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Summary LPC PCR Exam Consolidated Notes BPP - 84%
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By: hcnotes • 10 months ago
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PROFESSIONAL CONDUCT AND REGULATIONEXAM STRUCTURE
GENERAL • 2 hr exam
• 80 marks
• Part A = 32 marks
• Part B = 48 marks
PART A – self- ü Workbook
study ü Lectures
PART B – ü Client care
workbook ü Conflicts of interest
ü Confidentiality and disclosure
ü Customer due diligence
ü Proceeds of Crime Act 2002
ü FSMA
INTRODUCTION
AUTHORISATION Need authorisation if a business provides any of the following:
• Reserved legal services for the public, unless the business is exempt from authorisation (e.g., certain
charities)
• Immigration services, unless the business is regulated by the OISC
• Claims management services, unless the business is regulated by the FCA
• Regulated financial activities, unless the business is regulated by the FCA
RESERVED LEGAL Can only be provided by someone authorised by an approved regulator to do so
ACTIVITIES
Set out in s12, Schedule 2 of the Legal Services Act 2007:
• Rights of audience (appear before, address the court, right to call and examine witnesses)
• Conduct of litigation (issuing of proceedings before any E+W court, commencing, prosecuting, and
defending of those proceedings and performing any ancillary function in relation to those
proceedings (e.g., entering appearances to action))
• Reserved instrument activities (preparing any instrument of transfer or charge for the purposes of
the LRA 2002, making an application or lodging a document for registration under the LRA 2002,
preparing any other instrument relating to real or personal estate for the purposes of the law of E+W
or instrument relating to court proceedings in E+W)
• Certain probate activities (preparing any probate papers for the purposes of the law of E+W or in
relation to any proceedings in E+W)
• Administration of oaths (exercising powers conferred on a commissioner for oaths under the
Commissioners for Oaths Act 1889; the Commissioners for Oaths Act 1891; and section 24 of the
Stamp Duties Management Act 1891)
ELIGIBILITY OF To be eligible, a business must:
AUTHORISATION 1. Intend to deliver legal services
2. Be one of the following:
a. The sole practice of a solicitor
b. A legal services body, in which all the managers and interest holders are equally qualified
c. A licensable body, in which at least one manager is an authorised person
3. Meet the practising address requirements:
a. Licensable bodies must have a practising address in England and Wales
b. Legal services bodies and sole practices must have a practising address in the UK
4. If the business is a company, meet one of the SRA’s registration requirements:
a. E.g., be incorporated in England and Wales, Scotland, or Northern Ireland under Parts 1 and
2 of the CA 2006
Types of legal service:
• Sole practice – persons operating through a limited company are not sole practitioners and do not
need to act alone, so long as one person is the principal and sits above others
• Legal services bodies – a firm within which all managers/interest holders are lawyers
• Licensable bodies – one within which the managers/interest holders includes both lawyers and non-
lawyers
• Legal advice centres – may not be authorised if they do not carry out reserved legal activities but
must comply with CCS regardless, even if unpaid
o NB: Pro bono work requires indemnity
hcnotes 1
, • In-house practice – CCS: “you must exercise your judgement in applying these standards to the
situations you are in and deciding on a course of action”
• Multinational law firms – registered foreign lawyers practising in England and Wales are subject to
the Code
RULES ON BEING s1 Solicitors Act 1974
A SOLICITOR No person shall be qualified to act as a solicitor unless:
(a) He/she has been admitted as a solicitor, and
(b) His/her name is on the roll; and
(c) He/she has a ‘valid practising certificate’
CONTINUING • All solicitors need to ensure that they remain competent in order to comply with CCS 3.3
COMPETANCE • SRA requires solicitors to reflect on their practice, to undertake regular learning and development,
and to record and evaluate their learning and development activity
COLPS AND COFAS
RULES The SRA Authorisation of Firms Rules 2019 require all firms authorised and regulated by the SRA to appoint
both:
• A Compliance Officer for Legal Practice (‘COLP’) – AFR 8.1
• A Compliance Officer for Finance and Administration (‘COFA’) – AFR 8.1
The same person can be both the COLP and COFA
They are not solely responsible for compliance – under 8.1 CCF, managers have a joint and several
responsibility for compliance by the Firm with CCF with other managers of the firm
COLPS This is the person who has responsibility:
• To ensure the firm complies with all the T&Cs of authorisation by the SRA;
• To ensure the firm complies with its statutory obligations;
• To record any failures to comply with the firm’s authorisation or statutory obligations and make
records available to the SRA;
• To report any material failure to the SRA as soon as is practicable
COLP (with the firm’s managers) are responsible for ensuring systems/procedures minimise risk of non-
compliance of Code
• Firm as a whole is responsible, but the day-to-day responsibility is delegated to the COLP
Meeting the standards in Paragraph 2 (Compliance and business systems) and Paragraph 4 (Service and
competence) is a major part of the COLP’s role
Requirement that there must be a clear and effective governance structure and reporting lines – CCF 2.1
COLP is expected to monitor, identify risk, and take all reasonable steps to ensure:
• Compliance with the terms and conditions of the Firm’s authorisation (CCF 9.1(a))
• Compliance by the Firm, managers, employees, and persons with an interest in the Firm, with the
SRA’s regulation as it applies to them (CCF 9.1(b))
• The Firm’s managers and interest holders and those employed or contracted with do not cause or
substantially contribute to a breach of the SRA’s regulatory arrangements (CCF 9.1(c))
• A prompt report is made to the SRA of any serious breach of the terms and conditions of the Firm’s
authorisation or the SRA’s regulatory arrangements, which apply to the Firm, managers, or
employees (CCF 9.1(d))
…save in relation to matters for which the COFA is responsible
The firm must implement systems to show:
(i) how conflicts of interest are identified; and
(ii) how client confidentiality is protected
…which are usually delegated to the COLP
COFAS The COFA is required to:
• Ensure that the firm complies with the SRA Accounts Rules 2019
• Report any serious breaches of the SRA Accounts Rules 2019 to the SRA promptly
All of the following must be satisfied, the COLP or COFA must:
• Be a manager or employee of the authorised body;
• Consent to the designation;
• Not be disqualified from acting as a Head of Legal Practice or Head of Finance and Administration.
hcnotes 2
, • For COLP only: be an individual who is authorised to carry on reserved legal activities by an
approved regulator
SUPERVISION OF • Non-lawyers should not be responsible for the overall supervision of ‘reserved legal activities’
THE BUSINESS OF • An authorised body must ensure the SRA has approved any manager or owner of the authorised body
THE FIRM AS A under Part 4 of the SRA Standards and Regulations (AFR 9.1)
WHOLE
Exceptions:
• A sole principal whose practice is authorised as a recognised sole practice is not required to be
approved as a manager of that practice;
• If the SRA is satisfied that a manager of an authorised body is not involved in any of the following:
o Day-to-day strategic management of the authorised body;
o Compliance by the authorised body with the SRA’s regulatory arrangements; or
o The carrying on of reserved legal activities or the provision of legal services in England and
Wales
…the SRA may decide that the authorised body is not required to comply with AFR 9.1
An authorised body must have at least one manager or employee and must procure the services of an
individual who:
• Is a lawyer of England and Wales and has practised as such for a minimum of three years; and
• Supervises the work currently undertaken by the authorised body (9.4(a) and (b) AFR)
Supervision of client matters:
• A Firm is responsible for ensuring that the Firm has a system in place for supervising client’s matters
in order to achieve CCF 4.4
• Client matter supervisors don’t need to be legally qualified CCF 4.4
NEGLIGENCE AND • Retainers need to be carried out with due care and skill and proper diligence – breach of retainer can
BREACH OF amount breach of contract
CONTRACT • Negligence claims can be brought where solicitors fall below their standard of care
AGAINST • Negligence does not indicate inadequate professional service unless part of a wider pattern
SOLICITORS • Usually, a firm’s in-house complaints process will deal with negligence claims – many settled before
going to court
Solicitor’s negligence and the Code:
• You are required to inform your clients if you become aware of any act or omission which could give
rise to a claim by them against you: CCS 7.11 and CCF 3.5
• Firm usually has its own procedures to undertake before telling a client
o These may include informing the relevant supervising partner, the COLP and firm’s insurers
• When the SRA is aware you must follow their directions, this might involve advising the client they
have a claim
o When doing so, you are required to provide details to your client of your firm’s complaints
procedure as well as details of the Legal Ombudsman (CCS 8.3 and 8.4, which applies to
