Professional Conduct & Regulation LPC Notes (2022) - High distinction/100% attained
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DistinctionNotesLPC
Professional Conduct and Regulation
The Legal Profession and Regulating the Profession
THE LEGAL PROFESSION
Professional conduct Professional conduct is the term that is used to describe the rules, regulations
and requirements with which a solicitor must comply. Solicitors are in a
position of trust, and so a higher standard of behaviour is expected of them
than of members of the public.
Solicitors Regulation The SRA regulates solicitors, the bodies in which they operate and all those
Authority working within those bodies in England and Wales. It also controls such
matters as training and entry into the profession.
Legal Services Board Supervises the SRA’s regulation of the profession.
The Law Society The Law Society is the representative body for solicitors in England and Wales.
Membership is voluntary, but all solicitors (and those who are employed by
them) are bound by the requirements of professional conduct whether or not
they are members of The Law Society.
REGULATING THE LEGAL PROFESSION
SRA The SRA publishes and enforces rules and requirements concerning how solicitors,
authorised bodies and their employees behave and conduct their business. The subject
matter of this Part is the SRA Code of Conduct 2019.
Code of Para 8.2 – A solicitor must ensure that he establishes and maintains or participates in a
Conduct for procedure for handling complaints in relation to the legal services he provides
Solicitors Para 8.3 - Solicitor must ensure that clients are informed in writing at the time of
engagement about:
(paras 8.2-8.5 a) their right to complain to you about your services and your charges;
and 8.11 b) how a complaint can be made and to whom; and
apply to Code c) any right they have to make a complaint to the Legal Ombudsman and when they
of Conducts can make any such complaint
for Firms by Para 8.4 – when a client has made a complaint, if this has not been resolved to the client’s
virtue of para satisfaction within 8 weeks following the making of a complaint, the solicitor must ensure
7.1(c)) that the client is informed in writing
a) of any right they have to complain to the Legal Ombudsman, the timeframe for
doing so and full details of how to contact the Legal Ombudsman; and
b) if a complaint has been brought and the complaints procedure has been exhausted:
i. that the solicitor cannot settle the complaint;
ii. the name and the website address of an alternative dispute resolution
approved body which would be competent to deal with the complaint; and
iii. whether you agree to use the scheme operated by that body
N.B. solicitor not required to submit complaints to the ADR body unless he wishes to.
Additional info must be provided by solicitors who come within the definition of an
‘online trader’ under a separate EU regulation on online dispute resolution.
Para 8.5 – clients’ complaints must be dealt with promptly, fairly and free of charge
Para 8.11 – solicitors must ensure clients understand regulatory protections available to
them (this includes eligibility to claim under Fund see below)
Legal The Legal Ombudsman for England and Wales deals with complaints concerning services
Ombudsman provided by solicitors and other types of legal practitioner, and refers any allegations of
breaches of the requirements of professional conduct concerning solicitors to the SRA.
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The Legal Ombudsman cannot pay compensation to a client itself.
Solicitors The Solicitors Disciplinary Tribunal hears and determines applications relating to
Disciplinary allegations of professional misconduct. It is independent of the SRA and The Law Society.
Tribunal
Negligence In addition to or instead of the actions that the SRA may take against a solicitor, a solicitor
may be sued by his client in the tort of negligence. A solicitor owes his client a duty of care.
Where this duty is breached, and client suffers a foreseeable loss as a result of that breach,
the solicitor may be sued for negligence. Solicitor may also be sued for breach of contract in
these circs. Firms must carry compulsory indemnity insurance against such actions.
Codes of Conduct (Solicitors para 7.11; Firms, para 3.5) - provide that solicitors and firms
must be honest and open with clients if things go wrong, and if a client suffers loss or harm
as a result, matters are to be put right (if possible) and a full and prompt explanation given as
to what has happened and the likely impact. If requested to do so by the SRA you investigate
whether anyone may have a claim against you, provide the SRA with a report on the
investigation’s outcome and notify relevant persons that they may have such a claim
The SRA The SRA Compensation Fund is maintained by the SRA. Discretionary fund of last resort to
Compensation make grants to persons whose money has been stolen or otherwise not accounted for as the
Fund result of an act or omission of those regulated by the SRA, and to relieve losses for which
SRA authorized bodies should have had insurance but did not
Applications may be made where individual/organization suffering loss and hardship due to
defaulting practioner’s failure to account for monies he has received
Funded by mandatory contribution by all solicitors and SRA authorized bodies
Fund does not pay out sums of more than £2 mil per claim (unless exceptional circs.)
