Professional discipline update September 2019
Welcome to the September 2019 edition of Leigh Day’s Regulatory & Disciplinary bulletin.
I hope you had a chance for a break over the summer months. In this edition of Leigh Day’s Regulatory & Disciplinary bulletin, we look at some more specific compliance issues facing solicitors that you need to be aware of as solicitors prepare for the Solicitors Regulation Authority’s (SRA) overhaul of its Handbook.
September 2019 marks a year since the launch of Leigh Day’s Regulatory & Disciplinary team. We’re delighted at the opportunities we’ve had to support and advise colleagues in the world of law and beyond in that time. We’ve been busy over the summer months, including preparing for a hearing before the Solicitors Disciplinary Tribunal (SDT) in one matter and responding to the SRA in another where it made allegations of misconduct against a junior solicitor after he had blown the whistle on suspected misconduct at a previous firm.
I’m also delighted to announce that we now contribute a monthly ethics column to the Solicitors Journal. Last month, Emma Walker wrote about balancing the wishes of clients against professional conduct obligations. This month, Gideon Habel looks at ethical considerations for law firm managers when obtaining management liability insurance. You can read their articles in the Solicitors Journal or in the Articles and Comments section on the Leigh Day website.
Managing Partner and Head of Regulatory & Disciplinary, Leigh Day
SRA Standards and Regulations
The new SRA Standards and Regulations will bring considerable change to the regulatory landscape for solicitors and their practices from 25 November. If you have questions or a regulatory, ethical or professional conduct matter affecting you or your practice, contact us in confidence on 020 3780 0406 or at RDteam@leighday.co.uk for a free, no obligation discussion about your options.
Increased focus on Anti Money Laundering (AML)
Last year, the SRA carried out a thematic review focused on AML at 59 law firms that provide trust and company services. This followed government scrutiny of the risks of criminals exploiting law firms specialising in the creation and administration of trusts and companies as a means of laundering money.
The SRA’s review did not find evidence of money laundering or any intention to engage in criminal activities. It did however discover breaches of the 2017 Money Laundering Regulations and examples of inadequate training and processes. 26 of the 59 firms involved (44%) have since been subject to disciplinary action.
The review has prompted the SRA to create a dedicated AML team, tasked with looking at emerging AML risks, implementing the 5th Money Laundering Direction, developing new guidance for and supervising the profession. It also prompted a warning notice about compliance with the AML regulations. The notice specifically covers the need for firms to identify money laundering and terrorist financing risks that may be relevant to their practice and to take appropriate steps to tackle those. Among other things, firms must have a written risk assessment that must be kept up- to-date and provided to the SRA upon request.
Do you need help understanding your AML obligaons or how to remain AML compliant?
Parliamentary report on then use of non-disclosure agreements
Confidentiality clauses in settlement agreements at the end of employment – or NDAs as they are widely known – continue to be a major concern for employers (including law firms), employees and employment lawyers alike.
In June, the parliamentary Women and Equalities Committee (WEC) published its report into the use of NDAs in discrimination cases. It concluded that the use of NDAs continues to be rife, not least due to the enduring imbalance of bargaining power between employer and individual. The report made a number of specific recommendations aimed at providing greater protections to employees as part of a wide-ranging review of the law. More recently, the Law Society has provided some public guidance to individuals about considerations to have in mind if an employer asks them to sign an NDA. This particular area of law continues to exist in a state of flux and heightened alert whilst the WEC’s report is digested in Whitehall.
What the government does next remains to be seen. If you need advice about proposing or responding to a confidentiality clause in a settlement agreement, we can help.
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LSB approves lower standard of proof
In June, we reported that the SDT had announced it intended to lower the standard of proof it applies from the criminal to the civil standard as of 25 November 2019, subject to approval by the Legal Services Board (LSB). After the LSB gave its approval in July, Chief Executive Neil Buckley welcomed the move:
“The LSB has long been an advocate for use of the civil standard, and I’m confident that its consistent use throughout the sector will have a significant positive impact on the protections afforded to the public.”
The Law Society objected to the change and voiced concerns that “a lower standard of proof will result in increased referrals to the SDT”. Time will tell what impact the change will have in practice. We will be keeping a keen eye on the SDT in the months ahead.
Keep in touch
You can find out more about Leigh Day’s Regulatory & Disciplinary Team and how we can help you on our website. To speak to a member of the team, contact us on 020 3780 0406 or at RDteam@leighday.co.uk.