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SRA Code of Conduct 2011

Introduction to the SRA Code of Conduct

Overview

Outcomes-focused regulation concentrates on providing positive outcomes which when achieved will benefit and protect clients and the public. The SRA Code of Conduct (the Code) sets out our outcomes-focused conduct requirements so that you can consider how best to achieve the right outcomes for your clients taking into account the way that your firm works and its client base. The Code is underpinned by effective, risk-based supervision and enforcement.

Those involved in providing legal advice and representation have long held the role of trusted adviser. There are fiduciary duties arising from this role and obligations owed to others, especially the court. No code can foresee or address every issue or ethical dilemma which may arise. You must strive to uphold the intention of the Code as well as its letter.

The Principles

The Code forms part of the Handbook, in which the 10 mandatory Principles are all-pervasive. They apply to all those we regulate and underpin all aspects of practice. They define the fundamental ethical and professional standards that we expect of all firms and individuals (including owners who may not be lawyers ) when providing legal services. You should always have regard to the Principles and use them as your starting point when faced with an ethical dilemma.

Where two or more Principles come into conflict the one which takes precedence is the one which best serves the public interest in the particular circumstances, especially the public interest in the proper administration of justice. Compliance with the Principles is also subject to any overriding legal obligations.

You must:

  1. uphold the rule of law and the proper administration of justice;
  2. act with integrity;
  3. not allow your independence to be compromised;
  4. act in the best interests of each client ;
  5. provide a proper standard of service to your clients ;
  6. behave in a way that maintains the trust the public places in you and in the provision of legal services;
  7. comply with your legal and regulatory obligations and deal with your regulators and ombudsmen in an open, timely and co-operative manner;
  8. run your business or carry out your role in the business effectively and in accordance with proper governance and sound financial and risk management principles;
  9. run your business or carry out your role in the business in a way that encourages equality of opportunity and respect for diversity; and
  10. protect client money and assets .
Structure of the Code

The Code is divided into 5 sections:

  • You and your client
  • You and your business
  • You and your regulator
  • You and others
  • Application, waivers and interpretation

Each section is divided into chapters dealing with particular regulatory issues, for example, client care, conflicts of interests. and publicity .

These chapters show how the Principles apply in certain contexts through mandatory and non-mandatory provisions.

Mandatory provisions

The following provisions are mandatory:

  • the outcomes;
  • the application and waivers provisions in Chapters 13 and 13A;
  • the interpretations; and
  • the transitional provisions in Chapter 15.

The outcomes describe what firms and individuals are expected to achieve in order to comply with the relevant Principles in the context of the relevant chapter. In the case of in-house   practice. we have set out at the end of each chapter which outcomes apply and in some cases have specified different outcomes.

In respect of in-house practice. different outcomes may apply depending on whether you are acting for your employer or for a client other than your employer as permitted by rules 4.1 to 4.10 of the SRA Practice Framework Rules .

The outcomes contained in each chapter are not an exhaustive list of the application of all the Principles. We have tried to make them as helpful as possible.

Non-mandatory provisions

The following provisions are non-mandatory:

  • indicative behaviours;
  • notes.

The outcomes are supplemented by indicative behaviours. The indicative behaviours specify, but do not constitute an exhaustive list of, the kind of behaviour which may establish compliance with, or contravention of the Principles. These are not mandatory but they may help us to decide whether an outcome has been achieved in compliance with the Principles .

We recognise that there may be other ways of achieving the outcomes. Where you have chosen a different method from those we have described as indicative behaviours, we might require you to demonstrate how you have nevertheless achieved the outcome. We encourage firms to consider how they can best achieve the outcomes, taking into account the nature of the firm. the particular circumstances of the matter and, crucially, the needs of their particular clients .

Waivers

Due to the flexibility of approach this structure allows, we do not anticipate receiving many applications for waivers from the mandatory outcomes. The SRA. nonetheless, reserves power to waive a provision in exceptional circumstances.

Interpretation

Words shown in italics are defined in the Glossary.

You can access the Code and other elements of the Handbook and find information on particular issues on the SRA website. You can also seek guidance on professional conduct from our Professional Ethics Guidance Team.

