Hello and welcome to this data law. Webinar on the S. R. A. Codes of conduct for in house lawyers to introduce myself. My name is Trevor. Hello. Well, and unfortunately for you, I am a solicitor to apologize. Lock the doors. Please don't leave. I have actually spent the bulk of my professional career on the training in consultancy circuit have been discussing matters compliance, particularly since about 2000 and three year or thereabouts, though I have actually been qualified since certain 1984 that I don't look old enough, But I'm here really just to discuss the implications for in House lawyers off the new SA raise standards and regulations which I'm sure you're aware, are due in force on the 25th off November this year. The establish for being with us for some time. We've been able to absorb their content well, like other stuff, we've been given almost a full year just to come to terms with what the new rules say before their introduction. It has overtones of Brexit to it is being given on for years. But recently on the 12th of September, the S. R. A published some new guidance and they had some words to say about the position of in house lawyers in there. So what I want to discuss, then, is what these new rules will say about the position of in house lawyers generally. But I just wanted to highlight, in particular one aspect of it all. And that is the rules in relation to undertakings, which on the face, that haven't changed much. But because the nature off the structure of the professional is altering around us. There are some knock on implications, I think, particularly for the enforceability of undertakings. But just to discuss the new standards and regulations of 2000 and 19 1st of all, and stars, as I think most people refer to the the stars were intended to bring into the regime flexibility together with public protection. And indeed, that was the Strap Blind, which was attached to the consultation papers some years ago. And it comprises a massive editorial simplification of the currently rather unwieldy, as are a handbook big, broadly, 450 pages of being condensed to about 250 pages. So the rule book is significantly shorter on much less prescriptive and much less pedantic than ever. It used to be as part of that process. What's the S r A have done is they've separated our codes of conduct into two. There is one code of conduct for S r A regulated law firms, and there is another separate s are a code of conduct for SRE regulated individual solicitors, no matter where they work. And it's this code for individuals, regardless of where they work, that I think will be off prime attraction to the in house lawyers. But what this regime has introduced is flexibility for law firms to work outside s are a regulation in some way, shape or form. Some might be reconfiguring some might be swapping regulator and so on. But that's a side issue. But there's also flexibility for individual solicitors to work outside SRE regulation. But equally they could work within this already regulation that there's a massive flexibility introduced into the structures of the profession on all of these modifications have been made with the express intention of being a enabling the public to access legal advice on a more free, open and transparent basis. The statistic which the s r. A particularly quote in relation to this is the statistic which support there unmet legal need idea that we keep hearing that. But they reckon that 90% of private individuals who have the legal problem will not consult a lawyer. Why not is obviously a matter for some debate, but this is obviously why they're trying to encourage the private profession, to publish price information on their websites and on DSO on and to strip away a lot of the rather arcane rigidities of how to to to exercise your legal expertise. They also reckon the 73% of small and medium sized enterprises similarly will not consult a law firm, and further statistics would indicate, of course, is I'm sure we could all recognize that access to legal advisers an early stage generally gives people better outcomes. So this is the pressure which the S are air responding to. And whilst that doesn't have any necessary directed back on in house lawyers, this is the message they're wanting to give to the legal profession across the piece. Now what they've done on the 12th of September is that published some guidance which compartmentalizes the advice they give into those working in private practice, those working in house on private individuals, freelancers setting themselves up in the own name on. Of course they have a separate piece, which discusses the modifications to the accounts rules, which again would primarily only be off significance to the in the law firms in the prey. What I want to do in this webinar, though, is I want to discuss the position of in House lawyers, which arguably hasn't changed a great deal. There are relax, ations and flexibilities now that they never used to be. But I just wanted to discuss the position of the in house lawyer, But you in approaching this, obviously, I'm aware there are several categories into which we could love the in house lawyer. There are, of course, in house lawyers working in it. What I would call a commercial environment in house in a company or other commercial entity, a local authority, a law centre, things of that nature advising the body. Only you're employed by a company to advise, eat on its portfolio of assets, its property purchases and all that kind of stuff