We have tried really hard to avoid the B-word in this newsletter, a position that is becoming harder as events unfold.
Now RELs are being told that their practising status is threatened by a no-deal scenario.
The SRA is one step closer to getting its way in the ongoing row over the burden of proof in the SDT. Possibly one more reason for conveyancers to jump ship to the CLC.
Take a look at the incredibly useful cybercrime guidance from the IBA. Hacking and other forms of online fraud are not going away. As a profession we are guardians of not only significant client assets, but also some of the most sensitive data imaginable. We owe it to our clients to everything we can to keep those assets safe.
It’s a beautiful sunny afternoon here in Cardiff. I hope it is where you are too.
Jon and the team
RELs affected by Brexit no-deal
The Government published it’s technical notice on 12th October setting how the provision of services, including those of professionals, will be affected in the event of no Brexit deal being reached. Both the SRA and Law Society were quick to air their respective concerns.
Both highlighted the significant impact that this would have upon lawyers from the EEA. Currently European lawyers may practice in the UK as a Registered European Lawyer (REL). The SRA has suggested that REL status may not be available after the UK’s exit from Europe. However, it is likely that those already registered as RELs will be able to practice until December 2020 and the SRA will deal with all applications being processed on 29th March 2019.
The Law Society has indicated that RELs may have to become Registered Foreign Lawyers (RFLs) or perhaps requalify. The possible option is for RELs to qualify through the Qualifying Lawyer Transfer Scheme (QLTS) and the new solicitors qualifying exam. The SRA has confirmed on its website that it will write to all RELs to keep them updated.
Why it matters
The Law Society succinctly addresses the problems that this could cause. There is the potential expense that this will cause those smaller firms currently employing EEA lawyers. It also highlighted a further concern that the notice “doesn’t provide any answers for UK lawyers in the EU, who could face barriers in each of the 30 EU/EEA countries“.
There is also the risk that these extra hoops could prove to be too burdensome and hinder the recruitment of international expertise and talent which would be a huge cost to Britain’s legal services.
Our advice: if you have been practising as an REL for over three years you may be able to cross qualify as a solicitor under the existing Directive. Time to do so is rapidly running out.
LSB approve change to BSB misconduct standard of proof
The Legal Services Board (LSB) has approved the application made by the Bar Standards Board (BSB) to change the standard of proof applied in professional misconduct proceedings.
The BSB will from now on apply the civil standard of proof in line with other professional regulators.
Why it matters
It is no secret that the SRA has long wanted the lower civil burden of proof to apply in the SDT, making disciplinary prosecutions easier. The SDT recently consulted on this very matter, and the SRA submitted a lengthy response setting out its position in favour of the lower standard.
We know that the LSB favours this approach. It is how various other regulators operate. And there is now a comparable precedent at the Bar. Seemingly now only the SDT itself can put the brakes on, and we will have to wait for their response to the consultation.
New Cyber Security Guidelines
The International Bar Association (IBA) has published new cyber security guidelines as part of the IBA’s Presidential Task Force on Cyber Security. The guidelines are divided into helpful sections which cover technology, organisational processes, security controls, awareness and training and cyber security training.
What is particularly helpful with these guidelines is that the recommendations vary depending upon the size of the firm from sole practitioner, small to medium firms up to the larger firms with 40 plus employees. This type of guidance is invaluable to the smaller practices as these are the firms that are less likely to have in-house teams dealing with the issue or the funds available to outsource the problem.
Why it matters
If you read our newsletter on a regular basis, you will see that there is a recurring theme. Cyber crime is a very real risk – indeed it is a major part of the SRA’s own Risk Outlook. Last year more than £10m was lost to cyber criminals in the sector. The more guidance and help that is forthcoming the better.
Insurance plays a major role in keeping safe. Most PII policies are lacking in their coverage, and will not insure against the associated costs of an attack (IT costs, damage limitation, PR etc).
SRA or CLC? Some firms are making the switch
It has been reported that more firms are choosing to switch regulator to Council for Licensed Conveyancers (CLC). The CLC, a specialist property regulator, has named several firms that have joined their ranks since the SRA relaxed its insurance rules to enable firms to swap regulators, including well known names such as Clutton Cox.
Last year the SRA removed the requirement for departing firms to obtain run-off cover when switching regulators.
Why it matters
The ability of firms to choose their regulator and swap to meet the changing needs of their particular business can only be seen as a good thing. Competition between regulators in theory could bring about benefits to the legal profession and the ever changing provision of legal services.
However, be careful what you wish for. The CLC is not always the sensible, flexible regulator it markets itself as. We have a couple of horror stories…
New and updated Law Society Practice Note
- Making gifts of assets – helpful guidance to ensure practitioners do not implicate themselves in any deliberate deprivation of assets
- File retention: Trusts – reminder ensure that solicitors are on top of the whereabouts of all documentation in case of any potential claims
Disciplinary decisions
- Peter Rolin has been struck off after SDT found that the sole practitioner was not authorised and that he had failed to take out PII for 12 years and was ordered to pay £5000 in costs.
- Martin Edward Burnett was found to have acted dishonestly when dealing with probate and conveyancing matters, including forging client signatures. He has been struck off and ordered to pay £10,557.
