UNIT 1: OVERVIEW Flashcards
1
Q
What are examples of reserved legal activities?
A
Risk to public:
- **the exercise of a right of audience** (court, witnesses)
- **the conduct of litigation** (issuing, commencing, prosecuting, defending, ancillary functions of proceedings)
- **reserved instrument activities** (preparing and lodging an instrument dealing with the transfer or charge of land, re real or personal estate or court proceedings)
- Excluded: wills and powers of attorney
- **probate activities** (preparing probate papers)
- **notarial activities** (certifying and authenticating certain documents)
- **the administration of estates** (eg administering an affidavity)
2
Q
Key activities excluded from reserved activities?
A
wills and powers of attorney
3
Q
Who can carry out reserved legal activities?
A
Those who are authorised by an approved regulator or exempt
4
Q
Law Society vs SRA
A
- Law Society is approved regulator named in LSA 2007, but regulatory function carried out in practice by SRA who deals with authorisation for all reserved legal activities except notarial activities.
5
Q
When is a person exempt from authorisation for rights of audience?
A
person exempt if court grants that person a right of audience in a PARTICULAR CASE (eg McKenzie friend)
6
Q
When is a person exempt from authorisation for probate activities?
A
employee acting under supervision of an authorised person
o Exemption for some non-commercial orgs, ie charities/independent trade unions.
7
Q
Sanction for person acting without authorisation/exemption?
A
Criminal offence for person to carry on a reserved legal activity if person is neither authorised nor exempt.C
o Up to 2 years imprisonment.
o Rights of audience/conduct of litigation – contempt of court: ie solicitor continued legal services + conduct litigation after having SRA auth. withdrawn/struck off by SDT, six-month prison sentence for contempt of court.
8
Q
Legal Services Board - key objectives?
A
- Oversees regulation of all lawyers in E&W
- LSB has duty to promote regulatory objectives:
- 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 of independence and integrity;
- proper standards of work; observing the best interests of the client and the duty to the court;
- and maintaining client confidentiality.
9
Q
Relationship between Legal Services Board + Individual Regulators?
A
- LSB hold them to account
-
LSB powers include:
- can make recommendations for improvement
- impose penalties for deficiencies
- withdraw approval
10
Q
Who are regulated individuals/providers?
A
- Solicitors → SRA
- Barristers → Bar Standards Board, everything except notarial
- Chartered legal executives (CANNOT WORK INDEPENDENTLY) → CILEx ‘’
- Licenses conveyancers → Council for Licensed Conveyancers
- Patent attorneys → Intellectual Property Regulation Board, except PROBATE/NOTARIAL
- Trade mark attorneys → Intellectual Property Regulation Board ‘’
- Costs lawyers → Costs Lawyers Standards Board
- Notaries → ONLY REGULATOR FOR ALL NOTARIAL ACTIVITIES!!!! Master of Faculties
- Chartered accountants → Institute of Chartered Accountants for probate activities
11
Q
Regulation outside the Legal Services Act
A
- Claims management companies → Financial Conduct Authority
- Immigration advisers → Officer of the Immigration Services Commissioner
- Insolvency practitioners → Insolvency Practitioners Association
12
Q
Some unregulated activities?
A
- Will writing
- Family law advice
- Employment law advice
13
Q
What is the SRA’s risk-based approach?
A
-
Impact (potential harm) of a certain event, and
- Probability of it occurring
- the way a firm is structured and its viability;
- a firm or individual becoming involved in fraud or dishonesty;
- the people, systems and internal processes of a firm;
- individuals lacking the requisite skills, knowledge or behaviours;
- the way the legal market operates;
- factors, such as economic, political or legal change.
SRA can use a variety of measures to proportionately address the issues or reduce the risk, eg set standards, impose fines, issue warning notices or raise consumer awareness
14
Q
How does the SRA enforce its risk-based approach?
A
- SRA can proportionately address issues or reduce the risk, eg set standards, impose fines, issue warning notices or raise consumer awareness
- Yearly Risk Outlook publication
- Para 2.5 Code of Conduct: requires firm to identify, monitor and manage all material risks to its business
15
Q
Eligible businesses for authorisation?
A
- Recognised sole practice → solicitor working alone
-
Recognised body → ‘legal services body’:
- At least 75% of the body’s managers are legally qualified
- Legally qualified persons hold 75% shares and voting rights
- Managers who are not legally qualified are approved by the SRA, and
- At least one manager is a solicitor (or registered European lawyer)
- EG: partnerships, LLPS, companies
-
Licensed body → Alternative Business Structure:
- Must have at least one manager authorised by SRA or another approved regulator
- Must be a licensable body:
- A non-authorised person: is a manager, OR an interest holder, OR
- ## Another body is a manager or interest holder AND non-authorised persons are entitled to exercise at least 10% voting rights
16
Q
Recognised body requirements?
