as Head of Legal Practice or Head of Finance
  • For COLP, be approved to carry on reserved legal activities
50
Q

Who supervises the business of the law firm as a whole?

A

Firms must have a manager or employer (or procure the services of a laywer who has practiced for three years) to supervise all work undertaken by the firm.

51
Q

Who is generally responsible for firm compliance?

A

The managers of a firm have** joint and several responsibility** for the firm’s compliance with the SRA Code of Conduct for Firms.

Of course, COLPs and COFAs have a pivotal function for ensuring that the right systems, procedures and checks are in place

52
Q

What is hourly charging?

Method of Billing

A
  • Fee earners record their time.
  • Recorded time is work in progress (WIP)
  • The partner reviews WIP and then decides how much is billed, and how much is written off.
  • Time is billed according to the fee earners charge out rates.

YOU MUST RECORD YOUR TIME ACCURATELY! It is for the partner to ‘write off’ time - not you!

53
Q

What are Conditional Fees?

Method of Billing

A
  • Lawyers do not recover any fees if they lose the case.
  • If they win, they may recover fees and a success fee.
  • Common in litigation and mediation
54
Q

What are fixed fees?

Method of Billing

A

The law firm invoice a client for a fixed amount regardless of the amount of time spent by fee earners.

A capped fee agreement is a variation whereby the firm record and bill fees in the normal hourly way, but the fees will not exceed a pre-agreed amount.

55
Q

How do insurance policies impact billing?

Method of Billing

A

Cliens may sometimes pay under an insurance policy.

Common in personal linjury claims.

56
Q

A solicitor is representing a defendant

During the preparation for the trial, the solicitor discovers a previous case that directly contradicts the defendant’s argument not mentioned by the prosecution.

Additionally, the solicitor finds a statutory provision that could significantly impact the interpretation of the evidence.

What should the solicitor do?

A

Draw the court’s attention to both the previous case and the statutory provision as they are likely to have a material effect on the outcome of the proceedings.

This is because the solicitor has a duty under CCS 2.7 to ensure that the court is aware of all relevant legal precedents and statutory provisions that could materially affect the outcome.

Failing to do so could mislead the court and breach the solicitor’s duty to act with integrity.

57
Q

You receive instructions to act for Company A in relation to the sale of a portfolio of properties. All the shares in Company A are owned by a man who is a UK resident. You have not acted for Company A before.

What type of CDD?

A

You should carry out standard CDD on Company A and identify and verify the man as he is the beneficial owner of Company A.

58
Q

Where the client is a company, what must you do as part of CDD?

A

Identify and verify the beneficial owner - the person who owns more than 25% of the voting shares in the company

59
Q

Your firm has a referral agreement with another law firm

A partner in the other firm has referred a client to you, seeking to bring a claim for damages for personal injury arising from a car accident.

Can you take the client on?

Can you pay the referral fee?

A

You cannot pay the Referral Fee to the other firm.

You could act for the client without paying the Referral Fee if this was agreed with the other firm.

This is because LASPO prohibits solicitors from referring or receiving referrals in respect of a claimant’s claim for damages in respect of personal injury or death to each other in consideration for a referral fee.

60
Q

Is Civil CLS funding subject to a means test and a merits test?

A

Yes

Civil CLS funding is subject to a means test and a merits test

The majority of civil legal work is not eligible for CLS funding, but it is available for family disputes provided the client meets the means test and the merits test.

61
Q

Can a law centre provide reserved legal activities without SRA authorisation if they do so on a voluntary basis?

A

No

Law centres must be authorised by the SRA if they provide reserved legal activities regardless of whether the solicitor works on a voluntary basis

62
Q

Is the right to appear before court and conduct litigation a reserved legal activity?

A

Yes

Rights of audience is a reserved legal activity, but so is the conduct of litigation

63
Q

A junior solicitor was preparing a first draft of a contract and made an error in a clause.

The junior solicitor’s supervisor, who is five years qualified, missed the error when he sent the draft contract to the client.

Who has breached a Code of Conduct?

A

The junior solicitor and the supervisor have both breached the Code.

  • CCS 3.3 requires solicitors to maintain their competence and keep their professional knowledge and skills up to date - Junior lawyer has breached this
  • CCS 3.5 requires solicitors who supervise others to effectively supervise work being done for clients. - the supervisor has breached this

SQE 1 Flashcards (57 decks)

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