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professional conduct > Regulatory and Legal Environment > Flashcards

Regulatory and Legal Environment Flashcards

1
Q

What do each of the following regulate:

  1. Legal Services Board
  2. SRA
  3. Bar Standards Board
  4. Chartered Institute of Legal Executives (CILEx)
  5. Council for Licensed Conveyancers
  6. Costs Lawyers Standards Board
A
  1. Legal Services Board = all lawyers in E+W
  2. SRA = all solicitors, firms and individuals who work for businesses authorised by SRA
  3. Bar Standards Board = barristers
  4. Chartered Institute of Legal Executives (CILEx) = legal executives
  5. Council for Licensed Conveyancers = licensed conveyancers
  6. Costs Lawyers Standards Board = costs lawyers
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2
Q

Does the SRA regulate solicitors and law firms only?

A

No - also individuals who work for businesses authorised by the SRA

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3
Q

To whom can a client complain?

In order

A
  1. Law firm (own complaints procedure)
  2. Ombudsman (if firm’s procedure exhausted)
  3. SRA (if about misconduct, dishonesty, breach of SRA rules)
  4. Solicitors Disciplinary Tribunal (serious breaches of SRA’s rules)
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4
Q

What can the legal ombudsman do and not do?

A

Can: require solicitors to apologise, pay compensation, take specific action in interests of complainant
Cannot: discipline/fine lawyer

Primary function is to solve complaints

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5
Q

What powers does the Solicitors Disciplinary Tribunal have re complaints and what can they not do?

A
  • Can strike solicitor off roll, suspend solicitor fixed/indefinite period, impose fine, award costs against a party
  • Cannot award compensation
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6
Q

Can both the legal ombudsman and Solicitors Disciplinary Tribunal award compensation?

A

No - only ombudsman can award compensation

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7
Q

What powers does the SRA have re complaints?

A
  • Issue warning to firm
  • Impose disciplinary sanction (e.g. fine)
  • Reprimand solicitor for professional misconduct
  • Order solicitor to repay/refund costs to client
  • Close down firm/revoke recognition
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8
Q

What is the SRA Standards and Regulations made up of?

4 things

A
  1. SRA Principles
  2. CCS (Code of Conduct for Solicitors…)
  3. CCF (Code of Conduct for Firms)
  4. SRA Account Rules (regulate how firms manage clients’ money)
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9
Q

What are the 7 principles?

A

Individuals and firms should act:
1. in a way that upholds constitutional principle of the rule of law and proper administration of justice
2. in a way that upholds public trust and confidence in solicitor’s profession and in legal services provided by authorised persons
3. with independence
4. with honesty
5. with integrity
6. in a way encouraging E,D&I
7. in the best interests of each client

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10
Q

To whom do the principles apply and when? Only in professional context?

A
  • All individuals authorised to provide services by SRA, authorised firms, businesses, their managers and employees
  • Legal professionals in their personal and professional lives

Relationship of lawyer with client but to court and public too

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11
Q

What does the CCS do, how is it complied with and who is personally responsible for compliance?

A
  • Sets out standards that the SRA and public expect from SRA-authorised individuals to provide legal services (solicitors, paralegals, apprentices)
  • Must exercise judgement in applying standards to situation
  • You are personally responsible for compliance
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12
Q

What does the CCF do, how is it complied with and who is responsible for compliance?

A
  • Sets out the standards and business controls SRA expects of firms
  • Responsibility of managers of a firm
  • Requirement to have a COLP (compliance officer for legal practice) and a COFA (compliance officer for finance and administration)
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13
Q

How is integrity different to honesty and when would the SRA take action against an individual for a lack of integrity?

A
  • Integrity is broader than honesty e.g. misleading court is not breaching honesty principle but does breach integrity principle
  • If individual has: (allowed another person to) take unfair advantage of client/member of public or misled another person
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14
Q

How does the CSS ensure that solicitors maintain trust and act fairly?

I.e. what must solicitors not do?

A
  • Do not unfairly discriminate based on personal views (e.g. strong religious views should not stop them complying with client’s best interests)
  • Do not take unfair advantage of clients/others (e.g. should not take advantage of opposing unrepresented party)
  • Do not mislead clients or court (e.g. telling a client they have a strong case when they do not)
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15
Q

Why is ED&I important?

A
  • Diversity of views and approaches = effective administration of justice and maintains ROL
  • People more likely to seek help from solicitors they share traits with = improves access to services
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16
Q

How should solicitors/firms maintain ED&I standards?

