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PROFESSIONAL PRACTICE

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Title: PROFESSIONAL PRACTICE


1
PROFESSIONAL PRACTICE
  • Dr Arthur McInnis
  • Handout F

2
Professional Practice
  • Competence and Quality of Care
  • real context
  • part of control process that begins with
    admission
  • control is reactive not proactive
  • minimal monitoring overall
  • standards vary widely across firms
  • strongest case today in favour of it is the
    business case

3
Competence and Quality of Care
  • Standards or sources of obligations imposed by
  • the law generally - common law and legal
    regulation
  • the Guide and Code - professional discipline
  • standards differ - express reference to this in
    6.01(3).

4
Competence and Quality of Care
  • Competence to act
  • 5.03 - A solicitor must not act or continue to
    act in circumstances where he cannot represent
    the client with competence or diligence.
  • part of the retainer (Ch 5)
  • does this alone mean a solicitor must be
    competent?
  • no - the explanation

5
Competence and Quality of Care
  • Can a solicitor overcome incompetence? Yes.
  • 1. by instructing counsel
  • 2. in any other way imaginable.
  • Are there limitations? Yes. For 1.
  • must be able to exercise sufficient care and
    control Sorry it is 5.03(3)
  • other responsibilities remain

6
Competence and Quality of Care
  • Are there limitations for 2? Yes.
  • cannot involve undue delay, (undue) risk or
    (undue) expense for client 6.01(3)

7
Competence and Quality of Care
  • Diligence, care and skill
  • 5.12
  • duties owed during the retainer
  • bound to carry out instructions (and)(must be
    carried out) with diligence
  • Ask - does this impose an obligation or is it a
    statement of intent?
  • must exercise reasonable care and skill

8
Competence and Quality of Care
  • Other duties
  • efficiency - 5.12(1)

9
Competence and Quality of Care
  • Other limitations
  • the jurisdiction box - 5.12(2), and (6)
  • cannot exclude or limit liability in negligence -
    6.01(8) and s 59(2) LPO
  • cannot exclude his liability for professional
    misconduct 6.01(10)
  • cannot seek clients agreement to refrain from
    making professional misconduct complaint
    6.01(10)

10
Competence and Quality of Care
  • It could be asked - for fun
  • just how far a solicitor could go under 6.01(9)?
  • whether 6.01(10) is meaningful given different
    standards which apply?

11
Competence and Quality of Care
  • Care
  • tell client timeously in simple language
  • the issues raised
  • how to be dealt with 5.12(3)
  • the steps to be taken
  • costs
  • explain to client
  • the effect of any important and relevant document

12
Competence and Quality of Care
  • Care
  • inform client
  • of progress
  • significant developments
  • reason for any serious delay

13
Competence and Quality of Care
  • Is there an imperative or mandatory writing
    requirement with respect to this?
  • Not under 5.12
  • See 5.12(3), and (7)

14
Competence and Quality of Care
  • Can competence be given any substance?
  • knowledge
  • skill 6.01(1)
  • ability
  • understanding of legal principles
  • (knowledge) of practice and procedure 6.01(4)
  • seeking 3rd party advice - 6.01(5)

15
Competence and Quality of Care
  • What is the standard?
  • adequacy - 6.01(2), and (4), 12.01
  • any 3rd parties chosen should themselves be
    competent

16
Competence and Quality of Care
  • And in the case of barristers alone
  • competence is
  • relative
  • extends to and includes experience

17
Competence and Quality of Care
  • Is a solicitor responsible for errors in the
    barristers advice?
  • not per se but only obvious errors - 12.03(1)

18
Competence and Quality of Care
  • And what of solicitors responsibilities
    generally when barrister instructed?
  • cannot amount to their abrogation

19
Competence and Quality of Care
  • Other responsibilities for the solicitor?
  • Use of best endeavours to ensure
  • instructions carried out within a reasonable time
  • that claim does not become statute barred
  • that claim not liable to be struck out for want
    of prosecution
  • 12.03(2)

20
Competence and Quality of Care
  • Action solicitor must then take
  • ask for return or papers to instruct another
    barrister - 12.03(2)
  • correlative obligation upon barrister under para
    63(b) Code - 12.03(3)

21
Competence and Quality of Care
  • Additional risks for the solicitor
  • costs penalties
  • in (causing or contributing) to avoidable delays
    in litigation or
  • when an action struck for want of prosecution
  • and in which case actions for damages may follow
  • 6.01(7)

22
Competence and Quality of Care
  • Dealing with claims - 6.02 and 6,03
  • gives rise to a duty to inform client to seek
    independent advice
  • when?
  • client makes a claim or
  • notifies of intention to do so or
  • solicitors act or omission reasonably justifying
    claim
  • BUT does not preclude acting - 6.02 Commentary,
    6.03(3)

23
Competence and Quality of Care
  • Informing of the client must be in writing in
    cases where the act or omission was discovered by
    the solicitor.
  • No further communications with client or former
    client without approval of manager or Fund.

24
Competence and Quality of Care
  • Dealing with claims
  • must notify insurers as soon as practicable
  • through manager
  • and co-operate subsequently
  • covers client, former client and 3rd party claims
  • assumes claim falls within those for which
    indemnity provided under Solicitors (Professional
    Indemnity) Rules

25
Competence and Quality of Care
  • Dealing with claims
  • no admissions of liability
  • no settlement
  • nor incurring of costs
  • without prior consent of manager or Fund
  • a breach of 6.03 or SPIRs and prejudice may give
    rise to reimbursal obligation

26
Competence and Quality of Care
  • 6.04 - prompt response to inquiries
  • covers only correspondence
  • limited to that from clients and former clients
  • extends to 3rd parties on their behalves
  • may be broader when from Law Society
  • failure potentially disciplinable

27
Competence and Quality of Care
  • Look out for 6.04(2) as makes failure
  • to answer a letter
  • to explain conduct when required to do so
  • by or from Law Society or Solicitors Disciplinary
    Tribunal simpliciter
  • professional misconduct

28
Competence and Quality of Care
  • Bar Code 6(d)
  • practising and employed covered
  • must be competent
  • in all professional activities

29
Competence and Quality of Care
  • Standards for discipline for barristers
  • read with Handout H
  • professional misconduct - for serious failures to
    comply with para 6, or
  • breach of proper professional standards - for
    just failures to comply
  • therefore to distinguish look at the failure -
    ask whether serious or not.
  • problem as meaning of serious is ambiguous

30
Competence and Quality of Care
  • Of note - Arthur JS Hall v Simons 2000 3 ALL ER
    (HL) 2000 overruled advocates immunity.

31
Competence and Quality of Care
  • Nowadays by reason of the sophisticated level of
    professional education of solicitors which
    includes instruction in ethics, advocacy and
    court procedure footnote PCLL together with the
    clear guidelines in the Solicitors Guide, it is
    reasonable to expect a higher standard of
    responsibility of instructing solicitors with
    regard to the plea than Somasundaram apparently
    demands.
  • S W, 340

32
Competence and Quality of Care
  • Will you practise law on the edge?
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