Professional Conduct Issues Flashcards
What are the fundamental principles for solicitors?
- Uphold rule of law
- Trust and confidence in public
- Independence
- Honesty
- Integrity
- Equality, diversity, inclusion
- In the best interests of each client
When accepting instructions to act in a property matter, what conduct issues do you need to consider?
- Are you authorised to act on your client’s behalf?
- Can you provide a competent and timely service?
- Would you have any conflict of interest?
- Duty of confidentiality
- Duty of disclosure
What is noted about competence and timeliness?
CCS 3.2 – You ensure that the service you provide to clients is competent and delivered in a timely manner.
Are you authorised to act on your client’s behalf?
CCS 3.1 – You only act for clients on instructions from the client or someone properly authorised to provide instructions on their behalf. If you have reason to suspect that the instructions do not represent your client’s wishes, you do not act unless you have satisfied yourself that they do.
What is important when taking instructions from client?
• Identity checks essential
• Be careful about accepting from one spouse on behalf of another – unless written confirmation from other spouse that they are happy
Who is someone properly authorised in a company?
• I.e. valid director – board resolution may be needed
What are the two types of conflict?
- Own interests conflict
- Conflicts which do not involve your own interest
Are there any exceptions to own interests conflict?
No, can never do it
Are there any exceptions to conflicts which do not include your own interest?
There are some exceptions to this rule
What are the exceptions to other conflict interest? What is physically needed for these exceptions?
- Clients have substantially common interest
- The clients are competing for the same objective
- All the clients have given informed consent in writing
- Safeguards in place to protect confidentiality (i.e. only allowing certain staff access to different client’s files)
- You are satisfied it is reasonable to act on behalf of all clients (not if one is vulnerable)
What is to be shown to see if clients competing for same objective? What happens if they fall out?
- Clear common purpose
- Strong consensus on how to be achieved (price, timescales, etc)
- If a fall out – should cease acting ideally
Can you act for multiple clients in an auction?
In an auction – would be fine to act for more than one because only one will effectively succeed
Can you act for buyer and lender? Why?
• Generally, yes
• Common interest for both
• Doesn’t usually happen in commercial transactions
• Lenders will not tend to negotiate terms, as it’s typically a standard form
What can’t you do if acting for buyer and lender?
Negotiate terms
What is duty of confidentiality? Who does it apply to?
CCS 6.3 – You keep the affairs of current and former clients confidential unless disclosure is required or permitted by law or the client consents.
Applies to former clients as well. Even continues after death.
What is duty of disclosure?
Must disclose all investigations on property, basically. Don’t leave anything out. Or you could get sued for negligence.
What is exception to duty of disclosure?
Limited exceptions to this duty – i.e. if information could cause serious physical or mental harm, or disclosure prohibited by legal restrictions
