PPC2 Professional Responsibility common mistakes
PPC2 Professional Responsibility · Understand the traps and how to avoid them.
When a fact pattern shows a lawyer whose conduct is questionable (a missed deadline, a colleague dipping into trust funds, a change of practice address), the candidate analyses only the duty owed to the client and never identifies an obligation owed to the regulator - to self-report, to report another licensee, to answer Law Society correspondence promptly, or to cooperate with an investigation.
Candidates mentally sort every scenario into 'client duties' versus 'court duties' and treat the regulator as background context rather than as a party owed independent obligations. Regulatory duties are tested less often in practice, so they are not top of mind.
What to do instead
Run a fixed four-question regulatory overlay before writing: (1) Is there anything I must report, and to whom? (2) Is there anything I must answer or cooperate with? (3) Is there a notification obligation (address, trust account, practice changes)? (4) Is there a practice-management obligation (supervision, file review, limitation-date system)? Then name the obligation expressly and state who is owed the duty.
Treats the good-character requirement as a one-time hurdle on the licensing application: advises a candidate to leave an old withdrawn charge or a diversionary disposition off the form, or fails to spot that a change of circumstances between application and call must be disclosed.
Candidates confuse legal irrelevance (a withdrawn charge has no probative weight in a criminal sense) with the applicant's duty of full candour, and they picture admission as an event rather than an ongoing relationship with the regulator.
What to do instead
State that the duty of candour in licensing is continuing, that the regulator decides materiality rather than the applicant, and that non-disclosure is itself an aggravating factor. Then analyse good character on the merits - nature and date of the conduct, candour, remorse, rehabilitation, and whether the applicant currently poses a risk - instead of stopping at 'he should have disclosed it.'
In a retainer with a corporation, identifies the individual director or shareholder the lawyer has been speaking to as the client, and never states the scope of the retainer or the limits of any limited-scope arrangement.
Fact patterns deliberately use one dominant individual who speaks for the entity, and candidates unconsciously equate the person they talk to with the person they act for. Scope is often left implicit in practice, so it goes unmentioned in the answer.
What to do instead
Begin the answer with an express sentence: 'The client is X Corp. and the lawyer owes no solicitor-client duty to the director personally.' Then analyse whether the director's interests have diverged, and separately state what the retainer covers, what it excludes, whether any limitation of scope is reasonable and consented to, and that it is confirmed in writing.
Delivers a single-step verdict - 'there is a conflict, so the lawyer must decline' - without classifying the conflict as current-client, former-client, personal-interest, or corporate-constituent, and without testing whether consent is available and from whom.
Candidates memorise that conflicts are bad and short-circuit the analysis, and the different conflict rules use different trigger words that look interchangeable under exam pressure.
What to do instead
Use a fixed script: identify the conflict type, name its test (directly adverse or substantial risk of material prejudice for current clients; related matter plus confidential information for former clients; fair and reasonable terms plus independent advice for personal interests), then state consentability, who must give informed consent, whether it must be written or court-approved, and any non-consentable category.
Uses 'confidentiality' and 'solicitor-client privilege' interchangeably, so the answer says the lawyer may reveal information because it is 'not privileged', or claims privilege over factual information the lawyer learned from the client.
The two concepts overlap in every fact pattern and both are described casually as 'secrecy', so the distinction is never learned as a distinction.
What to do instead
Keep two separate boxes. Confidentiality: a broad ethical duty covering all information about the client's affairs learned in the relationship, surviving termination, subject to defined exceptions such as consent (express or implied), legal or regulatory compulsion, or defending the lawyer against a claim. Privilege: an evidentiary rule attaching to confidential communications made for the purpose of seeking or giving legal advice, held by the client alone, surviving death and termination. Name which of the two the question actually engages.
Equates competence with knowing the substantive law and therefore concludes that an inexperienced lawyer simply 'must study harder', missing the duties to decline the retainer, to refer or associate, to supervise juniors and staff, and to communicate with the client.
Competence is taught first as a knowledge standard in law school, and the practice-management side of it (delegation, supervision, quality assurance, communication) is not what candidates picture.
What to do instead
Analyse competence on a three-part frame: knowledge and skill, preparation and diligence, and the management of the practice. Where a retainer outstrips the lawyer's ability, the available responses are decline, refer, associate, or withdraw with proper notice - say which, and add the communication steps owed to the client.
Handles trust account fact patterns by saying the lawyer 'should not have taken the money', without identifying that fees may be withdrawn only after a bill has been delivered, that client money must be segregated from the firm's money, that cash and mixing are prohibited, and that the difference between a bookkeeping error and misappropriation matters.
Candidates know trust funds are 'special' but not the specific mechanical rules, so they give a moral conclusion instead of a rule-based one.
What to do instead
Walk the money step by step: how it was received, where it went, whether the transaction is permitted at all, whether documentation (a bill or written direction) existed, and what the lawyer must now do (repay, reconcile, notify the client, report). Label conduct precisely as error, negligence, or misappropriation.
Reviews a fee arrangement only for excessiveness, missing the categorical rules: contingency fees in prohibited areas, fee sharing with non-lawyers, referral fees between lawyers, and charges to the client for transferring the file or for the lawyer's own file-retention needs.
Candidates apply the general 'fees must be reasonable' principle as if it were the whole test, and the categorical prohibitions are short rules sitting in a different part of the fee scheme.
What to do instead
Run a checklist over any fee fact pattern: is this type of fee permitted at all in this kind of matter, was it disclosed and agreed in writing, is it reasonable on the enumerated factors, and is any third party sharing in it. Deal with each prohibition expressly even if the answer is that the rule is satisfied.
Resolves the tension between loyalty and candour in favour of the client - arguing a point the lawyer knows to be unsupported, letting a misstatement of law or fact stand uncorrected, or omitting adverse authority that the court would plainly want to see.
Advocacy instinct and the duty of zeal pull hard, and candidates picture the lawyer's job as winning rather than as assisting the court accurately.
What to do instead
State the rank order explicitly: the duty of candour and honesty to the tribunal is not overridden by the client's instructions or objectives. Then apply it concretely - correct the error, cite the adverse authority, and decline to adduce evidence known to be false - and address what may still be said to the client about the limits.
Lets the lawyer communicate directly with a party the lawyer knows to be represented, or negotiates with an unrepresented person without clarifying that the lawyer does not act for them and without correcting a misunderstanding about the lawyer's role.
These encounters read as ordinary negotiation in a fact pattern, and candidates focus on the substance of the dealing rather than on who was on the other side and what they understood.
What to do instead
Before analysing substance, check the counterparty's status. If represented, no direct contact except through counsel or with consent; if unrepresented, the lawyer must make the role clear, must not give the appearance of advising them, and must not take unfair advantage of the absence of independent advice.