lawselect practice management - summer 15

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LawSelect Practice Management Issue 4 | Summer 2015 Welcome Welcome to the Summer 2015 edition of Practice Management, the newsletter specifically designed for those in legal practice. As many of you will have read in the legal press, there continues to be an alarming growth in the number of incidents of fraud and cyber scams that have affected law firms. With this in mind we take a look in this issue at some of the factors involved and at what firms can do to avoid being a victim. On a more general note, we consider also the need for firms to plan their future by managing the present and at the extent to which firms can still offer inducements to clients following the introduction of the provisions banning such payments in personal injury cases. In this issue Paragon International Insurance Brokers Ltd 140 Leadenhall Street, London EC3V 4QT T: +44 (0) 20 7280 8200 Copyright © 2015. Paragon International Insurance Brokers Ltd is authorised and regulated by the Financial Conduct Authority Renewal Preparation by Piers Winton, Vice President Completing the proposal form for your Professional Indemnity renewal is a challenge that all solicitors tasked with the job rarely look forward to. However, it is important to remember that this form is the information that your broker will use to “sell” your practice to underwriters. It is therefore essential to present your practice in the best possible light. It will be useful to consider what underwriters look for when examining a proposal form and highlight some of the key factors that affect the price of your insurance. The insurance market has been accused of lacking transparency in the past, yet underwriters have strict guidelines and rating formulas that generate a premium. Thus, a greater understanding of the methodology behind the underwriting process could help firms obtain more favourable terms. Although this should be obvious, a clear and well-presented proposal form is crucial in offering a good first impression. Hand written forms are fine as long as they are neat. A form that has been rushed and poorly presented will not reflect well on the firm in general. As proposal forms become more readily available online, this issue is becoming less relevant. Consistency in a firm’s proposal form is also a key to having a positive impact on an underwriter – information and particularly numbers, must add up. A frequent example of where a firm can let themselves down is in the conveyancing section. The fees declared here often do not match up with the percentages declared in the areas of practice section of the proposal form. Continued on page 2 1 Renewal Preparation 3 Success Today - Succession Tomorrow 4 Back to the Future - the return of the fax machine 5 Cyber Security 6 Checkrecipient 7 Fuelling a Compensation Culture 8 Questions and Answers 8 Meet the LawSelectTeam

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Welcome to the Summer 2015 edition of Practice Management. As many of you will have read in the legal press, there continues to be an alarming growth in the number of incidents of fraud and cyber scams that have affected law firms. With this in mind we take a look in this issue at some of the factors involved and at what firms can do to avoid being a victim. On a more general note, we consider also the need for firms to plan their future by managing the present and at the extent to which firms can still offer inducements to clients following the introduction of the provisions banning such payments in personal injury cases.

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Page 1: LawSelect Practice Management - Summer 15

LawSelectPractice Management

Issue 4 | Summer 2015

WelcomeWelcome to the Summer 2015 edition of PracticeManagement, the newsletter specifically designed forthose in legal practice.

As many of you will have read in the legal press, therecontinues to be an alarming growth in the number ofincidents of fraud and cyber scams that have affectedlaw firms. With this in mind we take a look in thisissue at some of the factors involved and at what firmscan do to avoid being a victim.

On a more general note, we consider also the need forfirms to plan their future by managing the present andat the extent to which firms can still offer inducementsto clients following the introduction of the provisionsbanning such payments in personal injury cases.

In this issue

Paragon International Insurance Brokers Ltd140 Leadenhall Street, London EC3V 4QTT: +44 (0) 20 7280 8200

Copyright © 2015. Paragon International Insurance Brokers Ltd is authorisedand regulated by the Financial Conduct Authority

Renewal Preparationby Piers Winton, Vice President

Completing the proposal form for your Professional Indemnityrenewal is a challenge that all solicitors tasked with the job rarelylook forward to. However, it is important to remember that thisform is the information that your broker will use to “sell” yourpractice to underwriters. It is therefore essential to present yourpractice in the best possible light. It will be useful to considerwhat underwriters look for when examining a proposal formand highlight some of the key factors that affect the price ofyour insurance. The insurance market has been accused oflacking transparency in the past, yet underwriters have strictguidelines and rating formulas that generate a premium. Thus,a greater understanding of the methodology behind theunderwriting process could help firms obtain more favourableterms.

