Regulatory and Legal Environment

Question 1

To whom can a client complain?

Answer 1

• Law firm
• Legal Ombudsman
• SRA
• Solicitors Disciplinary Tribunal

Question 2

What should be the client’s first step if they are unhappy with the service?

Answer 2

Their first step should be to complain to the law firm.

SRA requires that every law firm has a complaints procedure.

Question 3

When can a client complain to the legal ombudsman?

Answer 3

Once the firm’s internal complaints procedure is exhausted: individuals, small businesses, charities, clubs and trusts can refer complaints about poor services and fees/bills from solicitors to the LO.

Larger companies cannot.

Question 4

What are the powers of the Legal Ombudsman?

Answer 4

The LO has no powers to discipline or fine a lawyer; the LO’s primary function is resolve complaints.

The LO can require the solicitor to:
- apologise;
- pay compensation;
- correct or put right an error or omission;
- take specific action in the interests of the complainant;
- pay for the costs of the complaint;
- limit the firm’s fees

Question 5

When can a client complain to the SRA?

Answer 5

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

SRA sets the principles and code of conduct that solicitors and lawyers regulated by the SRA must comply with.

Question 6

What are the powers of the SRA?

Answer 6

SRA has the power to:

• issue a warning to the firm;
• impose a disciplinary sanction (eg fine);
• reprimand the solicitor for professional misconduct;
• order the solicitor to repay or refund the whole or part of the costs to the client;
• impose restrictions on a lawyer’s ability to practice;
• institute disciplinary proceedings before the Solicitor’s Disciplinary Tribunal;
• revoke recognition of a firm; and
• close down a firm

Question 7

What is the Solicitors Disciplinary Tribunal and what are its powers?

Answer 7

The STD is an independent statutory body. It deals with serious breaches of the SRA’s rules and disciplines solicitors. Its powers include power to:

• strike a solicitor off the role;
• suspend a solicitor from practice for a fixed or indefinite period;
• reprimand a solicitor;
• impose a fine;
• award costs against a party to proceedings; and
• make a restriction order, imposing a restriction on the area in which a solicitor can practice.

Does NOT have the power to award compensation.

Question 8

Who can strike off a solicitor?

Answer 8

Only the Solicitors Disciplinary Tribunal can strike off a solicitor.

Question 9

What are the SRA Standards and Regulations 2019?

Answer 9

• SRA Principles: key behaviours the SRA expect from individuals
• Code of Conduct for Solicitors, Registered European Lawyers and Registered Foreign Lawyers: framework setting out standard SRA expects from individuals
• Code of Conduct for Firms: standards SRA expects from firms and managers of firms
• SRA Accounts Rules: rules on how law firms hold and manage client money

Question 10

SRA Principles

Answer 10

Require individuals and firms to act:

1. In a way that upholds the constitutional principles 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

Principles apply to legal professionals in their personal lives and professional lives.

Principles which safeguard the wider public interest (eg rule of law) take priority over the interest of an individual client.

Question 11

Examples where the SRA might take action against an individual for lack of integrity

Answer 11

Where they have:

• taken unfair advantage of a client or 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

Question 12

CCS paragraphs: maintaining trust and acting fairly

Answer 12

CCS 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

CCS 1.2: you do not abuse your position by taking unfair advantage of clients or others

CCS 1.4: You do not mislead or attempt to mislead your clients, the court or others, either by your own acts or omission or allowing or being complicit in the acts or omissions of others (including your client)

Question 13

CCS 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

Answer 13

To comply: must ensure that personal views do not affect the way you provide legal services.

E.g. a solicitor with strong religious or political views should not allow those views to stop them from complying with Principle 7, acting in the best interests of their client.

Question 14

CCS 1.2: you do not abuse your position by taking unfair advantage of clients or others

Answer 14

E.g. you could be instructed and find yourself opposite a party with no legal representation. You should not take advantage of the other party’s lack of legal knowledge.

Dealing with an unrepresented client can be challenging.

If the unrepresented client produces a badly drafted document, you should suggest they find a lawyer. If they do not, you need to maintain a balance between acting in you client’s best interest and not taking advantage of your opponent’s lack of legal knowledge and drafting skills.

