UNIT 1 - Introduction to Legal Services and the Regulatory Framework for Solicitors Flashcards
Three friends decide to set up a firm offering conveyancing services to members of the public. None of the friends are solicitors.
Which of the following best
describes the position regarding the regulatory requirements which will apply to the proposed firm?
A) The firm must be authorised by the SRA.
B) There is no need for the firm to be authorised.
C) The firm must be authorised by the Legal Services Board.
D) The firm must be authorised by an approved regulator.
E) Authorisation for the firm is dealt with outside the Legal Services Act 2007.
CORRECT ANSWER D - As the firm will be offering conveyancing services it will be carrying out reserved instrument activities – one of the reserved legal activities. The firm must therefore be authorised (option B is wrong) within the regulatory framework set down by the Legal Services Act 2007 (option E therefore is wrong). Authorisation can be given by any of the approved regulators (here probably the Council of Licensed Conveyancers) and is not restricted to the SRA (option A therefore is not the best answer). Option C is wrong as the Legal Services Board is responsible for the oversight of regulation; it does not authorise firms itself.
A solicitor is authorised to provide legal services by the SRA.
Which of the following best describes the effect of authorisation?
A) The solicitor can provide all reserved legal activities.
B) The solicitor will be subject to regulation by the SRA in respect of all the legal services they provide.
C) The solicitor is only subject to regulation by the Legal Services Board in respect of the reserved legal activities they carry out.
D) The solicitor is absolved from the need to comply with any further regulatory requirements.
E) The solicitor is only subject to regulation by the SRA in respect of the reserved legal activities they carry out.
CORRECT ANSWER B - An authorised provider is subject to regulation by their own regulator (here the SRA) in respect of all the legal services they provide, not just those falling within the definition of reserved legal activities. The SRA cannot authorise an individual to carry out notarial activities, and so the solicitor cannot carry out all types of reserved legal activity.
Having completed all the necessary training requirements a man wishes to apply for admission to the roll of solicitors.
At the end of their final year at university the man was drinking with some fellow students in a local bar. A fight broke out in which the barman was punched in the face and sustained a black eye. The fight was broken up by the other bar staff. The bar owner put the fight down to student ‘high spirits’ and decided not to call the police; instead they reported
the incident to the university authorities. The university carried out an investigation. At first the man denied being in the bar, but CCTV footage showed that it was the man who had punched the barman. The man was formally disciplined by the university. The incident was completely out of character. The man has not been involved in anything similar before
or since.
Should the man tell the SRA about the disciplinary proceedings?
A) No, because the man was not convicted of a criminal offence.
B) No, because the incident took place too long ago to be of relevance in assessing the man’s character and suitability.
C) No, because the fact that it was an isolated incident demonstrates that the man is of good character.
D) Yes, because there is a risk that the university will inform the SRA.
E) Yes, because the incident is relevant to the assessment of the man’s character and suitability.
CORRECT ANSWER E - The incident and the disciplinary proceedings are relevant in assessing an application irrespective of when they took place (so Option B is not correct). Option A is not correct because the SRA looks at all types of behaviour, not just criminal
or recent behaviour. Rule 4.1 sets out examples of ‘other conduct and behaviour’ including violence, dishonesty and being subject to disciplinary proceedings by a regulatory body.
The man’s behaviour was violent (punching the barman) and dishonest (lying to the university authorities) and they were disciplined by the university. The fact that the incident has not been repeated will be taken into account by the SRA, but it is not a justification for withholding
the information (so, Option C is not correct). Option D is not the best answer because, whilst there is a risk that the university will inform the SRA, this should not be the reason for disclosure – the man is under an obligation to be open and honest.
A solicitor decides to set up in business as a sole practitioner carrying out niche private client work for high net worth individuals. The solicitor anticipates that they will regularly be dealing with estates in excess of £20 million. The solicitor will be authorised by the SRA as a recognised sole practice.
Which of the following best describes how the requirements in respect of professional indemnity insurance applies to the solicitor?
A) The solicitor can limit their liability at below £2 million.
B) The cover must be for at least £3 million.
C) The cover will need to be in excess of the minimum terms and conditions set under the SRA Indemnity Insurance Rules.