When payment made from the fund, SRA can take proceedings against defaulting solicitor to
recover amount paid out of the Fund
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Regulators
SRA Legal Ombudsman Solicitor’s
Disciplinary Tribunal
Who can The Legal Ombudsman Only certain types of clients: SRA can refer.
bring a can refer to the SRA. Individuals Anybody, except
claim? Any client if they “Micro-enterprises” i.e. enterprises where SA 1974
consider there has been with fewer than 10 staff and a provides otherwise,
a breach of the code. turnover or balance sheet value not can refer without
o Professional exceeding €2 mil going to the SRA
misconduct primarily Charities first.
concerns breaches of Clubs and associations with an However, where an
the SRA’s Codes of annual income net of tax less than application is
Conduct £1 million brought without
Personal representatives or going to the SRA
beneficiaries first the Tribunal
Complaint must relate to act/omission may refer the
by solicitor and services which solicitor matter to the SRA.
provided or offered/refused to provide.
Client does not have to suffer any loss
for the LeO to make a determination.
When can Where there is a breach Ordinarily must go through the Do not need to go
they be of the code. firm’s complaints procedure first. through SRA first
complaine (SRA will carry out an Firm has 8 weeks to resolve the Application must be
d to? investigation) complaint this way. made in the
(Notice will be given to LeO may still consider complaint if prescribed form,
individual or firm setting exceptional reasons to consider supported by
out the allegation and complaint sooner/without it having
evidence
facts in support and been made first to the solicitor or
(Either party may
other relevant info and LeO considers in-house resolution
inviting them to respond) not possible cos irretrievable be represented,
breakdown in r-ship evidence is given on
Complaints must be brought within oath and witnesses
6 years or 3 years from when the may be called)
complainant should reasonably
have known there was cause for
complaint.
What Take no further action LeO aims to resolve complaint by Solicitors Act 1974, s47
powers do with or without issuing whatever means it considers gives the Disciplinary
they have? advice or a warning appropriate Tribunal power to:
about future conduct
If investigation, both parties can striking a solicitor
Impose a fine or written
make representations off the roll;
rebuke.
o Max penalty is £2,000 Hearing only if complaint cannot be suspending a
for solicitors and their determined fairly without one solicitor from
employees, recognised LeO’s determination may direct the practice or
bodies and their lawyer to (one or more of below): imposing
managers or a) apologise; restrictions upon
employees; £250 mil
b) pay compensation (together the way in which a
for licensed bodies; £50
mil for managers and with interest) for any loss solicitor can
employees of licensed suffered and/or inconvenience/ practice;
bodies distress caused; imposing an
Control how the c) ensure (and pay for) the putting unlimited fine
firm/regulated person right of any error or omission payable to HM
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practises i.e. impose (limit of £50,000); Treasury;
conditions on or suspend d) take (and pay for) any specified reprimanding the
solicitor’s practicing action in the interests of the solicitor’ requiring
certificate;
complainant (limit of £50,000); the payment by any
revoke/suspend
authorization of a firm e) pay a specified amount for the party of costs or a
Refer the matter to the costs of the complainant in contribution
Solicitors Disciplinary pursuing the complainant; towards costs
Tribunal. f) limit the solicitor’s fees (inc. that (Tribunal may
Disqualify an individual all or part of any amount paid is restore to the roll a
from acting as a HOLP, refunded, with or without solicitor who has
HOFA, manager or
interest, or that all or part of the been struck off)
employee of a licenced
body fees are remitted)
carry out an intervention Do not have the power to fine.
into a practice
o Practical effect is the
practice is closed
Serve notice requiring
delivery of a file or docs
to SRA in certain circs.
Other If complainant accepts the Written Judgment
determination it is binding on the containing reasons,
parties and final findings and the
Orders can be enforced through the Order (decision) is
High Court and report may be made available to
published. the parties, the Law
Claimant can reject determination Society and the Law
and sue in negligence. Society’s Gazette
LEO will inform the SRA if it finds after the hearing
professional misconduct.
LeO may refer questions to court
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