Firms by virtue of CCF 7.1(c), where appropriate to your particular client
INSURANCE Professional Indemnity Insurance
OBLIGATIONS OF • The SRA Indemnity Rules 2012 and the SRA Indemnity Insurance Rules 2019 (‘SIRS’) require
FIRMS solicitors to arrange compulsory minimum insurance cover (currently £2m or £3m depending on the
type of practice) against claims for professional negligence or other civil liability
o Most firms also have top up insurance which takes their level of cover beyond the minimum
required under the SIRS
• Where it is known a potential claim is coming against a firm and it may be covered by the firm’s
indemnity insurance policy, the insurers should be notified immediately but some details may be
withheld for confidentiality reasons
The Compensation Fund
• Solicitors contribute to this annually
• Compensation up to £2m
• Compensates those who have suffered loss as a result of solicitor’s dishonesty, or an employee in
connection with the solicitor’s practice. Compensation can also be paid in the event of hardship
suffered as a result of a solicitor failing to pay monies due
• No compensation will be paid where an applicant is otherwise indemnified against loss (e.g., by the
firm’s professional indemnity insurance)
hcnotes 3
, DISCIPLINARY Providing a poor service
ACTION AGAINST • Negligence, itself, is not a disciplinary offence, however, if negligence is committed in connection
SOLICITORS with a client matter, the solicitor concerned cannot have provided the client with a proper standard
of service and will not have met CCS 3.2 or CCF 4.2
• The client does not have to prove negligence in order to bring a complaint about a solicitor’s poor
service
Providing inadequate professional services
• A client may not have suffered loss, but a firm could still be found liable for providing inadequate
professional services, e.g., inadequate supervision of trainees
• SRA can act against those whose services are not of the quality reasonably expect of solicitors
• Such matters can be referred to the Solicitors Disciplinary Tribunal
Professional misconduct
• An example would be a solicitor acting in a practice they are not adequately experienced in
o This misconduct would be a clear breach of CCS 3.6 and CCF 4.3
• Not meeting the standards required by the Code or breaching one of the 7 Principles could lead to
SRA action and for it being referred to the SDT
o Action and penalties shall be proportionate to the gravity of the offence committed
Conduct unbefitting a solicitor
• This is the most serious form of professional conduct which in most cases will see the solicitor
concerned suspended or struck off the roll of solicitors
Who can the client complain to?
1. The Firm
o The Codes contain the following provisions in relation to complaints:
i. Requirement to inform clients at outset of retainer that they can make a complaint
and how to do so (CCS 8.3 (which applies also under CCF by virtue of CCF 7.1));
ii. Requirement to inform clients both at the beginning of the retainer and within 8
weeks following the making of a complaint not yet satisfactorily resolved, of right to
escalate to LO, giving details of the timescales and how to contact the LO (CCS 8.3
and 8.4 (which apply also under CCF by virtue of CCF 7.1)) (Subject to client being
able to escalate to Legal Ombudsman)
iii. Requirement for client complaints to be dealt with promptly, fairly, and free of
charge (CCS 8.5 (which also applies under CCF by virtue of CCF 7.1)).
2. The Legal Ombudsman
o Key function is to investigate and resolve complaints
o LO has no powers in relation to allegations of professional misconduct, which should be
referred to the SRA
Complaints to the Legal Ombudsman
• Who can complain to the LO?
o An individual whose lawyer is registered in England or Wales
o Very small businesses, charities, clubs, and trusts can use the LO, but only after complaining
first to the law firm
o LO generally requires the client to give the firm eight weeks to resolve the problem before
referring to the LO
• Case fee
o £400 charged by LO to lawyers, unless the complaint is resolved in favour of the lawyer and
the LO is satisfied that the lawyer took all reasonable steps to resolve the complaint under
the firm’s in-house procedure
o No fee or charge is payable by the complainant
• Timing
o If clients not happy with law firm handling of complaint, have 6 months to bring complaint
before LO
o In any event, complaint must be brought within six years of the act or omission or three
years from when the complainant should reasonably have known there was cause for
complaint (whichever is the latter)
o There is a discretion for the LO to entertain complaints which are brought outside these
deadlines
hcnotes 4
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