A
- At least 75% of the body’s managers are legally qualified
- Legally qualified persons hold 75% shares and voting rights
- Managers who are not legally qualified are approved by the SRA, and
- At least one manager is a solicitor (or registered European lawyer)
- EG: partnerships, LLPS
17
Q
Licensed body (ie, authorised business structure) requirements?
A
- Must have at least one manager authorised by SRA OR another approved regulator
- Must be a licensable body:
- A non-authorised person: is a manager, OR an interest holder, OR
- Another body is a manager or interest holder AND non-authorised persons are entitled to exercise at least 10% voting rights IN THE OTHER BODY
- Must be a licensable body:
18
Q
Effect of authorisation?
A
- Can carry out reserved legal activities
- Can carry out immigration work
- Licensed + Recognised bodies can:- professional services of the sort provided by individuals practising as solicitors and/or lawyers of other jurisdictions; and
- other professional services set out in annex 2 of the Rules, for example alternative dispute resolution, estate agency and financial services.
- Can carry out immigration work
19
Q
Compliance officer requirements for licensed + recognised bodies?
A
- Have a Compliance Officer for Legal Practice (COLP) / Head of LP
- Have a Compliance Officer for Finance and Administration (COFA) / Head of FA
- both approved by SRA
20
Q
Authorisation process for firms?
A
- Apply to SRA
- SRA checks eligibility criteria
- SRA considers key outcomes:
- confidence in required legal standard
- systems that give public confidence in legal profession
- competence, character, and willingness to achieve right outcomes
OUTCOME OF INVESTIGATION
- Blanket authorisation
- Authorisation of select legal serivces
- Refusal
21
Q
Authorisation of individuals?
A
- SRA Authorisation of Individuals Regulations.
- Involves admission as a solicitor and obtaining practising certificate.
- Same requirements, S1 Solicitors Act 1974, no one qualified unless:
o He has been admitted as solicitor
o Name on roll
o Has in force certificate issued by Society authorising him to practise as solicitor - Any person does not comply = unqualified person SA 1974 s87 + cannot practise, criminal offence without certificate.
22
Q
Part 1 of SRA Assessment of Character and Suitability Rules?
A
apply to all individuals applying for admission to the roll of solicitors (including those applying for an early assessment of their character and suitability).
- The Rules also apply to those applying to become an authorised role holder in a firm (eg a Compliance Officer for Legal Practice (COLP)) and former solicitors seeking restoration to the roll.
- SRA will take into account the overriding need to protect the public and the public interest and maintain public trust and confidence in the solicitors’ profession and in legal services provided by ‘authorised persons’. In doing so, it will take into account the nature of the applicant’s role and their individual circumstances on a case- by- case basis.
23
Q
Part 2 SRA Assessment rules?
A
Rules sets out the conduct and other behaviour that the SRA will consider when assessing an individual’s character and suitability: criminal conduct and other conduct
24
Q
Criminal conduct for character and suitability: heads of assessment?
A
Individual must disclose ALL matters. Ongoing obligation. Failure to disclose - will be taken into account.
Most serious - likely refusal of application, inc. criminal offence resulting in suspended or custodial sentence.
Serious- may result in refusal, caution, conviction etc, dishonest, violence, disciplinary findings
25
Who can obtain a practising certificate?
Solicitors can apply for a practising certificate (PC) if they are on the roll, proficient in English or Welsh, and not suspended
26
Scope of practicing certificate?
Practising certificates allow solicitors to conduct all reserved legal activities (EXCLUDING notarial activities).
BUT Rights of audience in higher courts require specific qualifications - a solicitor cannot exercise those rights in the HIGHER courts (Crown Court, High Court, Court of Appeal and Supreme Court) until they have successfully completed, as appropriate, the Higher Courts (Civil Advocacy) Qualification or the Higher Courts (Criminal Advocacy) Qualification.
27
Carrying out pro bono work?
* The need for reserved legal activities to be provided through an authorised body will be an important consideration for solicitor who works within a mainstream authorised firm and who wishes to additionally undertake pro bono work. Such work might be conducted through the firm (eg under a programme set up by the firm) in which case there is no issue.
* However, if not, the solicitor cannot rely on their practising certificate alone and will need to ensure that they fall within and satisfy the requirements of an exception.
28
How often does a practising certificate need to be renewed?
Those who are required to hold a practising certificate must apply to the SRA each year to have their certificates renewed. All practising certificates become due for renewal on 31 October each year. A fee is payable on renewal of the certificate.