Although this should be obvious, a clear and well-presentedproposal form is crucial in offering a good first impression. Handwritten forms are fine as long as they are neat. A form that hasbeen rushed and poorly presented will not reflect well on thefirm in general. As proposal forms become more readilyavailable online, this issue is becoming less relevant.

Consistency in a firm’s proposal form is also a key to having apositive impact on an underwriter – information and particularlynumbers, must add up. A frequent example of where a firm canlet themselves down is in the conveyancing section. The feesdeclared here often do not match up with the percentagesdeclared in the areas of practice section of the proposal form.

Continued on page 2

1 Renewal Preparation

3 Success Today - SuccessionTomorrow

4 Back to the Future - the return ofthe fax machine

5 Cyber Security

6 Checkrecipient

7 Fuelling a Compensation Culture

8 Questions and Answers

8 Meet the LawSelectTeam

Page 2: LawSelect Practice Management - Summer 15

Renewal Preparation (continued from page 1)

do not like to see firms that dabble in an area of law or takeon contracts that are considerable larger than those theyare used to. It may be that there are rational explanationsfor a sudden change in the practice i.e. a new recruit withdifferent expertise or a new client instruction. Whatever itis, ensure that it has an explanation that the insurer canrationalise and be comfortable with. This will benefit yourfirm.

Finally, and most importantly, is your claims record. This iswhat all insurers are most interested in as it is a reflectionon how you perform as a firm and the potential monetaryexposure you offer to an underwriter. All your risk, businessand financial management are reflected in this record – ifyour claims record is good, it is a fair assumption that youare a well-run business.

A lot of this is common sense but it is worth pointing outas the cost of insurance remains significant. This year, taxwork will be particular interest to insurers whether this iscurrent or historic. Any mitigation schemes undertaken willrequire explanation. Insurers will also be looking closely atprocedures and guidance available throughout a firm tocombat the potential exposure from fraudsters and hackersseeking to access client/office accounts or personal data.

The proposal form, by its nature is limited and cannot suitevery type of law firm. Therefore, remember that in mostcases there is a human at the other end who will read whatyou write. Do not be bound by the form’s limitations. Offermore about your firm, and write additional notes. Forexample, Insurers will be interested in how you superviseconsultants or those working from home. They will want toknow that you have sufficient and robust accountingprocedures in place to ensure that no one individual couldempty the client account; they will want to know aboutsupervision and lines of accountability.

The accuracy of your form is also important. For example,if 30% of your revenues come from commercial work, besure to clarify whether this is commercial litigation orgeneral commercial work. These two areas can commanda very different rate in terms of pricing. Commerciallitigation is deemed to pose less risk to insurers andtherefore is charged at a lower premium. Firms should beaware of these mechanics and nuances in the underwritingprocess as this accuracy can result in better pricing.

Insurers will also look at the work split of a firm and ensurethere is logic behind it. Is the firm a high street practicewith multi disciplines? Is it a specialist firm? Underwriters

Page 2

LawSelect Practice Management Summer 2015

T: 0203 371 1064 www.infolegal.co.uk

don’t let compliance drive you ape

The Infolegal Compliance Hub is a simple to use, on-line portal providing lawfirms with access to a huge range of materials designed to help them cope moreeasily with the problems of regulatory compliance.

Accessible from a computer, laptop, tablet or phone, the Infolegal ComplianceHub not only contains compliance bulletins, factsheets, documents, precedents,training modules and more, it even provides online access to the Solicitors OfficeProcedures Manual - possibly the most effective way for firms of all sizes toensure SRA compliance and address the requirements of Lexcel and other qualitystandards.

Infolegal Compliance HubCompliance support from less than £2 per week!*

Whether you are a sole practitioner, law firm or ABS, the Infolegal Compliance Hub can help you to meet your complianceobligations.

Subscribe today and get immediate access to all of our documents, precedents and training presentations.

*Subject to membership package selected and firm size.

Page 3: LawSelect Practice Management - Summer 15

The economic climate (currently unknown Election resultsnotwithstanding) is the most benign it has been for anumber of years, yet the trio of key pressures from existing(and emerging) competition, regulatory changes and theever increasing levels of client expectations, mean that it’sstill really hard to build and maintain a successful law firm.

