Covers Chapters 9 to 18 of the Legal Foundations textbook 2020/21 (although will also be likely almost completely compatible for future years). Also includes the FISMA flowcharts and explanations from Workshops. THIS IS NOT ONLY THE WORKSHOP READING BUT ALSO WORKBOOK READING! All you will need to p...
Professional Conduct - Workshops 1 & 2 - Detailed.
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Professional Conduct and Regulation (IPP)
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Contents
The Principles.........................................................................................................................1
Obtaining instructions............................................................................................................3
The Retainer...........................................................................................................................5
Client Care and Costs..............................................................................................................8
Confidentiality......................................................................................................................14
Conflicts of Interest..............................................................................................................19
Undertakings........................................................................................................................24
Money Laundering and The Proceeds of Crime Act 2002....................................................29
Duties Owed to the Court and Third Parties........................................................................34
Flowchart 1 – To determine if work involves a Regulated Activity......................................38
Flowchart 2 – To determine if the s327 Exemption can be used........................................39
Financial Services.................................................................................................................40
Requirements of Practice.....................................................................................................47
The Principles
Introduction
the profession is regulated by the Government, Financial Conduct Authority, Solicitors
Regulation Authority
The Principles
mandatory and apply to all individuals and bodies regulated by SRA
apply outside of a solicitor’s practice and within
if not met, action taken by SRA with Enforcement Strategy
Principle 1: Justice and The Rule of Law
solicitor must act in a way that upholds the constitutional rule of law and the proper
administration of justice.
applies in relation to clients, court and to third parties with whom the solicitor may deal.
Principle 2: Public Trust
solicitor must act in a way that upholds public trust and confidence in the solicitors’
profession and in legal services provided by those who are authorised by the SRA or another
approved regulator to carry out legal activities.
Ex. If solicitor were to use money from his client account to fund the purchase of a new car
then he would breach the SRA Accounts Rules, and harm the public’s trust in the profession.
A solicitor may harm the public’s trust in the profession by behaviour outside of his
solicitors’ practice. Ex. conviction of a criminal offence
Principle 3: Independence
1
, A solicitor must act with independence
‘Independence’: solicitor’s own and his firm’s independence, not merely his ability to give
independent advice to a client.
A solicitor should avoid situations which might put his independence at risk, eg giving control
of his practice to a third party which is beyond the regulatory reach of the SRA or other
approved regulator.
Principle 4: Honesty
A solicitor must act with honesty, most fundamental principles
applies to a solicitor’s professional practice and his life outside practice.
Where a solicitor is convicted of an offence involving dishonesty - likely to be struck off.
Principle 5: Integrity
A solicitor must act with integrity.
include all professional dealings with clients, the court, other lawyers and the public.
A solicitor is in a position of trust, and so must behave in an appropriate manner to reflect that
position.
SRA has split honesty and integrity to make it clear that the two requirements are not
interchangeable and that it would not be necessary to show that both have been proven in the
context of a breach.
Principle 6: Equality, Diversity and Inclusion
A solicitor and a firm must act in a way that encourages equality, diversity and inclusion.
Include: making reasonable adjustments to ensure that disabled clients, employees or
managers are not placed at a disadvantage compared to those who are not disabled.
In addition to complying with all anti-discrimination legislation, including the Equality Act
2010, a solicitor is under duty not to discriminate in his professional dealings.
Para 1.1 Code of Conduct for Solicitors/Firms: solicitor/firms must not unfairly discriminate
by allowing his personal views to affect his professional relationships and the way in which
he provides his services
A finding of unlawful discrimination outside practice could also amount to a breach of
Principles 1 and 2.
Para 1.5 of Code of Conduct for Firms requires that firms monitor, report and publish
workforce diversity data as prescribed by the SRA from time to time.
Principle 7: Best Interests of the Client
Solicitor must act in the best interests of each client.
Ensuring that clients are provided with a proper standard of service in terms of client care,
competence and standard of work.