Question 15

CCS 1.4: You do not mislead or attempt to mislead your clients, the court or others, either by your own acts or omission or allowing or being complicit in the acts or omissions of others (including your client)

Answer 15

Misleading a client:
- Telling a prospective client they have a strong case in order to get the work when they don’t
- Telling them the case is going well when it is going badly

Misleading the court:
- Not disclosing a case or statutory provision to the court which goes against the argument you are presenting for your client.

Misleading others:
- Making false representations on behalf of a client to a third party. E.g. telling prospective purchasers of your client’s company that it is a good or bad deal. You should not give your personal opinion on the value of the deal to anyone involved.

Question 16

Meaning of Equality, Diversity and Inclusion

Answer 16

Equality: making sure there is a level playing field and people are treated fairly

Diversity: encouraging and valuing people with a broad range of different backgrounds, knowledge, skills and experiences

Inclusion: accepting people for who they are and encouraging everyone to participate and contribute

Question 17

Why is EDI important?

Answer 17

Effective administration of justice: diversity of views and approaches whether in law firms or the judiciary support an independent justice system and maintains the rule of law.

Improving access to services: Some people may be more likely to seek legal help from solicitors with whom they share some social or cultural characteristics

Allowing the most talented people to become solicitors and progress in their careers which helps to maintain high standards

Question 18

What are the SRA’s requirements relating to EDI?

Answer 18

Principle 6: You must act in a way that encourages equality, diversity and inclusion

CCS 1.1: You do not unfairly discriminate by allowing your personal views to affect your professional relationships and the way which you provide your services

CCS 1.2: You do not abuse your position by taking unfair advantage of clients or others

CCS: 3.4: You consider and take account of your clients attributes, needs and circumstances

Question 19

Who do the SRA’s requirements in relation to equality, diversity and inclusion apply to?

Answer 19

All individuals regulated by the SRA in relation to their dealings with clients, the people they work with and other members of the public they deal with.

Question 19

Can firms pass on the costs of reasonable adjustments to clients?

Answer 19

No.

Question 20

What is a solicitor’s undertaking?

Answer 20

“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”.

Undertakings are often used to overcome practical difficulties in many areas of practice to smooth the path of a transaction or to speed up its progress. Undertakings are given and accepted because solicitors are professional persons whose word is to be relied upon.

E.g.:
- an undertaking by a seller’s solicitor in a property transaction to forward part of the sale proceeds to procure the discharge of the seller’s mortgage on the property
- an undertaking to the court that a document will be filed on behalf of a client by a particular date
- an undertaking to hold money to another firm’s order prior to the occurrence of a specific event

Question 21

CCS 1.3 on undertakings

Answer 21

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

Question 22

What happens if you fail to perform an undertaking?

Answer 22

Failure to perform an undertaking can be a serious disciplinary offence with the solicitors concerned being investigated by the SRA for professional misconduct

Question 23

Who can give an undertaking?

Answer 23

An undertaking can be given by any individual in a law firm provided it can be reasonably relied upon by the recipient.
An undertaking could be given by a partner, a qualified lawyer, an apprentice, secretary or any other individual in the firm.

Question 24

Does an undertaking have to be in writing?

Answer 24

No, an oral statement can amount to an undertaking.

Question 25

Does the work ‘undertaking’ need to be mentioned?

Answer 25

No, it does not have to be said or written for a statement to amount to an undertaking. Junior solicitors should be wary when promising to deliver copies or originals of documents to a third party: NEVER promise to do something which is outside your control.

Question 26

Undertakings: Good practice

Answer 26

• most law firms will maintain a system of recording undertakings, when they have been given, by who, what has been promised and to whom and when they have been discharged.
• Firms will usually have procedures in place to make sure undertakings are complied with. e.g. firms usually require your client to put the firm in funds to cover the relevant amount before you give the undertaking
• firms distinguish between everyday transactional undertakings and undertakings to pay another party’s costs. Firms will usually have internal policies as to who can give the latter type of undertaking which is often restricted to partners or senior lawyers only.

Question 27

What form should undertakings take?

Answer 27

SMART

S: Specific - be clear as to what is involved
M: Measured - it must be capable of quantification
A: Agreed - both sides must agree the wording
R: Realistic - within solicitor’s control
T: Timed - must not be of unlimited duration

Any ambiguity will be construed in favour of the recipient.

