Unit 1 Flashcards
(112 cards)
1
Q
What are the 7 SRA principles?
A
Solicitors must act:
- In a way which upholds the consitutional principle of the rule of law, and the proper administration of justice
- In a way that upholds public trust and confidence in the solicitors’ profession and in legal services provided by authorised persons
- With independence
- With honesty
- With integrity
- In a way that encourages equality, diversity and inclusion;
- In the best interests of each client.
2
Q
What Act empowers the SRA to authorise solicitors and firms to carry out ‘reserved legal activities’?
A
Legal Services Act 2007.
3
Q
What approach does SRA take to regulation?
A
Risk-based. The focus is on misconduct which is most likely to harm the public interest.
4
Q
How does SRA measure risk?
A
1) Impact of a certain event occuring and
2) Probability that the event will occur
5
Q
Are firms expected to do their own risk management too?
A
Yes.
6
Q
What are the 3 types of businesses eligble for SRA authorisation?
A
1) Recognised sole practice
2) Recognised Body
3) Licensed Bodies
7
Q
What is 1) Recognised sole practice?
A
A sole individual solicitor authorised as a recognised practice by the SRA.
8
Q
What is 2) A Recognised Body?
A
A legal services body where:
1) At least 75% of the body’s managers are legally qualified,
2) The proportion of shares and voting rights held by legally qualified persons is at least 75% and
3) Managers who are not legally qualififed are approved by the SRA
4) At least 1 manager must be a solicitor (or registered european lawyer)
9
Q
How may a recognised body take form?
A
1) Partnerships
2) Limited liabilityu partnerships
3) Companies
10
Q
What is 3) a licensed body?
A
A licensed body is an alternative business structure (ABS).
– ABS = ownership, control or management of an ABS is not wholly in the hands of individuals who are legally qualified
11
Q
Whatare the requirements for a licensed body?
A
1) Must be at least one manager who is authorised by SRA or another approved regulator
2) Has to be a ‘licensable body’.
12
Q
What is a licensable body?
A
Where a non SRA -authorised person is:
1) a manager of the body; or
2) Is an interest holder of the body (i..e, has shares or voting rights)
OR/AND
1) Another body is a manager of the body, or is an interest holder of the body; and
2) Non-authorised persons are entitled to exercise, or control the exercise of, at least 10% of the voting rights in another body.
13
Q
What is the effect of authorisation for a licensed body?
A
Once authorised, a licensed body is entitled to carry out the same range of activities as a recognised body in accordance with the terms of the licence granted by the SRA.
14
Q
What must a licensed body have in place?
A
Must have individuals designated as compliance officers (termed Head of Finance and Administration (HOFA) and Head of Legal Practice (HOLP).
15
Q
What is the effect of authorisation for a recognised body?
A
Once authorised, recognised body is entitled to carry on all reserved legal activities (except notarial activities).
The business of a recognised body is limited to:
(a) Professional services of the sort provided by individuals practising as solicitors and/or lawyers of other jurisdictions; and
(b) Other professional services set out in annex 2 of the Rules, for example alternative dispute resolution, estate agency and financial services.
16
Q
What. must a recognised body have in place?
A
Recognised body must at all times have a Compliance Officer for Legal Practice (COLP), and one who is designated as its Compliance Officer for Finance and Administration (COFA) approved by SRA.
17
Q
If a firm wants to partake in reserved legal activities, what does it need to do?
A
Make an application to SRA for authorisation.
18
Q
What is required for an individual to be authorised by SRA to practice as a solicitor?
A
1) Admission as a solicitor
2) Obtaining a practising certificate
19
Q
What are the 3 requirements for a solicitor to be qualified?
A
(a) He has been admitted as a solicitor; and
(b) His name is on the roll and
(c) He has in force a certificate issued by the Society… authorising him to practise as a solicitor (in this Act referred to as a ‘practising certificate’).
20
Q
Is it a civil or criminal offence to practise as a solicitor without a certificate?
A
Criminal.
21
Q
When is a solicitor admitted to the roll?
A
When their name is placed on it.
