The Practical Lawyer


Shiner – duty of candour

The striking off of Phil Shiner attracted considerable publicity. As is well known, he actively pursued legal claims against British soldiers who were alleged to have tortured and killed Iraqi civilians.

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SRA – integrity or dishonesty?

From a professional conduct point of view is there any difference between ‘dishonesty’ and a ‘lack of integrity’? In fact, the distinction is very important – traditionally, ‘dishonesty’ involves a subjective element, whereas ‘integrity’ is purely objective.

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‘The file’ – guidance

The Law Society has published new guidance on what a solicitor should do when a client requests a copy of the file. Needless to say, some documents will belong to the solicitors, and those do not need to be handed over. As a result, solicitors should not feel pressurised into handing over the whole file merely because it has been requested by the client; moreover, it should not be forgotten that the pre-action protocol for professional negligence expressly prohibits fishing expeditions (which will often be what these are).

The Law Society advice is:

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Professional indemnity – ‘aggregation’

The Supreme Court has handed down an important decision on ‘aggregation’ claims in the SRA minimum terms and conditions. In essence, the Supreme Court has emphasised that each case is fact-specific, but for claims to be aggregated it must be shown that they ‘in some way fit together’.

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Accounts – three-way reconciliation

A three-way reconciliation is a comparison between the balance of client money shown in the firm’s cashbook, the bank statements, and the matter balance listing. Most accounting software packages will compare the cashbook balance and the bank statements as part and parcel of the standard bank reconciliation, but many packages then fail to undertake the third step (ie the matter balance listing).

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Partners – gender disparities

Mandatory reporting of earnings disparities between men and women will apply to law firms with more than 250 staff. The comparison between male and female earnings will only apply to salaried (not equity) partners but could lead to embarrassment for some of the larger firms.

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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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