29
Practising solicitor - ongoing obligations?
Solicitor obliged to inform the SRA promptly of any material changes to relevant information about themselves or their practice, including any change to information recorded on the roll if the solicitor is subject to any criminal charge, conviction or caution, or if a relevant insolvency event occurs in relation to them (for example, bankruptcy) (Paragraph 7.6 of the SRA Code of Conduct for Solicitors, RELs and RFLs,).
30
When can the SRA refuse application for a practising certificate?
* The SRA may impose such conditions if it is satisfied that the solicitor:
o (a) is unsuitable to undertake certain activities or engage in certain business or practising arrangements;
o (b) is putting, or is likely to put, at risk the interest of clients, third parties or the public;
o (c) will not comply with, or requires monitoring of compliance with, the SRA’s regulatory arrangements; or
o (d) should take specified steps conducive to the regulatory objectives.
* The conditions imposed may specify certain requirements to be met or steps to be taken, restrict the carrying on of certain activities, the holding of certain roles or prohibit the taking of specified steps without the SRA’s approval.
31
How to appeal a decision by SRA to refuse practising certificate application?
* A decision by the SRA to refuse an application for a practising certificate or to impose conditions on one can be made the subject of an application for a review by the SRA or appealed to the High Court.
32
Working outside authorised firms: rules for freelance solicitors?
- Do not need to be authorised as a recognised sole practice if:
- not reserved legal activities; or
- reserved legal activities provided through an authorised body; or
- certain requirements
- practised as a solicitor for a minimum of three years since admission,
- be self-employed and practise in their own name,
- take out indemnity insurance in respect of all the services they provide,
- does not employ anyone in connection with those services and
- only holds limited categories of client money
- **BUT MUST** **notify** the SRA of their intention to practise in that capacity + SRA will place details on the public register
33
Rules for in-house solicitors?
- CAN deliver reserved legal activities to their EMPLOYER, but not to the general public
- BUT CAN undertake pro-bono work if they have 1) adequate and appropriate insurance and 2) a practising certificate to be able to undertake ***reserved legal activities*** such as pro-bono work
34
Rules for non-commercial organisations
- includes not-for-profit bodies, charities, community interest groups and independent trade unions
- Generally exempt from authorisation
- Must still get professional indemnity insurance
35
Who must take out professional indemnity insurance?
- All SRA authorised firms **must** take out and maintain professional indemnity insurance that is **adequate** and **appropriate** for its practice and meets the **specific requirements** set out in the Rules (qualifying insurance).
- Individual assistant solicitors, trainees and others employed by a solicitors’ practice will be covered by the insurance taken out by the firm.
36
Minimum amounts for professional indemnity insurance?
1. **Recognised and licensed bodies**: must be at least **£3 million**
2. **All others**: at least **£2 million**
3. NB. firm must *not exclude* or attempt to exclude liability below this minimum level of cover
37
What happens if insurance cover runs out?
- If it runs out and cannot be renewed, cover is extended for **90 days**
1. Firm must inform SRA it has entered the extended policy period and try to find new insurance
2. After **30 days**, if no cover is found, firm must notify SRA + CANNOT TAKE ON NEW WORK
3. at **90 days** → cease practising
38
Duties to client re professional indemnity insurance?
3. Firms must **be open with their clients** about their professional indemnity insurance provision
1. **Must share** with clients information about the firm’s compulsory layer of insurance, including the coverage of its insurance
2. **Freelance solicitors** providing reserved legal activities must **inform** their clients that they are not required to meet SRA’s minimum
39
Minimum requirements for indemnity insurance - what to tell client
- additional need for insurance cover to be adequate and appropriate may require a firm to go beyond that minimum. The minimum may not be adequate and appropriate in all cases and so a firm may need to take out ‘top- up’ cover.
SRA authorised firms cannot exclude or limit their liability to clients below the minimum level under the SRA’s minimum terms and conditions (see above). This restriction does not apply to freelance solicitors or solicitors working for non- commercial bodies. There is no restriction on authorised firms capping their liability above the minimum level. If a cap is set, regard must be had to a solicitor’s professional conduct obligations. For example, a solicitor must act in the client’s best interests (SRA Principle 7) and must not abuse their position by taking unfair advantage of clients (Paragraph 1.2 SRA Code of Conduct for Solicitors, RELs and RFLs).
40
Protected characteristics?
- race
- religion and belief
- belief = genuinely held, relating to a substantial part of human life, has a level of cogency, and is worthy of respect
- sex
- sexual orientation
- age
- disability
- gender reassignment
- marriage/civil partnership
- pregnancy and maternity.
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