Period of Recognised Training / Training Contract Professional Conduct and Ethics Syllabus

Define a professional undertaking in the SRA context.

An undertaking is a statement, given orally or in writing, whether or not it includes the word 'undertake' or 'undertaking', made by or on behalf of you or your firm, in the course of practice, to someone who reasonably places reliance on it, that you or a third party will do something or cause something to be done, or refrain from doing something.

What is the rule on performing undertakings, and what makes them enforceable?

You must perform all undertakings given by you, and do so within an agreed timescale or, if none, within a reasonable amount of time. Undertakings are personally binding on the giver and are enforceable by the court against a solicitor as a matter of the court's supervisory jurisdiction over its officers, in addition to being a regulatory obligation.

Why are undertakings best given in writing and carefully worded?

Because they are binding even if oral and even without the word 'undertake', and the solicitor is personally liable to perform them. Careful wording avoids giving an undertaking dependent on a matter outside the solicitor's control. An undertaking to 'use best endeavours' is preferable to an absolute undertaking the solicitor may be unable to fulfil.

What are the rules on interviewing and influencing witnesses?

There is no property in a witness, so you may interview and take statements from any witness (including the other side's), but you must not influence a witness's evidence (e.g. coach them or rehearse evidence). You must not offer or pay a witness a fee contingent on the outcome of the case or the nature of their evidence.

What is the rule on a solicitor acting as both advocate and witness in the same matter?

A solicitor should not act as advocate (or continue to act) if they are likely to be a witness on a material question of fact, because the dual role compromises independence and risks misleading the court. Generally the solicitor should withdraw from acting as advocate in such circumstances.

What are a solicitor's disclosure obligations to the court in litigation?

You must comply with court orders and your duty of disclosure. You must not suppress or destroy documents that should be disclosed, must draw the court's attention to relevant adverse case law or legislative provisions/procedural irregularities of which you are aware, and must not construct facts or draft documents containing contentions you do not consider properly arguable.

What are the key reporting obligations to the SRA under the Codes?

You must report promptly to the SRA (or another approved regulator) any facts or matters that you reasonably believe are capable of amounting to a serious breach of the regulatory arrangements by any person regulated by them. You must also be honest and open with the SRA, not mislead it, and cooperate with it and the Legal Ombudsman.

What is the obligation to provide information to the SRA when asked?

You must provide full and accurate explanations, information and documents in response to any SRA request or requirement, and act promptly. You must not attempt to prevent anyone from providing information to the SRA, and you must report promptly any facts you reasonably believe should be brought to the SRA's attention so it can investigate.

What is the Solicitors Disciplinary Tribunal (SDT) and its statutory basis?

The SDT is an independent statutory tribunal established under section 46 of the Solicitors Act 1974. It hears and determines allegations of misconduct against solicitors and other regulated persons. It is separate from the SRA: the SRA investigates and prosecutes, while the SDT adjudicates.

What standard of proof does the Solicitors Disciplinary Tribunal apply?

Since changes in 2019, the SDT applies the civil standard of proof — the balance of probabilities — rather than the former criminal standard of beyond reasonable doubt.

What sanctions can the Solicitors Disciplinary Tribunal impose?

The SDT may: strike a solicitor off the roll; suspend a solicitor (indefinitely or for a fixed period); impose an unlimited fine; reprimand; make a restriction order on the way the person practises; order the payment of costs; and (in relation to firms) impose conditions. Striking off is the most serious sanction.

For what type of misconduct is striking off the 'almost invariable' outcome?

Proven dishonesty almost invariably leads to striking off, save in exceptional circumstances (Bolton v Law Society; Sharma). The purpose is to maintain the reputation of the profession and public confidence rather than to punish.

What sanctions can the SRA itself impose without referring a matter to the SDT?

The SRA can issue a written rebuke, impose a fine (its internal fining powers were significantly increased — up to £25,000 for traditional firms/individuals, with higher limits set out in rules), impose conditions on a practising certificate, disqualify a person, control or intervene in a firm, and refer serious matters to the SDT.

What is the test for 'dishonesty' applied in disciplinary proceedings (Ivey v Genting)?

The test is objective: first, ascertain the actual (subjective) state of the individual's knowledge or belief as to the facts; then determine whether their conduct was dishonest by the (objective) standards of ordinary decent people. There is no requirement that the defendant appreciated their conduct was dishonest by those standards.

Distinguish a 'finding of misconduct' from a finding of dishonesty.

A finding of misconduct means the solicitor breached professional standards or the SRA Principles/Codes; it can arise from lack of integrity, incompetence or breach of rules without dishonesty. Dishonesty is a specific, more serious finding that almost always results in striking off, whereas non-dishonest misconduct attracts a wider range of lesser sanctions.

What is whistleblowing in the SRA context and how does it relate to confidentiality?

