Outcomes Focused Regulation
Compliance in Practice 3rd edition
Published: 2016
Pages: 196
eBook: 9781787427945
Fully revised and updated, the third edition of this essential handbook breaks down the regulatory changes into bite-sized portions and provides practical guidance to aid compliance.
* Information on the effects of the LSA and the changes it has brought;
* An overview of the 16th version of the SRA Handbook;
* The SRA Principles;
* The SRA's approach to authorisation and its views on risk, including information from the Regulatory Risk Framework;
* The SRA Code of Conduct and an explanation of its compliance requirements and risk management strategies in key areas such as client care, conflicts of interests, and confidentiality, referrals, outsourcing, separate businesses, and overseas practice;
* An indicator of changes on the horizon and how the SRA is likely to respond;
* The SRA's approach to supervision, including a reference to the indicators in the various supervision and enforcement strategies published by the SRA;
* Advice on compliance planning; and
* Case studies and practitioners' perspectives.
This book is designed to assist firms to develop and strengthen their governance arrangements and risk management strategies as they become more familiar with outcomes-focused regulation. It also flags up new business opportunities available to firms through external investment and the use of separate businesses.
Table of Contents
Cover | Cover | |
---|---|---|
Title page | i | |
Copyright page | ii | |
Contents | iii | |
Executive summary | vii | |
About the authors | xi | |
Part One: The Changes in Legal Services Regulation | 1 | |
Chapter 1: ‘Constant change in the legal services market’ | 3 | |
The LSA – The essentials | 3 | |
‘Regulatory objectives’ and ‘professional principles’– How regulators must exercise their powers | 6 | |
Chapter 2: The opening up of the legal services market | 11 | |
ABSs, LDPs, and MDPs | 11 | |
Chapter 3: The SRA’s response to the LSA | 15 | |
The SRA’s new approach | 15 | |
Outcomes-focused regulation – What is it and what benefits does it bring? | 16 | |
Risk-based regulation | 17 | |
Chapter 4: The SRA Handbook | 19 | |
An overview of the Handbook’s contents | 19 | |
The use of different regulatory provisions | 20 | |
Areas of essential reading of the Handbook | 20 | |
The Principles and their significance | 21 | |
Chapter 5:How the SRA evaluates anddeals with law firm risk | 29 | |
Setting the standards | 29 | |
The SRA’s approach to risk | 30 | |
The SRA’s structure for firms’ risk evaluation | 33 | |
Entities-based regulation – Whole firm compliance | 34 | |
Chapter 6: Authorisation Rules and how they affect all firms | 37 | |
Outcomes | 37 | |
The introduction of the Authorisation Rules | 38 | |
What the Authorisation Rules require – At a glance | 39 | |
The importance of the conditions | 39 | |
Chapter 7: An analysis of the COLP and COFA roles | 43 | |
The need for compliance officers – Rule 8.5 | 43 | |
How the COLP and COFA are chosen | 44 | |
The COLP’s and COFA’s reporting role | 47 | |
Chapter 8: Other requirements for authorised firms | 55 | |
Having suitable owners, managers, compliance officers, and employees – Rule 8.6 | 55 | |
Payment of periodical fees – Rule 8.3 | 56 | |
Authorised activities – Rule 8.4 | 57 | |
Information requirements – Rule 8.7 | 57 | |
Additional conditions for recognised bodies and licensed bodies– Rules 8.8–8.10 | 58 | |
Chapter 9: The SRA’s powers over firms | 59 | |
Further imposition of conditions – Rule 9 | 59 | |
Revocation and suspension of authorisation – Rule 22 | 60 | |
Notifying third parties of SRA decisions – Rule 20 | 60 | |
Reconsideration and appeals – Rules 29–32 | 60 | |
Chapter 10: How new firms become authorised | 61 | |
The application process | 61 | |
Particular issues for ABS applicants | 64 | |
The decision-making process | 65 | |
Part Two: The Regulatory Regimein Practice | 69 | |
Chapter 11: The SRA Code of Conduct 2011and the practical application of OFR | 71 | |
Introduction to the SRA Code of Conduct 2011 | 71 | |
The SRA Code of Conduct 2011 made easier | 72 | |
Outcomes and indicative behaviours | 73 | |
Chapter 12: Client care | 75 | |
Introduction | 75 | |
What does it mean to treat clients fairly? | 78 | |
Flexibility – The client care letter | 85 | |
How can client care compliance be demonstrated? | 86 | |
Client care planning suggestions | 87 | |
Compliance planning discussions | 88 | |
Ongoing monitoring | 89 | |
How is success measured? | 90 | |
