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Professional Conduct > Regulatory and Legal Environment > Flashcards

Regulatory and Legal Environment Flashcards

1
Q

Why are trust and morality important for legal professionals?

A

Legal professionals owe a duty to promote the public good, not just the interests of clients.

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2
Q

What are the main bodies that regulate the legal profesison?

A

Legal Services Board & Solicitors Regulation Authority

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3
Q

If I client wishes to complain, what should be their first step?

A

Follow the law firm’s complaints procedure

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4
Q

Having exhausted a firm’s internal complaints procedure, if a client wishes to complain what should be their next step?

A

Individuals, small businesses, charities, clubs and trusts can refer complains about poor service and fees/bills from solicitors to the Legal Ombudsman (LO)

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5
Q

What can the Legal Ombudsman require a solicitor to do following a complaint?

A
  1. Apologise
  2. Pay compensation
  3. Correct an error/omission
  4. Take specific action in the interests of the client
  5. Pay for costs of the complaint
  6. Limit the firm’s fees

NOT to discipline - primary function is to resolve complaints

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6
Q

A client should complain about serious breaches to the Solicitors Disciplinary Tribunal (SDT). What does the tribunal have the power to do?

A
  1. Strike off solicitor
  2. Suspend solicitor
  3. Reprimand solicitor
  4. Impose a fine
  5. Award costs against a party to proceedings
  6. Make a restriction order (limiting the area in which a solicitor can practice).

NOT compensation - would have to go to court.

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7
Q

If the client has a complaint concerning misconduct, dishonesty or breaches of the SRA’s rules, they can complain to the SRA. What does the SRA has the power to do?

A
  1. Issue a warning to the firm
  2. Impose disciplinary sanctions (e.g. fine)
  3. Reprimand the solicitor
  4. Order Solicitor to repay costs
  5. Impose restrictions on solicitor’s ability to practise
  6. Institute SDT proceedings
  7. Revoke recognition of a firm
  8. Close down a firm
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8
Q

What are the seven principles?

A
  1. in a way that upholds the constitutional principle of the rule of law and the proper administration of justice
  2. in a way that upholds public trust and confidence in the solicitors’ profession and in legal services provided by authorised persons
  3. with independence
  4. with honesty
  5. with integrity
  6. in a way that encourages equality, diversity and inclusion
  7. in the best interests of each client
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9
Q

To whom do the seven principles relate?

A

Relationship with client, court, other professionals

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10
Q

If you mislead the court, which principle have you breached?

A

Principle 5 - Integrity

The SRA might take action against an individual for lack of integrity where they have:

  • Taken unfair advantage of a client or a member of the public
  • Allowed another person to take unfair advantage of someone else
  • Misled another person or stood by and allowed another person to be misled
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11
Q

A solicitor allows his strong religious views to stop them from acting in the best interest of their client, which CCS standard have they not complied with?

A

CC 1.1 ‘You do not unfairly discriminate by allowing your personal views to affect your professional relationships and the way in which you provide your services.

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12
Q

You are instructed on a matter and find that the opposing party has no legal representation. They produce a badly drafted document as a result. What should you do, and which standard would you be acting in accordance with?

A

You should suggest they find a lawyer. If they do not, maintain a balance between acting in your client’s interest and not taking advantage of the situation (CCS1.2 You do not abuse your position by taking unfair advantage of clients or others)

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13
Q

You do not disclose a case to the court which goes against the argument you are presenting for you client? Which standard are you not complying with?

A

CCS 1.4 You do not mislead/attempt to mislead clients, the courts or others either by act/omission/being complicit

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14
Q

What are the characteristics protected by the Equality Act 2010?

A

Age, disability, gender reassignment, marriage/civil partnerships, pregnancy/maternity, race, religion, sex, sexual orientation

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15
Q

Do the SRA’s requirements reflect EDI?

A

Yes especially CCS 3.4 You consider and take account of your client’s attributes, needs and circumstances

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16
Q

What is the SRA’s guidance on EDI for individuals?

A
  • Provide reasonable adjustments
  • Encourage diversity
  • Collect, report and publish data
  • Uphold reputation of profession
  • Be fair inclusive in your interactions with people you meet
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17
Q

What is the SRA’s guidance for firms re EDI?

A
  • Must have a complaints procedure
  • May wish to produce EDI statements, monitor diversity, draft EDI policies
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18
Q

What types of discrimination does the Equalities Act 2010 identify?

A
  1. Direct discrimination
  2. Indirect discrimination
  3. Harassment
  4. Victimisation
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19
Q

What constitutes direct discrimination under the Equalities Act 2010?

A

Direct discrimination occurs where “because of a protected characteristic, A treats B less favourably than A treats or would treat others” (Section 13(1))

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20
Q

What constitutes indirect discrimination under the Equality Act 2010?

