LPC Professional Conduct and Regulation Notes (ULaw)
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Contains: (60 pages)
Notes covering all topics in PCR workshop 1 and workshop 2
Multiple Choice Questions (MCQ's) with Answers
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Contents
PROFESSIONAL CONDUCT 1 SUMMARY .......................................................................................................................... 2
The Legal Profession..................................................................................................................................................... 4
Regulating The Profession............................................................................................................................................ 7
Sra Principles ................................................................................................................................................................ 9
Obtaining Instructions .................................................................................................................................................. 9
Advertising ................................................................................................................................................................ 9
Confidentiality ............................................................................................................................................................ 10
Conflicts Of Interest ................................................................................................................................................... 12
PROFESSIONAL CONDUCT 2 SUMMARY ........................................................................................................................ 15
Undertakings: ............................................................................................................................................................. 19
Money Laundering And The Proceeds Of Crime Act 2002 ........................................................................................ 21
Money Laundering Offences For Solicitors................................................................................................................ 23
Offence Of Arranging - S.328 ................................................................................................................................. 23
Failure To Disclose – S.330 ..................................................................................................................................... 24
Tipping Off – S.333 ................................................................................................................................................. 24
Financial Services Work (Fsma) ................................................................................................................................. 25
Money Laundering ..................................................................................................................................................... 29
Client Due Diligence ............................................................................................................................................... 29
Proceeds Of Crime Act 2002: ..................................................................................................................................... 31
Financial Services: ...................................................................................................................................................... 34
PROFESSIONAL CONDUCT MCQ’S .................................................................................................................................. 37
General ....................................................................................................................................................................... 37
Referrals + Introductions ........................................................................................................................................... 43
Undertakings .............................................................................................................................................................. 45
Conflicts Of Interest ................................................................................................................................................... 47
Regulated Activities Under FSMA .............................................................................................................................. 50
Money Laundering, Proceeds Of Crime + Due Diligence .......................................................................................... 53
Complaints .................................................................................................................................................................. 55
Obtaining Instructions ................................................................................................................................................ 57
Confidentiality ............................................................................................................................................................ 59
, PROFESSIONAL CONDUCT 1 SUMMARY
The SRA publishes Standards and Regulations setting out the requirements expected of its regulated community. The
SRA Principles set out the fundamental ethical requirements of behaviour. The Codes describe the standards of
professionalism expected. The SRA can impose disciplinary action in the event of a breach.
SRA PRINCIPLES AND CODES
1: Explain the SRA Principles and Codes and appreciate how professional conduct issues arise in a wide range of
scenarios.
SRA Principles 1. Justice and the Rule of Law
2. Public Trust
3. Independence
4. Honesty
5. Integrity
6. Equality, Diversity and Inclusion
7. Best Interests of the Client
Key Codes of Conduct Para 6.1 – 6.2 = Conflict of interests
Para 6.3 – 6.5 = Confidentiality
Application These principles and Codes of conduct will apply to solicitors both in their
professional work, as well as in their personal life.
There have been a large number of cases in which solicitors have failed to
uphold these standards, and this can lead to penalties.
Solicitors Disciplinary Tribunal Powers in the event of professional misconduct:
(SDT) - Striking a solicitor off the roll
- Suspending a solicitor from practice
- Imposing restrictions on the way in which a solicitor can practice
- Reprimanding the solicitor
- Requiring payment of costs of any party
- Requiring a payment of compensation
CONFLICT OF INTERESTS
2: Identify circumstances in which there is a conflict of interests and, in such a case, choose the most appropriate
options, taking account of your professional and ethical obligations.
Para 6.1 You cannot act if there is an own interest conflict or a significant risk of one.
Para 6.2 Cannot act where there is a conflict of interest between clients or a
significant risk of one, unless:
6.2(a) – the clients have a substantially common interest; or
6.2(b) – the clients are competing for the same objective
And:
6.2(i) – the clients have given informed consent in writing;
6.2(ii) – effective safeguards are in place to protect confidential
information;
6.2(iii) – it is reasonable to act for both
Competing for same Objective SRA Glossary – clients will be ‘competing for the same objective’ in a
situation where 2 or more clients are competing for an ‘objective’, which, if
attained by one client, will make that ‘objective’ unattainable to the other
client.