on Did your advising that body? You have one client, your employer, but it's also possible that you could. I'm not saying you should, but you could also offer services to members of the general public from within that commercial environment. Since two options there, there's further the possibility that you're acting for not not for profit organization. And there's a separate set of guidance which the SRS published for the not for profit sector, but the kind of personal think you're there is the person working a free drop in Centre the Citizens Advice Bureau, pro bono clinics, community interest companies, independent trade unions. Regulators grant awarding bodies organizations of that kind, advising that organization pure instead. But there again, there is the possibility. I put it no higher that off offering services to members of the public as well. And I'm often aware of insurance companies that you offer help lines to people who have been in an accident on their legal help lines to the public. Generally, you don't necessarily have to have the policy with that, a company to be able to call the help line. So it's that kind of thing, which I'm thinking off, but effectively, I think this gives us three options, three options. It's not just the four of outline, but we could condense it to three options. The first is working in a commercial environment advising one's employer. There are certain rules that applied to that particular a line of work. The other, of course, is that we're working in the not for profit sector and advising our employer pure and simple ory. Either of those cases. If we do offer our services to the general public, well, there is a raft of further considerations to bear in mind there. And it doesn't matter any longer whether we sell those services or whether we offer them all a pro bono basis, the rules of much more relaxed on that whenever they were. One distinction, though, which I think underpins what we're discussing is a distinction between reserved activities on DNA non reserved activities on broadly the distinction between these is that reserved activities require for blown authorization from one of the bodies the S R. A. The CLC, some organization of that kind, but it reserved activities require authorisation. Non reserved activities, however, do not. So I think what I want to say right at the outset is that, of course, if we're working in House that chances are we would be simply delivering this non reserved services to the finance advising and commercial stuff, and you faffing around the reserved business. I would think for the most part, we would farm out to some external law firm because it requires authorization to be able to conduct reserved business. But what is reserved business? Well reserved activities are defined in the Legal Services Act as primarily conducting litigation, conducting advocacy. This is not preparing for it. This is conducting it, drafting an instrument, transferring title to land which is not over conveyancing process. It's just the drafting, the instrument transferring title to land, contentious probate activities, no Tariel activities, all the work of the administration of odes. And those are the only six areas of work that are classified as reserved business for which an authorization is required. But for the rest of the general commercial advice related work that I think most of you would be doing, that will be non reserved activities, and there's no need for any authorization from anyone. So let's just have a look at the three options that, and I'll just discuss what the SRS suggesting. The rules allow you to do. Not that I think there is any sort of particular change here. But option one, working in a commercial environment, advising one's own employer in the, oh time honored fashion. I've indicated you have one client. Your employer is your sole client. And in advising that client about their employment matters, that property work, that commercial stuff, their contractual arrangements, you will be conducting mainly non reserved work. If it comes to litigation, that's a different issue. But broadly, the advice and support that you give your employer will be non Rizzo work on. There is no need. Therefore, for you to be authorized in any sort of particular way, you would outsource probably any reserved work to a, uh, a law firm, probably at which point you would have all the client care letters thrust upon you and all the rest of the stuff, which I'm sure we could do without. But you will have relationships with those extra law firms who can provide the reserve activities. But if that's all you're doing, then there are certain rules with which you have to comply, which I'll deal with in a moment. The one exception to that is that you would not need to observe the code of conduct for solicitors paragraph eight because paragraph eight is the set of rules that apply only when you are offering services to members of the general public, which you would not be in the kind of instance of explain. So if we're just working in house, advising her own employer on their various commercial matters, you as an individual solicitor will be subject to the principles in the code. Off condoms in the S eyes stalls is what I'm searching for. The principles are No. Seven in number that we act in the client's best interests. We don't do anything. Teoh offend the profession. We act with honesty, We act with integrity. We act independently and so on. And I'm sure there would be no question. I mean, permit