Question 28

CCS 1.4: Misleading the court examples

Answer 28

• not normally guilty of misconduct if they inadvertently misled the court BUT as soon as they become aware they must (with the client’s consent) immediately inform the court. If client does not consent, solicitor must stop acting for that client.
• if solicitor has become aware that a client as committed perjury or misled the court or attempted to mislead the court then the solicitor must cease to act unless the client agreed to disclose the truth to the court

Misleading if do any of these:
- draft documents or construct facts supporting your client’s case which are not properly arguable
- make any allegation of crime, misconduct or fraud unless it is material to your client’s case and you have reasonable grounds for doing so
- call a witness whose evidence you known is true

Question 28

Solicitor as an ‘officer of the court’

Answer 28

Solicitors should at all times conduct themselves in a manner which befits a member of the profession with an overriding duty to the court.

• Do not waste the courts time
• Do not place yourself in contempt of court
• Only make assertions or put forward statements, representations or submissions to the court which are properly arguable

Question 29

CCS 2: dealing with the court

Answer 29

CCS 2.1: 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 dependant 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

Question 30

Key provisions dealing with clients

Answer 30

Principle 7: You must act in the best interests of each client

CCS 3.2: You ensure the service you provide to clients is competent and delivered in a timely manner

CCS 4.2: You safeguard money and assets entrusted to you by clients and others

Question 31

CCS 3.2: You ensure the service you provide to clients is competent and delivered in a timely manner

Answer 31

An important part of providing a good service to you clients is to ensure that you are competent to do so.

You need to ensure that you are competent to carry out the work you are required to do:
- You should not send work to a client unless it has been checked by your supervisor
- If you do not know how to do the work, you must get help from someone
- You also need to ensure that you keep your legal knowledge up to date in order to comply with CCS 3.3 and CCS 7.1

CCS 3.3 You maintain you competence to carry out your role and keep your professional knowledge and skills up to date

CCS 7.1: You keep up to date with and follow the law and regulation governing the way you work

Question 32

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

Answer 32

You also need to ensure that you take account of your client’s attributes, needs and circumstances when providing legal advice. You will not be taking account of your client’s needs if you attempt to provide a service you are not competent to perform.

Question 33

Managers obligations

Answer 33

CCS 3.5: where you supervise or manage other providing legal services:
(a) you remain accountable for the work carried out through them; and
(b) you effectively supervise work being done for clients

CCS 3.6: You ensure that the individuals you manage are competent to carry out their role and keep their professional knowledge and skills, as well as understanding of their legal, ethical and regulatory obligations up to date.

Question 34

What is publicity (for the SRA)?

Answer 34

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.

Question 35

CCS 8.8: firms publicity must not be misleading

Answer 35

You ensure that any publicity in relations to your practice is accurate and not misleading, including that relating to your charges and the circumstances in which interest is payable by or to clients.

Question 36

Can you make unsolicited approaches?

Answer 36

No, solicitors are not permitted to publicise their firm by making unsolicited approaches in person or telephone calls to members of the public with the exception of current or former clients.

E.g. approaching people:
- in the street
- at ports of entry
- at hospitals
- at the scene of an accident

Question 37

What services require costs information to be published on their website?

Answer 37

Services to individuals:
- conveyancing a 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

Services to businesses:
- certain advice to employers on unfair dismissal and wrongful dismissal
- debt recovery up to the value of £100,000
- certain advice in relation to licensing applications for business premises

Question 38

What costs information must be published?

Answer 38

Cost information published must be clear and accessible and in a prominent place on the website:

• total cost of the services or where not practicable the average cost or range of costs
• the basis for the charges including hourly rates or fixed fees
• experience and qualifications of anyone carrying out the work and their supervisors
• description of the costs and likely disbursements
• if there is VAT
• details of what services are included in the price displayed including key stages of the matter the likely timescales for each stage and details of any services that might be expected to be included in the price but are not
• if the firm uses conditional fee or damages based agreements

Question 39

How does SRA information need to be displayed on firm’s website?

Answer 39

• An authorised body must display in a prominent position on its website, its SRA number and the SRA digital badge
• An authorised body’s letterhead and emails must show its SRA authorisation number and the words ‘authorised and regulated by the SRA”

Question 40

What is an introduction/referral?

Answer 40

Introduction relates to a relationship you/a law firm has with a third party where the third party introduces or refers business TO YOU/The LAW FIRM.

Referral refers to an arrangement you/a law firm might have with a third party TO WHOM you may refer or introduce clients.

Question 41

Can you claim a fee for referrals/introductions?