Objective An asset, contract or business opportunity which 2 or more clients are
seeking to acquire or recover through liquidation (or some other form of
insolvency process) or by means of an auction or tender process or a bid or
offer, but not a public takeover.
Therefore, the 2nd exception only really applies to corporate clients.
Professional Embarrassment Under 6.2(iii) – it may not be reasonable to act if doing so would cause
‘professional embarrassment’.
,Former Clients A conflict cannot arise where a client’s retainer has been terminated, as the
firm no longer owes a duty to act in their best interests.
However, a firm may still be prevented from acting if it still holds
confidential information of the former clients that would be material to the
work done for the new client – para 6.5
CONFIDENTIALITY + DISCLOSURE
3: Explain the duty of confidentiality and the steps you should take to maintain it.
Para 6.3 - Confidentiality Confidentiality must be maintained, unless:
- Disclosure is required by law; or
- The client consents
Para 6.4 - Disclosure Must disclose all relevant information to a client’s matter, except when:
6.4(a) – disclosure is prohibited by law in the interest of national security or
prevention of crime;
6.4(b) – client has given informed consent to not having information
disclosed;
6.4(c) – you have reason to believe serious physical or mental injury will be
caused by disclosure;
6.4(d) – information was in a privileged document that has been mistakenly
disclosed to you.
Para 6.5 Cannot act where a client has an interest adverse to the interest of another
client or former client for whom you hold confidential information, unless:
6.5(a) – effectives measures in place to safeguard the disclosure of the
confidential information; or
6.5(b) – current or former client impacted has given informed consent in
writing to you acting for the other client.
Mitigation While still a breach of confidentiality, some circumstances will mitigate
disciplinary action by the SRA:
- Where a client has indicated the intention to commit suicide or
serious-self harm
- Preventing harm to children or vulnerable adults
- Preventing the commission of a criminal offence.
Effective Measures Effective measures to safeguard information include:
- Systems to identify confidentiality issues
- Separate teams handling maters
- Separate servers to prevent cross-access
- Encryption and password protection
- Awareness of who cannot discuss matters
- Organisational and training polices for staff.
Privilege Legal Privilege allows a solicitor to withhold specific information which they
would otherwise be required to disclose, for example in court proceedings.
- For this to apply, the information must be passed between the
client and the solicitor acting in the capacity as solicitor – so must
relate to the request for, or provision of, advice to the client.
, THE LEGAL PROFESSION:
The Legal Services Board:
Created by the Legal Services Act 2007.
▪ Supervises the ‘approved regulators’ for the legal profession.
o SRA
o Bar Council
o Institute of Legal Executives
o Council of Licenced Conveyancers
o Chartered Institute for Patent Attorneys
o Institute of Trade Mark Attorneys
o Association of Law Costs Draftsmen
o Master of the Faculties
Solicitors Regulation Authority (SRA):
Established by the Law Society in January 2007
▪ Controls matters such as training and admission to the profession.
Purpose = ‘to protect the public by ensuring that solicitors meet high standards, and by action when risks are
identified’.
▪ Governed by a board of 11 members (5 solicitors + 6 lay members).
▪ Headquarters – The Cube, Birmingham.
▪ Budget is funded from the practicing certificate fee.
The Law Society:
Founded in 1825 as the representative body for solicitors.
▪ Represents solicitors (e.g. lobbies the government about changes in law, campaigns for working conditions).
▪ Seeks to improve the reputation of the profession as a whole, and to promote the benefits of using a
solicitor to the general public.
Membership:
▪ After admission, membership is voluntary. However, all members of the profession are bound by the
requirements of professional conduct regardless of membership.
Governance:
▪ Governed by the Council of the Law Society.
o Delegates many of its powers and decision-making responsibilities to various boards (e.g.
management; regulatory affairs).
Local Law Societies:
▪ Approximately 54 local law societies.
▪ Provide representation, training and facilities (e.g. law libraries) to local firms.
▪ Helps to provide a link between the Law Society and local solicitors.
▪ Don’t have any disciplinary powers.
Aspects of Practice:
The SRA sets out the ways legal services may be provided to the public:
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