Kitty details about when we act without integrity, but with all honesty and all that God stuff. But I'm not going to trouble you with that, um uh, set of considerations right now, but we are subject to those principles. Of course. Would anyone else be the other bit with which we have to comply is the code of conduct for solicitors, with the exception off the Paragraph eight in relation to services members of the public. Now what are envisaging here is that we are employed as a solicitor by the organization that has employed us. We could, of course, be just employed as a a lawyer in a team or something without any magic attached to the word solicitor. But if, as indeed, is now the case, they want to employers as solicitors, then there is a Siris of rule ology that we have to comply with. And we have to make sure that there isn't any conflict between us as a lawyer andare employers who have some other different commercial motive in particular, I would just simply seek to make you aware, obviously, of our duties of confidentiality, our duties of confidentiality, obviously our to our client, our prime client on and arguably and I say on your brain because they change them doable. But if our client is asking us for specific advice, not only is it confidentially could well be privileged to there's some doubt about the status of the advice that we as individuals give in this connection, but the duties of confidentiality of course on us, and we need to observe those niceties at all times. This also provisioned for accounting for financial benefits if, in the unlikely event, any financial benefit were to come to us individually, we need to account for that, obviously, to our clients. And we also need, of course, to be aware off the possibility of conflicts of interest arising either between us and the organizational between us and the commercial third parties with whom we're having to deal a zoo part of our work. But are there conflict resolution processes within the organization that will accommodate our particular concern about conflicts of interest? Because we should never be acting wherever we are, Interests are conflicted in the sense that we're having to obey. Two Masters were having to advise our client impassioned dispassionately, but that will adversely affect some other party. And this particular Newell's off lawyers within an organization is something which the S R. A would suggest. The organization needs to accommodate the holding money in accordance with the account trolls. In the unlikely event that we ever were to hold money in our name, Then technically, that is us holding money, and we would be expected to comply with the accounts rules as well, though I'm sure wouldn't have particularly often. But if we were to hold out money, then obviously would be subject to the necessity to obtain an accountant's report qualified if need be. But I don't think that would necessarily be true. And I think the S r A. Would broadly say We're not expecting you to hold time money personally, so it's unlikely to be an issue as far as accountants reports a concerned. You're therefore exempt from the obligation to find this one. But it is also always within the power of the S r A. To demand one where they feel it necessary all insurance. The SRE guidance would suggest that we need to ensure that we are adequately and appropriately insured for our professional transgressions. Now, this is obviously a question for the employing organisation, not us individually. And it's not suggesting that we have to have the equivalent terms to the minimum terms and conditions which they stipulate. For law firms, that requirement has gone. The wording has changed to adequate and appropriate insurance, but as always, we are satisfied that we are adequately protected by our parent employers insurance policy for the the work we're doing and the extent to which we do it, then that will satisfy the regulators. That's fine. As faras anti money laundering duties air concerned, the S r A. Would suggest that again, it's unlikely that the provisions of the money laundering regulations will apply to the kind of work that you're doing. Yes, it it obviously attaches itself to transactional work, but only if that transactional work is done by independent legal professionals. And I think is an employed solicitor. You're not independent in the sense that they need it. So I don't think there's any need for a student to take due diligence from our clients and all that kind of stuff. But clearly the money laundry legislation still does apply to us. And whilst section 3 to 7 and 3 to 9 talk about handling of laundered money from illegal transactions and that kind of nature, which might be true, it's sexual 3 to 8. I think of the proceeds of Crime Act that would worry me because it would make it an offence to become involved in any arrangement which somehow enabled somebody somewhere either our employer or the parts of the person they're dealing with to use criminal property is part of the transaction or change. So I don't think there's necessarily any your duty to have any systems or procedures in place. But there is an awareness that the the legislation, the criminal offenses, do still apply to everyone, not just ourselves but to everyone. And there may be some advantage, not with something fun is not essential in having some money laundering reporting officer within the organization who could be 1/3 party sounding board for any concerns you might have. As faras complaints are