SQE1: Ethics & Professional Conduct > Professional Conduct Rules > Flashcards

Professional Conduct Rules Flashcards

(54 cards)

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1
Q

What are the 7 SRA Principles?

A
  1. Uphold rule of law & the proper administration of justice
  2. Uphold public trust & confidence in the solicitors’ profession
  3. Act with independence
  4. Act with honesty
  5. Act with integrity
  6. Act in a way that encourages equality, diversity & inclusion
  7. Act in the best interests of the client
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2
Q

What is SRA Principle 1?

A

To act in a way that upholds the constitutional principle of the rule of law & the proper administration of justice

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3
Q

What is SRA Principle 2?

A

To act in a way that upholds public trust & confidence in the solicitors’ profession

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4
Q

What is SRA Principle 3?

A

To act with independence

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5
Q

What is SRA Principle 4?

A

To act with honesty

Test for dishonesty:
i. What was the solicitor’s genuine knowledge or belief as to the facts at the time?
ii. In view of the solicitor’s knowledge or belief at the time, was their conduct dishonest by the standards of ordinary decent people?

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6
Q

What is SRA Principle 5?

A

To act with integrity

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7
Q

What is SRA Principle 6?

A

To act in a way that encourages equality, diversity & inclusion

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8
Q

What is SRA Principle 7?

A

To act in the best interests of each client

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9
Q

What is the Legal Ombudsman?

A

Enforces complaints about services provided by legal practitioners

Can direct a solicitor to compensate their client up to £50k or limit their fees

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10
Q

What is a retainer?

A

The contract between a solicitor & their client

Solicitor must ensure client understands the extent of the retainer, including exactly what work the solicitor has agreed to undertake

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11
Q

When can a retainer be terminated?

A

By the client at any time for any reason

By the solicitor - but restricted by law & requirements of professional conduct

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12
Q

What are the powers of the Solicitors Disciplinary Tribunal?

A

Fine / suspension / strike off roll

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13
Q

What are the rules about referrals in the SRA Code of Conduct for Solicitors?

A

Where a client has been referred by a third party who introduces business to the solicitor or with whom share fees, must ensure that:

  • Clients are informed of any financial interest solicitor/introducer has in referring
  • Clients are informed of any fee sharing arrangement
  • The fee sharing agreement is in writing
  • The clients are not subject to criminal proceedings

Solicitors can only refer the client to separate business where the client has given informed consent

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14
Q

What are the rules about complaints handling in the SRA Code of Conduct for Solicitors?

A

Clients must informed of their right to complain & how to complain at the time of engagement

Complaints must be dealt with promptly, fairly & free of charge

If a complaint is not resolved within 8 weeks, the client must be informed of their right to complain to the Legal Ombudsman

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15
Q

What are the rules about advertising in the SRA Code of Conduct for Solicitors?

A

Advertising is permitted so long as it is non-intrusive & non-targeted

eg. Leaflets to people’s homes would be allowed only if distribution not targeted, ie. can send to all homes within large geographic area, but not selectively distribute to specific homes based on wider info known about them

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16
Q

If the SRA Principles come into conflict, which ones take precedence?

A

Those which safeguard wider public interest (rule of law, public confidence) take precedence over an individual client’s interests

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17
Q

What information should a solicitor give their client about costs?

A

The best possible information about how the matter will be priced (fee + VAT), likely overall costs & any costs incurred - both at the outset & when it is appropriate as the matter progresses

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18
Q

A solicitor is acting for the claimant in a litigation matter. The defendant is unrepresented. On the journey to court for the final hearing the solicitor is reading a legal journal and discovers that the solicitor has overlooked a case which completely destroys the client’s case.

What should the solicitor do on arrival at court?

A

Draw the court’s attention to the case

Para 2.7 CoC: a solicitor is under a duty to draw the court’s attention to cases which are likely to have a material effect on the case (doesn’t require consent of client)

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19
Q

What should a solicitor do if things go wrong under the SRA Code of Conduct?

A

Para 7.11 CoC: A solicitor must be open & honest if things go wrong - should tell the client immediately

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20
Q

What is a solicitor’s duty of confidentiality?

