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Legal Service > Unit 1: Introduction > Flashcards

Unit 1: Introduction Flashcards

1
Q

DEF: Legal Services

A

all manner of advice, assistance, and representation relating to the law (eg. representation before the Supreme Court to the completion of an online court form)

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2
Q

6 types of reserved legal activities

A
  1. The exercise of a right of audience
  2. The conduct of litigation
  3. Reserved instrument activities
  4. Probate activities
  5. Notarial activities
  6. The administration of oaths
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3
Q

Who can carry out reserved activities?

A

s 13 Legal Services Act 2007: reserved activities can only be carried out by authorised or exempt individuals

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4
Q

Who is an ‘approved regulator’?

A

The Law Society is an approved regulator, with regulatory functions carried out by the SRA

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5
Q

Is anyone exempt from the authorisation requirement?

A

(1) for rights of audience, person is exempt if court grants that person this right in a specific case
(2) for probate activities, exemption allows employee to act under the supervision of an authorised person

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6
Q

Consequences of carrying out reserved legal activities without authorisation or exemption?

A

Criminal Offence to carry out reserved activities (w/o auth.), up to two years of prison (and potentially, for activities 1 or 2, be in contempt of court)

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7
Q

Role of the LSB (Legal Services Board)

A

Responsible for overseeing regulation of all lawyers in England and Wales, 8 separate regulators for different types of lawyers. The LSB monitors how regulators operate and can make recommendations for improvement, impose penalties for deficiencies or ultimately withdraw approval.
- LSB has a duty to promote s 1 LSA 2007 objectives

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8
Q

s 1 LSA 2007 objectives

A
  • protecting and promoting the public interest
  • supporting the constitutional principle of the rule of law
  • improving access to justice
  • protecting and promoting the interests of consumers
  • promoting competition in the provision of services in the legal sector
  • encouraging an independent, strong, diverse, and effective legal profession
  • increasing public understanding of citizens’ legal rights and duties;
  • promoting and maintaining adherence to the professional principles;
  • promoting the prevention and detection of economic crime.
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9
Q

Examples of regulated providers of legal services and their regulators

A
  1. Solicitors (SRA)
  2. Barristers (approved regulator: Bar Standards Board) *cannot provide notarial activities
  3. Chartered legal executives (CILEx Regulation) *same as above
  4. Licensed Conveyancers (Council for Licensed Conveyancers: for reserved instrument activities, probate activities and administration of oaths)
  5. Patent attorneys (Intellectual Property Regulation Board)* everything but probate and notarial activities
  6. Trade mark attorneys (see above) *see above
  7. Costs Lawyers (Costs Lawyers standards board: for rights of audience, conduct litigation and administering oaths)
  8. Notaries (Master of the Faculties)
  9. Chartered accountants (Institute of Chartered Accountants in England and Wales)
    - Some of these individuals may work in firms, which are regulated by SRA
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10
Q

Who carries out work outside of the scope of the LSA, but have statutory legal regulation

A
  • Claims management companies (FCA)
  • Immigration advisers (Office of Immigration Services Commissioner)
  • Insolvency Practitioners (Insolvency Practitioners Association)
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11
Q

Who are ‘unregulated’ providers of legal services

A
  • will writers
  • family law advice
  • employment law advice
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12
Q

Dual Purpose of the SRA

A
  1. Protect consumers of legal services
  2. Support the operation of the rule of law and the proper administration of justice
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13
Q

Which sources of risk does the SRA target in its risk-based approach to regulation:

A
  1. Firm structure and viability
  2. fraudulent or dishonest activities
  3. people, systems and internal firm processes
  4. individuals lacking the relevant knowledge or skills
  5. the legal market operation
  6. economic and political factors
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14
Q

Firm-Based Authorisation General Rule:

A

Only certain types of businesses are eligible for authorisation
- Recognised sole practices
- Recognised legal services body
- Licensed bodies

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15
Q

DEF: Recognised Sole Practices

A

Solicitor owns firm in its entirety

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16
Q

DEF: Recognised Legal Services Body

A
  • At least 75% of managers are legally qualified and proportion of shares and voting rights held by legally qualified persons is at least 75% and managers who are not legally qualified are approved by SRA
  • Examples: Partnerships, Limited Liability Partnerships, Companies
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17
Q

DEF: Licensed Bodies

A
  • or ‘alternative business structures’ (LSA 2007), is where ownership / control / management not wholly in the hands of legally qualified individuals
  • Must have 1 managers authorised by SRA or another approved regulator
  • Must be a licensable body
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18
Q

DEF: Licensable Body

A

Will be a licensable body if a non-authorised person is (1) a manager or (2) an interest holder (holds shares or who can exercise voting rights)
OR Will be a licensable body if another body is a manager or an interest holder and non-authorised persons are entitled to exercise, or control the exercise of, at least 10% of the voting rights

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19
Q

Authorisation Process for firms

A
  1. Make an application to SRA for authorisation to carry out reserved legal work
  2. SRA checks basic eligibility requirements and carries out investigation
  3. SRA may grant blanket authorisation, authorise selected legal services or refuse the application entirely
    1. Some firms will seek authorisation to reassure clients, even if not required (due to the type of legal services offered)
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20
Q

How do individuals become authorised?