concerned. The obviously we've Bean obliged in the independent profession to travel on with great detail information to our clients, about who to complain to and when. Almost before the reading said hello. We've told them five times who to complain to on which obviously Miss misplaces the pressure. But if people wanted to complain about the services that we'd offered, they could on the legal ombudsman would be the appropriate place to go for that. And we just need to inform the, uh anyone who's interested off the facility for the legal ombudsman to accommodate that complaint. Of course, when we are acting, we may well be handling personal data from a variety of people for a variety of reasons and therefore under the GDP are we would need to register and make sure we've registered with the information Commissioner's office. Apart from that, we need not only Teoh have communicated the ability to complain to the congressman, but we need have complaints and feedback procedures within the organization so that if anybody wants dissatisfied is not a formal complaint, but they can register their dissatisfaction with us. There needs also and this is the view of the S r. A. In their published guidance, there needs to be some management of the relationship between the solicitors who are, of course, subject to the unique independence and other sort professional pressures, which may be totally different and utterly a into the commercial pressures exerted on the employers. And the employers and businesses just need to have managed that relationship to their best ability. But there is no longer any requirement for staff who supervised toe have three years experience the fr a feel. It would be an inappropriate restriction on the on the individual's ability to conduct primarily on reserve business from within this sector to impose a three year experience requirements. So that has gone. There is a knob ligation that we do not allow the organization to advertise ourselves as solicitors in its own name. We could ourselves call ourselves A Listers without too much difficulty is normally are authorized to do so. But broadly, the prohibition would be on the use of the word solicitors in the name of the organization. And, of course, we would need to preserve our ability to decline, to act in any matter where we felt our own interests were coming into conflict with those off the organization in some way. We also need Teoh pay some thought to the line management off the solicitors teams that this be somebody within the team who could act as a hope, not a cop gives. That obviously relates only to S R A regulations, orphans, but to a head of legal practice in some way, who is in charge on what kind of hierarchy is there within the organization. They also give some thought to the ring fencing off the reserved activities, the litigation primarily, and the non reserved advice support and other assistance. But it's critical that we do not, unless we have appropriate authorizations, get involved in reserved legal work. So we just need to know what the cut off point is, beyond which we cannot proceed. If we are employed as solicitors properly so called, then we need a practising certificate that is further requirement. We could be employed. Of course, in any capacity we don't have to call ourselves a solicitor. But if we wanted to do so that we're going to need a practising certificate for for the more we need to reflect on our own competence to do the job we've been engaged to do whatever it may be. This is part of the SA raise, continuing competence regime. They're not going toe force us to undertake any particular training management course. Stage one has gone by the wayside, so all of the compulsory training has gone. But to be replaced with this notion of professional self reflection, professional, reflective professionalism. If you want to assure Mitt but just reflecting on you have good, you are at your job. Where are your shortcomings on doing whatever you need to do to plug them and then making an annual declaration to the S R. A. That you are indeed competent. So this whole notion of competence training self reflection so it may well be encompassed in your professional appraisal package. But if it isn't, then you need to be doing it for yourself. Anderson. Further thoughts. There are a range of provision about accountability to the S. R. A. It is to our professional body that we owe our professional duties. If we are going to claim our title, we also need to make annual returns to the SA way, though I don't think they will be particularly substantial on. Of course, we are under an obligation to report any Miss combo to the S. All right, probably now, most of those considerations will also apply to the second option where we are individuals working in the not for profit organization trade union or C A B, a pro bono clinic or something of that nature. If we are engaged as solicitors with a capital s properly so called, then of course we can be and will be delivering a different package of different services to organizations that we might work for. But we are still individual solicitors and subject to the individual code of conduct for solicitors as well as the principles. We also have to observe the code of conduct for solicitors to. But the same thoughts that I've already expressed, I think would apply to confidentiality issues accounting for any financial benefits. We come into possession ALS. Are there conflict resolution processes within the organization which