Our Annual Legal Practice Survey gives a fascinating insightinto the results and practice data from the ‘SME’ legalsector across England and Scotland – the high street andspecialist firms who often feel the pressure triangle mostkeenly of all.

For the best performing firms in our survey, the headlinenews is good and the outlook seems promising….62%showed a growth in fee income (with the leading firms farout-performing the pack); and 56% reported a net profitincrease of more than 10% compared with prior year.Although some firms reported less auspicious results…43%of small firms (<£0.5m fee income) had reducing feeincome; and 35% of all firms showed a fall in net profits.

Levels of lock up are a crucial piece of the jigsaw. Firms areunlikely to ever be sustainably profitable unless theyeffectively manage work in progress and debtors. Thesurvey suggests that larger firms (>£1.5m fee income) havethe greatest opportunity to improve their cashflowmanagement in this area.

And there is no doubt that cash remains king for law firms.A slightly alarming statistic is that 39% of all firms had yearend available cash (defined as any positive office accountbalance plus available overdraft facility) of less than 5% ofannual fees. Clearly, low levels of available cash renderfirms ill-equipped to cope with, for example, a temporaryfall in fee income or a slowdown in billing or collections.And of course, pressures on practice cash flows and limitedavailable cash are key risk factors in frauds where solicitorsmay be tempted to ‘dip in’ to the account to prop up ailingpractice finances.

Survey trends show notable changes to practice structuresin recent years, with LLPs and limited companies comingincreasingly to the fore amongst our survey participants.Succession planning, cashflow management and tax

planning have all been catalysts for structural change. And,whilst the latest legislative changes may reduce the taxplanning and cashflow advantages of corporate structures,there are still important drivers for structural change to allowattractive succession opportunities, enable sufficientinvestment in the firm and to ensure viable ongoing financialmanagement.

Going beyond the headline financial results to consider theunderlying profit drivers and key practice managementissues (including pricing structures, charge out rates, gearing,employment and overhead costs, risk management issues,COLPs and COFAs, digital activities and more), the survey isa great tool to look at what others are achieving and toassess where the biggest operational improvementopportunities for your firm might lie.

Whatever the key ingredients for your firm’s operationalsuccess today, it’s easy to neglect a longer term plan for howyou intend to leave it all behind one day. Given the typicalage profile of law firm partners in this sector (the averageage of partners in firms with 4 partners or less is 59), thereare a good number of firms who simply may be leaving ittoo late to set themselves up for a financially viablesuccession, or to find an alternative exit route throughmerger or sale. Our survey highlights a number of firmswhere non-equity partners and fee-earners are taking homemore than the equity partners who are risking their owncapital in the business. This underpins the trend of highperforming fee earners wishing to remain in salaried,non-ownership positions, rather than take on the risks andresponsibilities of becoming a principal for potentiallylimited extra rewards.

We encourage all of our clients to think hard and to thinkearly about their succession plans. In particular, decisionsabout the structure of the practice, its strategic focus, itsrecruitment, its infrastructure investments and its fundingset-up must all be looked at through the prism of youroverall plans and potential options for the future.

I think a great starting point for thinking about tomorrow isto really assess where you are today. Just make sure youdon’t leave it too late.

Success Today - Succession Tomorrow

John Beevers - Director, Sagars Accountants - specialists in the legal sector

Page 3

LawSelect Practice ManagementSummer 2015

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The post run has progressively diminished in its importance asan aspect of the daily routine of the office in most firms as emailshave taken over from the more traditional postal, or "snail mail",system. We have all become more used to the advantages ofbeing able to communicate instantly at any time of the day ornight with others and, often, the disadvantages of beingimmediately contactable likewise. A working life without emailsis now unimaginable and beyond the experience of most youngerlawyers. The practice of law, in common with most other businessand professional pursuits, has become faster and more pressuredas technology has taken hold.

When e-mails started to become more commonplace it was oftensaid that care was needed as sending an email was the electronicversion of sending a post card through the postal system, andthe growing practice of e-mail intercepts of late has remindedmany of this rather uncomfortable fact. Using sophisticatedmessaging software fraudsters are able to detect and invadee-mail exchanges, thereby diverting substantial amounts ofmoney away from their intended recipients and into holdingaccounts controlled by the criminals.