A

s 1 Solicitors Act 1974: No person shall be qualified to act as a solicitor unless (a) he has been admitted as a solicitor, and (b) his name is on the roll, and (c) he has in force a certificate issued by the Society… authorising him to practise as a solicitor (practising certificate)

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21
Q

What do the character and suitability rules take into account:

A

(1) need to protect public and public interest and maintain public trust
(2) conduct and other behaviour considered (criminal and other)
(3) Factors the SRA will take into account under Part 2

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22
Q

Admission: Criminal Conduct two categories

A

(1) Most serious: will likely mean refusal
- criminal offence resulting in custodial or suspended sentence involving dishonest, perjury, fraud, abuse, obstructing justice, terrorism, discrimination
- Or police caution for offence involving dishonesty, violence, discrimination, sexual offences or application is on Violent and Sex Offender Register
(2) Serious: may result in refusal
- Caution accepted for / convicted of offence not falling into categories above
- could include assessment offence at university, avoiding responsibility for debts, serious disciplinary / regulatory sanctions

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23
Q

How to obtain a practising certificate:

A

(1) Must be applied for, can be done if:
(i) Name is on the roll
(ii) sufficient knowledge of written and spoken english or welsh
(iii) has not been suspended from practice as a solicitor

24
Q

Significance of Practising Certificate

A

(1) Allows individual to carry out reserved legal activities (except notarial activities) through a firm
(2) CANNOT exercise rights of audience in high courts

25
Q

When would an application for a practising certificate be refused?

A

If Solicitor:
- is unsuitable to undertake certain activities
- is likely to put third parties, clients or the public at risk
- will not comply with SRA’s regulatory arrangements / requires monitoring

26
Q

If an application for Practising Certificate is declined: what can be done?

A

A decision to refuse a PC application or impose conditions can be made subject of an application for review by SRA or appealed to the High Court

27
Q

Freelance Solicitors and Authorisation

A

General Rule: Freelance solicitors require authorisation as a sole practice

28
Q

When would a freelance solicitor not require individual authorisation?

A

(1) practice consists entirely of non-reserved legal activities,
(2) any reserved legal activity is provided through an authorised body or
(3) certain requirements are met such as:
- practising for 3 years since admission, is self-employed and practise in their own name with indemnity insurance, and does not employ anyone in connection with these services and holds limited categories of client money

29
Q

DEF: Non-Commercial Organisations

A

includes not-for-profits, charities, community interest groups and independent trade unions. - may have a solicitor and should have professional indemnity insurance for them

30
Q

DEF: Professional Indemnity Insurance

A

Covers civil claims made against solicitor in their practice
- Need to be renewed each year, covers claims made during the year rather than events (firms need to have insurance in place for future years)

31
Q

SRA Indemnity Insurance Rules

A
  • Must be complied with by authorised firms
  • Sum insured for any one claim (exclusive of defence costs) must be at least 3m and at least 2m in all other cases
  • Insurance must be continuous: if cover not in place at the end the minimum T+Cs will extend cover for 90 days and the firm must inform SRA this period has been entered into
32
Q

Authorised Firm which has entered the 90 day period (insurance has lapsed)

A
  • Must inform SRA that this period has been entered into
  • if 30 days later, same position, firm cannot take on any new work (and must notify SRA)
  • After 90 days, firm must cease practising
33
Q

Who must comply with the requirement for ‘Adequate and Appropriate’ Insurance

A
  1. SRA Authorised firms
  2. Freelance Solicitors (only for reserved legal services to public)
  3. Solicitors in non-commercial organisations
34
Q

Alerting Clients about Indemnity Insurance

A
  • Solicitors must inform clients about the firm’s compulsory layer of professional indemnity insurance
  • details of insurer
  • territorial coverage of its insurance
  • FREELANCE SOLICITORS: must inform clients they do not need to meet SRA indemnity insurance requirements
35
Q

Purpose of the Equality Act 2010

A

Sets out contexts where it is unlawful to engage in this conduct in relation to a protected characteristic

36
Q

9 Characteristics Protected by the act

A
  1. Race
  2. Religion and Belief
  3. Sex
  4. Sexual Orientation (hetero as well)
  5. Age
  6. Disability
  7. Gender Reassignment (even pre-surgery)
  8. Marriage / civil partners
  9. Pregnancy / Maternity (excluded from some elements of the act)
37
Q

DEF: Direct Discrimination

A

A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.