would allow us to operate in our own independent silos? It were whether we hold client money in relation to the matters, it's highly unlikely. But if we did, then we need to observe the account rules and nobody getting the counter to report to. But that is unlikely. What I think may be more likely is that we may be coming into possession of legal aid agency payments from from some clients, and the old rules about where legal aid payments be put have been relaxed. So weaken take the late payments even in advance of costs and disbursements, and pay them into our own organizations funds. They don't have to be held in client account, but there are some indications from the sorry, but holding those funds for an excessive period of time and not actually doing the work would obviously be inappropriate. We also works to ensure that we have adequate and appropriate professional insurance. But obviously what kind of insurance you get depends on what kind of work you're doing. And this is not minimum terms and conditions. Insurances have already said. Likewise, there would be little call for the anti money laundering obligations in the money laundering regulations to apply with any vigour, though the general legislation would still count. Of course, they could complain to the legal ombudsman if that's what they want to dio. But I would also hope that they're the conflict resolution processes within the organization, so that management of the complaints and feedback process should not be significantly different or difficult. If we're undertaking immigration work, then we can, under the immigration legislation, only perform such immigration work. If we are appropriately authorised, which working from in house, we probably on either by the S R. A or by the Office for Immigration Services of the Immigration Services Commissioner. So that's what oh I s C stands for the Office for Immigration of the Immigration Services Commissioner who may well need to authorize us to the doing of immigration work. And equally, if we're in the debt counselling side of the business, then we may need FC a authorization to be able to conduct debt counselling work. This is a recent amendment to the financial services markets. The legislation, of course, will be handling data, so we need to register with the I c. O. We also has already indicated, I think need to have some thought to. The governing of the relationship between us is solicitors on the employing organisation, which may have a different motivation behind it. On There is, of course, a zwart indicated no need necessary for our supervisors to have three years experience that's being relaxed. But equally we can't use the word solicitors as part of the organizational name. That could be conflicts over funding, particularly depending on the organization, depending on who's funding it there. Maybe we may feel conflicted personally in advising our bodies or clients in some way that might conflict with that funding stream, so that needs management. Andi. I've already indicated that in any event, there ought to be some thought given to line management responsibilities and who, with anyone, is to be listed as the hope the head of legal practice within the organization. If we are going to be employed as solicitors, then we're going to need a practising certificate. Have already sent that we're also going to have to reflect on our own competence to advise in the various sections that we've been asked to advise in, we also have to account for our decisions to the S r. A. We have to report to the S r. A. Any misconduct that we come across Andi. I would also suggest that although the rules have relaxed, we simply have to notify the S r A. If we are going to be undertaking reserve work on a pro bono basis. So there are little bits and pieces which, broadly, if amount to what we already know really were not subject to full s r a regulations. But there are other bits off regulatory niceness that we have to observe Now. This is in the in the qualities of advising our own employer, and that is pretty much a mask and say I'm restricted. That's not quite the right phrase, but largely untraveled. The third option I want to discuss, though, is where we from within an organization, whether it's a commercial organization or not for profit body are offering our services to the general public. If we do that and it doesn't matter whether we offer our services to the general public are a feed a paying basis or whether we offer it pro bono, it doesn't really matter what funding register. But if we are dealing with the general public, then we have a raft of further considerations to bear in mind. And these are the considerations which are contained in paragraph eight of the code of conduct for solicitors, which very briefly are that we have to identify our client, though that is not full blown customer due diligence in the money laundering sense of the word. The transparency rules probably wouldn't apply to us because we're not working for an S r, a authorized law firm. But we do have to entertain client tear correspondence that stuff that we have to tell the client about. We also must be appropriately regulated, and we need to explain that to the clients to on. We also need to make much more something dance about the complaints handling processes on the legal ombudsman's details more specifically, what the code for account of comic for solicitors in says in paragraph eight is in a one. Simply that you identify your client, these old it says. Now