A
  • Not pass on costs to providing reasonable adjustments to disabled clients/employees
  • Collect and report data re diversity of workforce
  • Refrain from expressing extreme personal views on social media
  • Offer complaints procedure to deal with discrimination and harassment
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17
Q

What are the protected characteristics (PCs) under the Equality Act 2010?

A
  • Age
  • disability
  • gender reassignment
  • marriage and civil partnership
  • pregnancy and maternity
  • race
  • religion or belief
  • Sex
  • sexual orientation
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18
Q

What is the difference between direct and indirect discrimination?

A
  • Direct = because of a PC, A treats B less favourably than others
  • Indirect = an act, decision or policy - which is not intended to treat anyone less favourably - has the effect of disadvantaging group of people with PC e.g. requiring employee to work full time = disadvantages woman with childcare responsibilities
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19
Q

What is the difference between harassment and victimisation?

A
  • Harassment = A engaged in unwanted conduct related to a relevant PC which violates B’s dignity or creates a hostile/intimidating environment for B e.g. talking loudly about size of female shopper’s breasts
  • Victimisation = A subjects B to a detriment because (A believes) B has done a protected act (bringing/[allegedly] brought proceedings under EA 2010)

Protected act = bringing/being part of proceedings under EA2010

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20
Q

What duty does the EA 2010 impose so as to not discriminate against person requiring service? How must that person be able to use that service?

A

Duty = to make reasonable adjustments to ensure a disabled person can use service as close as reasonably possible to standard usually offered to non-disabled people e.g. remove/prevent obstacles

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21
Q

Can reasonable adjustments be made at the time?

A

No, duty is anticipatory i.e. cannot wait until a disabled person wants to use service - must think in advance

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22
Q

To what extent must a provider make adjustments and what happens if they do not?

A
  • To a no more than reasonable extent (depends on size/nature of organisation, nature of goods/services) - so should not be particularly expensive
  • Disabled person can bring a claim if they have received poor/inferior service
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23
Q

What are the 3 requirements under the duty to make reasonable adjustments?

A
  1. Change way things are done (that could present barriers to disabled people)
  2. Change physical features of premises
  3. Provide extra aids/services or additioanl service (e.g. sign language people)
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24
Q

Why can a business not just provide an alternative service rather than alter the physical feature of premises?

Re altering the physical feature of premises

A

It not give disabled people a similar level of service - should instead remove/alter physical feature or find a way of avoiding it/replacing it

E.g. provide a lift/ramp rather than alternative service

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25
Q

What is an undertaking? Must it clearly be an undertaking?

A

A statement given orally or in writing, to someone who reasonably places reliance on it, that you/TP will do something or cause something to be done

Does not need to clearly be an ‘undertaking’

26
Q

Can only partners give undertakings? What is the consequence of failing to perform

A
  • No, can be given by any individual in a firm
  • Failure to perform undertaking = serious disciplinary offence (prof misconduct)
27
Q

What is good practice for undertakings?

A
  • Maintain record of undertakings that have been given/discharged
  • Have internal policies restricting certain undertakings to only senior lawyers
28
Q

How is ambiguity in an undertaking construed?

A

Any ambiguity is construed in favour of the recipient

29
Q

What happens if a solicitor inadveretently misleads the court?

Re client

A
  • Immediately inform the court with the client’s consent
  • If the client does not consent = solicitor must stop acting for that client
30
Q

What are the solicitor’s duties to the court?

A
  • Do not misuse/tamper evidence
  • Do not (offer to) provide any benefit to witnesses (dependent on nature of evidence/outcome of case)
  • Only make arguments that are properly arguable
  • Draw court’s attention to anything that is likely to have a material effect on outcome of proceedings
31
Q

How does a solicitor ensure the service they provide is competent?

A
  • Not send work to client unless checked by supervisor
  • Get help from someone if they are unfamiliar with task
  • Keep legal knowledge up to date
32
Q

How will managers ensure a solicitor is competent?

A
  • Remain accountable for work carried out through them
  • Effectively supervise work being done for clients
33
Q

When should undertakings be performed if there is no agreed timescale?

A

Within a reasonable amount of time

Applies generally e.g. solicitor assures court that documents will be provided to court after court requests specific documents possessed by client

34
Q

What is the rule and exception on unsolicited approaches?

A

Solicitors cannot publicise their firm by making unsolicited approaches to members of the public in person/over telephone unless they are a current or former client

Cannot approach people in street, at entry, at hospitals/accident scene

35
Q

Who is not considered a ‘member of the public’ in the context of unsolicited approaches?