Law firms - especially those with exposure to transactional worksuch as conveyancing - are attractive targets for this growingform of criminal activity. Most practices are small businesseslacking in sophisticated IT departments, but frequently handlingsubstantial amounts of money during numerous transactions. Thefrauds can take various forms but one of the most common atpresent is where the fraudster, having successfully hacked intoe-mails being exchanged before completion between the vendorand their representatives, will use one of the parties' e-mailaddresses to send changed banking details to as to intercept thepurchase funds or sale proceeds. Thus far the banks seem to haveaccepted most of the responsibility for the losses, but as thepractice grows and the risk becomes better known the likelihoodof the indemnity insurers being called upon is bound to grow.

Nor can we say that we have not been warned. The InformationCommissioner produced a report in August 2014 expressingconcerns at the risk of harm to clients through failure to managedata securely. The main thrust of this report is that encryptionshould be used on a much greater scale than at present, and thatdata should not be regarded as being sufficiently protected if adevice is merely passworded, given the availability of softwareprogrammes that will unscramble such codes. The currentapproach of most firms to gain the client's consent to the use of

email in the terms of business and to post a confidentiality noticein footers looks increasingly inadequate. The first will probablyprove to be ineffective in the eyes of the InformationCommissioner and the second will clearly be unlikely to deterfraudsters.

Which is therefore where the fax machine makes its unlikelyreturn. Mostly written off in all forms of business (except footballtransfers, it often seems) a growing number of law firms arereverting to the fax machine to exchange sensitive completiondetails. There are also reports of personal completions being onthe increase, bringing back nostalgic memories for those intraining in the 1990s and earlier.

Taking all of this into account perhaps one of the more basicprecautions to take is to require any late change of the otherparty's representatives or the banking details in any form oftransaction to be brought to the supervisor's attention and thenquestioned by the firm directly and robustly.

Still the more common property fraud involves fraudsters set-ting themselves up as a bogus law firm purporting to representa client who might be genuine, or merely a co-conspirator. Casereports examine who should bear the losses when bona fidepurchasers who are represented by conveyancers unaware ofthe scam part with funds which then disappear. Of these Davi-sons v Nationwide Building Society [2012]EWCA 1626 is perhapsthe most commonly quoted. Here the law firm, acting in goodfaith for a genuine purchaser, was suspicious as to the creden-tials of the (fraudulent) vendors who had held themselves out aspractising under the name of a local firm but from a newlyopened office. The firm therefore followed the standard LawSociety advice - now to be found as a newly introduced require-ment in the latest version of the Lexcel standard - and checkedthe vendor practice on the SRA/Law Society website directory. Ittranspired that the fraudsters had been able to persuade theregulator to change the relevant entry and the matter dulyproceeded.

Initially the firm were held liable for the losses on grounds ofhow they had conducted the transaction, but this was overruledon appeal and the firm were granted relief from liability forbreach of trust on grounds that they had acted reasonablythroughout the transaction. Other cases, however, have beendecided the other way, on which see, for example, Santander UKPLC v R A Legal Solicitors [2014] EWCA Civ 183.

Back to the Future - the return of the fax machine

Matthew Moore - Director, Infolegal Limited

Summer 2015LawSelect Practice Management

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It seems almost daily that we read about anotherhacking scandal, another data breach or anothersignificant FCA fine. Cyber exposure is present in amyriad of different forms. What is Cyber risk? Who hasexposure? How is the insurance market responding? Andwhat does this all mean for law firms of all sizes?

Cyber risk is everywhere. And the real danger is that itis evolving on a daily basis. Hackers are constantlydeveloping “bugs” or “worms” that can infiltrate eventhe most complex of IT security systems. These anti-virussystems face a continuous battle to keep responding tothese attacks yet the risk is not just technological.Humans are just as vulnerable to a hacking scandal.People can be duped into handing over sensitiveinformation, bank details, and client data withoutrealising the person on the end of the phone or e-mailis a fraudster. Cyber risk and data protection ranges froma lost laptop on a train to the most complex of computercode.

If you have a website, if you hold customer data, bankdetails, medical records, intellectual property, addresses– the list is endless – then you are exposed. TheAmerican market it more developed in respect of itsregulation. Breaches must be disclosed to customerswithin strict time-frames. Data that goes missing mustbe tracked and monitored for significant periods of timeat vast expense to the victim of an attack. The variousregulators also have the power to issue fines andpenalties should protocols not be followed. The financialimplications of reputational damage must also beconsidered.