38
Q

What if an individual is assumed to have a PC, and is discriminated against on this basis, but does not have one in reality

A

Still constitutes direct discrimination under EA 2010

39
Q

Any defence for direct discrimination?

A

No general defence unless age, where there is no discrimination is treatment is proportionate to achieve a legitimate aim (s 13(2) EA 2010)

40
Q

DEF: Indirect Discrimination

A

Conditions are imposed which apply to everyone but have the effect of prejudicing members of a particular group. Must be the case that this was not a proportionate means of achieving a legitimate aim.

41
Q

DEF: Victimisation

A

s 27: A person (A) victimises another person (B) if A subjects B to a detriment because
(a) B does a protected act or
(b) A believes that B has done or may do a protected act

42
Q

DEF: Protected Act (wrt victimisation)

A

(1) Bringing proceedings under the Act
(2) Giving evidence or information in proceedings brought under the Act
(3) Doing anything which is related to the provisions of the Act
(4) Making an allegation that another person has done something in breach of the Act

43
Q

DEF: Harassment

A

s 26: harassment occurs when an individual is subjected to a specific form of unwanted conduct which has the effect of violating the individual’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for the individual.
- conduct related to protected characteristic (except pregnancy or marriage)
- is of a sexual nature or
- be related to gender reassignment or sex and result in less favourable treatment because of individual’s rejection or submission to conduct

44
Q

Three Requirements under the Duty to Make Reasonable Adjustments

A

(1) Provision, Criterion or practice
(2) Physical Features
(3) Provision of auxiliary aid
- If these general substantial disadvantage for disabled individual, reasonable steps must be taken to mitigate this

45
Q

EA 2010 and Service Providers

A

s 29: it is unlawful for a service provider to discriminate or victimise (by not providing service, giving certain terms for service, by terminating service, by subjecting user to detriment) or to harass person to whom service is being provided

46
Q

EA and Vicarious Liability

A

s 109: Acts done by employee are treated as if done by the employer

47
Q

If a firm is liable for the sexual harassment of an employee, what is their most likely defence?

A
  • That they took reasonable steps to prevent such action before it occurred
48
Q

Do service providers have a duty to make adjustments under the EA?

A

Yes,
- Unlawful to fail to make reasonable adjustments (and cannot pass cost onto service users)
- Must anticipate disabled individuals using their service and being prepared
- ‘reasonable’ = context dependent

49
Q

How can an individual make a claim about an EA 2010 violation?

A

(1) claim in county court, victim must show a prima facie case of discrimination, providing facts
(2) burden shifts to defendant to prove otherwise
(3) county court can rant any Tort / judicial review remedy

50
Q

What duties to Employers have wrt EA 2010:

A

An employer must not:
(1) discriminate against or victimise a prospective employee
(2) harass a person who has applied to it for employment
(3) discriminate against or victimise an employee
(4) Harass an employee

UNLESS they can demonstrate that only people with a certain protected characteristic can do the job

51
Q

Do employers have a duty to make adjustments for employees?

A

(1) Potentially, but only if they know or ought to have known the individual is disabled and is likely to be disadvantaged

52
Q

How can an employee make a claim against their employer for an EA breach?

A

(1) Claim through employment tribunal
- Submit questions to employer to see if they have a claim
(2) Conciliation process through advisory, conciliation and arbitration service to see if claim can first be settled (necessary step)
(3) Employee brings claim to tribunal, can award unlimited compensation - usually for financial loss but potentially injury to feeling as well

53
Q

Provisions for Barristers in the EA 2010:

A

Protected from discrimination from solicitors instructing them (protection from discrimination causing detriment, harassment, and victimisation)

54
Q

Is positive action permissible?

A

Section 158 contains a general provision allowing positive action which will apply to solicitors both as service providers and employers. There are two requirements which must be met for the action to be considered lawful.

55
Q

Two requirements for positive action to be lawful (wrt EA 2010)

A

(1) firm must reasonably think that
- persons with PC suffer disadvantage OR
- people with PC have distinct needs OR
- participation by people with PCs is disproportionately low (ie. show basis like survey of clients)
(2) The action taken by firm must be proportionate to achieving one of these aims:
- enabling / encouraging people who share the characteristic to overcome / minimise disadvantage
- meeting those needs or
- enabling those who share protected characteristic to participate in the activity

56
Q

Can a prospective employer favour individuals with PCs more favourably than those who do not?

A

Yes, only if they are ‘as qualified’ as others.

57
Q
A

Legal Service (2 decks)

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