Regulatory Role of SRA Flashcards
What are reserved legal activities?
Reserved legal activities can only be provided by someone authorised by an approved regulator to do so
Includes:
- rights of audience
- conduct of litigation
- reserved instrument activities
- notarial activities
- probate activities
- administration of oaths
- dealing with land or court documents
What does the SRA authorise solicitors to carry out?
The SRA authorises solicitors to carry on reserved legal activities except notarial activities
What are solicitors’ rights of audience?
The right to appear before and address a court, including the right to examine and call witnesses
- appearing before lower courts (magistrates court, immigration tribunals)
- representing clients in small claims court
A solicitor is authorised to provide legal services by SRA and the solicitor works on a freelance basis. What is the solicitor’s authorisation to carry on reserved legal activities?
The solicitor may carry on all reserved legal activities, except notarial activities, providing the solicitor’s organisation is registered as a sole practice or they provide any reserved legal activities through an authorised body
What are the requirements for professional indemnity insurance?
All authorised firms must have professional indemnity insurance. It compensates a claimant client in the case of solicitor’s negligence
It must be:
a) qualifying insurance
b) adequate and appropriate to the firm’s practice
What is qualifying professional indemnity insurance?
a) insurance must be taken out with participating insurers
b) insurance must meet the minimum requirements:
i) £3million cover for any one claim for recognised and licensed bodies
i) £2million cover for any one claim for recognised sole practitioners
c) a firm cannot exclude liability below the minimum level of cover
What must PII be?
Adequate and appropriate to the firm’s practice
- may have to go beyond the minimum requirements if necessary
- consider the size of the firm, value of case, nature of the claims the firm deals with
When must PII be reviewed? What are the ongoing obligations with PII?
- The amount of insurance cover needs to be constantly reviewed, as it may need to change
- It must be renewed by the firm every year
- The firm must have insurance in place at all times
- Once a policy has ended, the firm should get a replacement policy to start on the day the previous one ends
How long does the firm have to extend PII?
90 days to extend the policy and take out a new one:
- must inform SRA that they are in this period
- if after 30 days no policy is found, they can’t take on new work and must notify the SRA
- if they fail to get a new policy after 90 days, they must stop practising
What action must a law firm take if the client notifies them of a potential claim?
The firm should notify their insurers as soon as they become aware of a claim or potential claim that may be covered by PII
What is the test for establishing whether professional indemnity insurance is adequate and appropriate?
- size
- nature of work
- possible value of claims
What business do not need to get professional indemnity insurance?
A business does not need to get professional indemnity insurance if it is not engaged in reserved legal activities
For example:
- Wills writing is not a reserved legal activity
- A group of former solicitors who set up a will-writing business and do not engage in any reserved legal activities do not need PII insurance cover
Does providing general legal advice constitute a reserved legal activity?
No providing general legal advice is not a reserved legal activity and can be performed by someone who is not authorised by an approved regulator
What are the exceptions where an organisation may provide reserved legal activities without needing to be authorised?
- Certain charities to carry reserved legal activities under s23(3) LSA
- If a business only provides non-reserved legal activities it does not need to be authorised
Do Law Centres and Legal Advice Centres need to be authorised by SRA?
No, if they do not provide reserved legal activities
- But they must comply with the Code of Conduct for Solicitors
- Pro Bono must also be covered by indemnity insurance
What is the Legal Services Board?
It oversees 8 separate regulators:
- Bar Standards Board = barristers
- CILEx = chartered legal executives
- Council for Licensed Conveyancers = conveyancers
- Intellectual Property Regulation Board = trade mark attorneys
- Costs Lawyers Standards Board = for costs lawyers
- Master of Faculties = for notaries
- Institute of Chartered Accountants = re accountants who do probate
- Solicitors Regulation Authority = solicitors
What is the SRA?
The regulator for solicitors and law firms
Purpose:
1. Protect consumers of legal services
2. support operation of rule of law and proper administration of justice
How does SRA minimise risk?
Taking actions against solicitors, firms or people wrongly holding themselves out as solicitors/authorised firms
- intervening in firm’s practice
- fining an individual solicitor (max fine is £25k)
- striking off or suspending
What happens to solicitors who breach the code?
They can be prosecuted before the Solicitors Disciplinary Tribunal by SRA
- SRA can bring criminal proceedings
What is the SDT?
Solicitors Disciplinary Tribunal
- independent statutory tribunal that adjudicates upon alleged breaches of rules and regulations
- SDT has the power to strike off a solicitor and can impose an unlimited fine
How can an individual carry out a reserved legal activities or immigration work?
Be a qualified solicitor and work in an authorised firm
- solicitor will need a practising certificate which they can apply for once admitted to the roll
- for a firm to be authorised it must be an eligible type of business:
- recognised sole practice
- recognised body
- licensed body
- the firm applies for SRA authorisation
Who determines whether a firm has adequate and appropriate PII?
A judge
If a sole practitioner is not undertaking any reserved legal activities do they need SRA authorisation or PII?
No - if an individual working as a sole practitioner is not undertaking any reserved legal activities or immigration work, they do not
E.g., an individual only providing general commercial legal advice and negotiating contracts = not reserved legal activities
PII is only required for SRA authorised firms
Who can a client pursue a complaint against?
Client is entitled to pursue a complaint against a firm and the solicitor, as the firm has a duty alongside that of the individual solicitor
What are the powers of the SDT to sanction solicitors?
They can sanction solicitors by way of fine, restriction or removal of practising certificate
Is administration of an oath a reserved legal activity?
Yes, this can only be undertaken by a solicitor with appropriate qualifying practising certificate
Otherwise, the oath will need to be administered by another local solicitor
What is the solicitor’s responsibility regarding instructing a barrister?
The solicitor should advise the client which barristers are most suitable for the case and provide their choice with details of the case
- solicitor advises on suitability of available barristers and obtains the client’s instructions as to their retention
What is the difference between a chartered legal executive and a solicitor?
A chartered legal executive can carry out some specific reserved legal activities unsupervised, and others with supervision by a solicitor or authorised person
- chartered legal executives are required to qualify in these areas as CILEx practitioners to carry out these activities unsupervised
What would a CILEx Practitioner Certificate be unable to carry out?
High Court advocacy
- advocacy they can carry out is limited to lower courts
They can carry out:
- probate, family litigation, conveyancing, employment advice
What is required of firms who need to be authorised by SRA?
A solicitor setting up a business (acting self-employed) or a law firm which undertakes reserved legal activities:
- Needs to be authorised by SRA
- Needs to comply with SRA’s rules: including the Code of Conduct and SRA Accounts Rules
Is advising on the rights attaching to shares permitted?
Yes, advising on the rights attached to shares by reviewing the articles of the company is generic advice, so it does not fall under Article 53 (advising on merits of specified activity, which is prohibited)
What is the SRA’s position on approaching members of the public to advertise services?
A solicitor cannot make an unsolicited approach to members of the public regarding the advertising of the firm’s legal services
- But this does not apply to current or former clients
- the solicitor can make unsolicited approaches to current and former clients