22
Q
What are the 3 requirements to be placed on the roll?
A
- Attained required qualifications.
- Undertaken the required training.
- SRA satisfied as to their character and suitability to be a solicitor.
23
Q
What are the 3 tiers of criminal conduct (in relation to admitting a solicitor)?
A
1) Most serious – Highly likely to result in application being refused.
2) Serious – May result in application being refused.
3) Other conduct
24
Q
What types of bhevaiour go into the Most serious category?
A
1) a custodial or suspended sentence, involving dishonesty, perjury, fraud and/or bribery, of a violent or sexual nature, associated with obstructing the course of justice, associated with terrorism or which demonstrated behaviour showing signs of discrimination towards others.
2) Also includes cases where a caution has been accepted from the police for an offence involving dishonesty, violence or discrimination or a sexual offence or the applicant has been included on the Violent and Sex Offender register.
25
What types of behaviour go into serious category?
* Include where a caution has been accepted for, or the individual has been convicted or, a criminal offence not falling within the ‘most serious’ category and where an individual is subject to a conditional discharge or a bind over by a court.
26
What types of behaviour go into 'other conduct'?
– Cheating on tests/ plagarism
– Avoiding responsibility for their debts
– Being declared bankrupt
– Cannot manage their finance
– Serious disciplinary or regulatory findings/sanctions
27
When do practising certificates become due for renewal?
31st October every year.
28
When can a solicitor exercise rights of audience in the higher courts?
(Crown Court, High Court, Court of Appeal and Supreme Court) until they have completed the Higher Courts (Civil Advocacy) Qualification for the Higher Courts (Criminal Advocacy) Qualification.
29
When can SRA exercise their discretion in renewing or granting practising certificates?
. They can refuse or impose obligations on a certificate if it believes the solicitor to:
(a) Is unsuitable to undertake certain activities or engage in certain business or practising arrangements
(b) Is putting, or is likely to put, at risk the interest of clients, third parties or the public;
(c) Will not comply with, or requires monitoring of compliance with, the SRAs regulatory arrangements; or
(d) Should take specified steps conducive to the regulatory objectives
30
What can the solicitor do if their application for renewal / grant is rejected by SRA?
– Application for a review by SRA or
– Appeal to High Court
31
If a solicitor works alone as a freelance solicitor, what is the general rule?
The solicitor needs to be authorised as a recognised sole practice.
32
What are the exceptions to the general rule that a freelance solicitor needs to be a recognised sole practice?
(a) Their practice consists entirely of carrying on activities which are not ‘reserved legal activities’ (e.g., family, employment or personal injury work and general legal advice)
(b) Any reserved legal activities provided through an authorised body or
(c) Certain requirements are met. For example, the solicitor must have practised as a solicitor for a minimum of 3 years since admission, be self-employed and practise in their own name, take out adequate and proportionate 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.
33
For a solicitor engaging in work with a non-commercial organisation, what do they need to practice?
They need to take out professional indemnity insurance that is adequate and appropriate for the work they're carrying out.
34
Do non-commercial organisations need to be authorised to provide reserved services?
No.
35
What does professional indemnity insurance usually cover?
– Legal costs of solicitor defending the claim
– If defence is unsuccessful, the client's legal costs too.
36
Do the SRA indemnity insurance rules apply to all firms authorised by SRA?
Yes.
37
Will Individual assistant solicitors, trainees and others employed by a solicitors’ practice also be covered by professional indemnity insurance?
Yes.
38
Professional indemnity insurance needs to be taken out with participating insurers. What does this mean?
“Participating insurers” = those who are regulated by FCA and have an agreement with SRA to provide insurance on particular terms.
39
What are the minimum terms and conditions for professional indemnity insurance?
1. Recognised & licensed bodies = Sum insured for any claim must be at least £3million (exclusive of defence costs) and at least £2 million in all other cases.
2. Firm must have qualifying insurance in place at all times. It must be continuous.
40
What are the requirements for continuous qualifying insurance?
Continuous = requires a firm to put a new policy in place as the current policy comes to an end.