D) Having taken out professional indemnity insurance the solicitor will be absolved from liability for negligence.
E) The solicitor is not required to meet the minimum terms and conditions set under the SRA Indemnity Insurance Rules.
CORRECT ANSWER C - As a recognised sole practice the cover required under the minimum terms and conditions is £2 million. The ability to limit liability below this sum only applies to freelance solicitors. The solicitor is required to take out ‘adequate and appropriate insurance’. Given the size of the estates that the solicitor will be dealing with, the cover will need to be
in excess of the minimum. Indemnity insurance does not absolve a solicitor from liability for negligence.
Having completed all the necessary training requirements, a prospective solicitor has been offered a position as an assistant solicitor in the Family Department of a large firm of solicitors authorised by the SRA. In order to take up the offer, the prospective solicitor will be applying for admission to the roll of solicitors. There is no reason to think that the application will be refused.
Is it necessary for the prospective solicitor to obtain a practising certificate in order to take up the position?
A) Yes, because having a practising certificate is a mandatory prerequisite for being admitted to the roll of solicitors.
B) Yes, because otherwise in taking up the position the prospective solicitor will be committing a criminal offence.
C) Yes, because the firm is authorised by the SRA.
D) No, because given the nature of the job the prospective solicitor will not be carrying out reserved legal activities.
E) No, because the prospective solicitor will not be a partner in the firm.
CORRECT ANSWER B - The job is that of a solicitor. 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. The requirement is not dependent on the firm being SRA authorised (option C is wrong). The requirement applies irrespective of whether the solicitor will be carrying out reserved legal activities (option D
is wrong). The requirement applies to employed solicitors as well as partners (option E is wrong). Finally, option A is wrong as it is possible to be on the roll without having a practising certificate.
A secretary working in a firm of solicitors is subjected to a number of unwanted sexual advances by a solicitor working in the same firm. The firm has never provided training for its employees on the Equality Act 2010. The secretary makes a complaint to the firm’s senior partner. The senior partner says that the firm was completely unaware of the solicitor’s behaviour. The senior partner promises to speak to the solicitor in question and insist that the behaviour stops. Despite this the solicitor continues to make sexual advances to the secretary. In view of the solicitor’s behaviour the secretary is now contemplating making a claim to the Employment Tribunal.
Which of the following best describes the likely outcome of such a claim?
A) The solicitor’s behaviour will not be considered unlawful because it amounts to normal workplace banter.
B) The solicitor and the firm will be liable for harassment.
C) The firm is not liable for the solicitor’s behaviour because it did not know about the behaviour.
D) The firm alone will be liable for harassment.
E) The secretary will not be entitled to damages because they have not suffered any financial loss.
CORRECT ANSWER B - The solicitor’s behaviour amounts to harassment under the Act (option
A is wrong). The solicitor’s behaviour occurred in the course of their employment and so the firm will also be vicariously liable even though the firm did not know about the behaviour; accordingly, option C is wrong. It is highly unlikely that the firm will be able to show that it took reasonable steps to prevent the behaviour because it had not provided training and its response to the complaint was inadequate. If the firm is found liable, the individual employee cannot escape liability (option D is wrong). Finally, option E is wrong, as even though the secretary has not suffered a financial loss, they may be awarded damages for injury to feelings.
A solicitor’s brother is going through an acrimonious divorce. The whole family is finding the divorce proceedings very upsetting. One evening, having drunk a considerable amount of alcohol, the solicitor goes onto social media and makes various sexist remarks about his brother’s wife. The solicitor’s firm is not acting in the divorce.
Which of the following best describes the repercussions of the solicitor’s actions under the Equality Act 2010?
A) The solicitor’s actions amount to direct discrimination.
B) The solicitor’s actions amount to victimisation.
C) The solicitor’s actions are not unlawful under the Equality Act 2010 and do not breach the rules of professional conduct.
D) The solicitor’s actions are not unlawful under the Equality Act 2010 but they are likely to breach the rules of professional conduct.
E) The solicitor’s actions amount to indirect discrimination.
