Providers of legal services Flashcards
6 types of reserved legal activities
- exercise of a right of audience
- conduct of litigation
- reserved instrument activities
- probate activities
- notarial activities
- administration of oaths
What do “reserved instrument activities” entail?
preparing/lodging legal documents:
- dealing with transfers of/charges over land,
- relating to real/personal estate,
- relating to court proceedings
BUT: some documents are excluded (wills, power of attorney…)
Who can carry out reserved legal activities?
Those authorised by an approved regulator, or exempt
Who is the approved regulator for solicitors?
Law Society
BUT: regulatory function carried out by SRA
What is the consequence of not being authorised/exempt?
Criminal offence: up to 2 years in prison, and contempt of court if the activity was the right of audience/conducting litigation
Who approves legal services regulators?
Legal Services Board (LSB)
Aims of SRA’s regulation
- protect consumers, and
- support the rule of law and administration of justice
Which businesses are eligible for SRA authorisation?
- recognised sole practices,
- recognised bodies,
- licensed bodies
What is a recognised body?
“legal services body”:
- 75% or more of managers must be legally qualified, and hold at least 75% of shares and voting rights
- at least 1 manager must be solicitor
- non-legally qualified managers are SRA-approved
What is a licensed body?
“alternative business structure”:
- at least 1 manager must be SRA-authorised (or by other approved regulator),
- must be a licensable body (non-authorised person is its manager or has an interest in it by holding shares/voting rights, OR another body is its manager/interest holder and non-authorised persons exercise at least 10% of voting rights in it)
Which officers must authorised bodies have?
Compliance officer for legal practice (COLP) + compliance officer for finance and administration (COFA)
BUT: licensed bodies have HOLP and HOFA instead!
What’s the SRA’s approach to regulation and authorisation?
Risk-based
Requirements for being a qualified solicitor
- being admitted as solicitor,
- have name on the Roll,
- have practicing certificate issued by Law Society
2 parts of SRA assessment for being admitted as a solicitor
Part 1: overriding need to protect public interest and trust
Part 2: considers criminal and other conduct
Types of conduct the SRA considers
Most serious- refusal likely (fraud, dishonesty, violence, obstructing justice…)
Serious- refusal possible (caution or conviction for other crimes)
Other conduct- discretionary (plagiarism, bankruptcy…)
What information must one disclose to the SRA in its investigation before admitting you?
All material information
Which reserved legal activities can SRA-authorised solicitors carry out?
All, except notarial
How often must practicing certificates be renewed?
Annually
SRA’s indemnity insurance rules requirements:
- must use a participating, FCA-regulated insurer,
- recognised/licensed bodies must insure a sum of at least 3m
- other bodies must insure a sum of at least 2m
General rule on size of indemnity insurance under SRA rules
it must be “adequate and proportionate” (so, possibly higher than the minimum set)
Where to bring claims under the Equality Act?
employment claims- in employment claims tribunal
other claims- County Court
9 protected characteristics under the Equality Act
- race,
- religion + belief,
- sex,
- sexual orientation,
- age,
- disability,
7.gender reassignment, - marriage/CP,
- pregnancy/maternity
When is a person disabled?
- have a physical/mental impairment,
- which has a substantial and long-term effect on their ability to carry out normal everyday activities
Requirements to be a protected “belief”- must be:
- genuinely held,
- nor a mere view,
- related to a substantial part of human life,
- attain a certain level of cogency,
- be worthy of respect
Prohibited conduct under the Equality Act
- direct discrimination
- indirect discrimination
- disability discrimination
- victimisation
- harassment
When can indirect + disability discrimination be justified?
If it is a proportionate means of achieving a legitimate aim
When does victimisation occur?
When A subjects B to a detriment because:
- B does a protected act, or
- A believes B did/may do a protected act
What is a protected act for the purposes of victimisation?
- bringing proceedings under Equality Act
- giving evidence/information in such proceedings,
- doing anything related to the Equality Act
- alleging someone breached the Equality Act
When does harassment occur?
When A is subjected to a form of unwanted conduct violating her dignity, or creating an intimidating/hostile/degrading environment for A
Unwanted conduct means:
- relating to protected characteristic (except pregnancy + marriage),
- be of sexual nature, or
- be of sexual nature/related to gender reassignment/sex and result in less favourable treatment
3 positive duties to make adjustments under Equality Act
Take reasonable steps to:
- avoid disadvantage caused by a provision/criterion/practice,
- avoid disadvantage caused by physical features, and
- provide auxiliary aid of not granting it creates a substantial disadvantage (more than trivial)
What must solicitors as service provides do under the Equality Act?
Anticipate needs and make adjustments before the disabled person must ask for them
Do solicitors have to anticipate the needs of employees under the Equality Act?
No- must only make adjustments once become aware of the disability
What compensation is available if solicitors breach the Equality Act as service providers, and as employers?
As service providers: unlimited compensation (usually for injury to feelings)
As employers: unlimited compensation (usually to put C in position as if discrimination hadn’t happened)
When may employers discriminate based on a protected characteristic?
If they can show that due to the nature of the job, only those with some protected characteristic can do it
It must be a proportionate means of achieving a legitimate aim
When is positive action lawful under the Equality Act?
- if the firm reasonably thinks people with a protected characteristic suffer a disadvantage/have different needs/participate little, and
- the action taken is proportionate to minimise the disadvantage/meet needs/enable participation
When can a person with a protected characteristic be prioritised in recruitment under the Equality Act?
If that characteristic is under-represented at the firm, and the person is equally qualified (used as a “tie-breaker”)