If they cannot, the minimum terms and conditions will extend the cover for a maximum of 90 days.
Firm must notify SRA that it has entered into the extended policy period.
41
If after 30 days no cover can be found, what must the firm do?
Notify the SRA and cannot take on new work.
42
If at the end of the 90 day period insurance cannot be found, what must the firm do?
Cease practising.
43
What must professional inmednity insurance be in all cases?
Adequate and appropriate.
44
Can SRA Authorised firms exclude/limit liability to clients below the minimum level under the SRA's minimum terms & condcitions?
No.
45
Can authorised firms cap their liability above the minimum level as set out by SRA Ts&Cs?
Yes .If a cap is set, regard must be had to a solicitor’s professional conduct obligations. E.g., Principle 7 = must act in the client’s best interests and Paragraph 1.2 SRA Code of Conduct = must not abuse their position by taking unfair advantage of clients.
46
Are freelance solicitors subject to the minimum SRA Ts & Cs?
No. But they must have adequate and proportionate insurance in place.
47
What must freelance solicitors state to their clients if they are providing reserved legal activities?
must inform their clients that they are not required to meet the SRA’s minimum terms and conditions.
Important as clients with claims above £10million may not wish to commence with a firm whose indemnity insurance only meets 5million.
48
What are the 6 types of reserved legal activities?
1) Exercise of right of audience
2) Conduct of litigation
3) Reserved instrument activities
4) Probate activities
5) Notarial activities
6) Administration of oaths
49
1) exercise of rights of audience is..
the right to appear before and address a court including the right to call and examine witnesses.
50
2) Conduct of litigation is..
* Issuing of proceedings before any court in England and Wales;
* The commencing, prosecuting and defending of those proceedings; and
* The performing of any ancillary functions in relation to those proceedings (e.g., entering appearances to actions).
51
2 cases on 2) Conduct of litigation as a reserved activity...
Media Protection Services v Crawford – Court held a director of a company had acted unlawfully in carrying out a reserved legal activity whilst unauthorised (he laid information before the magistrates court – this constituted ‘the commencing of proceedings’)
JK v MK and E-Negotiation Lt – An unregulated company facilitated drafting documents relating to a couple’s divorce. Because the couple lodged the documents at court themselves, the court held that the unregulated company had not been engaged in the conduct of litigation.
52
3) Reserved instrument activities includes ...
Encompasses preparing and lodging an instrument (formal legal document) dealing with:
(a) the transfer or charge of land (e.g., a contract for the sale of land),
(b) relating to real or personal estate
(c) or an instrument relating to court proceedings.
53
4) Probate activities is ...
Means preparing ‘probate papers’ i.e., the documents needed to obtain a grant of probate or a grant of letters of administration or documents to oppose such a grant.
54
5) Notarial activities is ...
Activities which relate to certifying and authenticating certain documents –> relates to activities which prior to legal services act 2007 were carried out under Public Notaries Act 1801.
55
6) Administering oaths is ...
i.e., power to administer an oath, e.g., when a document, like an affidavit is required to be sworn.
56
Who deals with the authorisation for all reserved legal activities except notarial activities?
SRA.
57
Who can carry out reserved legal activities?
Those authorised or exempt.
58
If someone who isnt authorised or exempt does a reserved legal activity, what is the effect?
– Criminal offence
– Punishable by 2 years imprisonment
– Engaging in unauthorised rights of audience and conduct of litigation – places individual in contempt of court.
59
What is the legal services board? (LSB)
responsible for overseeing the regulation of all lawyers in England and Wales. 8 separate regulators directly regulating the different types of lawyers.
60
What is the function of the LSB?
Statutory responsibilities ensuring standards of regulation.
61
Who regulated solicitors?
SRA
62
Who regulated barristers?
Bar standards board for barristers
63
Who regulated chartered legal executives?
CLIEx Regulation
64
Who regulated licensed conveyors?
Council for Licensed Conveyancers
65
Who regulated patent attorneys?
Intellectual Property Regulation Board
66
Who regulated Trade mark attorneys?
Intellectual Property regulation board
67
Who regulates costs lawyers?