Chapter 2 Equality and diversity

Chapter 3 Conflicts of interests

Chapter 4 Confidentiality and disclosure

Chapter 5 Your client and the court

Chapter 6 Your client and introductions to third parties

2nd section: You and your business

Chapter 7 Management of your business

Chapter 8 Publicity

Chapter 9 Fee sharing and referrals

3rd section: You and your regulator

Chapter 10 You and your regulator

Chapter 12 Separate businesses

5th section: Application, waivers and interpretation

Preamble

The SRA Code of Conduct dated 17 June 2011 commencing 6 October 2011 made by the Solicitors Regulation Authority Board under sections 31, 79 and 80 of the Solicitors Act 1974, sections 9 and 9A of the Administration of Justice Act 1985 and section 83 of the Legal Services Act 2007, with the approval of the Legal Services Board under paragraph 19 of Schedule 4 to the Legal Services Act 2007, regulating the conduct of solicitors and their employees, registered European lawyers and their employees, registered foreign lawyers, recognised bodies and their managers and employees and licensed bodies and their managers and employees.

1st Section: You and your client

Chapter 1: Client care

This chapter is about providing a proper standard of service, which takes into account the individual needs and circumstances of each client. This includes providing clients with the information they need to make informed decisions about the services they need, how these will be delivered and how much they will cost. This will enable you and your client to understand each other's expectations and responsibilities. This chapter is also about ensuring that if clients are not happy with the service they have received they know how to make a complaint and that all complaints are dealt with promptly and fairly.

Your relationship with your client is a contractual one which carries with it legal, as well as conduct, obligations. This chapter focuses on your obligations in conduct.

You are generally free to decide whether or not to accept instructions in any matter, provided you do not discriminate unlawfully (see Chapter 2).

The outcomes in this chapter show how the Principles apply in the context of client care.

Outcomes

You must achieve these outcomes:

O(1.1)

you treat your clients fairly;

O(1.2)

you provide services to your clients in a manner which protects their interests in their matter, subject to the proper administration of justice;

O(1.3)

when deciding whether to act, or terminate your instructions, you comply with the law and the Code;

O(1.4)

you have the resources, skills and procedures to carry out your clients' instructions;

O(1.5)

the service you provide to clients is competent, delivered in a timely manner and takes account of your clients' needs and circumstances;

O(1.6)

you only enter into fee agreements with your clients that are legal, and which you consider are suitable for the client's needs and take account of the client's best interests;

O(1.7)

you inform clients whether and how the services you provide are regulated and how this affects the protections available to the client ;

O(1.8)

clients have the benefit of your compulsory professional indemnity insurance and you do not exclude or attempt to exclude liability below the minimum level of cover required by the SRA Indemnity Insurance Rules ;

O(1.9)

clients are informed in writing at the outset of their matter of their right to complain and how complaints can be made;

O(1.10)

clients are informed in writing, both at the time of engagement and at the conclusion of your complaints procedure, of their right to complain to the Legal Ombudsman. the time frame for doing so and full details of how to contact the Legal Ombudsman ;

O(1.11)

clients'   complaints are dealt with promptly, fairly, openly and effectively;

O(1.12)

clients are in a position to make informed decisions about the services they need, how their matter will be handled and the options available to them;

O(1.13)

clients receive the best possible information, both at the time of engagement and when appropriate as their matter progresses, about the likely overall cost of their matter;

O(1.14)

clients are informed of their right to challenge or complain about your bill and the circumstances in which they may be liable to pay interest on an unpaid bill;

O(1.15)

you properly account to clients for any financial benefit you receive as a result of your instructions;

O(1.16)

you inform current clients if you discover any act or omission which could give rise to a claim by them against you.

