Professional Conduct Principles Flashcards

Question

5 sections to client care letter

Answer 1

1) **Confirmation of your client’s instructions and options** (client objectives, options available, agreement on next steps, agreement of level of service/ updates) 2) **General info on each parties responsibilities** (yours, client’s, anything which may limit your actions (eg conflict), advice to client that you may be entitled to a lien in respect of their files (right to retain possession of them) if there are any unpaid costs) 3) **Costs info** (charging basis, hourly rate if applicable, intervals when will notify client of fees, VAT/ disbursements/ other fees, agreed limits on fees, fee estimate and when it could be exceeded, payment terms) 4) **Explanation of name and status of person dealing with matter and their supervisor** 5) **Complaints procedure** (how to complain, who to complain to, firm’s procedure)

Answer 2

1) Easy to understand. They must be able to make informed decisions about the services they need, how their matter will be handled, options available (CCS 8.6) and regulatory protections available to them (CCS 8.11) 2) Contains right info/ transparent (CCS 8): what is going to happen/ when/ by who at firm (without representing any business not authorised by SRA) (CCS 8.10). Also costs, what client needs to do, contact details, clear purpose, concise, plain English, considered needs of vulnerable clients 3) Timely delivery/ as soon as practicable after receiving instructions on new matter

Answer 3

1) When cannot obtain clear instructions 2) When continuing to act would break law or breach Codes 3) Client failed to pay interim bills (NOT on self-interest grounds)

Answer 4

1) **Breaching the law or codes**, eg fraud; conflict of interest (Principles 1 and 2; CCS) 2) **When you cannot provide a competent service**, eg not your area of expertise; too busy (CCS 3.2) 3) **When you’re not authorised to act in your client’s behalf** (if you have reason to believe instructions do not represent wishes of your client, you cannot act) (CCS 3.1)

Answer 5

Acting with independence/ honesty/ integrity

Answer 6

Integrity is broader than honesty, eg misleading client or court only breaches honesty Integrity is about being scrupulous, careful, and accurate

Answer 7

1) Taking unfair advantage of a client or member of the public 2) Allowed another person to take unfair advantage of someone else 3) Misled another person or stood by and allowed another person to be misled

Answer 8

Do not unfairly discriminate/ do not let personal views (religious, political, etc) affect the way you provide legal services Link to principle 7

Answer 9

Do not abuse position by taking unfair advantage of clients or others. Eg don’t take advantage of other party’s lack of legal knowledge

Answer 10

Do not mislead client, courts, or others by acts or omissions of yourself or others (Eg tell client it’s a strong case when it isn’t; draft docs with unarguable facts; allegations crime/ misconduct/ fraud unless material to case and you have reasonable grounds; call a witness whose evidence you know is untrue; not disclosing statutory provision to court which goes against your argument ; making false representations on behalf of client to third party or giving personal opinion) If realise midway through proceedings that YOU inadvertently misled court, with client’s consent, immediately inform court. If client doesn’t consent you must stop acting for that client If realise midway through proceedings that CLIENT committed perjury or misled court (or attempted to), cease to act unless client agrees to disclose truth to court

Answer 11

Equality = level playing field and people treated fairly Diversity = encourage and value people with board range of backgrounds, knowledge, skills, experience Inclusion = accept people for who they are and encourage everyone to participate and contribute

Answer 12

1) Effective admin of justice (independent justice system + ROL) 2) Improving access (shared social and cultural characterises can encourage people to ask for help) 3) Most talented people become solicitors and progress. Maintains high standards

Answer 13

Principle 6 (encourage EDI) CCS 1.1 CCS 1.2 CCS 3.4 (consider client’s attributes, needs, circumstances)

Answer 14

1) Reasonable adjustments for clients and employees to make sure they’re not at a substantial disadvantage. Cost not passed on to others. Positive obligation. Firm has no discretion if adjustments are reasonable (eg minimal cost and disruption to business) 2) Encourage diversity throughout workforce 3) Collect, report, publish data about diversity of workforce 4) Uphold profession’s reputation in professional and personal life; treat people with fairness/ dignity/ respect; ensure personal views don’t have negative impact on others (inc expressed on social media) 5) Be fair and inclusive

Answer 15

1) Produce EDI statement for workforce/ clients 2) Monitor and analyse diversity of staff and clients 3) Draft and implement EDI policy outlining their approach to recruitment/ retention/ progression. Encourage equality of opportunity and respect for diversity 4) Recruitment policy and fair process for promotions to get best staff 5) Encourage senior leaders to identify and remove barriers to EDI