Costs lawyers standards board
68
Who regulates Notaries?
Master of the faculties
69
Who regulates chartered accountants?
Institute of chartered accountants in England and wales
70
What activities are not reserved?
1. Will writing,
2. family law advice and
3. Employment law advice
71
What does the Equality Act 2010 do?
1. Establishes ‘protected characteristics’ which are the subject of protection under the legislation.
2. Defines discriminatory behaviour ‘prohibited conduct’.
3. Sets out contexts in which it is unlawful to engage in prohibited conduct in relation to a protected characteristic (e.g., in education, in work).
72
What are the 9 protected characteristics?
1) Race
2) Religion & belief
3) Sex
4) Sexual orientation
5) AGe
6) Disability
7) Gender Reassignment
8) Marriage / civil partnerships
9) Pregnancy and Maternity
73
What does religion and belief cover?
Any religion or philosophical belief and an absence of religion or philosophical belief is covered (s.10).
‘Belief’ = must be genuinely held be a belief as opposed to a view point, relate to a substantial part of human life, attain a certain level of cogency and be worthy of respect.
74
Does sexual orientation cover attraction as well as behaviour?
Yes.
75
How is age treated in the Equality Act 2010?
Age dealt with varyingly under the Act – reflects the fact that sometimes instances a difference in treatment based on age can be justified.
76
A person has a disability if ...
* They have a physical or mental impairment; and
* The impairment has a substantial and long-term adverse effect on their ability to carry out normal day to day activities.
Schedule 1 = Certain conditions, like HIV, are a disability.
77
What does gender reassignment relate to?
S 7 = Relates to people who are proposing to undergo, are undergoing or have undergone treatment for the purpose of reassigning the person’s sex (s 7).
* Does not require the individual to be under medical supervision to be protected.
78
What does marriage / civil parterships cover in the Equality Act?
S 8 = people who are married or are in civil partnerships.
* Only covers those legally married/civil partners, not wider marital status and so it does not protect single people, divorcees, fiancées etc.
79
What conduct is prohibited under the Act?
1) Direct Discrimination
2) Indirect Discrimination
3) Disability Discrimination
4) Victimisation
5) Harassment
6) Duty to make adjustments
80
What are the 3 elements of direct discrimination?
1) Comparator – Treatment must be different from that of another real or hypothetical person (the comparator) – i.e., someone who does not have the protected characteristic.
2) Less favourable – Treatment must be less favourable than that given to comparator. Any disadvantage is sufficient and no material loss needed.
3) Protected characteristic – Reason for the less favourable trateament must be the protected characteristic.
81
Does the act cover the situation where the victim is assumed to have the characteristic even where they dont?
Yes.
82
Are there general defences to direct discrimination?
No. Except for age.
83
Where direct discrimination occured for age, what is the general defence?
There is no discrimination if the treatment was a proportionate way of achieving a legitimate aim.
84
Does it matter if the perpetrator did not intend the direct discrimination?
No. The test is objective so this has no bearing.
85
What is indirect discrimination?
Occurs where conditions are imposed which apply to everyone, but which have the effect of prejudicing members who share a protected characteristic.
86
What is the general defence for indirect discrimination?
* Action can be justified on the basis that it is a proportionate means of achieving a legitimate aim.
87
Disability discrimination is ...
Where someone discriminates against a disabled person if they treat them unfavourably because of something arising in consequence of their disability.
88
Is there a requirement for a comparator when considering disability discrimination?
No.
89
What is the general defence for disability discrimination?
* If it can be shown to be a proportionate means of achieving a legitimate aim.
* The perpetrator must have known, or reasonably be expected to have known, that the disabled person had a disability.
90
What is victimisation?
If a perpetrator puts the victim at a detriment / disadvantage beecause they a) does a protected act or b) they believe they do a protected act.
91
What does it mean to "do a protected act"?
* Bringing proceedings under the Act.
* Giving evidence or information in the proceedings brought under the Act.
* Doing anything which is related to the provisions of the Act.
* Making an allegation that another person has done something in breach of the Act.