A

A solicitor must keep the affairs of their client confidential

  • Applies to former as well as client clients - continues until client permits disclosure
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21
Q

What is a solicitor’s duty to disclose?

A

A solicitor has a personal duty to current clients to disclose to the client all information relevant to the client’s matter

(Personal duty = knowledge the solicitor has personally)

Exceptions:

  • If disclosure prohibited by legal restrictions imposed in interests of national security or prevention of crime
  • If client gives informed consent to the information not being disclosed to them
  • If reason to believe serious injury caused to client or another if information is disclosed to them
  • If the information was in a privileged document that the solicitor has knowledge of only because it was mistakenly disclosed
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22
Q

When can a solicitor act for a client whose interest is adverse to another current/former client for whom the solicitor holds confidential information which is material to the case?

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A

Only if appropriate safeguards put in place to prevent disclosure of confidential information

or

Client to whom duty of confidentiality is owed gives their written informed consent

23
Q

What is informed consent?

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A

Client appreciates the issues and risks involved (having had these explained to them by a solicitor where appropriate) and makes a decision based on these risks

24
Q

Does a solicitor have to disclosure communications protected by LPP as part of their duty of disclosure?

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A

No - obligation of confidentiality is distinct from LPP

  • Confidentiality prevent solicitor from disclosing any info relating to a client
  • LPP allows solicitor to withhold specific information which the solicitor would otherwise be required to disclose (eg. in court proceedings)
25
If document are sent to or from an independent third party for the purpose of legal advice, will they be covered by LPP?
No - LPP applies only to information passed between the **client & a solicitor** acting in the capacity of a solicitor (ie. communication must relate to the request for, or the provision of, advice to the client by the solicitor) *so 'copying in' solicitor into these types of docs won't mean the information can be withheld*
26
Can a solicitor draft the will for a client who wishes to make a gift of significant value to the solicitor?
No - this is an own interest conflict (solicitor can never act where there is a conflict between their own interests & the interests of a current client) *Nb. 'significant value' probably anything more than £500, or worth >1% of client's estate*
27
Can a solicitor act for two or more clients competing to acquire a contract through a public takeover process?
No - the 'competing for the same objective' exception applies only to an asset / contract / business opportunity acquired through liquidation or by means of auction, tender, bid, or offer
28
If a solicitor is acting for two people setting up a company and differences arise within the group during the course of the matter on a fundamental matter relating to management structure, what must the solicitor do?
Cease acting - the substantially common interest exception no longer applies
29
Can a solicitor act for two companies separately bidding to takeover a third company?
Yes, if they are competing for the same objective and (a) All clients have given their **written informed consent** (b) Where appropriate, **effective safeguards** are put in place to **protect clients' confidential information** (c) The solicitor is satisfied it is **reasonable** to act for both
30
Can a solicitor act in a matter where there is an own interest conflict?
No - can _never_ act *'Own interest conflict' = risk of / conflict between interests of client & solicitor*
31
Can a solicitor act where there is a conflict or significant risk of conflict between the interests of two or more current client?
NO _Exception_: substantial common interest _Exception_: competing for the same objective
32
What is the substantial common interest exception?
A solicitor can act for two or more clients where there there is a risk of conflict between them if: * **Clear common purpose** between the clients *and* * **Strong consensus** as to how it is to be achieved *and* * The usual exception conditions are complied with: -All the clients have given **written informed consent**; & -Where appropriate, **effective safeguards** have been put in place to **protect clients' confidential info**; * -Solicitor is satisfied it is **reasonable** to act for all clients
33
What is the competing for the same objective exception?
A solicitor can act for two or more clients * Competing for the same **objective** (an asset, contract of business opportunity attained through insolvency, **auction**, **tender**, **bid**, **offer**) *and* * If **attained by one** client, it will make that objective **unattainable to the other** client(s) *and* * The usual exception conditions are complied with: -All the clients have given **written informed consent**; & -Where appropriate, **effective safeguards** have been put in place to **protect clients' confidential info**; * -Solicitor is satisfied it is **reasonable** to act for all clients