Ex. client is seeking to instruct a solicitor in respect of a complex dispute regarding a contract
of insurance. If the solicitor in question knows very little about insurance law then he will be
unable to act in the best interests of the client. The best interests of the client in this case
would be for the solicitor to refer the client to an expert (ideally this would be a colleague, or
alternatively someone in another firm) in the relevant field of law.
solicitor must consider whether he has the capacity (in terms of work volume) to take on a
particular matter. If a solicitor was to take on work when he did not have the capacity to deal
with it effectively, he would be unlikely to be able to provide a proper service to that client
and so would not be acting in the client’s best interests.
2
, Obtaining instructions
ADVERTISING
Solicitors are free to publicise their practice provided that they comply with
(a) The general laws on advertising and data protection in force including
(i) UK Code of Non-broadcast Advertising and Direct and Promotional Marketing (CAP
Code)
(ii) EU General Data Protection Regulation (GDPR) and Data Protection Act 2018 (came
into force 25 March 2018)
(iii) Privacy and Electronic Communications (EC Directive) Regulations 2003
(b) Paras 8.6 to 8.11 Code of Conduct for Solicitors
Client information and publicity under the Codes of Conduct
You ensure that any publicity in relation to your practice is accurate and not misleading, including
that relating to your charges and the circumstances in which interest is payable by or to clients.
- SRA Code of Conduct for Solicitors para 8.8
- Applied to the Code of Conduct for Firms by para 7.1(c)
- Publicity includes all promotional material & activity e.g. stationery, adverts, brochures,
websites, media appearances etc.
SRA Transparency Rules
- The SRA Transparency firms require all SRA-regulated firms who publish as part of their
usual business the availability of services to publish information about those the costs of those
services
Specified services in relation to individuals
o Residential conveyancing
3
, o Uncontested probate (where all assets within UK)
o Motoring offences (summary only offences)
o Employment tribunals (claims for unfair or wrongful dismissal)
o Immigration (excluding asylum applications)
Specified services in relation to businesses
o Debt recovery (up to £100,000)
o Employment tribunals (defending claims for unfair or wrong dismissal)
o Licensing applications for business premises
Information on costs must include
(a) Total cost of service, or where not practicable, average/range of costs & details of
any disbursements
(b) Basis for the charges e.g. hourly rate/fixed fees
(c) What services included within displayed price inc. excluded services
(d) Experience/qualifications of anyone carrying out work plus supervisor
(e) Whether VAT is payable on fees/disbursements and if included in price
(f) Typical timescales and key stages of matter
(g) If conditional fee/damage-based agreements are used, circumstances in which
client may have to make any payments themselves
Unsolicited approaches
- If a solicitor wishes to cold call individuals, must comply with general law applicable
- Data protection legislation permits individuals to request their details not to be used for direct
marketing purposes
You do not make unsolicited approaches to members of the public, with the exception of current or
former clients, in order to advertise legal services provided by you, or your business or employer.
- SRA CoC for Solicitors para 8.9 (applies to firms via para 7.1(c) CoC for firms)
- Solicitors are permitted to advertise their services to the public in general in a non-targeted
way e.g. adverts placed in newspapers, radio, TV, online, billboards, leaflets to homes in
general
Letterheads, websites and e-mails
You must not be a manager, employee, member or interest holder of a business that:
(a) has a name which includes the word “solicitors”; or
(b) describes itself in a way that suggests it is a solicitors’ firm;
unless it is an authorised body.
- SRA CoC for Solicitors para 5.4
You ensure that clients understand whether and how the services you provide are regulated. This
includes:
(a) explaining which activities will be carried out by you, as an authorised person;
(b) explaining which services provided by you, your business or employer, and any separate
business are regulated by an approved regulator; and
(c) ensuring that you do not represent any business or employer which is not authorised by the
SRA, including any separate business, as being regulated by the SRA.
- SRA CoC for solicitors 8.10
- SRA Transparency Rules: body authorised by SRA must display in a prominent place on its
website its SRA number and SRA’s ‘digital badge’
- Letterheads and emails must show firm’s SRA authorisation number and words ‘authorised
and regulated by the Solicitors Regulation Authority’
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