Answer 16

Perform all undertakings (statement, which someone relies on reasonably, that you or third party will do or not do something) in an agreed timescale, or if there isn’t one, within a reasonable time

Answer 17

Specific (be clear on what is involved) Measured (quantifiable) Agreed Realistic (within solicitor’s control) Timed Any ambiguity construed in favour of recipient

Answer 18

1) Failure to perform = serious disciplinary offences, eg misconduct 2) Can be given by any indv at firm 3) Does NOT have to be in writing 4) Word ‘undertaking’ does not need to be mentioned (so never promise to do something outside of your control, esp when junior) 5) They are specifically enforceable = firms have system in place to keep track of them, eg electronic accounting safeguards to reserve money for certain undertaking 6) Firms often only allow partners or senior lawyers to give undertakings to pay another party’s costs

Answer 19

A solicitor is an officer of the court and has an overriding duty to the court. CCS 2: don’t waste court’s time, don’t place yourself in contempt of court, only make assertions/ statements/ representations/ submissions which are arguable

Answer 20

2.1Don’t use or tamper with evidence (or attempt to) 2.2 Don’t seek to influence substance of evidence (inc false stuff, persuade witnesses to change theirs, etc) 2.3 Don’t provide (or offer to) any benefit to witnesses dependant on nature of their evidence or outcome of case 2.4 Only make assertions/ statements/ representations/ submissions which are arguable 2.5 Comply with court orders and don’t place yourself in contempt of court 2.6 Don’t waste court’s time 2.7 Draw court’s attention to relevant cases/ provisions/ procedural irregularities which you know of and are likely to have material effect on outcome of proceedings

Answer 21

1) Competent and timely (CCS 3.2) 2) Maintain competence, skills, knowledge (CCS 3.3) 3) Consider client’s attributes, needs, circumstances (CCS 3.4) - you must be competent enough to help them 4) Managers accountable for and supervise your work (CCS 3.5) 5) Managers ensure people they oversee keep knowledge/ skills/ legal/ ethical/ regulatory understanding up to date (CCS 3.6) 6) Solicitor only acts on instructions from client or someone properly authorised. If suspect instructions don’t represent client wishes, do NOT act unless satisfied they do 7) Keep up to date with law and regulations governing how you work (CCS 7.1)

Answer 22

Safeguard client money and client assets. Comply with Accounts Rules and other legal obligations, eg MLR

Answer 23

Third party introduces client to you for payment Payment often a fixed fee OR calculated with reference to the amount being charge to client (% of gross or net fees) Often in express contractually binding written agreements, but informal arrangements are covered by CCS 5.1 (preserving firm’s and solicitor’s independence) Client must not have been acquired in way that would breach SRA regs if person acquiring is regulated by SRA

Answer 24

You introduce client to third party (Remember Principle 7 - only act in client’s best interests)

Answer 25

Preserving integrity and independence of firm and solicitor A) Inform client or financial or other interest you/ your business/ your employer has in referring client to another person OR introducer has in referring client to you (CCS 5.1(a)) B) Inform client or any fee sharing arrangement relevant to their matter (CCS 5.1(b)) C) Fee sharing arrangement in writing (CCS 5.1(c)) D) No payments for introductions or referrals involving clients who are subjects of criminal proceedings (CCS 5.1(d)) E) Don’t acquire client by breaching SRA regs (if person acquiring is regulated by SRA) (CCS 5.1(e)) (Remember principle 7 - client’s best interest)

Answer 26

CANNOT refer or receive referrals (latter in an introduction) for a fee in respect of claimant’s claim for damages UNLESS through intermediaries (eg claims management companies) if payment is genuinely for services provided (s56(1) LASPO) Firm/ referrer must prove any payment is for consideration of services or other genuine reason OTHER THAN referral fee Report referrer to SRA if they insist on payment of referral fee CAN accept instructions/ act for client that’s been introduced if the referring firm agreed not to charge referral fee

Answer 27

You gain any tangible benefit (financial or otherwise) there is a risk of own interest conflict Satisfy yourself and COLP that referral is purely for benefit of client and financial benefit to you/ firm is a by-product Properly inform client of any financial or other interest you/ firm has in referring them (CCS 5.1(a))

Answer 28

1) Written statement to client that your advice is independent 2) Confirm to client that info they disclose is confidential 3) Regularly monitor any potential client conflict issues where you’re also acting for referrer/ introducer on same matter (if conflict, cease acting for one of the parties)