this is fairly Obviously, we need to know who it is. We're actually acting for name and address. Its simplest would do. This is not full blown customer due diligence. I need to see you driving license and utility bill only. Stay where? Your mother, the money in a suitcase. Your None of that is necessary for this obligation. It's just simply getting you to understand to whom it is. You owe your ultimate, uh, duties. You also must inform them off your complaints, procedures, whatever they might be. And obviously the whole essence of feedback procedures is that they are quick and instant, and you deal with it promptly. Personally, Andi, for free, you also inform clients so they understand, which is harder than it might sound off the services they require. How the matter will be handled. Any options available to them, how the matter will be priced to the overall costs at the start of the retainer. Andi throughout. If indeed you're going to charge for it. It also says that any publicity that we issue must be accurate, not misleading and not offending public niceties. We must make no unsolicited approaches to members of the public. We also must explain how our services are regulated on the regulatory protections available. Now. All those I think the two that I just particularly wanted to focus on are the what I would call the client care paragraphs in 86 and 87 on the rest of the stuff, I think where we are reasonably comfortable with but the client care stuff, I think just repays a little bit of thought because this a lot of huff and bother about client care letters. Not only that we received, but also that we have to send your 25 pages long the terms and conditions and it doesn't matter because nobody reads them anyway. So the rules have changed. What paragraphs 86 and 87 provide is firstly, that we give clients information in a way they can understand now, depending upon the context in which you're working. Of course, that is a major problem, particularly in the not for profit sector. Your who you advising is English their first language. Can they read and write your our basic simple fact? If they've got health problems with their hearing or ice, like, how do you communicate with them in a way they can understand? Because it then says that you must ensure that they are in a position to make informed decisions about the services they need, how their matter will be handled on the options available to them. Now, this without patronizing, you might involve us in shedding the jargon on talking in simple terms to people so that they can understand what it is we're trying to say to them. One of the reasons that 90% of our client base will not come and see us because he can't understand what we're saying. I know they're English words, but I can't work out what you're trying to say when they arranged in that older. So, you know, this is something that we, uh, professionally have got to think about. Ruling Seven says that you also must ensure that clients receive the best possible information about how their matter will be priced both at the time of engagement and when appropriate as their matter. Progressives so they need to know right at the outset how much they're likely to have to face at the end, and we need to keep them updated as their matter progresses. Now this is only going to be applicable if we are charging for the work. I appreciate. But it comes back to this whole issue about client care letters. What the SRE guidance to those working in House says, Is that of course you well, might it for acting from it doesn't really have to give this information to them, obviously, from receiving end, we would love it to be given to us. We'll simply too. But they've issued some guidance on the 2030 July about trying care letters. And there is something about letters allow their email equivalent, which clients like, you know, they want something in writing just to confirm the position. Now, whether it's on email, which then print off a home or whether it's in paper form, I don't really matters too much. But what the SRE guidance has said off these client care letters is that it recommends that we ask ourselves a series of questions off that client care letter that that cover document in which we put all of the information the clients that wanted to be any more than two sides long. There is a theory which people mentioned to me that the the English, on average English adult only reach between eight and 15 seconds. If you haven't got them in those 1st 50 and second year wasting, yet I am as well throw it away for all the good it's gonna do you. So we just need to condense it as much as possible, shave the jargon out of the way. But the recommended questions which the s r a say we ought to have in mind are Do you explain what's gonna happen? Do you include how much the work is going to cost the work? The whole matter do you explain when things are going to happen? Do you explain what the client needs to do next? Do you include contact details? Does your letter show a clear purpose? Is your letter concise? Do you use plain English? Do you prioritise information putting important stuff right to the start? You personalize it, talking about you and your Aunt Betty. And that kind of thing is your client care less easy to read. Do you highlight key information? And critically, have you considered the needs of vulnerable clients? Large print. Easy to read. Um, uh, front shapes. And so on your though those are the basic. You want them to have a Braille copy or