CORRECT ANSWER D - The Equality Act 2010 only makes discrimination unlawful in certain contexts (eg in the provision of legal services and in the workplace). As the comments were made outside those contexts they do not amount to unlawful discrimination under the Act. The SRA Principles apply to a solicitor’s private life. Making sexist comments is likely to place the solicitor in breach of Principle 2 and Principle 6.
A client instructs a large commercial firm of solicitors in connection with a medical negligence claim. At the first meeting the solicitor conducting the case hands the client a standard leaflet explaining the firm’s complaints procedure. The client looks at the leaflet for the first time later that day. The client, who has learning difficulties, contacts the firm and asks to have the leaflet provided in ‘Easy Read’ format. The firm has not previously given any consideration to the provision of information in an ‘Easy Read’ format. The client is told that the firm does not produce its leaflets in ‘Easy Read’ format.
Which of the following best describes how the firm’s duty to make reasonable adjustments under the Equality Act 2010 applies in this situation?
A) The firm has acted unlawfully in not providing the client with the leaflet in ‘Easy Read’ format at the initial interview.
B) Now that the firm is aware of the client’s disability, it must provide the client with the leaflet in ‘Easy Read’ format without delay.
C) Now that the firm is aware of the client’s disability, it should provide the leaflet in ‘Easy Read’ format at the client’s expense.
D) It is not reasonable to expect the firm to provide the leaflet in ‘Easy Read’ format.
E) The firm has not breached its duty under the Equality Act 2010 but is likely to be in breach of its professional conduct obligations.
CORRECT ANSWER A - The duty to make reasonable adjustments in the context of the provision of services is anticipatory. The firm should have anticipated the need for clients with some disabilities to have the leaflet in ‘Easy Read’ format and to have had the leaflet produced accordingly. The client’s need for adjustments should have been established by the solicitor
at the first interview and the client given the leaflet in the correct format. Given the situation that has arisen, the firm should provide a leaflet in the correct format without delay, but option B is not the best answer because the firm’s duty had already arisen; it is not dependent on knowledge of the client’s disability. Option C is wrong as the cost of making adjustments cannot be passed on to the disabled person. Given the size of the firm, the importance
of providing clients with information about complaints (Paragraph 8.3 of the SRA Code for Solicitors, RELs and RFLs requires written information to be provided at the outset) and the fact that the firm has chosen to present that information in leaflet form, it would not be unreasonable to expect the firm to also produce the leaflet in ‘Easy Read’ format (accordingly, option D is wrong). Finally, option E is not the best answer here. While the firm is likely to be in breach of its professional conduct obligations (eg SRA Principle 6 and Paragraph 8.6 of the SRA Code of Conduct for Solicitors, RELs and RFLs), it is also in breach of the requirements under the Equality Act 2010.
TRUE OR FALSE:
Under the Legal Services Act 2007, any service comprising advice or assistance in connection with the application of law or with any form of resolution of legal disputes will fall within the definition of ‘reserved legal activities’.
FALSE - The service described here is extremely broad and goes beyond categories of work that the Legal Services Act 2007 defines as ‘reserved legal activities’ (e.g. the conduct of litigation and reserved instrument activities).
TRUE OR FALSE:
The legal and regulatory controls and obligations relevant to the provision of legal services can be found entirely within the framework of the Legal Services Act 2007 and the SRA Codes of Conduct.
FALSE - The work of claims management companies, for example, generally falls outside the Legal Sevices Act 2007 (and is regulated by the Financial Conduct Authority); and legal service providers that do operate under the Legal Services Act 2007 may also be subject to other legal obligations affecting the way in which they work, such as the Equality Act 2010 (other examples include anti-money-laundering legislation).
There are six types of legal work set out in s.12 Legal Services Act 2007 and defined as ‘reserved legal activities’.
Which ONE of the following is NOT a ‘reserved legal activity’?
A) Providing advice on an employment dispute.
B) The exercise of a right of audience.
C) The conduct of litigation.
D) Probate activities.
E) Notarial activities.
CORRECT ANSWER A - because this is not a ‘reserved legal activity’. Whilst providing advice on an employment dispute is clearly activity that is legal in nature, it is not a ‘reserved legal activity’ within the meaning of s.12 Legal Services Act 2007.
