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LPC Law Notes Property Law and Practice Notes

Conduct Same As Conduct Note In Intro To Prof Prac Notes

Updated Conduct Same As Conduct Note In Intro To Prof Prac Notes

Property Law and Practice Notes

Property Law and Practice

Approximately 490 pages

A collection of the best LPC PLP notes the director of Oxbridge Notes (an Oxford law graduate) could find after combing through dozens of LPC samples from outstanding students with the highest results in England and carefully evaluating each on accuracy, formatting, logical structure, spelling/grammar, conciseness and "wow-factor".

In short these are what we believe to be the strongest set of PLP notes available in the UK this year. This collection of notes is fully updated for recent exams, a...

The following is a more accessible plain text extract of the PDF sample above, taken from our Property Law and Practice Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:

Number Principle
1 Uphold the rule of law and the proper administration of justice
2 Act with integrity
3 Independence
4 Act in the best interests of each client
5 Provide a proper standard of service to your clients
6 Maintain the public trust in you and the legal profession
7 Comply with your legal and regulatory obligations
8 Carry out your role in the business effectively and comply with governance
9 Encourage equality of opportunity and respect for diversity
10 Protect client money and assets
  • Conflict of Principles: the one that best serves the public interest takes precedent

  • Mandatory: Principles and Outcomes

  • Not Mandatory: Indicative Behaviours

  • Define: where possible, always define the italicised terms from the glossary and then apply to the facts

Conflict of Interest (Chapter 3 SRA CoC)

Arise?

Conflict of interests can arise between:

  • You and your current clients (“own interest conflict”)

  • Can never act where there is a conflict / significant risk of conflict

  • Two or more current clients (“client conflict”): not former clients

    • Can’t act unless it falls within the exceptions of the Outcomes

    • Beware of “maybe no conflict” (father selling house at undervalue to daughter)

Principle
  • Say that conflict of interests applies to Principle 4

Outcome

Possible Conflicts:

  • O3.3(a): if the client’s interests are different

  • O3.3(b): ability to give independent advice is fettered

  • O3.3(c): need to negotiate between clients

  • O3.3(d): there is an imbalance of bargaining power

  • O3.3(e): there is a vulnerable client

  • NOTE that conflicting parties may want the other to lose (e.g. person A being fired will want to get as much as they can from their employer while employer will want A to get little or nothing at all )

Prohibition on Acting:

  • O3.4: if there is an own interest conflict or a significant risk of one

  • O3.5: if there is client conflict or a significant risk of one unless an exception applies

Exceptions to O3.5:

  • O3.6: if the clients have a substantially common interest in the matter, you can only act if:

    1. You’ve explained the relevant issues and risks to the clients & reasonably believe they understand the risks

    2. All clients have given informed consent in writing

    3. You are satisfied it’s reasonable to act and it is in their best interests

    4. You are satisfied that the benefits outweigh the risks involved

  • O3.7: if the clients are competing for the same objective, you can only act it:

  1. You’ve explained the relevant issues and risks to the clients & reasonably believe they understand the risks

  2. Clients have confirmed in writing that they want you to act, in the knowledge that you act, or may act, for one or more clients who are competing for the same objectives

  3. There is no other client conflict in relation to the matter

  4. Unless the clients specifically agree, no individual acts for, or is responsible for the supervision of work done for, more than one of the clients who are competing for the same objective

  5. You are satisfied that the benefits outweigh the risks involved

Indicative Behaviours
  • IB3.2: Declining to act for clients whose interests are in direct conflict

  • IB3.3: Declining to act for clients where you may need to negotiate on matters of substance

  • Advice on terms of the mortgage

  • IB(3.7) – only relevant to private residential markets – not commercial

  • IB3.4: Declining to act for clients where there is unequal bargaining power

  • IB3.5: Declining to act under O3.6/O3.7 where clients cannot be represented even-handedly

  • IB3.6: Acting for clients under O3.7 only where the clients are sophisticated users of legal services

  • IB3.8 to IB 3.14 Exemplify when the outcomes are NOT being achieved.

  • IB3.8 (Selling, buying, borrowing lending to a client); IB3.9 (Advising C on a business Solicitor has interest); IB3.10 (Misuse of Power of Attorney); IB3.11 (Cs’ interest in the end result are not the same purchase of property); IB3.12 (unreasonable to act due to unequal bargaining power); IB3.13 (two buyers competing for residential property); IB3.14(interest is land transferred for value)

Definitions

Substantially common interest” (p.243)

  • A clear and common purpose in relation to any matter or particular aspect of it between the clients and a strong consensus on how it is to be achieved and the client conflict is peripheral to this common purpose

Competing for the same objective” (p.199)

  • Objective = asset, contract, business opportunity which two or more clients are seeking to acquire or recover though a liquidation (or some other form of insolvency process) or by means of auction or tender process or a bid or offer which is not public

Confidentiality & Disclosure

Structure
  1. State: which client do you owe the duty of confidentiality to?

  2. State: which client do you owe the duty of disclosure to?

  3. Conclude: that confidentiality supersedes disclosure (O4.3)

Principles
  • Confidentiality and disclosure are linked to Principles 4 and 6

Outcomes
  • O4.1: must keep the affairs of clients confidential unless disclosure is required by law or by client

    • Applies to: current, former, dead clients (IB4.6)

  • O4.2: if advising a client, you must make that client aware of all material information to that retainer to which you have personal knowledge

    • Applies to: all personal knowledge held by a solicitor

    • Unless: this is in conflict with your duty of confidentiality under O4.3

    • Unless: IB4.4 applies or legal restrictions (e.g. money laundering or national security)

  • O4.3: if duty of confidentiality conflicts with disclosure, confidentiality takes precedence

  • O4.4: do not act for A in a matter where A has an interest adverse to B, and B is a client (former) for whom you hold confidential information which is material to A in that matter, unless the confidential information can be protected by use of safeguards1, and:

    1. you reasonably believe that A is aware of, and understands, the relevant issues and...

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