A

Indirect discrimination is concerned with acts, decisions or policies which are not intended to treat anyone less favourably, but which have the effect of disadvantaging a group of people with a protected characteristic

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21
Q

How is harassment defined in the Equality Act 2010?

A

There are 3 definitions (Section 26):
- General definition related to a protected characteristic
- Conduct of a sexual nature
- Less favourable treatment because of a person’s rejection of or submission to harassment of a sexual natures/sex or gender reassignment

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22
Q

What is the general definition of harassment under Section 26(1) Equality Act 2010?

A

Unwanted conduct related to a relevant protected characteristic which has the purpose or effect of either: violating A’s dignity OR creating an intimidating, hostile, degrading, humiliating or offensive environment for A.

Section 26(4): In deciding whether conduct shall be regarded as having such an effect, take into account:
- A’s perception
- circumstances
- whether it is reasonable for the conduct to have that effect

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23
Q

When does victimisation occur under section 27(1) Equality Act 2010?

A

Victimisation occurs where A subjects B to a detriment because either:
- B has done a protected act, or
- A believes B has done, or may do, a protected act

Protected acts: bringing proceedings/giving evidence/ other things in connection with EA 2010, alleging someone has contravened EA 2010.

24
Q

The duty to make reasonable adjustments is …

A

Anticipatory.

A service provider is under a positive duty to take steps to remove/prevent obstacles. A service provider is not required to do more than is reasonable (size/nature of organisation/nature of facilities or goods).

25
Q

What can a disabled person claim under the Equality Act 2010 if a service provider fails to identify and make reasonable adjustments?

A

Compensation and an order for the reasonable adjustments to be made.

26
Q

What are the three requirements that apply in situations where a disabled person would otherwise be placed at a substantial disadvantage?

A
  1. Changing the way things are done
  2. Making changes to overcome barriers created by physical features of premise (if open to public/section of public) (better to remove/alter rather than finding alternative solutions)
  3. Providing extra aids and services
27
Q

What is an undertaking?

A

A statement, given orally or in writing, whether or not it includes the word ‘undertake’ or ‘undertaking’ to someone who reasonably places reliance on it, that you or a third party will do something or cause something to be done, or refrain from doing something .

28
Q

According to CCS 3.1 what is the obligation regarding undertakings?

A

Perform all undertakings given by you, do so within an agreed timescale or if no timescale has been agreed then within a reasonable amount of time.

29
Q

What it the best practice for firms to take regarding undertakings?

A

Maintain an effective system of recording when undertakings have been given and when they have been discharged

30
Q

What form should undertakings take?

A

S pecific
M easured (quantification)
A greed (both sides)
R ealistic (within control)
T imed (limited duration)

Any ambiguity will be construed in favour of the recipient.

31
Q

You have become aware you have inadvertently misled the court. What do you do?

A

Ask for you client’s consent and immediately inform the court. If the client does not consent, stop acting for the client.

32
Q

What are three examples of misleading the court?

A
  1. Construct facts supporting client’s case which are not properly arguable.
  2. Make allegations of crime, misconduct, fraud within reasonable grounds.
  3. Call a witness whose evidence you know is untrue.
33
Q

CCS 2 contains your duty to the court

A

CCS 2.1: You do not misuse or tamper with evidence or attempt to do so.

CCS 2.2: You do not seek to influence the substance of evidence, including generating false evidence or persuading witnesses to change their evidence

CCS 2.3: You do not provide or offer to provide any benefit to witnesses dependent upon the nature of their evidence or the outcome of the case.

CCS 2.4: You only make assertions or put forward statements, representations or submissions to the court or others which are properly arguable.

CCS 2.5: You do not place yourself in contempt of court, and you comply with court orders which place obligations on you.

CCS 2.6: You do not waste the court’s time.

CCS 2.7: You draw the court’s attention to relevant cases and statutory provisions, or procedural irregularities of which you are aware, and which are likely to have a material effect on the outcome of the proceedings.

34
Q

The SRA’s key concern is that a firm’s publicity is not misleading. What is the definition of publicity?

A

All promotional material and activity, including the name or description of your firm, stationery, advertisements, brochures, websites, directory entries, media appearances, promotional press releases, and direct approaches to potential clients and other persons, whether conducted in person, in writing or in electronic form, but does not include press releases prepared on behalf of a client’.

35
Q

What types of firm marketing approaches would be non-compliance with CCS 8.9 banning unsolicited approaches to members of the public?

A
  • in the street
  • at ports of entry
  • at hospitals
  • at the scene of an accident
36
Q

What services to individuals are authorised bodies required to publish the costs for?

