The Law of Legal Services, 2nd Edition

Part A – Regulation

The Regulatory Framework

• Introduction
• Legal Services Act 2007
• • Protecting the consumer
  • The Legal Services Board
  • Activity based regulation
  • The reserved legal activities
  • Exempt provision of reserved legal activities
  • Approved Regulators and Licensing Authorities
  • Entity regulation
  • Transitional arrangements for non-commercial bodies
  • Alternative Business Structures
• Other activity based statutory schemes
  • Claims management services
  • Immigration services
  • Financial Services
  • Consumer credit
  • Anti-money laundering requirements
  • Restrictions on separate businesses
• Profession based regulation
• • Solicitors
  • Barristers
  • Licensed Conveyancers
  • Patent Attorneys & Trade Mark Attorneys
  • Notaries
• Complaints handling and the Legal Ombudsman
• • Jurisdiction
  • Powers
  • Challenges to Ombudsman decisions
• Self-regulatory schemes

Authorisation

• Solicitors Regulation Authority
• • Qualification requirements
  • Practise rights
  • Practising certificates
  • Permitted modes of practice
  • In-house practice
  • The authorisation of entities
  • Legal Services Bodies (Legal Disciplinary Practices)
  • Multi-Disciplinary Practices
  • Entity authorisation process
  • Compliance officers
  • Approval of owners and managers
  • Approval of corporate owners
  • Criteria for the authorisation of entities
  • Ongoing compliance
  • Supervision and Training requirements
  • Waivers
• Bar Standards Board
• • Qualification requirements
  • Pupillage
  • Practise Rights
  • Entity regulation
• Council for Licensed Conveyancers
  • Qualification requirements
  • Practise rights
  • Entity regulation
• ILEX Professional Standards
• • Qualification requirements
  • Practise rights
  • Entity regulation
• Intellectual Property Regulation Board
  • Qualification requirements
  • Practise rights
  • Entity regulation
• Faculty Office
• • Qualification requirements
  • Practise rights
• Costs Lawyers Standards Board
• • Qualification requirements
  • Practise rights
• Institute of Chartered Accountants of England & Wales

Codes and Compliance (including Money Laundering)

• Introduction
• • Dealing with clients
  • Client care: solicitors
  • Client care: barristers
  • Provision of Services Regulations 2009
  • The Consumer Contracts Regulations 2013
  • Discrimination and reasonable adjustments
• Conflicts of interests
• • Solicitors: client conflicts
  • Solicitors: own interest conflicts
  • Solicitors: confidentiality conflicts
  • Barristers
• Confidentiality and disclosure
• • Solicitors
  • Barristers
  • Overlap with data protection law
• Duty to the court
• • Solicitors: misleading the court
  • Solicitors: abusive litigation
  • Solicitors: litigation and the court
  • Barristers: the duty to the court
  • Barristers: misleading the court
  • Barristers: witness evidence
  • Barristers: abuse of the role of advocate
• Undertakings
• Practice management
• • Solicitors: governance and systems
  • Solicitors: staff and supervision of work
  • Solicitors: referral arrangements
  • Solicitors: client money
  • Solicitors: professional indemnity insurance
  • Solicitors: separate businesses
  • Barristers: governance and systems
  • Barristers: referrals
  • Barristers: public access
  • Practise rights
• Publicity
  • Solicitors
  • Barristers
• Financial services
  • Regulated activities
  • Financial promotions
• Application of the rules
  • In-house lawyers
  • Overseas lawyers
  • Overseas practice
  • Chartered Legal Executives
  • Licensed Conveyancers
  • Other authorised persons
• Anti-money laundering and the Bribery Act
• • Anti-money laundering legislation
  • Proceeds of Crime Act and the Terrorism Act
  • Bribery Act