Indicative behaviours

Acting in the following way(s) may tend to show that you have achieved these outcomes and therefore complied with the Principles :

Dealing with the client's matter

IB(1.1)

agreeing an appropriate level of service with your client. for example the type and frequency of communications;

IB(1.2)

explaining your responsibilities and those of the client ;

IB(1.3)

ensuring that the client is told, in writing, the name and status of the person(s) dealing with the matter





and the name and status of the person responsible for its overall supervision;

IB(1.4)

explaining any arrangements, such as fee sharing or referral   arrangements. which are relevant to the client's instructions;

IB(1.5)

explaining any limitations or conditions on what you can do for the client. for example, because of the way the client's matter is funded;

IB(1.6)

in taking instructions and during the course of the retainer, having proper regard to your client's mental capacity or other vulnerability, such as incapacity or duress;

IB(1.7)

considering whether you should decline to act or cease to act because you cannot act in the client's best interests;

IB(1.8)

if you seek to limit your liability to your client to a level above the minimum required by the SRA Indemnity Insurance Rules. ensuring that this limitation is in writing and is brought to the client's attention;

IB(1.9)

refusing to act where your client proposes to make a gift of significant value to you or a member of your family, or a member of your firm or their family, unless the client takes independent legal advice;

IB(1.10)

if you have to cease acting for a client. explaining to the client their possible options for pursuing their matter;

IB(1.11)

you inform clients if they are not entitled to the protections of the SRA Compensation Fund;

IB(1.12)

considering whether a conflict of interests has arisen or whether the client should be advised to obtain independent advice where the client notifies you of their intention to make a claim or if you discover an act or omission which might give rise to a claim;

Fee arrangements with your client

IB(1.13)

discussing whether the potential outcomes of the client's matter are likely to justify the expense or risk involved, including any risk of having to pay someone else's legal fees;

IB(1.14)

clearly explaining your fees and if and when they are likely to change;

IB(1.15)

warning about any other payments for which the client may be responsible;

IB(1.16)

discussing how the client will pay, including whether public funding may be available, whether the client has insurance that might cover the fees, and whether the fees may be paid by someone else such as a trade union;

IB(1.17)

where you are acting for a client under a fee arrangement governed by statute, such as a conditional fee agreement, giving the client all relevant information relating to that arrangement;

IB(1.18)

where you are acting for a publicly funded client. explaining how their publicly funded status affects the costs;

IB(1.19)

providing the information in a clear and accessible form which is appropriate to the needs and circumstances of the client ;

IB(1.20)

where you receive a financial benefit as a result of acting for a client. either:

(a)

paying it to the client ;

(b)

offsetting it against your fees; or

(c)

keeping it only where you can justify keeping it, you have told the client the amount of the benefit (or an approximation if you do not know the exact amount) and the client has agreed that you can keep it;

(d)

enables complaints to be dealt with promptly and fairly, with decisions based on a sufficient investigation of the circumstances;

(e)

provides for appropriate remedies; and

(f)

does not involve any charges to clients for handling their complaints ;

IB(1.23)

providing the client with a copy of the firm's   complaints procedure on request;

IB(1.24)

in the event that a client makes a complaint. providing them with all necessary information concerning the handling of the complaint .

Acting in the following way(s) may tend to show that you have not achieved these outcomes and therefore not complied with the Principles :

Accepting and refusing instructions

IB(1.25)

acting for a client when instructions are given by someone else, or by only one client when you act jointly for others unless you are satisfied that the person providing the instructions has the authority to do so on behalf of all of the clients ;

IB(1.26)

ceasing to act for a client without good reason and without providing reasonable notice;

IB(1.27)

entering into unlawful fee arrangements such as an unlawful contingency fee;

IB(1.28)

acting for a client when there are reasonable grounds for believing that the instructions are affected by duress or undue influence without satisfying yourself that they represent the client's wishes.

In-house practice

Outcomes 1.1 to 1.5, 1.7, 1.15 and 1.16 apply to your in-house practice .

Outcomes 1.6 and 1.9 to 1.14 apply to your in-house practice where you act for someone other than your employer unless it is clear that the outcome is not relevant to your particular circumstances.

IHP(1.1)

Instead of Outcome 1.8 you comply with the SRA Practice Framework Rules in relation to professional indemnity insurance.

Notes

(i)

The information you give to clients will vary according to the needs and circumstances of the individual client and the type of work you are doing for them, for example an individual instructing you on a conveyancing matter is unlikely to need the same information as a sophisticated commercial client who instructs you on a regular basis.