Answer 29

Offence for UK citizen or resident to pay or receive bribe directly or indirectly. Ind companies/ partnerships where bribe paid on their behalf Anti-bribery policies in firms, eg appointing enquiry agents, or around receiving corporate hospitality or gifts

Answer 30

1) Arises out of same or related matters (asset/ liability is the same or there’s a close relationship between them) 2) Duties owed to your clients conflict

Answer 31

(i) **all clients give or evidence informed consent in writing** (they must have appropriate knowledge and understanding + if more vulnerable you must take this into account) (ii) **you put effective safeguards in place to protect clients’ confidential info** (established structural separation within firm so confidential info cannot pass between lawyers acting for clients on same matter, unless client wants same lawyer to represent them too (very rare)). This condition often stops the SCI or same objective exceptions applying because lawyers have a duty of confidentiality to their clients which means you must stop acting for one or both unless they agree to either of the above (iii) **you are satisfied it is reasonable to act for all clients** (knowledge and bargaining power (one more vulnerable = can’t act for both); negotiations (can’t act for both); particular benefits (specialist knowledge, speed, lower cost))

Answer 32

Applies to all former and current clients (inc firm you used to work for, client who has moved firm, after client’s death etc)

Answer 33

1) Statute requires govt and other bodies (eg HMRC) to require disclose of docs/ info 2) When overridden by statutory or regulatory reporting requirements (eg MLR 2017, Proceeds of Crime Act 2002, anti-terrorism legislation) 3) Where you need to reveal info to support defence in civil claim brought against you by client (eg negligence claim for against firm) or in a criminal prosecution 4) Cases involving child being sexually or physically abused/ their health (mental or physical) is in danger = can breach duty by informing appropriate authority, even if client imparting info refuses to permit disclosure

Answer 34

Places a personal duty on indv solicitor to disclose all info to client which is material (reasonably expected to effect client’s DM in matter which is significant when considering matter as a whole) to their case which SOLICITOR has PERSONAL KNOWLEDGE of Exists to protect clients Up to the firm to decide if lawyer can continue acting for that client or not

Answer 35

A) Disclosure prohibited by legal restrictions for national security and prevention of crime (6.4(a)) B) Client gives or evidences informed consent in writing (to info not being disclosed) (6.4(b)) - most common. Client must have some understanding of importance of info to their case and any prejudice there may be in non-disclosure, so you need to give indication of broad nature of info and relevance to matter (link to Principle 7 - client’s best interests would include disclosure not causing prejudice) C) You have reason to believe serious physical or mental injury will be caused to client or another if info is disclosed (6.4(c)) D) Info is in privileged doc you only know about because it was mistakenly disclosed (6.4(d))

Answer 36

Duty of confidentiality takes precedence

Answer 37

Do not act for a client who has an interest adverse (one party is likely to become opposing party on a matter) to the interests of another current or former client for whom you hold confidential info which is material to that matter, unless: 1) **Effective measures** have been taken which result in there being no real risk of disclosure of confidential info (CCS 6.5(a)). Eg systems identifying potential confidentiality issues; separate depts handling cases at all levels; separate servers and printers; encrypted and password protected info; indvs aware of who is doing what work; appropriate organisational policies and staff training. High test/ info barriers. 2) Current or former client whose info you hold gives **informed consent** to you acting (CCS 6.5(b)). Client needs an understanding of any possible prejudice which could occur. Another person should ask for consent as you can’t without confidential info being disclosed to you

Answer 38

1) Every law firm must have a procedure for handling complaints (CCS 8.2) 2) You must inform client in writing of procedure at time of engagement of right to complaint, how to complain/ who to complain to, right to complain to Legal Ombudsman and when (CCS 8.3). Often in client care letter

Answer 39

Complaints dealt with properly, fairly, free of charge (CCS 8.5) If client complains and it hasn’t been resolved in 8 weeks, inform them in writing: A) Right they have to complain to legal ombudsman, time frame, contact details B) If your complaint procedure has been exhausted: i) you cannot settle complaint, ii) name and website for ADR approved body to take things on, iii) whether you agree to use scheme operated by that body (CCS 8.4)

Answer 40

In client care letter (not required but advised) and meeting with client (at time of engagement and throughout matter). Give ‘best possible info’ (CCS 8.7) Transparency/ accuracy/ not misleading: charges (inc circumstances when interest is payable) and complaints (CCS 8.8) Keep track of costs and warn client of possible escalations/ keep their expectations realistic