Misconduct

• Introduction
• Rules and Codes
• • The nature of Codes
  • Strict liability for Rule breaches
• The Meaning of Misconduct
  • The nature of misconduct
  • Rule breaches and misconduct
  • Negligence and misconduct
  • Professional judgement and misconduct
  • Misconduct and “improper conduct”
  • Misconduct based upon principles
  • Objectives in penalising misconduct
• The Seriousness of Misconduct
  • Assessing seriousness
  • Dishonesty
  • Criminal offences not limited to dishonesty
  • Premeditation
  • Conspiracy
  • Repetition and duration
  • Positions of trust
  • Motivation
  • Harm
  • Concealment
  • Public confidence
  • Seniority
  • Individuals affected
  • Individual control
  • Discrimination
  • Sentencing
  • Factors other than seriousness
  • Importance of the view of expert tribunal
• Areas of Misconduct
  • Unauthorised practice
  • Misrepresentation of structures
  • Loss of independence
  • Responsible administration
  • Client account
  • Collateral benefits
  • Overcharging
  • Group compensation claims and intermediaries
  • Conflicts
  • Transactions with clients
  • Confidentiality
  • Insurance
  • Solvency
  • Frauds by clients
  • Duty to the court
  • Dealings with prisoners
  • Dishonesty and integrity
  • Undertakings
  • Communications – offensive letters
  • Dealings with the Regulator
  • Conduct outside of practice
  • Unfitness to practice
• Responsibility for Others
  • Responsibility of partners
  • Responsibility of COLP/COFA
  • Supervision

Supervision, Investigation and Enforcement

• Introduction
• SRA Supervision and Investigation
• • Supervision
  • Investigation
  • Individuals and firms
  • Investigative powers
  • The rule-based powers
  • The statutory powers
  • Disclosure of investigative information to third parties
  • Explanation by the regulated person
  • The report stage
  • Representations following the report
  • The SRA’s duty of care
• SRA Enforcement
• • Enforcement decisions
  • The disciplinary powers of the SRA
  • SRA Disciplinary Procedure Rules 2011 – Enforcement
  • The statutory framework of practising certificate regulation
  • SRA Practising Regulations 2011
  • Examples of practising certificate conditions
  • Appeals in relation to practising certificates
  • Appeals to the High Court
• Interventions
  • The nature of intervention
  • The grounds for intervention
  • The grounds for limited intervention
  • The powers exercisable o intervention
  • The statutory trust
  • The practice documents
  • Ancillary court orders
  • The costs of intervention
  • Intervention challenges
  • Time limit
  • The nature of the proceedings
  • The methodology of the court’s decision
  • The balancing exercise
  • Intervention and Human Rights
  • Delayed decisions to intervene
  • Unpaid bills and work in progress
  • Interim injunctions
• SRA Referral to the Solicitors Disciplinary Tribunal
• • Decision to refer
• The Bar Standards Board
• • Establishment
  • Supervision
  • Enforcement
  • Entity regulation
• Licensed Conveyancers
• • Powers
  • The framework of CLC decisions
• The Intellectual Property Board
• The Costs Lawyers Standards Board

Tribunals

• Introduction
• The Solicitors Disciplinary Tribunal
• • Constitution
  • Absolute privilege
  • Jurisdiction and powers of Tribunal
  • Orders of the Tribunal
  • Appeals from the Tribunal
  • The approach of the court
  • Appeals to the Tribunal instead of the High Court
  • Applications to the Tribunal
  • Certification of a case to answer
  • Further allegations
  • Applications against solicitors’ employees
  • Restoration and ending suspensions
  • Service, directions and listing
  • Case management
  • Evidence
  • Disclosure of documents
  • Evidence from the police
  • Previous findings of record
  • Hearings and findings
  • Publicity
  • Standard of proof
  • Sanctions and penalties
  • Fines and costs
  • Rehearing where the respondent is not present
  • Adjournments
  • Abuse of process
  • Bias
  • Regulatory settlements
  • Appeals to the Tribunal
  • Restoration to the Roll
• The Jurisdiction of the High Court over Solicitors
• The Bar Disciplinary Tribunal
• • Constitution
  • Referral of disciplinary charges
  • Procedure to trial
  • Conduct of hearing
  • Sanctions
  • Appeal
  • Costs
  • Publication
• The Council for Licensed Conveyancers
• Notaries
• The Intellectual Property Regulation Board
• Chartered Institute of Legal Executives
• Costs Lawyer Standards Board

