Professional Conduct Notes
This is a sample of our (approximately) 21 page long Professional Conduct notes, which we sell as part of the Professional Conduct Notes collection, a 90% package written at Multiple Institutions in 2014 that contains (approximately) 50 pages of notes across 6 different documents.
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Professional Conduct Revision
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REGULATING THE PROFESSION P = principle O = outcome IB = indicative behaviour TP = third party ATP = authorised TP O8.3 - Prohibits unsolicited telephone calls to a member of the public or approaching them in person BUT DOES NOT prohibit E-mails o It is acceptable to contact existing or potential professional and/or business connections
[Chapt 14 - definition of the public does not include former clients or other law firms]
TP suggests they refer clients to you: P3 - Do not allow your independence to be compromised P4 - Must act in clients best interests O9.1 - Your independence and professional judgement must not be prejudiced by the arrangement O9.2 - Your client's interests must be protected regardless of the interests of the TP O9.3 - You clients must be in a position to make informed decisions about how to pursue the matter O9.4 - Your clients must be informed of any financial/other arrangement the TP has in referring clients to you o And any relevant fee sharing arrangement O9.5 IB9.9 - Check whether clients are being pressurised to use you or told they have no choice o A suggestion is acceptable a compulsion is not
Make sure that TP is not acquiring clients as a result of activities which would be contrary to the code o (e.g. cold calling) TP asks to have access to client information or correspondence between:
04.1 - Do not disclose any information to the TP without the clients consent Financial arrangement with TP: P2 - Must act with integrity P3 - Do not allow your independence to be compromised P4 - Must act in clients best interests O9.1 - Your independence and professional judgement must not be prejudiced by the arrangement O9.2 - Your client's interests must be protected regardless of the interests of the TP O9.3 - You clients must be in a position to make informed decisions about how to pursue the matter O9.4 - Your clients must be informed of any financial/other arrangement the TP has in referring clients to you o And any relevant fee sharing arrangement O9.5 O9.7 - Any financial arrangement must be in writing O10.8/O10.9 - If requested you make the arrangement available for inspection by the SRA O1.15 - Account for any financial benefit you receive It is not specifically mentioned in the code who should inform the client of the arrangement (Whether it be you or the TP) BUT:
IB9.5 - You should draw client's attention to any payments you make in connection with TP's o It is advisable to do this before they come and see you IB9.6 - information given to client should be in writing, clear and appropriate to clients needs (not compulsory as long as the O's above are met. Referring clients to a TP: P2 - Must act with integrity P3 - Do not allow your independence to be compromised P4 - Must act in clients best interests O6.1 - Your recommendation must be in best interests of the client and must not compromise your independence O6.2 - Clients must be fully informed of any financial or other interest you have in the referral O6.3 - Must be satisfied client are in position to make informed decision about how to pursue their matter IB6.2 - In relation to mortgages, if the TP is tied to one source of product rather than a range then must inform client of this limitation before recommending them to the TP You do not need to account to client for any financial benefit received as a result of your instructions IB1.20 - when your firm receives a financial benefit as a result of acting for a client you may: a) pay it to the client b) offset it against your bills c) keep it when it is justified (told the client the amount and they agreed)
RELATIONSHIPS WITH CLIENTS Clients must be informed of the following: O1.7 - Whether and how the services you provide are regulated + how this affects the protection available to them. O1.9 - Clients must be informed in writing at outset of right to complain and how to complain O1.10 - Clients must informed in writing at time of engagement and at conclusion of complaints procedure and; o Their right to complain to the Legal Ombudsman o The time frame for doing so o Full details of how to contact the Legal Ombudsman O1.13 - Clients must be informed at time of engagement and as matter progresses as to likely overall costs O1.12 - Ensure client sin position to make informed decisions about services they need, how matter handles and options available O1.14 - Clients must be informed of right to complain about bill + circumstances when liable to pay interest on it Code doesn't say this must be done at start of a matter Relationships with prospective clients: Verify the client's identity:
- 1 govt doc which verifies name and address (or dob) or 1 govt doc for each If client is a politically exposed person then enhanced due diligence means gets senior management approval and take additional steps to identify source of wealth and funds
Must always carry out identity checks on directors Only need to carry out identity checks on shareholders who control more than 25% of shares Must always carry out identity checks on trustees Only need to carry out identity checks on beneficiaries with vested interest in 25% of trust capital (contingent and income interests are irrelevant)
Matters sensible to include in letter following first meeting: IB1.1 - Level of service to be provided (e.g. type and frequency of communication) IB1.2 - Your responsibilities and those of the client IB1.3 - Names and status of persons dealing with the matter and who is supervising IB1.4 - Explain relevant fee sharing or referral arrangements IB1.5 - Explain if appropriate conditional fee arrangement and public funding IB1.12 - Need to balance benefits to be obtained against costs of litigation + possible liability for opponents costs IB1.13 - Are potential outcomes going to justify expense or risk (including paying opponents costs) IB1.14 - Clear explanation of your costs that includes professional charges and: IB1.15 - Disbursements and; IB1.16 - Whether client's legal insurance covers fees and any limitation/conditions imposed on service offered o (e.g. inability to issue proceedings without insurers consent IB1.5) IB1.17 - limitations or conditions on what you can do for the client from way matter funded Remember if opponent is publically funded may not get costs even if successful Dealing with complaints:
IB1.22 - You cannot charge client cost of investigating a complaint What to do with an unhappy client: P4 - Must act in clients best interests P5 - Must provide a proper standard of service to client O1.4 - Must have resources, skills and procedures to carry out clients instructions O1.5 - Service you provide to clients must be competent and delivered in a timely manner O1.9 - Clients must be informed in writing at outset of right to complain and how to complain O1.11 - Complaints must be dealt with promptly, fairly, openly and effectively IB1.22 - You cannot charge client cost of investigating a complaint and the complaints procedure must be; o Easy to understand; o Be responsive to needs of individual client; o Enable complaints to be dealt with promptly and fairly o Base decisions on sufficient investigation of circumstances o Provide for appropriate remedies IB1.23 - The firm should provide the client with a copy of complain procedure on request If dissatisfied the client may report the firm to Legal Ombudsman who can order the firm: 7.5 legal foundations o Apologise o Pay compensation for loss suffered o Pay interest on that compensation o Pay compensation for inconvenience or distress o To pay to put right specific, error, omission or deficiency o To take specific action in interest of complainant o To pay specified amount for costs incurred by complainant in complaining o To limit fees to specific amount He may then refer case to SRA to take disciplinary action. (he cannot find the firm guilty of professional misconduct or fine them the SRA must do this) Issuing the bill:
contain sufficient info for client to be satisfied it is reasonable signed by sol or on behalf by employee authorised delivered by hand or post to clients home, business or last known address if client agrees may be sent electronically s.69 Legal Services Act 2007
Sol cannot sue until one month has expired from delivery of the bill unless sol given leave to do so by 2.69 grounds How can a client challenge a bill?
Firm has probably breached: O.112 - clients must be in a position to make decisions about services they need O1.13 - clients receive the best possible information about likely overall cost of matter Complain using the procedure above and/or have bill assessed by court under Solicitors Act 1974 o Firm costs must be reasonably incurred and reasonable in amount (having regard to all circumstances)
- SRO sets out factors to be taken into account
complexity time documents value of transaction importance of matter to client Court assesses disbursements and professional charges Court costs payable by client unless ordered otherwise
RELATIONSHIPS WITH TP INCLUDING THE COURT Dealing with a party who does not have legal representation: P4 - Act in best interest of the client P2 - Act with integrity - this takes precedence as it best serves the public interest O1.11 - You must not take unfair advantage of TP's
[Safest bet is simply to advise for the TP to get independent legal advice as any more or less could be breaching P4 or P2]
IB11.8 - Demanding anything which is not legally recoverable shows O11 not complied with. (E.g. costs incurred before proceedings started) Dealing with a party who is legal represented: IB11.4 - Do not communicate with another party if you are aware they have retained a lawyer except to ask name and address of legal representative Is everything in the SRA code binding?
Yes, even if it goes above requirements of general law; everyone who is regulated by the SRA must comply Equality: O2.3 - Make reasonable adjustments so as to not disadvantage disabled employees, clients and managers
[It would not be a breach for example if you charged all your clients for home visits, not just disabled ones]
IB2.5 - Do not discriminate against certain clients by refusing to take instructions
[There may be valid reasons for not taking instructions such as lack of competence, pressure of work ect]
IB2.2 - Firms should offer to staff training and information about complying with equality and diversity requirements IB2.1 - It is not compulsory for firms to have a written equality and diversity policy but it is advisable
REQUIREMENTS OF PRACTICE Firms providing reserved legal services cannot outsource them to anyone who is not authorised to conduct such activities Not all solicitors require a practicing certificate Training and supervising staff: O7.6 - Train your individuals working in the firm to maintain a level of competence appropriate to their work and level of responsibility O7.7 - Comply with statutory requirements for direction and supervision of reserved legal activities and immigration work O7.8 - Have a system for supervising client matters to include the regular checking of quality of work by suitably competent and experienced people Training specified by SRA for lawyer to be qualified to supervise is
- Attendance on a programme of learning of management skills for a minimum of 12 hours (need not be CPD accredited) Legal foundations 18.6.1 Financial stability of the firm: O7.4 - Maintain system and controls for monitoring financial stability of your firm and risks to money and assets entrusted to you by clients and others and you take steps to address issues identified Acts or omissions which give clients a claim: O3.5 - You can never act when your interests conflict with your duty to act in best interest of client P4
[Chapter 14 - definition of own interest conflict]
Discover act or omission which gives client claim against firm you should:
- advise client to take independent legal advice
- if a conflict has arisen cease to act
- notify your insurer Whether those with criminal records can enrol with SRA: Para1(2)(iii) - Any criminal activity not limited to convictions and especially dishonesty means the SRA will more likely than not refuse his enrolment Para5(1)(i) - If an applicant cannot manage their finances properly and carefully is grounds for SRA not accepting Country court judgement for debt creates a rebuttable presumption of the above Para 5(2) Para 3(i) (a) - violent behaviour (b) - dishonesty Will mean refusal by SRA unless exceptional circumstances
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