Brainscape's Knowledge GenomeTM

Browse over 1 million classes created by top students, professors, publishers, and experts.


See full index

Legal Services > Regulation > Flashcards

Regulation Flashcards

1
Q

why are services regulated?

A
  • Services are regulated by an independent regulator to protect the public
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
2
Q

what legal services are not regulated?

A

will writing, family law and employment advice

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
3
Q

what are the reserved legal activities?

A

OILPAN:
o Administration of oaths
o Reserved instrument activities
o Conducting litigation
o Probate activities
o Exercise of the right of audience (ROA)
o Notarial activities

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
4
Q

who can carry out RLAs?

A

Only those authorised or exempt can carry out RLAs.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
5
Q

give an example of administration of oaths

A

when an affidavit needs to be sworn

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
6
Q

explain reserved instrument activities

A

preparing and lodging legal documents dealing with the transfer of land or an instrument relating to court proceedings

NB: does not include wills, POA or agreements not intended to be executed as a deed

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
7
Q

explain notarial activities

A

certifying and authenticating documents

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
8
Q

what happens if someone carries out an RLA and they are not authorised or exempt?

A
  • It is a criminal offence if the person is not authorised or exempt
  • Exercising rights of audience or conducting litigation could also place someone in contempt of court
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
9
Q

who is an authorised person?

A

o Authorised person = someone authorised to carry out the activity by an approved regulator

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
10
Q

who can carry out unreserved legal activities?

A

i.e. activities which do not fall in the definition of the above

Unreserved legal activities (i.e. anything outside the definition of the above) can be carried out by anyone

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
11
Q

who are exempt persons?

A
  • The legislation defines a list of exempt persons for each RLA
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
12
Q

what are the most common exempt persons?

A

The LSB says the most common are:

Conducting litigation:
 Permission has been granted by the court
 They have ROA under an enactment
 They are party to the proceedings

Exercising ROA:
 The same as above +
 They are assisting with the conduct of litigation and are supervised by an authorised person

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
13
Q

what is the role of the LSB?

A
  • Oversees regulation of legal services
  • LSB approves regulators
  • The LSB can make recommendations for improvement, impose penalties and withdraw approval from an approved regulator
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
14
Q

what are the objectives the LSB and approved regulators must promote?

A

LSB and ARs must promote and comply with the regulatory objectives:
o Protecting and promoting the public interest and interests of consumers
o Supporting the rule of law
o Improving access to justice
o Promoting competition in the provision of legal services
o Encouraging an independent, strong, diverse and effective legal profession that maintains adherence to professional principles
o Increasing public understanding of citizen’s rights

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
15
Q

give some examples of approved regulators

A

a firm may be regulated by more than one:
o Solicitors  SRA
o Barristers  Bar Standards Boards
o Costs Lawyers  Costs Lawyers Standards Boards

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
16
Q

what do approved regulators do?

A

They authorise firms/individuals

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
17
Q

what is the firm/individual subject to once authorised?

A
  • Once authorised, the firm/individuals are then subject to regulation in relation to all legal services they provide and they can carry out RLAs
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
18
Q

who does the SRA regulate?

A
  • Regulates firms and solicitors (inc. REFLs and RFLs)
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
19
Q

what is the role of the SRA?

A

Roles of the SRA:
o Controls training and admission into the profession
o Makes StaRs
o Supervises firms
o Takes enforcement action where necessary
o Authorises solicitors and firms to carry out RLAs

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
20
Q

what can authorised firms/individuals do?

A
  • Only authorised firms and authorised individuals can perform RLAs and provide immigration advice
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
21
Q

re: risk assessment

what should firms do?

A
  • Firms should have their own risk management
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
22
Q

re: risk assessment

what approach does the SRA take to regulation/risk management?

A
  • SRA take a risk-based approach to regulation
  • Each firm will have a risk profile to understand the risk they present to the regulatory objectives.
  • The risk profile will then rate and rank each firm. The SRA will then seek to mitigate the risks created by ‘high impact’ firms.
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
23
Q

re: risk assessment

what are risk assessed on?

A

o Probability i.e. the likelihood of a negative impact occurring; and
o Impact i.e. the potential size of the negative impact

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
24
Q

re: risk assessment

what are the potential sources of risk?

A

Sources of potential risk inc.:
o Structure, systems of internal processes of the firm
o The firm or an individual being involved in fraud of dishonesty
o Political, economic or legal change

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
25
Q

re: risk assessment

what steps do the SRA take to mitigate risk?