Chapter 13: Conflicts of interests | 95 | |
Introduction | 95 | |
Conveyancing – Managing the risk of conflict | 99 | |
Other high-risk areas of conflict | 101 | |
Who can use the exceptions? | 102 | |
Compliance planning suggestions | 105 | |
Ongoing monitoring | 106 | |
Chapter 14:The duty of confidentiality and disclosure | 109 | |
Introduction | 109 | |
Defined terms | 110 | |
The application of information barriers in practice | 112 | |
Compliance planning suggestions | 114 | |
Ongoing monitoring | 115 | |
Chapter 15: Fee sharing and referrals | 119 | |
Introduction | 119 | |
How can compliance be demonstrated? | 121 | |
Referral arrangements – Planning suggestions | 121 | |
Ongoing monitoring | 123 | |
How is success measured? | 124 | |
Changes in 2013 – The SRA’s response to the Legal Aid, Sentencing and Punishment of Offenders Act 2012 | 125 | |
Chapter 16: Separate businesses | 129 | |
Introduction | 129 | |
The changes | 130 | |
How should firms react to the new outcomes? | 131 | |
Chapter 17: Outsourcing | 135 | |
Introduction | 135 | |
The outcomes which must be achieved | 137 | |
Interaction with other outcomes in the Code, authorisation conditions, and other Handbook compliance requirements | 138 | |
The reputation of the third party | 139 | |
Jurisdictional issues | 139 | |
Chapter 18: Compliance with the rest of the SRA Code of Conduct 2011 | 143 | |
Introduction | 143 | |
Whistleblowing | 148 | |
Chapter 19: SRA Overseas Rules 2013 | 151 | |
The Overseas Principles | 155 | |
The Overseas Accounts Rules | 157 | |
Chapter 20: SRA Accounts Rules 2011 – The compliance requirements and the role of the COFA | 161 | |
Introduction | 161 | |
The changes – Operational flexibility | 166 | |
Accommodating the regulation of ABSs | 167 | |
Other points of note | 168 | |
Application to overseas practice | 169 | |
Further changes to the SRA Accounts Rules 2011 | 169 | |
Chapter 21: Other significant aspects of the SRA Handbook | 171 | |
Chapter 22: Compliance planning | 177 | |
Key notification, reporting, and information requirements in other parts of the Handbook | 182 |
Tracey Calvert
Tracey Calvert is a lawyer who has worked in the law since 1985. She initially worked in a niche shipping law practice in the City of London, specialising in non-contentious work, and was then employed by a local authority in Worcestershire before joining the Law Society in 1997. Tracey was recruited as an ethics adviser in the Professional Ethics guidance team and became a senior ethics adviser in 2003. Her responsibilities in this role included the training and quality assurance of this highly popular and successful team, which provided confidential guidance to members of the profession on all aspects of conduct. Tracey has also accepted secondments to the Law Society/SRA professional indemnity team and as a manager of the casework and operational policy team, dealing with admission, character, and suitability issues. In 2009, she took up her final role within the SRA, joining the policy team. She was a member of a very small team which drafted the SRA Handbook and her particular responsibilities were in respect of the new SRA Code of Conduct and the rules in the 'Specialist Services' section of the Handbook. Tracey's particular interests are conduct, equality and diversity development, financial services, and anti-money laundering policy. During her time at the SRA she has drafted many rules, guidance and articles, and has engaged in many stakeholder activities, both generally and in respect of the SRA Handbook. Tracey is the director of Oakalls Consultancy Limited which provides regulatory compliance services to individuals and entities regulated by the SRA. She lectures on professional conduct, financial services, and anti-money laundering policies, and also provides compliance training and writes on compliance topics. Tracey has previously written a number of ARK Group books: Outcomes-Focused Regulation: Compliance in Practice and COLP and COFA: Compliance in Practice (both in their second edition), Ethics in Law Firms: A Practical Guide, and In-House Ethics in Practice. Tracey can be contacted via email at her consultancy.
Bronwen Still
Bronwen Still is a solicitor who worked in high-street practice doing mainly crime, matrimonial and conveyancing work before joining the Law Society in 1980. She worked in many capacities for the Law Society (and subsequently the SRA), initially handling complaints, dealing with interventions and prosecuting cases before the Solicitors Disciplinary Tribunal.