B. is a ‘reserved legal activity’. The exercise of a right of audience means the right to appear before and address a court including the right to call and examine witnesses.
C. is a ‘reserved legal activity’. The conduct of litigation means:
issuing of proceedings before any court in England and Wales,
the commencing, prosecuting and defending of those proceedings, and
the performing of any ancillary functions in relation to those proceedings.
D. is a ‘reserved legal activity’. ‘Probate activities’ means preparing ‘probate papers’, i.e. the documents needed to obtain a grant of probate or a grant of letters of administration or documents to oppose such a grant.
E. is a ‘reserved legal activity’. ‘Notarial activities’ relates to the activities which, prior to the Legal Services Act 2007, were customarily carried on by notaries under the Public Notaries Act 1801. Those activities essentially relate to certifying and authenticating certain documents.
Answers B, C, D and E above encompass four of the six activities described as ‘reserved legal activities’ under s.12 Legal Services 2007. The other two are:
Reserved instrument activities (preparing and lodging formal legal documents dealing with the transfer or charge of land, relating to real or personal estate or relating to court proceedings).
The administration of oaths (such as the swearing of affidavits).
Which ONE of the following statements, concerning the role of the Legal Services Board (LSB), is CORRECT?
A) The LSB is responsible for overseeing the regulation of all lawyers in England, Scotland and Wales.
B) The LSB is given various statutory responsibilities including the awarding of practising certificates.
C) In exercising any of its functions the LSB has a duty to promote the regulatory objectives set out in s.1 Legal Services Act 2007, which include increasing public understanding of citizens’ legal rights and duties.
D) In exercising any of its functions the LSB has a duty to promote the regulatory objectives set out in s.1 Legal Services Act 2007, which include promoting the monopoly solicitors have in the provision of services in the legal sector.
E) The LSB-approved regulator for insolvency practitioners is the Insolvency Practitioners Association.
CORRECT ANSWER C - which accurately describes both the LSB’s duty and one of the regulatory objectives.
A is wrong. The Legal Services Board (LSB) is responsible for overseeing the regulation of all lawyers in England and Wales, but not Scotland, which is a separate jurisdiction.
B is wrong. The LSB is given various statutory responsibilities including ensuring standards of regulation. The LSB oversees and coordinates the regulation of legal services through a number of approved bodies, one of which is the Solicitors Regulation Authority. The Solicitors Regulation Authority awards practising certificates.
D is wrong. Although the description of the LSB’s duty is correct, the supposed regulatory objective described is the very opposite of a real one, namely promoting competition in the provision of services in the legal sector.
E is wrong. The regulator for insolvency practitioners is indeed the Insolvency Practitioners Association, but this area of work falls outside the scope of the Legal Services Act 2007 and therefore outside the LSB’s responsibility.
TRUE OR FALSE:
A barrister who chose to work in firm of solicitors would be regulated by the Bar Standards Board, whilst the firm itself would be authorised by the SRA.
TRUE - Given the various ways in which organisations can be set up to provide legal services there can be a degree of overlap in the involvement of regulators. This can mean that whilst an individual working in such an organisation is overseen by one specific regulatory body, the organisation itself is overseen by another.
Note that, in this case, both the SRA and the Bar Standards Board are regulators approved by the LSB.
TRUE OR FALSE:
Not all legal services are subject to regulation.
TRUE - Unregulated legal services providers conduct work outside the areas of reserved legal activities under the Legal Services Act 2007. Typical examples include will writing, family law advice and employment law advice.
Note that unregulated in this sense does not imply unethical or unprofessional, and some groups of unregulated legal service providers voluntarily submit themselves to self-regulation and industry-specific codes of conduct.
TRUE OR FALSE:
Each year the SRA publishes its Risk Outlook in which it sets out its view of the most significant risks affecting the profession, so that risk management is centralised and firms do not have to monitor risk individually.
FALSE - The SRA aims to be proactive and address issues before they become problems, and each year the SRA publishes its Risk Outlook in which it sets out its view of the most significant risks affecting the profession, but the SRA also expects firms to engage in their own risk management.
More specifically, Paragraph 2.5 of the SRA Code of Conduct for Firms requires firms to identify, monitor and manage all material risks to their businesses.
