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COLP Insider – 15th September 2017

Anne Bode

September feels like a fresh start, doesn’t it?

Everyone is back from holiday, refreshed and full of good intentions. What a perfect time to make sure that all your compliance ducks are in a row!

With that in mind, Lisa has written a piece on the importance of attendance notes. You would be surprised (or maybe not?) at just how many files we come across with very little detail recorded of what was actually said between client and solicitor.

The recent professional negligence case of Thomas v Hugh James Ford Simey illustrates this perfectly. The defendant solicitors were able to successfully defend a claim that they had failed to advise properly on heads of claim because there was evidence of the client’s instructions to the contrary in conference notes. In this case, there was a record that the client had chosen not to pursue certain heads of damage, and in any event he could not evidence them.

In this issue we also remind you of the new corporate offence of facilitating tax evasion coming into effect 30 September; highlight an update on property fraud guidance; and look at the implications of CILEx’s application to become an ABS licensing authority.

We hope you find our newsletter useful and interesting – if you have any comments or questions please get in touch.

Happy reading

Jon and the team

 

 

The importance of a good attendance note

Lisa Charles, who reviews a lot of files in any given week, argues that attendance notes are of critical importance to running every file.  Think: defending professional negligence claims and “What if anybody gets hit by the proverbial bus”?!

Read our blog here.

New corporate offence – failing to prevent the facilitation of tax evasion

The Criminal Finances Act 2017 comes into effect on the 30th September 2017. The act creates a new corporate offence of ‘failure to prevent the criminal facilitation of tax evasion’. Essentially your firm will be committing an offence if a person ‘associated’ with you facilitates tax evasion in the UK or overseas and you fail to take steps to prevent that happening. An associated person could be an employee, a consultant or even an external agent.

Why it matters

The offence imposes a strict liability – no knowledge or intention is required by the firm. Much like the Bribery Act, you will have a defence if you can show show that either
  1. the firm has ‘reasonable prevention procedures’ to guard against such an offence; or
  2. it was not reasonable to expect it to have any prevention procedures in place (we wouldn’t fancy running the second argument).
The offence is punishable by unlimited fines.  The Law Society practice note is essential reading.

 

Property fraud

A practice note issued jointly by the Law Society and the HMRC (see useful summary here), warns of the ‘considerable lengths’ taken my fraudsters to impersonate conveyancers.  Law Society president Joe Egan said: ‘Whilst successful instances of fraud against solicitors are rare, the whole profession must maintain constant vigilance against those who try to defraud them and their clients’. 

Why it matters

Property fraud is a hot topic. If you do conveyancing work, it’s vital that you ensure that everyone in the office is alert to property fraud and the warning signs.  Updates like this are an important way of keeping abreast of new techniques used by fraudsters and the warning signs you should be looking out for.  You should always ensure that you have proper policies and procedures in place, and more importantly, that these are followed by EVERYONE!

 

 

CILEx next ABS licensing authority?

The Chartered Institute of Legal Executives has submitted an application to the LSB to licence Alternative Business Structures.  Since 2015, Chartered legal executives can set up their won law firms by applying to CILEx, but these law firms could not have any non-lawyer ownership or investment  Legal Executives have therefore had to go to one of the other regulators to set up ABSs (notably the SRA) or Any legal executive wanting non-lawyer ownership or investment would need to go to someone else.

Why it matters

Presuming the LSB grants CILEx’s application, and it surely will, it will make the CILEx route an alternative ABS option for Legal Executives and other lawyers. Another bit of healthy competition for the SRA then.

 

 

New and updated Law Society Practice Notes

 

 

New and updated SRA Warning Notices and Guidance

 

 

Disciplinary decisions

  • Christopher Greenman was struck off by the SDT for claiming for costs for work done in relation to an Estate file which he knew to be excessive and for misappropriating £90,000 client monies from that estate.
  • Richard Harbord was given a fine of £8500 for acting in a situation where he had a conflict of interest.  Mr Harbord acted for Mrs N in family law proceedings, and during the course of those proceedings he had a personal relationship with her that he failed to disclose to the court.  The SDT found that there was a risk of his interest bring in conflict with those of Mrs N.
  • Naomi Duxbury-Tetley was reprimanded for backdating a latter to assist with an application for Relief from Sanction following a missed date for Service.
  • In a Regulatory Settlement Agreement, Michael Vaughan was rebuked and ordered to pay £300 costs.  The SRA found that the books of accounts of his firm Kingswell Berney Ltd were not in compliance with the SRA Accounts Rules.  Issues included making payments from client account in excess of funds held for individual clients, making unallocated withdrawals from client account and failing to keep proper accounting records.