whatever you want it audio. How are you going to communicate it to the The art of communication is ensuring the accurate receipt of information, not the delivery off it. Now, that is what the s r a commend. They also further suggest that any more weighty stuff, the contractual clauses that we want to impose on our clients could go in a separate terms and conditions document. And this happens to accord with some thought processes are being having for some years that in reality, what the clients want to know is Willow win. How much will it cost? How long will it take in what I have to do next? And if we could just bullet point those point to them, then that's really what they need to know. However, off course, there is a whole load of other stuff that we need to detail with them. Your insurance and complaints cars and allow the rest of it, which could be put in a separate full contractual document. But he wanted a one page. I call it a fridge magnet summary of what we're going to do for you. There's a page pin that to your fridge door with a magnet and even see at a glance what we're gonna do, How much it's gonna cost, where you go to get what you gonna do. A No to contact on. That, I think, would would seem Teoh perfect the the exercise which the s R area here suggested I'm also put in mind. Andi, this has been My experience is of course it has Anybody else's off your phone contracts and broadband contracts of it teases he's apply. See our website for details on that might be an easier way. If it works for them, why can't it work for us? Decencies apply. See our website for details. We might want them formally to click through that. They have read them. We put that click through at the bottom of the terms and conditions and until we've clicked it, we don't that for them, you know that kind of faith but it's time we work up to the cleverness of this. And many off the in house lawyers that I know I have spoken to say, Take me off for God sake will get rid of the fine Galata. I'm sick of reading 20 pages of terms and conditions again and again and again because I've got the point, you know, leave it alone. And I think that is the attitude of many of the clients. Now all of this conversation that we've had so far circulates around the rules that apply to us an in house lawyer. There isn't, as a say, a great deal of change there. There's just a lot of relax ations which enable us to move more freely than we have hitherto being able to do Well, I think there is a change. You should. I think this effects use the in house lawyer just as much as it effects. Everybody else is not in how the rules affect you, because I've been there blissfully less prescriptive. It effects not you, but the people you deal with Andi No, I think Is this more visibly demonstrated in relation to undertakings which I'll just discuss in a moment, but I just wanted to mention generally that if we as a that in house lawyer are dealing with third parties, who exactly are we dealing with? If we're dealing with a solicitor, then we know at the moment that they come from an S. R, a regulated law firm, and there are certain reassurances that we can count on because of that. But will that remain so in the future? Individual solicitors can move anywhere. They could be employed by any organization or non the offering non reserved legal activities to anybody. So the people we are dealing with will become much more diverse. And I think this is particularly essential in relation to undertakings, because at the moment we know subliminally that weaken, trust what we are told by third party solicitors. But will that remain so in the future? I'm not entirely certainly could. So let me just indulge myself for a moment. I just wanted to mention undertakings briefly, and then we'll probably close. But then undertaking, as I'm sure you are aware, is a statement given all really, or in writing, it doesn't matter how it's given, nor does it matter whether it includes the words undertake or undertaking. They were irrelevant. It's a statement made to someone who reasonably places rely on from it that you or 1/3 party will do something or cause it to be done or refrain from doing it. Now there is a slight word change in their from earlier definitions. It no says that we can ah, uh, undertake either on our behalf or on behalf of the third party. And I just wanted to mention that that won't change the the jurisprudence behind this particular provision and the jurisprudence is if I promise that X will do something and they don't do it, that's my fault. And I am responsible because I can't comply with my undertaking to you that X would do something. So the general message is we should never undertake on behalf of third parties. It's just asking for trouble. But nevertheless, that is the formulation. Furthermore, what I would say is that if there are any ambiguities in what has being promised, then those are construed in favour off the recipient. It is what the recipient of the undertaking thought you are promising, not what youthful you are promising that you will be bound to perform now. At the moment, the position is that even undertaking is given to us that could be given, of course, on behalf of A S are regulated law firm, in which case the law firm would be responsible for compliance with it if it was given by an employee affairs. Now what I would say in this, this whole process of the giving of undertakings is it is incredibly easy to undertake when you don't think you don't so. But it's any