Professional Conduct (Client Relationships and Firm Regulation) Flashcards
To whom can a client complain?
- Law Firm
- Legal Ombudsman
- SRA
- SDT (Solicitor Disciplinary Tribunal)
What can the Legal Ombudsman do?
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)
What can the SRA do?
- 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
What can the SDT do?
- 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!
Can I act for a client who wants be to do something dishonest?
No. You cannot do something dishonest or illegal. You must refuse.
Can I allow personal views to affect provision of legal services?
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
What constitutes misleading a client contrary to CCS 1.4?
- 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.
What should you do if you are opposing someone without a lawyer?
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’.
**
What are the rules on undertakings?
- 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.
When is there a breach of CCS 1.4 regarding misleading the court?
- 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.
Can a solicitor publicise their firm?
- 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. **
Can I take a referal fee?
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.
To whom foes the duty of confidentiality apply?
Current and Former Clients.
This includes clients of a firm you used to work for, and continues after their death.
What are the exceptions to the duty of confidentiality?
- Where law requires disclosuire (e.g. HMRC, NCA)
- To comply with a court order
- Cases involving children where you discover child abuse (sexual/physical)
What is the duty of dislcoure?
You must make your client aware of any information material to their case of which you have knowledge.
What are the exceptions to the duty of disclosure?
- 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
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)?
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.
What if disclosure and confidentiality duties conflict?
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.
What if a client has an adverse interest to a former or current client?
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
Can I act if I have a personal ‘own interest’ conflict?
No
For example, I cannot act if the case includes a financial interest of mine or someone close me me.
Can I act for two clients in a dispute between the two?
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.*
When should a conflict check be carried out?
A conflict check should be carried out before accepting instruction on a new matter from both new and existing clients.
