Ethics and Professional Conduct

How many mandatory principles are there?

7

What happens if two Principles come into conflict?

the principle which safeguards the wides public interest takes precedence

Is it a defence that the company ordered the solicitor to break SRA rules of conduct?

No

What are solicitors required with respect to disabled persons?

They are required to make reasonable adjustments so that disabled clients and employees are not placed at a substantial disadvantage

Can a solicitor take instructions from only one person when representing two people jointly?

yes, as long as the solicitor makes sure that the other client agrees

can a person with power of attorney over a solicitor’s client give directions to the solicitor?

yes, in theory, but in practice it depends. the solicitor must make sure that the instruction is in the client’s best interest.

if a solicitor refers everyone to their friend (letting them know of their arrangement), is that ok?

No, because it is unlikely that the friend is a good fit for everyone and the solicitor must genuinely believe that the referral will help the client

What are the two types of cases in which solicitors are not allowed to pay or receive referral fees?

• criminal cases

• personal injury cases

In case a solicitors is suspected to have received a unlawful referral fee, on who rests the burden of proof?

the solicitor will have the burden of proving the fee was not prohibited

When may a solicitor refer a client to a company for ancillary services, in the case in which the solicitor has an interest in the other business?

When the solicitor informs the client and the client consents

what is the difference between referrals to ancillary services with referral fees and referrals to a company in which the solicitor has an interest?

for the referral monetary arrangement, the client must only be informed. for the referral to a company in which the solicitor has an interest, the client must be informed and must give express consent

what are the requirements for a shared fee agreement?

• informing the client

• the case does not concern criminal proceedings or personal injury

• the the fee sharing agreement is in writing

What are the types of conflicts that can arise?

• own interest conflicts: between the solicitor’s and the client’s interests

• client conflict: between two clients

What happens in case of an own interest conflict?

there is an absolute bar to acting

Does the duty to not act when there is a conflict apply only when the conflict materialises?

No, it can apply when there is a significant risk of a conflict as well

what are the situations in which the client can leave a gift for the solicitor in their will?

• the gift is insignificant

• the client has taken independent legal advice concerning the gift

• the solicitor is related to the client and he is treated similarly to other relatives

what are the two exceptions in which a solicitor can act despite a conflict between clients?

• they have a substantially common interest

• they are competing for the same objective and they

  • consent in writing

  • the firm effectively safeguards each clients confidential information

  • it is reasonable

what are the situations in which a breach of a solicitor’s duty of confidentiality is allowed?

• it is necessary to prevent the commission of a criminal offence that will result in serious bodily harm

• the client has indicated that they will commit suicide or serious self harm

• necessary to protect a child or a vulnerable adult

• client consents to disclosure

• disclosure is permitted or required

• the solicitor is used by the client to perpetrate a crime or fraud

what can be done when there is a conflict between a new client and a former one?

• accept new client but take safeguards that do not allow for the former client’s information to be shared

• obtain the former client’s informed consent, given in writing

• decline to act for the new client

how are complaints of clients dealt with?

if a complaint is not resolved within 8 weeks, the firm must inform the client in writing of their rights to complain to the legal ombudsman and the procedure for doing so

What are the reserved legal activities?

• Conduct of litigation

• preparing court documents

• administering an oath

when is a person allowed to carry out a reserved legal activity even if they are not authorised?

when they are acting on their own behalf

what are the criteria for determining the amount of indemnity insurance a firm must take?

adequate and appropriate, depending on

• historic claims experience of the firm

• the value of the matters the firm takes on each year

what is the conditional fee agreement?

if the client wins, the solicitor is entitled to their standard time costs plus a success fee expressed as a percentage of the standard time costs; it cannot exceed 100% of the normal fee charged; if nothing is recovered, the client doesn’t have to pay anything because they will pay the other party s costs

what is a damages based agreement?

the solicitor is entitled to a percentage of the client’s recovery regardless of the solicitor’s normal fee

the costs cannot exceed 25% in personal injury cases, 50% in commercial cases and 35% in employment claims

when is civil legal aid available?

• financial need

• merits test (good prospects of success)

ONLY for housing disputes and a few other areas

What are the only situations in which direct discrimination is allowed?

only for

• age

• disability

when the action is a proportionate, appropriate and necessary mens of achieving a legitimate aim

what is the intent requirement for money laundering offences?

knowingly or suspecting

is the test for suspicion objective or subjective?

objective - whether a reasonable person would think the activity is suspicious

what is the difference between regulated and reserved activities?

reserved - reserved for solicitors

regulated - regulated by the financial services and markets act

what is a regulated activity?

an activity that relates to an specified investment carried out in the course of business

what are the regulated activities?

ADAMS

Arranging

Dealing as agent

Advising

Managing

Safeguarding

Which are the regulated investments?

• Insurance contracts; • Shares in a company and other securities; • Debentures; • Mortgage contracts; • Pension schemes; and • Funeral plans.

What are the exceptions to needing a license for carrying out regulated activities?

• safeguarding when acting as trustee

• advising, acting as agent or arranging when buying more than 50% of a company

• introducing a client to a person who has a license

• advising the estate on the merits of selling shares when administering an estate (wills)

• an activity that is reasonably necessary as part of legal services