statement, no matter how it's phrase my ambiguous, it is which the other person relies on for you to perform. So you're judged on the words you use, not your motivation or your intention or anything of that nature. You are judged purely on the words you use. Nothing will be implied or construed. It is the archetypal example of your word is your bond. And in that regard, I would mention to anybody care to listen that I think we need to be where, off the giving of an inadvertent undertaking. And I'm thinking and without patronizing into thinking of the younger members of the organization who arm or a verse with the social media Onda other etiquette where you know somebody things you an email. And so I understand there's a report here, you know? Will you send me a copy and you send Ah, Smiley face back or moles or Bantz Or, you know, whatever the subcultural term is, you know those kinds of inadvertent off the cuff responses to request could be undertaking. It's a statement. It's an ambiguous one, admittedly, but it's a statement to somebody who, if they think, well, that's that sound final. I'll wait for that man. That's an undertaking. You've got to send him a copy of the report regardless of your duties of confidentiality to your clients and all the rest of it. You give him the undertaking, you have to perform it. So I I would caution against anything early any positive response to any requests being made all of you, because their undertakings justus Muchas the formal complex documents were headed with the word undertaking. Oh, and all of these, whether they be formal or informal, are enforceable as a contract arguably possibly through the normal legal remedies, though obviously we need your offer acceptance, consideration, intention to great legal relations and all the rest of it, but equally there, enforceable under the court's inherent jurisdiction under its own officers. And we are on officer of the court no matter where we are employed, or it is enforceable in conduct via the disciplinary roots offered by the S. R. A. On the blisters disciplinary tribunal. But there may be difficulties in enforcing this other than through conduct. No liability on an undertaking is effectively personal. It is your promise. But if you're working for a SRE regulated organization, the word is that the entity would also be responsible. It's given on their behalf by somebody employed by them. But will that remain true in the future? Both codes of conduct, both for law firms and for individual solicitors, mention undertakings in their respective rules one 0.3. But those rules don't say much other than to say that you must perform all undertakings within a reasonable time. Full stop that answers nothing. But as we've just been exploring so far this morning, the new framework will allow individuals to work quite freely for non s are regulated bodies. And that's the one point I just wanted to mention it. All of this that when receiving an undertaking from 1/3 party is part of our normal day to day traditional work. We are going to need to check the status of the person giving them in a way we've never had to before. Are they SRE regulated personally, In which case, personally, they are going to be responsible for compliance with it. But is personal liable? Is he going to be sufficient? Are they offering those undertakings on behalf of an S R A regulated entity? Because if the answer to that is no, then they may well be arguments over enforceability that probably not contractual, probably not going to be enforceable by the courts because the tendency for the courses to enforce undertakings given to them only on combat has no application, so that they will be arguments over the enforceability of the undertakings were offered. And this will undermine the the basis on which the profession has progressed over the last 152 750 years. You know that this notion that you are a solicitor your word is your bond and you are stuck to this regardless. Is the oil that makes our machine work and that in this particular regard may well, they're arguably true. We could enforce it against them as an individual, for what use that might pay. But we can't enforce it against the organization. So would you accept the undertaking? And if not, then how else are they going to overcome the difficulties offer? Obviously, when giving an undertaking, I think the traditional advice is still true that when giving him up taking, we have to mentally think that that is what we are doing. And we must ensure that any terms we offer are smart, specific, measurable, agreed, realistic and timed. And only then should we use the word. Okay, well, final give you an undertaking. That And if we find ourselves bludgeoned into your saying Oh, all right, then just leave it with me. I'll see what I can do get and putting the phone down just to get rid of it. Just think to yourself about angle minute one of have just committed myself to Would it not be about to say, Look, are you asking me for undertaking year? Because if so, I'm afraid I can't give one. I'm gonna have to refer it to my Hulk. We're gonna have to agree the terms. Long respite. If not, if you're not asking from the EU and fine, leave it with me and I'll see what I could do. And that should clarify the position for the future. But those are my thoughts on the codes of conduct for in house lawyers. So do please feel free to have a go at the end? Of course. Quiz on duh. Other than that, good luck.
Webinar
Slides
Quiz 
1718 Users
7 Courses
61 Reviews