A

Steps the SRA may take to mitigate risk:
o Raising awareness
o Changing the StaRs
o Place limitations on an individual’s practising certificate
o Sanctions i.e. fines, closing the firm down

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
26
Q

re: risk assessment

where are the most significant risks recorded?

A
  • The SRA’s annual Risk Outlook identifies the most significant risks
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
27
Q

re: authorisation of firms

how does a firm become authorised?

A
  • The firm will need to apply to the SRA for authorisation
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
28
Q

re: authorisation of firms

what will the SRA do in response to an authorisation application?

A
  • The SRA will check eligibility requirements are met and investigate the firm

The SRA will either:
o Grant blanket authorisation;
o Authorise selected legal services; or
o Refuse the application

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
29
Q

re: authorisation of firms

who is eligible to apply for the SRA for authorisation?

A

o Sole practitioners
o Legal services bodies
o Licensed bodies

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
30
Q

re: authorisation of firms

what is a sole practitioner called once authorised?

A

a recognised practitioner

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
31
Q

re: authorisation of firms

what is a legal services body?

A

i.e. a firm where all the managers/interest holders are lawyers

o At least 75% of the body’s managers are legally qualified; and
o At least 75% of the shares and voting rights are held by legally qualified persons; and
o Managers who are not legally qualified are approved by the SRA; and
o At least one manager must be a practising solicitor or REL

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
32
Q

re: authorisation of firms

what is a licensable body?

A

a firm where the managers/interest holders include lawyers and non-lawyers

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
33
Q

re: authorisation of firms

which firms need to apply for authorisation?

A

they only need to be authorised if they want to deliver RLAs or provide immigration advice

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
34
Q

re: authorisation of firms

what is a legal services body called once authorised?

A

Once authorised, it will be known as a ‘recognised body’ (RB)

35
Q

re: authorisation of firms

once authorised, what must the recognised body have in place?

A

a COLP & COFA approved by the SRA

36
Q

re: authorisation of firms

when can a licensable body apply for authorisation?

A

A body will be a licensable body (LB) eligible to apply for SRA authorisation if:
o A non-authorised person is a manager of / has an interest in the LB or;
o Another body (A) is a manager of / has in interest in the LB and non-authorised persons are entitled to exercise 10% of the voting rights in A

In either case, the LB must have at least one manager authorised by the SRA or another approved regulator

This is referred to as an alternative business structure.

Typically used where a business offers legal and non-legal services.

37
Q

re: authorisation of firms

once authorised, what must the licensed body have in place?

A
  • There must be compliance officers Head of Finance and Administration and a Head of Legal Practice
38
Q

re: authorisation of firms

what is a licensable body called once approved?

A

a licensed body

39
Q

re: authorisation of individuals

a person cannot act as a solicitor unless…

A

A person cannot act as a solicitor unless:
o They have been admitted as a solicitor;
o They are on the roll; and
o They have a practising certificate

By virtue of these requirements, practising solicitors are regulated by the SRA

40
Q

re: authorisation of individuals

what is a person who doesn’t satisfy the 3 requirements called?

A

o Any person who doesn’t satisfy the above is an ‘unqualified person’

41
Q

re: authorisation of individuals

what is the consequence of practicing without a certificate?

A
  • It is a criminal offence to practice without a practising certificate
42
Q

re: authorisation of individuals

what does admission mean?

A
  • Admission = the below is satisfied and the individual is placed on the roll
43
Q

re: authorisation of individuals

how is someone admitted?

A

o Individuals must apply for admission to the roll

44
Q

re: authorisation of individuals

when will someone be eligible for admission?

A

A person is eligible for admission as a solicitor if the SRA is satisfied:
o They have attained the required qualifications;
o They have undertaken the necessary training;
o They are proficient in English or Welsh; and
o Of their character and suitability to be a solicitor

45
Q

re: authorisation of individuals

who do the character and suitability rules apply to?

A
  • The SRA character and suitability rules apply to those seeking admission to the role and those applying to be the COLP and COFA
46
Q

re: authorisation of individuals

what are the elements of the character and suitability rules?

A

1) The overriding need to protect the public and maintain public trust and confidence in the profession
2) Conduct.
3) Aggravating and mitigating factors in relation to conduct (non-exhaustive)

47
Q

re: authorisation of individuals

what do the SRA look at when considering ‘the overriding need to protect the public and maintain public trust and confidence in the profession’?

A

The SRA will look at the applicant’s role and individual circumstances

48
Q

re: authorisation of individuals

what are the heads of term under ‘conduct’?

A

criminal conduct & other conduct and behaviour

49
Q

re: authorisation of individuals

how does the SRA approach criminal conduct?

A

The SRA will categorise the criminal conduct:
i. Most serious  application likely to be refused.
ii. Serious  application may be refused.