A

Businesses/individuals acting in their capacity as representatives of the company - so able to approach these

36
Q

What costs must be published on firm’s websites and how?

A
  • Services to individuals (conveyancing, death estate, immigration applications, road traffic offences, advice to employees under wrongful dismissal)
  • Services to businesses (debt recovery up to value of £100,000, advice re licencing applications for business premises, advice to employers on unfair dismissal)

Must be clear and accessible in a prominent place on website

37
Q

What costs information should be published? Is it an average cost or should it include details e.g. disbursements?

A
  • Total cost (average if not practicable)
  • Basis for charges (fixed, hourly)
  • Experience/qualifications of people carrying out work
  • Description/cost of likely disbursements
38
Q

What regulatory information must a firm publicise and where?

A
  • SRA number and SRA digital badge on website
  • SRA number and ‘authorised and regulated by the SRA’ on letterhead and emails
39
Q

What is the difference between an introduction and a referral? Must it be from other lawyers?

A
  • Introduction = TP introduces/refers business to you (the law firm) (TP > law firm)e.g. estate agent refers buyers to law firm who pay estate agent £X re each introduction
  • Referral = arrangement you (law firm) might have with a TP to whom you may introduce/refer clients (law firm > TP) e.g. surveyor pays firm £X for each client introduced

Need not be to/from other lawyers

Remember (alphabetical):
Introduction to law firm
Referral to third party

40
Q

What are the 2 rules surrounding referrals(/introductions)?

A
  • Clients must be informed of financial/other interest in the referral and any fee sharing arrangement relevant to the matter
  • Must only act in client’s best interests (i.e. focus must be best person to advise client’s needs rather than your financial benefit)

Referral motivated purely by client’s benefit - financial benefit is a by-product of the process

41
Q

What should be the fee sharing agreement be?

A

In writing

42
Q

For what referrals/introductions can payments not be made/received in?

A

Clients subject to criminal proceedings

43
Q

Do the rules on referrals concern only those written in contracts?

A

No, also cover tacit, informal agreements

44
Q

What are the rules on personal injury/death cases re referrals?

A

Solicitors cannot refer/receive referrals re C’s claim for damages for personal injury or death in consideration for a referral fee

Can still take referral, just not fee

Inc making/receiving referrals through intermediaries like claims management companies unless payment genuinely is for services provide

45
Q

What happens where it appears to the SRA that you have made/received a referral fee?

A

The payment will be treated as a referral fee unless you show payment was not made as such; onus on the law firm/referrer to prove payment was in consideration for provision of services or genuine reason (and not a referral fee!)

46
Q

What referrals cannot be paid for?

A

Clients who are the subject of criminal proceedings or whose costs are partly/wholly publicly funded

47
Q

What due diligence should firms conduct in respect of the Bribery Act 2010?

A

Ensure that firm’s business contacts have an anti-bribery policy and that they comply with it

For example, if your firm retains an enquiry agent or ‘private detective’ to obtain information or evidence on your behalf/on behalf of a client, your firm needs to be satisfied that such information is not obtained as the product of a bribe, or the firm and/or the instructing fee earner(s) may be guilty of an offence.

48
Q

What are the rules on corporate hospitality/gifts in respect of the Bribery Act 2010? What policy should they therefore have?

A

Organisations should seek to prevent giving/receiving gifts, hospitality or payments dressed up as ‘expenses’ where receipt influences a business decision (e.g. to instruct firm)

Should have policy containing guidance as to financial limit of gift

49
Q

What ‘personal data’ is caught under the Data Protection Act 2018?

A
  • Data does not need to be ‘private information’
  • Does not include truly anonymous information (but counts if you can still identify)
50
Q

What are the data protection principles?

A

Data must be…
* Used fairly, lawfully and transparently for specified explicit purposes
* Used in a way that is adequate, relevant and limited to only what is necessary
* Accurate and (where necessary) kept up to date

51
Q

Must a client be a current client for the duty of confidentiality to apply to them?

A

No - duty applies to current and former clients

52
Q

What are the exceptions to the duty of confidentiality?

A
  • Statutory exceptions and reporting requirements e.g. HMRC, MLR
  • Where you need to reveal information to support a defence in civil claim brought by client (e.g. negligence) or criminal prosecution
  • Cases involving children where you discover child has been physically/sexualy abused

For second - e.g. in relation to a claim for negligence against the firm by your client

53
Q

What are you obliged to do under the duty of disclosure? Will ‘you’ extend to others in the firm?