And this form of regulation is inevitably making its wayacross the pond to the EU. While new legislation is notdue until 2016, and indeed the exact make up of it hasyet to be confirmed, it will be implemented sooner orlater. This will present all companies with a significantchallenge – but especially legal practices, no matter whattheir size.

Cyber Security

Janine Parker- Head of UK Professions, Paragon

We are already seeing many examples where firms havebeen the victim of cyber-attacks – data has gone missing,bank details taken or a firm’s identity is even used toextract funds during a conveyancing transaction. Thescams are sadly becoming more complex and morecommon.

The insurance market is constantly evolving to deal withthis threat on customers. Companies are taking thepurchase of Cyber insurance more and more seriously.There are now several high profile losses in the marketas a result of a Cyber- attack, but it is not only the largecompanies that are being targeted. Third party losses canoften be covered by a professional indemnity policy, butgenerally speaking a Cyber insurance policy will protecta firm against first party loss. For example, theinvestigation costs following a hack or data breach. Thecost of monitoring the data and informing those affectedand even the marketing costs for minimising reputationaldamage can be covered under a Cyber and Data Securitypolicy. This instant access to experts who are trained todeal with these situations can be invaluable to a firm.

Law firms are high up the target list for hackers. Think ofall the information a law firm might hold; bank details,personal data, and medical records – the list issubstantial. Think of the sum of money that can be sittingin the client account of even the smallest of conveyancingpractices. Will a small high street practice have the mostrobust IT firewalls, or the latest fraud preventionmeasures? The threat to law firms is very real and cautionmust be exercised by all employees of a firm.

From reception staff, to accounts, to managing partner– everyone can be a victim. Firms should have a clearguidance available to all staff on what to look out for.Awareness of this issue is essential, as it can help toavoid a repeat of scams that have already taken place.Test your internal accounting procedures, seek thesupport of third party expertise, research the insurancethat is available that can protect your business andyour customers. Get in touch.

LawSelect Practice ManagementSummer 2015

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The phrase “cyber security” often conjures upconnotations of a malicious attacker bashing outcommands on a keyboard in an attempt to hack theirway into an organisation’s computer network.

However, a number of recent research initiativesconducted by companies including Verizon, PwC andIT Governance have found that this may not necessarilybe the case and that one of the greatest threats tobusiness security could be far closer to an organisationthan people would think.

“…the vast majority of breaches were due toemployee errors in the handling and disclosureof data. 32% of all incidents were due topersonal or sensitive data being inappropriatelydisclosed or sent to the wrong recipient”

IT Governance - Data Protection Compliance2014 Research Report

Email has become a major artery of communication formany organisations. However, it is also highlysusceptible to human error. Many of us know all toowell that sinking feeling we get from having copied inthe wrong “John” in an email. However, whilst somebreaches have the benefit of being little more than amoment of embarrassment put right by a carefullyworded apology, others have resulted in ramificationswhich have been far more serious.

Some of the stand out public examples of misaddressedemails from the past year have included an employeeat Goldman Sachs who sent a number of emailscontaining highly-sensitive brokerage account data toan @gmail.com domain instead of to an @gs.comdomain. More recently, an Australian governmentemployee emailed personal details of the G20 leadersto an incorrect recipient.

For solicitors, who were the fifth highest perpetrator ofinformation breaches last quarter (according to the

Checkrecipient

Tim Sadler - Co-founder & VP Business Development at CheckRecipient

Information Commissioner's Office), there are annumber of obvious concerns that arise from theaddressing of an email to the wrong person. These caninclude an immediate loss of clients and revenue, finesand prosecution from regulators and an increase in PIpremiums.

However, arguably more damaging than all of these isthe potential damage to the reputation of an individualor organisation. Solicitors and their employees deal withextremely sensitive information and rely on unwaveringtrust and confidence from their clients. At a time whenit is possible publicly to share information with millionsof people around the world in seconds, a simple emailslip could have significant lasting ramifications on afirm’s business continuity.

So, what can we do about the problem?

For the past two years, the engineering team atCheckRecipient have been building a fully-automaticsoftware solution that uses machine learning and dataanalytics to predict when an incorrect recipient has beenincluded in an email. With CheckRecipient installed, theuser receives a pop-up warning message after they hitthe send button in Outlook if an email contains anincorrect recipient – thus giving them the opportunityto correct the mistake before the email is sent.