Answer 41

Yes, so long as:
- clients are informed of any financial or other interest which you or your business or employer has in referring the client to another person or which an introducer has in referring the client to you
- clients are informed of any fee sharing arrangement that is relevant to their matter
- the fee sharing arrangement is in writing

You do not receive payments relating to referral or make payments to an introducer in respect of criminal proceedings AND for personal injury cases

Question 42

Bribery Act 2010

Answer 42

Offence for a UK citizen or resident to pay or receive a bribe directly or indirectly.

Many law firms have anti-bribery policies designed to ensure that their staff do not commit offences under BA 2010 for example in relation to appointing enquiry agents or receiving corporate hospitality or gifts.

Question 43

What are the data protection principles?

Answer 43

Must ensure that personal datas is:

• used fairly, lawfully and transparently
• used for specified explicit purposes
• used in a way that is adequate, relevant and limited to only what is necessary
• accurate and, where necessary, kept up to date
• kept for no longer than is necessary
• handled in a way that ensures appropriate security, including protection against unlawful or unauthorised processing, access, loss, destruction or damage

Question 44

Duty of confidentiality

Answer 44

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.

This duty applies to current and former clients. Former clients include clients of a firm you used to work for and clients that used to instruct you but now instruct a different firm. It also continues to apply after a client’s death.

Exceptions: where disclosure is required or permitted by law eg HMRC or the national crime agency when investigating money laundering. Court order, where a child has been sexually or physically abused (even if client imparts information refuses to permit disclosure)

Question 45

Duty of Disclosure

Answer 45

CCS 6.4: Where you are acting for a client on a matter you make the client aware of all information material to the matter of which you have knowledge.

Principle that you make you client aware of any information material to their case of which you have knowledge. Personal duty on the individual solicitor - so includes information you find out in the course of your personal life.

Question 46

What are the exceptions to the duty of disclosure?

Answer 46

• disclosure of the information is prohibited by legal restrictions imposed in the interests of national security or the prevention of crime
• the client gives informed consent, given or evidenced in writing to the information not being disclosed by them
• you have reason to believe that serious physical or mental injury will be caused to the client or another if the information is disclosed; or
• the information is contained in a privileged document that you have knowledge of only because it has been mistakenly disclosed

Question 47

What happens if a solicitor’s duty of confidentiality to another current or former client prevents them from disclosing material information that they obtained in rel to the former client to a new client?

Answer 47

The solicitor must not act for new client unless they obtain the new client’s informed consent to the information not being disclosed to them.

Informed consent means the client must have some understanding of the importance of the information in the case and any prejudice there may be in non-disclosure. This will mean giving some indication of at least the broad nature of the information to be withheld and its relevance to the matter.

Even if they gain informed consent, should only act if it is in Y’s best interests to do so. In practice the solicitor is only likely to be able to continue acting for Y if the non-disclosure does not cause them any real prejudice.

Question 48

What if duty of disclosure and confidentiality conflict?

Answer 48

The duty of confidentiality takes precedence.

Question 49

CCS 6.5: Adverse Interests

Answer 49

Do not act for a client where that client has an interest adverse to the interest of another current or former client, unless:

• effective measures have been taken which result in there being no real risk of disclosure of the confidential information; or
• the current or former client has given informed consent evidenced in writing to you acting, including any measures taken to protect their information

Question 50

What are examples of effective measures have been taken which result in there being no real risk of disclosure of the confidential information?

Answer 50

• Systems that identify the potential confidentiality issues
• Separate departments handling the cases at all levels
• Separate servers and printers
• Information being encrypted and password protected
• Individuals in the form being aware of who else in the org is working on respective matters so that they know who they can and cannot discuss the matter with
• appropriate policies and training for staff

Question 51

How can the current or former client give informed consent evidenced in writing to you acting, including any measures taken to protect their information?

Answer 51

To give informed consent the client must understand any possible prejudice that could occur.

May need someone else in the firm to seek consent so the client’s confidential information is not disclosed to you.

Question 52

Who needs to have a practicing certificate?

Answer 52

Section 1 Solicitors Act 1974, inter alia, requires anyone acting as a solicitor to have a practising certificate. Practising as a solicitor without satisfying the requirements of s 1 is a criminal offence.

This is irrespective of whether the solicitor will be carrying out reserved legal activities.

Question 53

Who enforces an undertaking?

Answer 53

The court