50
Q

re: authorisation of individuals

give examples of ‘most serious’ criminal conduct

A
  • Conviction of a criminal offence resulting in a custodial or suspended sentence involving: perjury, obstructing the course of justice, fraud, dishonesty, bribery, violent/sexual nature, discrimination or terrorism
  • Caution accepted for an offence which is dishonest, violent, discriminatory or sexual
  • On the Violent and Sex Offender register
51
Q

re: authorisation of individuals

give examples of ‘serious’ criminal conduct

A
  • Conviction or caution accepted for a criminal offence which does not fall within ‘most serious’ and the individual is subject to a conditional discharge or bind over by a court.
52
Q

re: authorisation of individuals

give examples of ‘other conduct and behaviour’

A

i. Behaviour that is dishonest, violent, threatening, harassing or discriminatory;
ii. Determination the individual has committed a deliberate assessment offence (i.e. plagiarism or cheating)
iii. Financial behaviours i.e. bankruptcy, cannot or has dishonestly managed their finances, avoided responsibility for debt
iv. Subject to serious disciplinary/regulatory findings or sanctions

53
Q

re: authorisation of individuals

what is the ongoing obligation?

A
  • There is an ongoing obligation to inform the SRA promptly if one of the above occurs once admitted
54
Q

re: authorisation of individuals

when can a solicitor apply for a practising certificate?

A
  • A solicitor can apply to the SRA for a PC if their name is on the roll and they are not suspended from practice as a solicitor
55
Q

re: authorisation of individuals

what does a practicing certificate allow?

A

PC authorises the solicitor to carry on RLAs (not inc. notarial activities and noting they cannot exercise ROA in higher courts until they have completed further training)

NB: even though the PC is personal to the solicitor, they can only deliver RLAs through an authorised body (i.e. RSP, RB, LB), unless an exception applies

56
Q

re: authorisation of individuals

how frequently is a practicing certificate applied for?

A
  • Solicitors must apply to have their PC renewed each year. They are due for renewal on 31 October and a fee is payable.
57
Q

re: authorisation of individuals

what power do the SRA have over practicing certificates?

A
  • The SRA must refuse an application for a PC if it is in the public interest
  • The SRA can impose any conditions it sees fit on an existing certificate if the solicitor
58
Q

re: authorisation of individuals

when might the SRA impose conditions on the practicing certificate?

A

o Is unsuitable to undertake certain activities;
o Is putting, or is likely to put, the interest of clients, third parties or the public at risk;
o Will not comply with, or requires monitoring of compliance with StaRs
o Should take steps conducive to the regulatory objectives

59
Q

re: authorisation of individuals

what conditions might the SRA impose on a practicing certificate?

A

o Requirements for certain steps to be taken
o Restrict carrying on of certain activities
o Holding of certain roles
o Prohibit taking of steps without the SRAs approval

60
Q

re: authorisation of individuals

what can an individual do if they have contest the SRA’s decision regarding the practicing certificate?

A
  • If an application is refused or conditions are imposed, an application for review can be made to the SRA or appealed to the High Court
61
Q

re: authorisation of individuals

can a solicitor provide legal services through an unregulated body?

A
  • A solicitor can provide legal services to the public through an unregulated body, but they cannot carry out RLAs, immigration advice etc , unless:
    1. they are a freelance solicitor which meets the requirement
    2. they are an in-house solicitor
    3. they are a solicitor working for a non-commercial organisation
62
Q

re: authorisation of individuals

when can a free-lance solicitor carry out RLA not through a regulated body?

A

They are a free-lance solicitor which:
a. Has practised for at least 3 years
b. In self-employed and practises in their own name
c. Has indemnity insurance for all the services they provide
d. Does not have any employees
e. Only holds limited categories of client money
f. Has informed the SRA of their intention to practise in this capacity

63
Q

re: authorisation of individuals

when can a in-house solicitor carry out RLA not through a regulated body?

A

They can deliver RLAs to their employer but not the general public

64
Q

re: authorisation of individuals

when can a solicitor working for a non-commercial organisation carry out RLA not through a regulated body?

give examples

A

i.e. not-for-profits, charities, community interest groups, trade unions

They can provide RLAs to the public on behalf of the organisation

65
Q

re: authorisation of individuals

if a solicitor is carrying on RLAs not through a regulated body and they are relying on an exception, what insurance must they have in place?

A
  • The SRA does not specify a level of cover but the solicitor must have PII that is ‘adequate and appropriate’ for the work they do
66
Q

re: authorisation of individuals

If a solicitor has a practicing certificate, can they use this to carry on regulated legal activities outside of work?