34
What are the conditions that must be complied with as part of both conflicts exceptions?
- All the clients have given **written informed consent**; & - Where appropriate, **effective safeguards** have been put in place to **protect clients' confidential info**; - Solicitor is satisfied it is **reasonable** to act for all clients
35
Can a solicitor act for a buyer & seller?
UNLIKELY (rare they have a substantially common interest)
36
Can a solicitor act for joint buyers?
USUALLY (they have a substantially common interest) *but should assess each case on its merits!*
37
Can a solicitor act for a borrower & a lender?
POSSIBLE in **residential** transactions if the mortgage is offered on **standard terms** with **no negotiation** necessary
38
What is an undertaking?
A statement made by or on behalf of a solicitor / firm to someone who places *reasonable reliance* on it that the giver of the statement will do/cause something to be done/refrain from doing something Nb. Should obtain client's **express authority** before ever giving an undertaking
39
Does an undertaking have to include the word 'undertaking'?
No - does _not_ have to include word 'undertaking' anywhere, can be written or oral
40
What if an undertaking is ambiguous?
Any ambiguity in an undertaking will likely be construed against the party that gave it
41
Will a solicitor be bound by an undertaking?
YES: a solicitor will be **personally bound** to honour an undertaking, even on matters outside their control
42
When should an undertaking be fulfilled?
Within the agreed timescale - or if no timescale agreed, within a reasonable amount of time
43
Can the SRA enforce an undertaking?
No, but any breach of an undertaking may be considered a breach of professional conduct
44
Are undertakings enforceable?
Yes - may be enforced by the court + _personally_ binding on the solicitor that gave them
45
What are some of the duties a solicitor owes to the court (5)?
Not to **mislead** or **allow others to mislead** the court **Comply with any order** or the court & not place themselves in contempt of court Not to **misuse or tamper** with evidence or **influence the substance** of evidence Not offer any **benefits to witnesses dependent** upon their evidence or the outcome of the case **Draw the court's attention** to **relevant** cases & statutory provisions or **procedural irregularities** of which the solicitor is **aware** & are **likely to have a material effect** on the outcome of proceedings
46
Does a solicitor ever owe a duty to third parties?
Yes - in addition to the _client_ (best interests) & the _court_, sometimes owe duty to third parties eg. Must **not take unfair advantage** (eg. of an opponent who is unrepresented)
47
Who is responsible for the payment of counsel's fees?
Solicitor is personally responsible
48
When must a solicitor automatically notify the SRA?
If the solicitor is: * Subject to a **criminal** charge, conviction or caution * Made **bankrupt**, enter into an involuntary arrangement with creditors or subject to a debt relief order * Become aware of a **material change** in information about themselves / their practice previously provided to the SRA * Become aware that **info previously provided** to the SRA is **false**, misleading, incomplete, inaccurate Nb. Obligation to notify is satisfied if the solicitor informs the **firm's compliance officers**
49
Does the solicitor owe a duty to the SRA to keep up to date?
Yes - must keep up to date with the law & regulation affecting the way they work
50
If a solicitor notifies the firm's compliance officer, will they have satisfied their duty to report to the SRA
Yes
51
Who is ultimately responsible for how a law firm is run & the legal services delivered (including compliance with SRA Codes)?
The firm's **managers**
52
What are the two compliance officers every firm must have? Can they ever be the the same person?
1. A compliance officer for **legal practice** (**COLP**) 2. A compliance officer for **finance & administration** (**COFA**) In **small** firms / sole prac, can be _same_ person Otherwise, will be senior individuals within the firm approved by the SRA to carry out the role
53
What are the responsibilities of a compliance officer for legal practice?
Ensure systems & controls in place to enable firm & lawyers to **comply with SRA obligations**, statutory provisions etc. Must **report promptly** to the SRA any breaches etc. *Responsibility for compliance ultimately rests with managers, but COLP may be _liable_ if fail to meet their _own_ responsibilities*
54
What are the responsibilities of a compliance officer for finance & administration?
Ensure firm complies with the **SRA Accounts Rules** Must **report promptly** any breaches etc. to the SRA *Responsibility for compliance ultimately rests with managers, but COFA may be _liable_ if fail to meet their _own_ responsibilities*
SQE1: Ethics & Professional Conduct
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