92
Does a victim need to have a protected characteristic to receive protection from victimisation under the Act?
No.
93
What is Harassment?
harassment occurs when an individual is subjected to a specific form of unwanted conduct which has the effect of violating the individual’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for the individual.
94
What are the conditions for the unwanted conduct under harassment?
* Relate to a protected characteristic (except pregnancy/maternity and marriage/civil partnership)
* Be of a sexual nature; or
* Be of a sexual nature or related to gender reassignment or sex and result in less favourable treatment because of the individual’s rejection of or submission to the conduct.
95
What is the positive duty to make adjustments?
S 20 =duty to make reasonable adjustments for disabled persons. Failure to comply with that duty in respect of an individual is discrimination
96
What are the 3 requirements for making adjustments?
1. Provision, criterion or practice
* Where a provision, criterion or practice puts a disabled person at a ‘substantial disadvantage’ in relation to a relevant matter in comparison with persons who are not disabled, required to take reasonable steps to avoid the disadvantage.
2. Physical features
3. Provision of auxilliary aid
97
Under Equality Act, when is a firm vicariously liable for discrimination?
* Firm vicarious liability only arises in respects of an act of discrimination which was committed by an employee in the course of their employment.
98
What is a defence the firm can use for vicarious liability?
* Firm can avoid VL if it can show that they took reasonable steps to prevent the particular act of discrimination. Must have been taken before the discriminatory act occurred.
99
Are service providers (law firms) required to anticipate the possibility of disabled persons using their services and make appopriate adjustments accordingly?
Yes.
100
Who can bring a claim if the firm has not complied with its duty to make adjustments?
An individual affected by the failure to make adjustments only.
101
Who should pay for the cost of the adjustments?
The service provider themselves.
102
Where is a claim under the Equality Act made?
County Court.
103
Who has the burden of proof in a case under Equality Act?
Claimant – to show a prima facie case of discrimination. Once this is satisfied, then the burden shifts to the defendant to prove otherwise.
104
If the actions complained of were malicious, what can the court award the claimant?
Aggravated damages or exemplary damages if really bad.
105
What can the court grant in terms of remedies?
* Court can grant any remedy which the High Court could make in tort or judicial review. Usual remedy is damages. No limit on damages which can be awarded.
106
What is the key exception in an employment context as to discrimination based on protected characteristic?
Where an employer is able to demonstrate that, because of the nature of the job, only people with a particular protected characteristic are able to do it (i.e., roman catholic school may be lawful to require stipulation that the head teacher must be practising as a roman catholic).
AND this requirement is a proportionate means to achieving a legitimate aim.
107
What is the key distinction for duty to make adjustments for disabled people in the context of employment?
* Employers only required to make adjustments if they know, or ought to reasonably know that the individual is disabled and likely to be disadvantaged.
* Duty is not anticipatory; only applies to particular individuals. E.g., duty arises only when a disabled person notifies the firm of their intention to apply, or where an employee declares a disability.
108
Where should a claimant who is an employee or prospective employee make a claim? (employment context)
Employment tribunal.
109
What is the 1st requirement necessary for positive action to be conisdered lawful?
1) The firms must reasonably think that:
(a) Persons who share a protected characteristic suffer a disadvantage connected to the characteristic; or
(b) Persons who share a protected characteristic have needs that are different from the needs of those who do not share it; or
(c) Participation in an activity by persons who share a protected characteristic is disproportionately low.
110
What is the 2nd requirement for positive action to be lawful?
2) Action taken by the firm must be proportionate means of achieving one of the following aims:
(a) Enabling or encouraging persons who share the protected characteristic to overcome or minimise that disadvantage; or
(b) Meeting those needs; or
(c) Enabling or encouraging persons who share the protected characteristic to participate in that activity.
111
What is positive action in the employment context limited to?
Recruitment and promotion.
* Employer can treat a person with a protected characteristic more favourable than those who do not share that characteristic only where the two are equally ‘qualified’.
* “Qualified” = not restricted to particular degrees etc. but relates to overall suitability of the individual for the job.
112