A

Make client aware of all information material to the matter of which you have knowledge

‘You’ does not extend to others in the firm

54
Q

What are the exceptions to the duty of disclosure?

A
  • Prohibited in interests of national security or prevention of crime
  • Client gives informed consent
  • Reason to believe serious physical/mental injury will be caused to client/another if information is disclosed
  • Information from a priveleged document that was mistakenly disclosed (sent by other side by accident)
55
Q

What should you do if the other party sends you a privileged document by mistake?

A

No obligation to delete, but in practice would always offer to

56
Q

What makes information ‘material’ and therefore subject to disclosure?

A

Information which might reasonably be expected to affect the client’s decision making with regard to their matter in a way which is significant having regard to matter as a whole

57
Q

If the duty of confidentiality to a former client means you cannot disclose information to a new client, what is the only time you can still act for the new client? Is it always a good idea to continue acting?

A
  • If they consent to information not being disclosed to them (and even if they do consent, should only continue acting if it is in their best interests); but
  • Client has some understanding (broad nature) of the importance of the information to their case and potential prejudice if not disclosed

Will only continue acting usually if non-disclosure does not cause them any real prejudice

58
Q

What happens if the duty of confidentiality and disclosure conflict?

e.g. owe duty of confidentiality to one client and disclosure to another

A

The duty of confidentiality takes precedence

E.g. You are a high street solicitor dealing with criminal and family matters. Two years ago, when you were at your previous firm you defended for Mr Smith in a criminal assault case. Mr Smith lost, and was convicted, unbeknown to his wife, Mrs Smith. You have moved law firms and Mrs Smith now wishes to instruct you in their divorce proceedings. Mrs Smith alleges she was subjected to domestic violence, which Mr Smith denies. You discover that this Mr Smith is the same man you acted for in the criminal proceedings.
* The confidential information is all the information and documents you have regarding Mr Smith’s conviction for assault.
* If you were to act for Mrs Smith, CCS 6.4 would require you to make Mrs Smith aware of the information regarding Mr Smith’s conviction, as this is clearly material to her allegation of domestic violence. This would put you in breach of CCS 6.3. (The duty applies to current and former clients).
* Do any of the exceptions to CCS 6.4 apply? Unlikely - closest is CCS 6.4(b): Mrs Smith gives informed consent, given or evidenced in writing, to the information not being disclosed to the but it is unlikely that Mrs Smith would give consent.
* In addition you would not be acting in Mrs Smith’s best interests if you continued acting for her, because not revealing the information would cause her prejudice.
* In this example, you should only continue acting for Mrs S if it is in her best interests to do so, which is not the case here.
Therefore you cannot comply with your duties under CCS 6.3 and 6.4 and you must cease to act for Mrs Smith.

59
Q

In a case of adverse interests, what are the 2 conditions on acting?

Client A has an interest adverse to the interest of another current/former client (Client B) of your business for whom you/your business holds confidential information which is material to that matter

A

Cannot act unless:

  • Effective measures (information barriers) put in place which result in no real risk of disclosure of confidential information; or
  • Current/former client (for whom you hold information) has given informed consent to you acting (inc measures taken to protect information)

Information barriers unlikely to help if information already in head

You are a high street solicitor dealing with criminal and family matters.
Two years ago, when you were at your previous firm you defended for Mr Smith in a criminal assault case. Mr Smith lost, and was convicted, unbeknown to his wife, Mrs Smith.
You have moved law firms and Mrs Smith now wishes to instruct you in their divorce proceedings. Mrs Smith alleges she was subjected to domestic violence, which Mr Smith denies.
You discover that this Mr Smith is the same man you acted for in the criminal proceedings.

CCS 6.5 would not enable you to act for Mr Smith in this case:
6.5(a) - information re Mr Smith’s conviction is in your head - you know it - putting information barriers in place here will not help
6.5(b) - highly unlikely that Mr Smith will consent to you acting for Mrs Smith - in fact likely you would be professionally embarrassed to approach him for consent
You would not be able to act for Mrs Smith on her divorce proceedings

60
Q

What would effective measures to protect client information from another look like?

A
  • Separate departments handling the cases at all levels
  • Separate servers so information cannot be cross accessed
  • Information being encrypted/password protected
  • Individuals knowing who they can/cannot discuss the matter with
61
Q

Could another lawyer at the firm who does not have knowledge about a former (adverse) client interest act?

A

Some firms would allow, but others might take the view that it is not reasonable for the firm to act

62
Q

When would information barriers not be effective?

A

When the information is already in your head

professional conduct (8 decks)

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