A

no.

Example - a solicitor works for an RB, he can deliver RLAs through the RB. He wants to undertake pro bono work outside of work. He cannot use his PC to deliver RLAs in the pro bono work unless an exception applies

67
Q

re: insurance

what is professional indemnity insurance?

A
  • PII = insurance covering loss/damage to a third party caused by the insured’s breach of professional duty
    o Will usually also cover the solicitor’s legal costs and o/s legal costs if they lose and are ordered to pay
68
Q

re: insurance

what does PII cover?

A

Covers civil claims made against a solicitor due to their practice (usually negligence)

PII does not absolve them of liability

69
Q

re: insurance

what happens if the insurer does not accept the claim / there is a shortfall?

A

the solicitor must pay

70
Q

re: insurance

how often is this renewed?

A

yearly. Firms must put a new policy in place as the current policy period comes to an end so there is continuous insurance in place

71
Q

re: insurance

to whom do the SRA indemnity insurance rules apply?

A
  • These apply to SRA-authorised firms only
    o In other words, they do not apply to solicitors that practise outside of SRA authorised firms
    o But employees of the firm will be covered by the firm’s PII
72
Q

re: insurance

what is the obligation on SRA-authorised firms?

A
  • All SRA-authorised firms must take out and maintain qualifying insurance (QI) which is adequate and appropriate and delivered by a participating insurer
73
Q

re: insurance

what is qualifying insurance?

A

o QI = insurance on the SRA’s minimum T&Cs (MTCs)

74
Q

re: insurance

what is ‘adequate and appropriate’?

A

The MTCs may not provide sufficient cover for the firm’s needs and would need to top this up

They will need to consider past and current practice to decide what is adequate and appropriate i.e. type of clients, history or claims, estimate level of claims (applicable to solicitors and firms).

This will need to be kept under review

75
Q

re: insurance

explain ‘participating insurer’

A

o Participating insurer = regulated by the FCA and agreed to provide insurance to the SRA on particular terms

76
Q

re: insurance

what are the key minimum terms and conditions?

A

o The sum insured for one claim (exclusive of defence costs) must be at least £3m for RBs & LBs and at least £2m in all other cases.

o Insurance cannot exclude, or attempt to exclude, liability below the minimum level of cover (but they can cap liability above the minimum)

o The policy must allow cover to be extended for an additional 90 days after the policy period has expired. This is made up of two periods:
 Extended policy period (EPP) = 30 days from the renewal date
 Cessation period (CP) = 60 days from the end of the EPP

77
Q

re: insurance

what must a firm do if they cannot obtain new qualifying insurance before the expire of the police period?

A
  • If the firm cannot obtain QI before the expiry of the policy period (i.e. their current insurance is too expensive and they need to find a new insurer) then:
    o Within EPP  the firm can continue to practice as usual, but they must inform the SRA they have entered the EPP and source new QI.
    o Within CP  the firm can only work on existing instructions and cannot take on new work. They must inform the SRA.
    o After CP  the firm must cease practising.
78
Q

re: insurance

which solicitors do not need to obtain PII?

A

o Solicitors that work for an SRA-authorised firm (unless they are doing additional work outside of the firm)
o Solicitors that do not provide RLAs

79
Q

re: insurance

which solicitors do need to obtain PII?

A

o Freelance solicitors that are providing RLAs to the public
o Solicitors in non-commercial organisations providing RLAs to the general public (the body will take out the cover, but the obligation is on the solicitor

80
Q

re: insurance

if an individual solicitor needs to obtain PII, what are the requirements?

A

The insurance does not need to adhere to the SRA’s MTCs but must be ‘adequate and appropriate’

Even though only solicitors that provide RLAs to the public need to have PII, it must be adequate and appropriate for all the services they provide, not just RLAs

81
Q

re: insurance

what’s the statutory obligation in regards to client information?

A

firms must inform clients about the compulsory layer of PII inc. details of the insurance and territorial coverage

82
Q

re: insurance

what information must clients be told according to the SRA transparency rules?

A

freelance solicitors providing RLAs must inform their clients they are not required to meet the SRAs MTCs

83
Q

re: insurance

what information must clients be told according to the general STaRs?

A

o Must be open with clients about PII
o Must be given information about the services they need in order to make informed decisions in a way they can understand

Example - client might be unwilling to instruct a firm in respect of a £10m claim if the firm’s cover is only £5m. They will want to know about the firm’s policy.

Legal Services (6 decks)

Brainscape helps you reach your goals faster, through stronger study habits.
© 2024 Bold Learning Solutions. Terms and Conditions