Answer 41

All promotional materials and activities in any form, exc press releases prepared on behalf of client NOT misleading (CCS 8.8) Solicitors cannot make unsolicited approaches to public to advertise legal services (exc current or former clients) (CCS 8.9)

Answer 42

**Rule 1: Costs info** (publicised on website in clear, accessible, and prominent place (Rule 1.6)) Services to indvs (Rule 1.3) - Conveyancing of residential property - Collection and distribution of assets following a death - Immigration applications and matters - Road Traffic Offences - Certain advice to employees on unfair and wrongful dismissal Services to businesses (Rule 1.4) - Certain advice to employers on unfair and wrongful dismissal - Debt recovery up to £100k - Certain advice in relation to licensing applications for business premises Costs info to publish (Rule 1.5) - Total cost of service, or if not poss an average or range - Basis for charges (hourly or fixed fees) - Experience and qualifications of person carrying out work + supervisor - Description and cost of likely disbursements - Applicable VAT and amount - Details of services inc (and exc if expected to be inc) in price, key stages of matter, likely timescales - When client pays for conditions fees or damages based agreements (if used) **Rule 4: Regulatory info** - Authorised body must show SRA number and SRA digital badge in prominent position on website (Rule 4.1) - SRA number and words ‘authorised and regulated by SRA’ in letterhead and emails of authorised body (Rule 4.2)

Answer 43

1) Reserved legal activities (unless exempt) 2) Immigration services (unless regulated by Office of Immigration Services Commissioner) 3) Claims management services (unless regulated by FCA) 4) Regulated financial activities (unless regulated by FCA)

Answer 44

Someone authorised by an approved regulator 1) Rights of audience (appear before and address court, examine witnesses) 2) Conduct of litigation 3) Reserved instrument activities (preparing instrument of transfer or change relating to land, and other instruments relating to real or personal estate) 4) Notarial activities 5) Probate activities 6) Administration of oaths

Answer 45

Nothing prescribed but: 1) Must have effective governance structures, systems, and controls (CCF 2.1(a)) 2) Keep records to demonstrate compliance. (CCF 2.2) 3) Actively monitor financial stability and business viability. Effect orderly wind-down if have to cease to operate (CCF 2.4) 4) Identify, monitor, manage all material risks to business (CCF 2.5) 5) Effective system for supervising client matters - NOT necessary for person to be legally qualified/ they just need suitable experience/ knowledge/ competence and guidance on how to refer issues outside their authority ‘upwards’ (CCF 4.4)

Answer 46

Managers and owners of firm - joint and several (‘manager’ = sole principal of sole practice, LLP member, director of company, partner of partnership, member of governing body) (CCF 8.1) Every firm must have COLP and COFA + appointments must be approved by SRA (SRA’s Authorisation of Firms Rules 2019 8.1). These people ensure the right systems, procedures, and checks are in place to minimise the risk of non-compliance

Answer 47

Must take all reasonable steps to ensure: - Compliance with t&cs of firm’s authorisation (CCF 9.1(a)) - Compliance by firm, managers, employees, persons with interest in firm with applicable SRA regs - Firm’s managers, interest holders, employees, etc don’t cause or substantially contribute to breach of STA regulatory arrangements (CCF 9.1(c)) - Prompt report made to SRA of any serious breach with t&cs of firm’s authorisation or SRA’s regulatory arrangements which apply to firm/ managers/ employees (CCF 9.1(d))

Answer 48

1) Manager or employee of authorised body 2) Consent to the designation 4) Not be disqualified from acting as Head of Legal Practice or Head of Finance and Administration 5) COLP: authorised to carry on reserved activities by an approved regulator Same person can do both roles, but unlikely for big firms

Answer 49

Licensed by SRA to practice as a licensed/ recognised body OR sole practitioner’s authorised/ recognised as sole practice

Answer 50

Listed under Legal Services Act 2007. Includes SRA and the Law Society

Answer 51

SRA must approve any manager or owner of firm (Part 4 of SRA Standards and Regs AFR 9.1). X2 exceptions: 1) Sole principal whose practice has been authorised 2) If SRA is satisfied that manager of authorised body is not involved in day to day strategic mgmt of authorised body, compliance by authorised body with SRA regs, or the carrying on of reserved legal activities/ provision of legal services in Eng&Wal

Answer 52

A manager or employee or lawyer (Eng&Wal) who has practiced for at least 3yrs Note: non-lawyers should NOT be responsible for overall supervision of reserved legal activities (issue with ABS - they must now employ at least one lawyer qualified to supervise)