#10279 - Conduct Same As Conduct Note In Intro To Prof Prac

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: You’ve explained the relevant issues and risks to the clients & reasonably believe they understand the risks All clients have given informed consent in writing You are satisfied it’s reasonable to act and it is in their best interests 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: You’ve explained the relevant issues and risks to the clients & reasonably believe they understand the risks 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 There is no other client conflict in relation to the matter 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 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	State: which client do you owe the duty of confidentiality to? State: which client do you owe the duty of disclosure to? 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: you reasonably believe that A is aware of, and understands, the relevant issues and gives informed consent Either: B gives informed consent & you agree with B the safeguards to protect the info²; or Where not possible, you put in place effective safeguards including information barriers which comply with the common law It’s reasonable in the all the circumstances to act for A with such safeguards in place NOTE O4.4 usually applies to Large Firms with separate practices which can guarantee safeguards)
Indicative Behaviours	IB4.1: systems of controls for identifying risk to client confidentiality are appropriate to the size and complexity of the firm and the nature of the work undertaken IB4.2: comply with the law in respect of your fiduciary duties in relation if confidentiality and disclosure IB4.4: where you have responsibility for acting for a client or supervising a client’s matter, you disclose to that client all the information material to the clients matter of which you are personally aware, except when: client gives specific informed consent to non-disclosure or a different standard of disclosure arises; There is evidence that a serious physical or mental injury will be caused to a person(s) if the information is disclosed Legal restrictions effectively prohibit you from passing the information to the client (money laundering/anti-terrorism leg) It is obvious that privileged documents have been mistakenly disclosed to you You come into possession of information relating to state security/intelligence IB4.5: not acting for A where B is a client for whom you hold confidential information which is material to A unless the confidential information can be protected IB4.6: must not disclose the contents of a will upon a client death unless PRs consent to it
Conclude

Client Care

Principles	Client care will attach itself to Principles 2, 4, 5, 6 and 10
Accepting a Client	Solicitors have a discretion to accept clients or not But must not discriminate unlawfully (O2.1) O1.1: treat clients fairly O1.3: when deciding whether to accept clients or not, must comply with law and Code O1.4: must have the sufficient skill to deal with a client’s instructions O1.6: only enter into legal fee arrangements and suitable to the client O1.7: clients have the benefit of your compulsory professional indemnity insurance IB1.6: have proper regard to your client’s mental capacity or vulnerability IB1.7: declining to act because you cannot do so in client’s best interests IB1.9: declining to act where client proposes to make a gift of significant value to you/your firm or a member of your/their family (unless they took independent advice) IB1.10: if you decline to act, explain to the client their options for pursuit IB1.25: who is my client? Ensure if being instructed by a 3^rd Party IB1.28: is the client under duress or undue influence?
Stop Acting for a Client	O1.3: when deciding whether to terminate clients, must comply with law and Code IB1.7: declining to act because you cannot do so in client’s best interests IB1.9: declining to act where client proposes to make a gift of significant value to you/your firm or a member of your/their family (unless they took independent advice) IB1.10: if you decline to act, explain to the client their options for pursuit IB1.26: do not cease to act without good reason and giving reasonable notice
At the First Meeting	Clients must be informed about: Complaints: In writing about their right to complain and how to do so (O1.9) That they may complain to the Legal Ombudsman³ and the procedure (O1.10) Complaints must be dealt with promptly,...

Accepting a Client

Solicitors have a discretion to accept clients or not
But must not discriminate unlawfully (O2.1)
O1.1: treat clients fairly
O1.3: when deciding whether to accept clients or not, must comply with law and Code
O1.4: must have the sufficient skill to deal with a client’s instructions
O1.6: only enter into legal fee arrangements and suitable to the client
O1.7: clients have the benefit of your compulsory professional indemnity insurance
IB1.6: have proper regard to your client’s mental capacity or vulnerability
IB1.7: declining to act because you cannot do so in client’s best interests
IB1.9: declining to act where client proposes to make a gift of significant value to you/your firm or a member of your/their family (unless they took independent advice)
IB1.10: if you decline to act, explain to the client their options for pursuit
IB1.25: who is my client? Ensure if being instructed by a 3^rd Party
IB1.28: is the client under duress or undue influence?

Stop Acting for a Client

O1.3: when deciding whether to terminate clients, must comply with law and Code

IB1.7: declining to act because you cannot do so in client’s best interests
IB1.9: declining to act where client proposes to make a gift of significant value to you/your firm or a member of your/their family (unless they took independent advice)
IB1.10: if you decline to act, explain to the client their options for pursuit
IB1.26: do not cease to act without good reason and giving reasonable notice

At the First Meeting

Clients must be informed about:

Complaints:
- In writing about their right to complain and how to do so (O1.9)
- That they may complain to the Legal Ombudsman³ and the procedure (O1.10)
- Complaints must be dealt with promptly,...

#10279 - Conduct Same As Conduct Note In Intro To Prof Prac - Property Law and Practice

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