Part B – Lawyers' Legal Duties 

The Client Contract 

• The Solicitors’ Retainer
• • Formalities
  • Contract by conduct
  • Description of services
  • General retainers
  • Inexperienced clients
  • Identifying the client
  • Termination of the client contract
  • Termination by the solicitor
  • Failure to make payments on account
  • Termination by operation of law
• Particular Types of Client
  • Multiple individuals
  • Agents and other forms of representative
  • Clubs and other unincorporated bodies
  • Companies
  • Children
  • Clients subject to mental incapacity
  • Trustees and executors
  • Trade Unions
  • Insurers
  • Trustee in bankruptcy
  • Liquidators
  • Administrators
  • Partnerships
  • Statutory corporations
• Solicitors’ Standard Terms
  • Client care information
  • Matters commonly dealt with in standard terms
  • Formalities
  • Charges and payments
  • Control of information
  • Client obligations
  • Risk sharing
  • Complaints and disputes
  • General clauses
• Barristers’ Standard Terms – The Combar Terms
  • Introduction
  • Formalities
  • Charges and payments
  • Control of information
  • Client/solicitor obligations
  • Risk sharing
  • Termination
  • Authority
• Barristers and Direct Access

Fiduciary and Other Duties

• Fiduciary Duties
• • Nature of the duties
  • Other lawyers as fiduciaries
  • Undivided loyalty
  • Fiduciary duties and the client retainer
  • Undue influence and transactions with clients
  • Gifts to a lawyer
  • Use of information and disclosure duties
  • Profits and benefits
  • Fiduciary responsibilities for client funds
  • Conflicts of interest
  • Actual conflict
  • The component parts of conflict
  • Business partner conflicts
  • Joint venturers and company promoter conflicts
  • Lender/borrower conflicts
  • Insurers and insured conflicts
• Confidentiality
  • The duty of confidence
  • The risk of disclosure
  • Confidentiality and changing employment
  • Confidentiality and merger
  • Confidentiality and inadvertent disclosure
• Legal Professional Privilege
• • The nature of privilege
  • Loss of LPP
  • Privilege and public authorities
  • Crime/fraud exception
  • SRA investigations and privilege
  • Self-incrimination
  • Required nature of adviser
• The Enforcement of Undertakings
  • The basis of enforcement
  • Limits on enforceability
  • Disputed undertakings
  • Undertakings and lenders
  • Undertakings outside practice
• Authority
  • Actual authority
  • Ostensible authority
  • Usual authority
  • Partners, members and directors
  • Lawyer’s warranty of authority
  • Liability for wrongdoing
  • Liability for client account shortage
  • Dishonest employee
  • The position of salaried partners

Lawyers’ Negligence – the Legal Framework

• Scope of the retainer: ‘What was the solicitor instructed to do?’
  • Limits to scope of work
  • Implied duties in the retainer
  • Involvement of other advisers
  • Relevance of experience and knowledge of the client
  • Division of responsibility between the lawyer and the client
  • Duties to third parties arising from the retainer
• Standard of care: ‘Were the instructions carried out with due care and skill?’
• • Errors of judgment
  • Hindsight
  • Reliance on advice by Counsel
  • Standard applicable to barristers
• Compensation: ‘Which losses can be compensated?’
• • What were the losses?
  • Which of those losses were foreseeable and fell within the scope of the lawyer’s duty?
  • Was the lawyer’s breach of duty the cause of the client’s loss?
  • Were there any restrictions on or exclusions of liability?
  • Was there any contributory liability on the part of the client or other advisers?
  • What was the value of any loss of chance?
• Limitation defences
• • Date of damage
  • Date of knowledge
• Procedure
• • Pre-action
  • Part 36
  • Proceedings
  • Case management
  • Expert evidence

Negligence Claims and Complaints to the Legal Ombudsman

• Litigation
• • Missed limitation period
  • Flawed advice
  • Failure to take instructions
  • Failure to comply with the CPR
• Conveyancing
  • Inadequate pre-contract checks
  • Inadequate advice on planning
  • Drafting errors
  • Legal Ombudsman complaints concerning conveyancing
• Wills and probate
• • Errors in execution and negligent drafting
  • Failure to take instructions
  • Delay
  • Failing to check capacity
  • Errors in execution
  • Legal Ombudsman complaints concerning wills and probate
• Other practice areas
• Legal Ombudsman statistics

