Professional conduct Flashcards
(41 cards)
Conflict checks - when to carry out and against whom
1) before taking a new instruction
2) client + counterparty’s parent, subsidiary, directors (inc overseas)
3Cs
- customer due diligence (MLR) 2. conflict check 3. client care letter
Own interest conflict and conflict of interests
1) own interest conflicts 2) conflict of interests - 2 exceptions: a) substantially common interest and b) competing for the same objective
Substantially common interest exception
= clear common purpose and agreement re: how to be achieved
condition: informed consent evidenced in writing, effective info safeguards, satisfied that reasonable
ie residential sale of property can usually act for seller and buyer, but usually not commercial
Competing for the same objective exception
both have one objective where if one client gets it would be unattainable for other client
condition: informed consent evidenced in writing, effective info safeguards, satisfied that reasonable
objective = asset, contract, business opportunities acquired through liquidation
ie insolvency, auction, tender process (not public takeover)
Authorisation to act on client’s behalf
ie identity check, written permission from spouse, when acting for company must be instructed by validly appointed director who has authority
Relationship between solicitors can be what potential kind of conflict of interest
own interest - ie closest friend at another firm asked to act for buyer and you for seller
Duty of confidentiality
current past and dead clients
exceptions 1) where disclosure required/allowed by law ie HMRC, National Crime Agency 2) where client gives written consent
Duty of confidentiality v disclosure; which takes precedence
Duty of confidentiality
Duty of disclosure
= must accessibly tell client of all info material to matter that personally know
exceptions - 1) legal restrictions 2) written informed consent 3) serious physical or mental injury 4) info in privileged doc mistakenly disclosed
(individual duty, not required to have knowledge of entire firm)
Conditions for termination
1) cannot get clear instructions 2) continuing acting would break law or breach CCF/CCS 3) failed bills - only if specific contractual agreement
nb not in CCF/CSS
Client care letter requirements
1) general - how/which services regulated, ensure only act of authorised bodies 2) costs - likely overall cost, publicity re: must not be misleading, “best possible info” about how will be priced 3) complaints - how can make complaints and how to contact Legal Ombudsman
nb not explicitly required by CCF/CCS
FSMA: specified investments
- shares
- regulated mortgages contracts
- contracts of insurance
- bonds
FSMA: specified activity
- arranging deals in investments
- advising on merits of investments
- dealing in investments
- managing investments
FSMA: excluded activities
- intro to authorised person
- necessary part
- sale of a body corporate (= 50% or more voting shares else something else indicating full control)
FSMA: basic conditions in in s 327 + SRA Scope Rule 2
- member of profession 2. no commission 3. incidental 4. complementary
(1-3 327, 4 Scope Rule 2)
FSMA: general advice
outside scope of act
Offences under Proceeds of Crime Act: Direct involvement offences
- applies to everyone
- concealing, disguising, converting or transferring criminal property/removing from UK (s327)
- involved in arrangement where know facilitates acquisition, retention, use or control of crime property
- acquiring using or possessing criminal property
(one event can = more than one offence)
defence = authorised disclosure to nominated officer (ie MLRO) or was outside UK, not unlawful, and not prescribed by Sec of State
PCA: non-direct involvement offences - failure to disclose
- applies to regulated sectors
- failure to disclose offence - know/suspect money laundering + receive that info while working in regulated sector + can identify who was laundering or where property is
FSMA s19 general prohibition
prohibition on regulated activities unless authorised or exempt
FSMA: if does not fulfil s327 and SRA Scope Rule 2
firm must be authorised by FCA or PRA + comply with rules in handbook or refuse to carry out activity
if not approved and carries out then breach of s19(1) = criminal offence
PCA: non-direct involvement offences - tipping off
PCA: how long to wait after disclosure before proceeding
no further work until
- authorised by NCA
- notice period - seven working days have passed and NCA has not refused authority to proceed
- NCA refused consent during notice period + moratorium period (31 days from day firm received notice consent refused) expired
PCA: tipping off
offence to tell client 1. has been report 2. disclose investigation being considered/carried out
