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Legal advice privilege – internal investigations

Legal advice privilege applies to communications with the ‘client’ (only). As we noted in the April 2017 issue (p31) the ‘client’ in a corporation will simply be those few employees authorised to seek and receive legal advice from the lawyers. Accordingly, legal advice privilege does not extend to information provided by other members of staff, even if it is obtained for the purpose of being put before external lawyers.

In the context of internal corporate investigations, it should be remembered that:

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Legal advice privilege – ‘the client’

Legal advice privilege applies to communications with the ‘client’ (only). But, in a large organisation, how do you define the ‘client’?

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COFAs – self-regulation

The profession is increasingly moving towards self-regulation, and that is likely to have important consequences for COFAs.

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COLPs – continuing competence

In November 2016, the SRA officially replaced the old inputs-based system of CPD with a new model of ‘continuing competence’. Gone is the requirement to log a certain amount of hours of training, and instead there is an obligation on lawyers to ‘reflect on the quality of their practice and identify any new learning and development needs’ which can then be addressed through CPD activities.

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Professional – update

Financial news across both spectrums of the profession seems grim. Manchester PI firm Carter Law Solicitors collapsed in December 2016, with debts of £3m (barristers and medical reporting agencies are among the major creditors). Interestingly, one of the former directors now owns the successor practice – with the value of the work in progress at the previous firm being assessed at a mere £1. [2017] LSG 23 January 1. Plus, of course, we have continuing bad news from Slater Gordon; while mega firm King & Wood Mallesons (which merged with SJ Berwin three years ago) has had its European branch go bust. [2017] LSG 23 January 6.

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Advice privilege – the ‘client’

Legal advice privilege protects lawyer/client communications that were made for the purpose of giving or obtaining legal advice.

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SDT – standard of proof?

The SDT has traditionally applied a criminal standard of proof (beyond reasonable doubt) when exercising its regulatory and disciplinary functions. However, the more senior SRA (under which it operates) only applies the civil standard (balance of probabilities). Needless to say, many commentators have called for a change, arguing the lower civil standard should apply to the SDT (on the basis that these measures are intended to protect the public).

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SDT – fining guidelines

The Solicitors Disciplinary Tribunal has for the first time published fining bands guidance, along with commentary on the more detailed mitigating factors.

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Professional – update

The merger of CMS, Nabarro, and Olswang is going ahead – it will create a firm with combined fees of £1bn [2016] LSG 10 October 4. At the other end of the scale, Prolegal, a ‘new breed’ of PI firm has gone into administration [2016] LSG 10 October 2. There are concerns that holiday sickness compensation is becoming a new hunting ground for claims management companies, given the marked increase in the number of gastric illness claims, many of which are unsubstantiated. One law firm involved in this area says on its website that average compensation for mild food poisoning ranges from £700 – £3,000, and claimants could receive anything from £7,000 to £40,000 if the food poisoning is severe [2016] LSG 31 October 3.

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Money laundering – 4MLD

The Fourth Money Laundering Directive (4MLD) was due to be implemented by June 2017. However, the EC has now brought the deadline forward to 1 January 2017. Many governments (including the UK) have said that this timetable simply cannot be met.

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Page 4 of 32

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