Prices start from £1 per user per month and come witha risk-free 14-day trial period. The software takesseconds to install, causes no delay or slowdown andintegrates directly with Microsoft Outlook email clients.

If you’d like to learn more about CheckRecipient, trialthe software or chat to us about information securityand your business, please do get in touch.

[email protected]+44 2036 370 773

www.checkrecipient.com

LawSelect Practice Management Summer 2015

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The coming into force in April this year of a ban on solicitorsoffering inducements in personal injury cases has once againopened up the issue of whether solicitors should be permittedto offer inducements at all. Is using gifts to attract work simplypart of the modern commercial world or an unwanted factor inthe fuelling of the alleged “compensation culture”?

Although never a widespread practice, a number of firms havein the past offered inducements to clients and potential clients– inducements which have taken the form of cash-backs,electronic goods and shopping vouchers. The recent ban,introduced by Sections 58 to 61 of the Criminal Justice andCourts Act 2015 (CJCA) and which came into force on 13 April2015, raises once again the question of whether banning such apractice is appropriate.

First suggested by Lord Young of Graffham in his review of healthand safety in 2010, a ban has been resisted by the SolicitorsRegulation Authority (SRA). Speaking at the time of their firstguidance on inducements, the then director of policy for the SRAAgnieszka Scott said that the SRA had “not found anything tosuggest that it is a significant problem or that clients’ interestsare put at risk.” She went on to say that “We have no evidencewhich suggests that inducements encourage spurious claims tobe made.”

The CJCA banThe ban contained in the CJCA prevents those who are“regulated persons” from offering a benefit to another personas an inducement to make a personal injury claim and includesoffers made to or by third parties. Regulated persons currentlyinclude solicitors, barristers, legal executives and alternativebusiness structures, but could be extended in the future toencompass others. Claims management companies were alreadybanned from offering inducements.

Rather than making the acts a criminal offence, the CJCA placesa duty upon regulators to deal with the problem by regulatorymeans and requires them to put in place appropriatearrangements to monitor and enforce the ban.So far as solicitors are concerned, those provisions have beenincorporated into guidance issued in April 2015 which updatedthe original guidance from June 2013.

As to inducements covered by the CJCA, the guidance providesthat solicitors must not offer a benefit which is intended toencourage, or likely to have the effect of encouraging, a personeither to make a personal injury claim or to seek advice from a

Fuelling a Compensation Culture?

Duncan Finlyson - Director, Infolegal Limited

legal service provider with a view to making such a claim –whether that offer is made directly or routed through a third party.For these purposes “benefit” is defined as any benefit, whetheror not in money or other property and whether temporary orpermanent, and any opportunity to obtain a benefit (for example,the offer to be entered in a draw for a prize).

Any SRA-authorised firms found to be acting in breach of the banwill be in breach of the SRA Principles 2011 - specifically Principles1, 2, 4, 6 and 7 – and as such could ultimately result in disciplinaryaction of some form being taken. What that action will be remainsto be seen.

Non-personal injury inducementsSo far as other inducements are concerned, the SRA takes a farmore laissez faire approach. It expects firms to decide forthemselves whether it is appropriate for an inducement to beoffered and suggests they consider whether:

(a) offering the inducement influences the client’s decision toinstruct as opposed to making a decision which is basedon expertise and quality of service,

(b) the inducement is aimed at vulnerable clients,

(c) the inducement will result in the firm taking on spuriousclaims, and

(d) the inducement could lead to increased costs tobusinesses, consumers and indemnifiers.

If having considered those questions the firm still decides to offerinducements then it must also make sure that clients:● are not taken advantage of,

● do not suffer detriment,

● do not instruct the firm as a result of misleading informa-tion or publicity,

● have sufficient information to make informed decisionsabout instructing the firm, and

● receive independent advice and a proper standard of serv-ice,

Finally, firms must be carefully not to cross what is a finelydrawn boundary between inducements, which are intended topersuade a client to instruct or remain with the firm, and briberywhere someone is given a financial or other advantage toencourage that person to perform their functions or activitiesimproperly or reward that person for already having done so.