A
  • conveyancing of residential property
  • collection and distribution of assets following a person’s death
  • immigration applications
  • immigration matters
  • road traffic offences
  • certain advice to employees on unfair and wrongful dismissal.
37
Q

What services to businesses are authorised bodies required to publish the costs for?

A
  • certain advice to employers on unfair dismissal and wrongful dismissal;
  • debt recovery up to the value of £100,000; and
  • certain advice in relation to licensing applications for business premises.
38
Q

Under the SRA Transparency Rule 1, what costs information needs to be published by authorised bodies?

A
  • total cost (if not practicable average/range)
  • basis for charge (hourly rate)
  • experience of anyone carrying out the work
  • description and cost of any disbursements (whether these attract VAT and amount)
  • what services are included
  • likely timescale
  • CFA/DBA when client would need to pay

MUST BE CLEAR AND ACCESSIBLE in a prominent place on the website

39
Q

Under SRA Transparency Rule 4?, what regulatory information must the authorised body display?

A
  • display SRA number and the SRA’s digital badge in prominent position on website
  • letterhead and emails must show SRA authorisation number and the words ‘authorised and regulated by the Solicitors Regulation Authority’
40
Q

A firm of estate agents agrees to refer property sellers and buyers to your law firm’s residential property department. Is this a referral or an introduction?

A

Introduction - a third party has introduced business to YOU

41
Q

In terms of introductions/referrals/fee sharing arrangements, what five things must you ensure you do (CCS 5.1)?

A
  1. inform client of any financial/other interest to do with the introduction/referral
  2. inform client of any fee sharing arrangement that is relevant to their matter
  3. fee sharing arrangement is in writing
  4. do not receive payments from client’s in criminal proceedings
  5. any client referred by an introducer has not been acquired in a way which would breach SRA regulations
42
Q

Can an introduction be an informal/tacit arrangement?

A

Yes

43
Q

Can a solicitor refer or receive referrals in respect of a claimant’s claim for damages in respect of personal injury or death to each other in consideration for a fee?

A

No - Section 56(1) LASPO prohibits this

44
Q

What is the presumption for you as a solicitor accepting referral fees?

A

CCS 5.2: Where it appears to the SRA that you have made or received a referral fee, the payment will be treated as a referral fee unless you show that the payment was not made as such.

45
Q

What is best practice when monitoring an introduction or referral?

A
  • Make a statement to your client, best in writing, that your advice will be independent
  • provide confirmation that information disclosed to you will be confidential
  • monitor any potential client conflict issues when acting for the introducer on the same matter
46
Q

How can firms ensure compliance with the Bribery Act 2010?

A
  • ensure the firm’s business contacts agree to your anti-bribery policy
  • ensure staff are aware of anti-bribery policy (relevant to corporate hospitality etc.)
47
Q

What counts as personal data under Data Protection Act 2018?

A

‘Personal data’ does not include truly anonymous information. However, if you could still identify someone from the details, or by combining it with other information, it will count as personal data.

48
Q

What are the exceptions to the Duty of Confidentiality (CCS 6.3)?

A
  • permitted by law
  • client consents
  • where you need to reveal the information to support your own defence (civil and criminal)
  • cases involving child sexual abuse
49
Q

What is the Duty of Disclosure (CCS 6.4)

A

A personal duty to make your client aware of any information material to their case of which you have knowledge (limited to what the solicitor is aware of, not firm)

50
Q

What are the exceptions to the Duty of Disclosure (CCS 6.4)?

A
  • Client gives informed consent
  • Where disclosure could cause serious physical or mental harm to your client or another person
  • Prohibited by legal restrictions
  • Prohibited by duty of disclosure to another client
  • Information is contained in a privileged document received by mistake.
51
Q

What does ‘material’ mean in the context of Duty of Disclosure?

A

‘Material’ information = information which ‘might reasonably be expected to affect the client’s decision-making with regard to their matter in a way which is significant having regard to the matter as a whole’.

2007 SRA Code of Conduct

52
Q

What does informed consent mean?

A

The client must have some understanding of the importance of the information to their case, and any prejudice there may be in non-disclosure

53
Q

What does ‘adverse interest’ mean?

A

‘Where one party is, or is likely to become, the opposing party on a matter, whether in negotiations or some form of dispute resolution’.

2007 SRA Code of Conduct

54
Q

When can you act for a client in a matter where that client has an adverse interest to the interest of another current or former client (when you/firm holds material info to the matter)?

A

A. Where effective measures have been taken which result in there being no real risk of disclosure of the confidential information

B. Current or former client whose information you or your business or employer holds has given informed consent (sought by someone else not you), given or evidenced in writing, to you acting, including to any measures taken to protect their information (needs to be aware of any prejudice).

55
Q
A

Professional Conduct (2 decks)

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