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Conduct Same As Conduct Note In Intro To Prof Prac Notes
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Principles Number 1 2 3 4 5 6 7 8 9 10
Principle Uphold the rule of law and the proper administration of justice Act with integrity Independence Act in the best interests of each client Provide a proper standard of service to your clients Maintain the public trust in you and the legal profession Comply with your legal and regulatory obligations Carry out your role in the business effectively and comply with governance Encourage equality of opportunity and respect for diversity 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)
Ar is e?
Pr in ci pl e
O ut co m e
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)
Say that conflict of interests applies to Principle 4
Possible Conflicts: O3.3(a): if the client's interests are different "Same or 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: (a) You've explained the relevant issues and risks to the clients & reasonably believe they understand the risks
(b) All clients have given informed consent in writing (c) You are satisfied it's reasonable to act and it is in their best interests (d) 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: (a) You've explained the relevant issues and risks to the clients &
reasonably believe they understand the risks
(b) 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 (c) There is no other client conflict in relation to the matter (d) 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 (e) You are satisfied that the benefits outweigh the risks involved
In di ca ti ve B e h av io ur s
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)
D e fi ni ti o ns
"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
St ru ct ur e Pr in ci pl es
i) State: which client do you owe the duty of confidentiality to?
ii) State: which client do you owe the duty of disclosure to?
iii) Conclude: that confidentiality supersedes disclosure (O4.3)
Confidentiality and disclosure are linked to Principles 4 and 6
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