Part C - The Business of Law

Indemnity Insurance and Compensation Funds

• Introduction
• Solicitors’ insurance
• • History
  • The current scheme
  • Participating insurers
  • The Assigned Risks Pool
  • Extended Indemnity Periods
• Barristers’ insurance
• • Minimum level of cover
  • Insurance and the "Cab-rank" rule
• CILEx insurance
• Licensed Conveyancers’ insurance
• • Limits on self-insured excess
• Other Professions
• • Patent Attorneys, Trade Mark Attorneys, Costs Lawyers and Notaries
  • Costs Lawyers
  • Notaries
  • Alternative Business Structures and combinations of professions
• Obtaining insurance
• • Obligations when applying for insurance
  • The role of the Broker
  • Who is the insured?
  • Insured - definitions
  • Limits of insurance - What claims are insured?
• Exclusions
• • Normal exclusions
  • Dishonesty
  • Corporate dishonesty
  • Condoning dishonesty
  • Sham partnerships
  • Aggregation
• Other coverage issues
• • In-house, informal advice and advice as part of a voluntary service
  • Closing a firm
  • Takeovers and mergers
  • Notification of claims
  • The insurer’s solvency
  • Practical implications of insurer insolvency
  • Insurers’ entitlement to documents
• Compensation schemes
• • SRA Compensation Fund
  • The CLC Compensation Fund
  • IPS proposed compensation fund
  • Notaries’ Contingency Fund

Protection of Lawyers’ Goodwill

• Introduction
• Interests protectable by contract
• • The principles
  • The client relationship
  • Relationship with referrers
  • Relationship with employees
  • Relationship with suppliers
  • Confidential information
  • Reputation
  • Copyright and know-how
• The limits of protection
  • The doctrine of restraint of trade
  • Reasonableness between the parties
  • The public interest
  • Contractual provisions applying after termination
  • Contractual provisions applying before termination
  • Principles of construction
• Implied duties
• • Fidelity
  • Persons owing duties
  • Implied duties of partners, members and directors
  • Conflicting personal interests
  • Preparations for departure
  • Implied duties of employees
  • The right to skills and experience
• Other protective measures
• • Oblique restraints
  • Gardening leave
  • International issues
  • Injunctions and damages
• The application of the general principles
• • The limits of precedent
  • The principles applied
• Cases relating to lawyers
• • Lawyers’ special understanding
  • The relevance of a lawyer’s duties of fidelity and integrity
  • The relevance of an employed lawyer’s specialisation
  • Injunctions and the interests of clients
  • Departmentalised firms
  • Inadvertent dissolution of partnership
  • No implied covenants in a solicitor’s contract
  • Solicitors and geographical restrictions
  • A lawyer’s fiduciary and other duties
  • The modern overview in relation to solicitors
• Specific issues
  • The protection of confidential information
  • Databases
  • Teams
  • Barristers
  • Mergers, insolvencies and acquisitions
  • The dissolution of partnerships
  • Web rights
  • Meta tags
  • Adwords
  • Domain names
  • Case management and other software
  • Copyright and trade marks
  • Passing off
  • Defamation and harassment

Structures, Fees and Financial Stability

Business Structures 

• Introduction
• Solicitors
• • Limited liability
  • Separation of ownership and control
  • Nature of rights and obligations
  • Employment status
  • Tax
  • Conversion Issues
• Barristers
• • The conventional Chambers model
  • The constitution
  • Contractual capacity and the use of service companies
  • Intellectual property
  • Barrister-led entities
• Premises

Fees & Costs

• Introduction
• Entitlement to costs
• • Retainer
  • Solicitors
  • Rules for other professions
  • Contentious and non-contentious business
• Payment Models
• Standard Model
• • Pay as you go
  • Hourly rates
  • Capped hours or fees
  • Interim bills
  • Blended rates, bulk discounts, panels
  • Fixed fees
  • Percentages
  • Credit
  • Deferred funding
• Third party funding
• • When is it available (defendants?)
  • Maintenance and Champerty
  • Conflicts of Interest
  • QC Clauses
  • Code of conduct for Third Party Funders
  • Combinations of funding models (CFA, ATE etc ...)
  • Applying for funding
• Contingent fees
• • Conditional Fee Agreements
  • CFA Overview
  • CFA Regulations
  • Types of CFA
  • Post April 2013 position
  • Calculation of uplift
  • Damages Based Agreements
  • DBA Regulations
• Legal aid / public funding
• • Legal Aid and Human Rights
  • The current legal aid regime
  • The Legal Aid Agency
  • Guidance
  • Eligible claims
  • Funding Code
  • Public funding certificates
• Legal Expenses Insurance
• • BTE
  • ATE
• What funding option is best?
• • Worked examples
  • Comparisons
• Enforcement
• • Is the client credit worthy?
  • Assets
  • Liens
• Conclusion

Financial Stabily