Whistleblowing is reporting wrongdoing or serious regulatory breaches (e.g. to the SRA). The duty to report serious breaches can override confidentiality where disclosure is required by the regulatory arrangements or law. The SRA cannot be prevented from receiving such reports, and confidentiality obligations to the firm do not bar a proper report.

What is the trainee solicitor's position when asked by a supervisor to do something improper or unethical?

A trainee remains personally bound by the SRA Principles and Codes and cannot escape responsibility by claiming they were 'just following orders'. The trainee should refuse to act improperly, raise concerns with the supervisor/COLP, and if necessary report the matter. Acting on improper instructions can itself be a breach for which the trainee is accountable.

What protection does the law give to a trainee or employee who blows the whistle on their firm?

The Public Interest Disclosure Act 1998 (amending the Employment Rights Act 1996) protects 'workers' who make a qualifying protected disclosure from suffering detriment or dismissal. A trainee making a genuine protected disclosure about wrongdoing is protected, and the SRA expects firms not to victimise those who report.

Who are the COLP and COFA and what are their reporting roles?

The COLP (Compliance Officer for Legal Practice) is responsible for the firm's compliance with its authorisation and regulatory obligations; the COFA (Compliance Officer for Finance and Administration) is responsible for compliance with the SRA Accounts Rules. Both must take reasonable steps to record and report serious breaches to the SRA as soon as reasonably practicable.

What is the difference between the SRA's role and the Legal Ombudsman's role?

The SRA is the regulator: it deals with breaches of professional conduct/regulatory rules and protects the public interest, and can prosecute and discipline. The Legal Ombudsman handles individual consumer complaints about poor service and can award redress to the client (up to £50,000). The SRA focuses on conduct, the Ombudsman on service.

Can a solicitor act for both buyer and seller (or borrower and lender) in a conveyancing transaction?

Generally no, because of the significant risk of a client conflict; you must not act where there is a conflict or significant risk of one. Exceptionally you may act for parties on opposite sides only if one of the conflict exceptions (substantially common interest or competing for the same objective) applies, with informed written consent and safeguards — rarely satisfied where parties are negotiating opposing terms.

What must a solicitor do if a conflict of interest arises during an ongoing retainer for two clients?

If an actual conflict arises (and no exception applies), the solicitor must generally cease to act for one or both clients. Often the solicitor must cease acting for both to protect each client's confidential information, and cannot continue to favour one client over the other.

What is the duty regarding service competence and timeliness under the Code?

You must provide a competent service to clients and carry out work in accordance with instructions and proper standards. You must ensure the service is delivered in a competent and timely manner, maintain your competence and keep your professional knowledge and skills up to date, and supervise and check the work of those you are responsible for.

What is the difference between the duty to the court overriding the client, versus normal client best interests?

Normally a solicitor must act in the client's best interests (Principle 7). However, in litigation and dealings with the court, the duty to the court and the proper administration of justice (Principles 1 and 2) takes precedence — you cannot mislead the court even to advance the client's interests, and where they conflict the public interest prevails.

Is privilege the same as confidentiality, and how do they differ?

No. Confidentiality is a professional and equitable duty owed to the client about all client affairs. Legal professional privilege (legal advice privilege and litigation privilege) is a legal right that protects certain communications from compelled disclosure (e.g. to a court). All privileged material is confidential, but not all confidential material is privileged.

In what circumstances may a solicitor disclose confidential client information without consent?

Where disclosure is required or permitted by law (e.g. under anti-money laundering/POCA reporting obligations, court order, or statute), or to prevent the client or a third party committing a criminal act the solicitor reasonably believes is likely to result in serious bodily harm. Otherwise consent is required.

What is the rule on contacting a represented party directly?

You should not communicate about a matter with anyone you know has retained a lawyer in that matter, except through or with the consent of that lawyer, unless there are exceptional circumstances or the other lawyer consents. This prevents taking unfair advantage of a represented party.

What is meant by 'taking unfair advantage' and give an example.

Abusing your position or specialist knowledge to the detriment of another, particularly a non-represented or vulnerable person or third party. Examples include demanding more than is properly due, exploiting an opponent's mistake to gain something the law would not allow, or using aggressive or misleading tactics against an unrepresented person.

What happens to an undertaking given by an individual solicitor if they leave the firm or the firm closes?

The undertaking remains personally binding on the individual who gave it (and may also bind the firm). Leaving the firm does not discharge the personal obligation. This is why solicitors must keep records of undertakings given and ensure they can be performed; failure to honour an undertaking is professional misconduct and enforceable by the court.

Summarise the chain from breach to sanction: who investigates, who adjudicates, and the possible outcomes?

The SRA investigates and may resolve minor matters internally (rebuke, fine, conditions) or prosecute serious matters before the Solicitors Disciplinary Tribunal. The SDT adjudicates on the balance of probabilities and can reprimand, fine (unlimited), restrict practice, suspend, or strike off. Appeals from the SDT lie to the Administrative Court (High Court).