(ii)

Information about the Legal Ombudsman. including the scheme rules, contact details and time limits, can be found at www.legalombudsman.org.uk.

Chapter 2: Equality and diversity

This chapter is about encouraging equality of opportunity and respect for diversity, and preventing unlawful discrimination, in your relationship with your clients and others. The requirements apply in relation to age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation.

Everyone needs to contribute to compliance with these requirements, for example by treating each other, and clients. fairly and with respect, by embedding such values in the workplace and by challenging inappropriate behaviour and processes. Your role in embedding these values will vary depending on your role.

As a matter of general law you must comply with requirements set out in legislation - including the Equality Act 2010 - as well as the conduct duties contained in this chapter.

The outcomes in this chapter show how the Principles apply in the context of equality and diversity.

Outcomes

You must achieve these outcomes:

O(2.1)

you do not discriminate unlawfully, or victimise or harass anyone, in the course of your professional dealings;

O(2.2)

you provide services to clients in a way that respects diversity;

O(2.3)

you make reasonable adjustments to ensure that disabled clients. employees or managers are not placed at a substantial disadvantage compared to those who are not disabled, and you do not pass on the costs of these adjustments to these disabled clients. employees or managers ;

O(2.4)

your approach to recruitment and employment encourages equality of opportunity and respect for diversity;

O(2.5)

complaints of discrimination are dealt with promptly, fairly, openly, and effectively.

Indicative behaviours

Acting in the following way(s) may tend to show that you have achieved these outcomes and therefore complied with the Principles :

IB(2.1)

having a written equality and diversity policy which is appropriate to the size and nature of the firm and includes the following features:

(a)

(e)

details of how the firm will ensure equality in relation to the treatment of employees. managers. clients and third parties instructed in connection with client matters;

(f)

details of how complaints and disciplinary issues are to be dealt with;

(g)

details of the firm's arrangements for workforce diversity monitoring; and

(h)

IB(2.2)

providing employees and managers with training and information about complying with equality and diversity requirements;

IB(2.3)

monitoring and responding to issues identified by your policy and reviewing and updating your policy.

Acting in the following way(s) may tend to show that you have not achieved these outcomes and therefore not complied with the Principles :

IB(2.4)

being subject to any decision of a court or tribunal of the UK. that you have committed, or are to be treated as having committed, an unlawful act of discrimination;

IB(2.5)

discriminating unlawfully when accepting or refusing instructions to act for a client .

In-house practice

Outcomes 2.1 and 2.2 apply to all in-house practice.

Instead of outcomes 2.3 to 2.5 you must achieve the following outcome:

IHP(2.1)

if you have management responsibilities you take all reasonable steps to encourage equality of opportunity and respect for diversity in your workplace.

Notes

(i)

The obligations in this chapter closely mirror your legal obligations. You can obtain further information from the Equality and Human Rights Commission, www.equalityhumanrights.com.

(ii)

See also Chapter 1 (Client care) for the handling of client   complaints .

(iii)

See also Chapter 7 (Management of your business) for your obligation to have in place appropriate systems and controls for complying with the outcomes in this chapter.

Chapter 3: Conflicts of interests

This chapter deals with the proper handling of conflicts of interests. which is a critical public protection. It is important to have in place systems that enable you to identify and deal with potential conflicts.

You can never act where there is a conflict, or a significant risk of conflict, between you and your client.

If there is a conflict, or a significant risk of a conflict, between two or more current clients. you must not act for all or both of them unless the matter falls within the scope of the limited exceptions set out at Outcomes 3.6 or 3.7. In deciding whether to act in these limited circumstances, the overriding consideration will be the best interests of each of the clients concerned and, in particular, whether the benefits to the clients of you acting for all or both of the clients outweigh the risks.

You should also bear in mind that conflicts of interests may affect your duties of confidentiality and disclosure which are dealt with in Chapter 4.

The outcomes in this chapter show how the Principles apply in the context of conflicts of interests.

Outcomes

You must achieve these outcomes:

Source: www.sra.org.uk

Category: Solicitor

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