LawSelect Practice ManagementSummer 2015

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Meet The LawSelect TeamShould you require assistance or you simply wish to discuss your own requirements then please do not hesitate to contact the LawSelect team

LawSelect Practice Management Summer 2015

Regulatory Questions and AnswersFrom Infolegal Limited - compliance consultancy for COLPs and COFAs

Q. My firm has just completed the sale of an investment propertyfor a long standing client. The client wants to reinvest the moneyin other property and is looking for suitable investmentopportunities. He has asked us to hold the sale proceeds pendinghis further instructions and to make some small payments on hisbehalf whilst we are holding the money. We are satisfied there isno evidence of money laundering. Is it in order for us to act onhis instructions?

A. Rule 14 deals expressly with the use of a client account – when moneymust be held in a client account and when it is wrong to do so. Rule14(3) says money must be returned to the client promptly as soon asthere is no longer any proper reason to retain it. Rule 14(5) expandson this by saying that you must not provide banking facilities througha client account and that payments to and from client account mustbe in respect of an underlying transaction. Two recent cases andguidance issued by the SRA make clear that firms must not act asbankers and that the holding and disbursing of money for the client’sconvenience is in breach of the law and the Accounts Rules. This isregardless of whether there is any fraud or illegality in the client’sinstructions. The use of client account must always relate to properlegal business being conducted on the client’s behalf. The SRA’sdetailed guidance on this issue can be found athttp://www.sra.org.uk/bankingfacility/

Your instructions relating to a legal transaction ended when yourclient’s sale was completed. To continue to allow the client to useyour client account for his own convenience would be wrong and putyou at risk of disciplinary action.

Q. I am hoping to set up in practice on my own in the next fewmonths. I appreciate that I will have to be authorised by the SRAand have downloaded the relevant forms. I have also been toldthat the SRA will require me to have a continuity plan as part ofthe authorisation process. Can you tell me exactly what the SRAis looking for?

A. All firms should, as part of their risk management procedures, havein place a continuity plan covering events which could jeopardise thefirm and put its clients at risk. These events could range from a majorIT failure, to a fire on the office premises. What the plan covers willdepend upon factors including the firm size, how it is structured andthe nature of its work.

The SRA has particular concerns about sole practitioners, especiallythose unsupported by other qualified staff. This is because sudden,serious illness or accident can have immediate consequences forclients if no contingency plan is in place. Also, more mundane eventssuch as holidays need to be factored into the firm’s arrangements.

The SRA needs to see that you have contingency arrangements inplace for another solicitor or firm to step in and take control shouldyou be incapacitated in some way. Ideally, you should find a solicitorwilling to be named as a special executor under your will to deal withthe sale or winding up of your practice in the event of your death andto be appointed your attorney in the event of your incapacity. Theywould need to be given instructions on how to access your computersystem, client files and client and office account. It would also besensible to inform your bank of the arrangements that are in place.

Further advice should be taken before relying on the contents of this Newsletter.Paragon International Insurance Brokers Ltd accepts no responsibility for loss occasioned to any person acting or refraining from acting as a result of material contained in this summary.

No part of this summary may be used, reproduced, stored in a retrieval system or transmitted in any form or by any means, electronic, mechanical, photocopying,reading or otherwise without the prior permission of Paragon International Insurance Brokers Ltd.

Paragon International Insurance Brokers Ltd is Authorised and Regulated by the Financial Conduct Authority. Accredited Lloyd’s Broker.Paragon International Insurance Brokers Ltd, 140 Leadenhall Street, London, EC3V 4QT. Registered in England. Company No. 321572.

Paragon Brokers (Bermuda) Ltd. LOM Building, 27 Reid Street, Hamilton HM 11, Bermuda. Registration No.33838.”

Michael MunnsAssistant Vice President

Direct Dial: 020 7280 8211Email: [email protected]

Janine ParkerHead of UK Professions

Direct Dial: 020 7280 8207Email: [email protected]

James NoonVice President

Direct Dial: 020 7280 8242Email: [email protected]

Adam CossinsAssistant Vice President

Direct Dial: 020 7280 8259Email: [email protected]

Piers WintonVice President

Direct Dial: 020 7280 8224Email: [email protected]

Paragon International Insurance Brokers Ltd,140 Leadenhall Street, London EC3V 4QT,

[email protected]

T: +44 20 7280 8200 F: +44 20 7280 8270