9th July 2021 the UK government released 2 new Practice Directions for the process for the appointment of Official Solicitor as litigation friend for:

a) someone lacking capacity to conduct personal welfare proceedings and

b) for the person concerned for property and financial affairs proceedings in the Court of Protection

a) Welfare

This contains information and guidance around:

• appointing the Official Solicitor as litigation friend for someone lacking capacity to conduct personal welfare proceedings
• the proceedings that the Official Solicitor is usually invited to act in, including cases that involve serious medical treatment
• the Official Solicitor’s criteria for consenting to act as litigation friend
• how to invite the Official Solicitor to act in these kinds of proceedings

This practice note also contains details of how to contact the Official Solicitor, including out of hours applications relating to urgent medical treatment issues.

Here is a link to where you may download it: https://www.gov.uk/government/publications/appointment-of-the-official-solicitor-in-welfare-proceedings-practice-note?utm_medium=email&utm_campaign=govuk-notifications&utm_source=2bf1f0a5-8a23-449b-88ef-dbf6736d78d3&utm_content=daily 

b) Property & Financial Affairs

This contains information and guidance around:

• appointing the Official Solicitor as litigation friend for the person concerned for property and financial affairs proceedings in the Court of Protection
• requests from the court for the Official Solicitor to act as, or appoint counsel to act as, an advocate to the court
• the Official Solicitor’s normal criteria for accepting appointment in this type of proceedings
• how to contact and send documents to the Official Solicitor
• urgent cases

Here is a link to where you may download it: https://www.gov.uk/government/publications/appointment-of-the-official-solicitor-in-property-and-affairs-proceedings-practice-note?utm_medium=email&utm_campaign=govuk-notifications&utm_source=78193e4f-bfa6-47df-9df3-553ea0df5f6b&utm_content=daily

We are not giving legal advice, but as providers of business support to law firms, we thought this information might be of some assistance to some of our clients. For more info about our services please visit our website: www.hunningsconsultancy.co.uk or contact Ingemar at [email protected] or on 07887 524507

This has been missed by many solicitors. As part of our service to our clients taking our Office Procedures Manual Service, we questioned this with the SRA and have obtained clear guidance in a letter from the SRA.

Below is the note issued by the SRA on 5th January. We do not think they will sanction you if you register now. For most solicitors handling conveyancing you will already be within the AML scope because you do property work and therefore will be already supervised for Anti- Money Laundering. It would seem that the form FA10b would be the one you would use. It is a very simple and quick job to complete and file this to inform them you advise on SDLT. It seems to be just a question of informing the SRA.

"Solicitor firms have until Sunday (10 January) to check if any tax advice work they carry out falls under a new definition for money-laundering purposes.

Last year’s fifth Anti-Money Laundering Directive brought in amended regulations, with the definition of ‘tax adviser’ widened to include more activities than before. Any firm that finds it is now in the scope of the regulations needs to have applied to us or another AML supervisor, such HM Revenue & Customs to be supervised for money laundering before 10 January.

We have produced guidance on tax advice and AML for firms to help them determine whether or not they will fall within the scope of the regulations.

Paul Philip, Chief Executive, said: “Tackling money laundering is a priority for all of us and we know the vast majority of firms are committed to keeping the proceeds of crime out of the profession. Importantly, the amended regulations widen the definition of tax adviser, which means firms not currently engaged by the anti-money laundering regulations will shortly be included.”

“Any firm providing tax advisor services must check the position and, if necessary, apply to us or another AML supervisor. Alternatively, you might choose to drop the activities that bring you into scope.

“Whatever you choose to do, you need to have made that decision and acted accordingly before 10 January.”

The Money Laundering, Terrorist Financing and Transfer of Funds (Information on the Payer) Regulations 2017 (‘the regulations’) were amended on January 10, 2020. Tax adviser is now any firm or individual “who by way of business provides material aid, or assistance or advice, in connection with the tax affairs of other persons, whether provided directly or through a third party”.

Any firm now in scope needs to submit to us a completed FA10form including providing suitable Disclosure and Barring Service (DBS) checks for beneficial owners, officers and managers at their firm. They also need to make sure they comply with the regulations, other relevant statutes and our guidance, by 10 January 2021.

This includes assessing the risk for their in-scope business activities, as well as complying with other guidance and warning notices on AML, and Legal Sector Affinity Group guidance.

Those find that they carry out activities that are in scope of the new definition of tax adviser but will stop these activities before 10 January 2021, then no action is needed.

Anyone that needs further information can contact our Professional Ethics helpline. Ethics advisers however cannot decide whether a firm is in scope or not, only the firm can do that"

Please feel free to contact us if you have any questions or would like to know more about how we may assist you with your compliance. 07887 524507 or [email protected] we cover all things linked with the SRA, have a national expert on the Solicitors Accounts Rules and indeed offer a DPO Service (Data Protection Officer) and assistance with Cyber Security and data breach. Please see the drop down at the top of our website for a list of our services. If you do not see what you are looking for please ask. We will bespoke for clients as well.

This was published on 17th November 2020 by the Land Registry and launched on 12th March 2021. The aim is to promote the development of easy to use, modestly priced, remote and digitally secure options for conveyancers to use with their clients. Relevant for both Domestic Conveyancing & Commercial Property.

To reach ‘safe harbour’, the client must hold a form of evidence that can be checked by interrogating cryptographic security features within the evidence. Conveyancers must check that the evidence is genuine. The conveyancer must make sure the biometric information captured from a ‘liveness check’ matches biometric information in the chip within the evidence.

Property Lawyers representing a transferor, borrower or lessor must connect the client to the property by obtaining two examples from a set list of evidence, and check that the name and address matches the identity.

The standard is not compulsory and other means of identifying parties to a transaction can be used. However, Land Registry says it will not seek recourse for negligence if a conveyancer carries out all the requirements under the standard.

Here is a link to it: https://www.gov.uk/government/publications/encouraging-the-use-of-digital-technology-in-identity-verification-pg81/practice-guide-81-encouraging-the-use-of-digital-technology-in-identity-verification

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At last the Land Registry has moved into the modern age and recognised electronic signatures. They are now accepting dispositionary deeds (such as transferring , creating leases and securing mortgages) that have been signed with a witnessed electronic signature. 

Here is a link to the updated Practice Direction: https://www.gov.uk/government/publications/execution-of-deeds/practice-guide-8-execution-of-deeds

Here is a link to the article on the Land Registry website: https://hmlandregistry.blog.gov.uk/2020/07/27/electronic-signatures-in-practice/

If you're looking for a reliable method to do this we can recommend some software that we sue for electronic signatures.

The Law Society has issued guidance to conveyancers who are advising their clients on house moves. In doing so they have consulted widely with the industry. Here is a link to the Law Society guidance:

https://www.lawsociety.org.uk/topics/coronavirus/

At the time of writing this blog there were 2 other guidance sheets linked to this which please find below for ease of access. Others may be added by the Law Society later so please check the above link. The 2 guidance sheets are below:

Industry Guidance on Reopening the Home Moving Market Safely

Consumer Guidance on Moving Home Safely during the Coronavirus Crisis

Please note that the Law Society state that these should be read in conjunction with the Government's guidance on moving home during the covid-19 crisis. https://www.gov.uk/guidance/government-advice-on-home-moving-during-the-coronavirus-covid-19-outbreak

The lockdown has been a shock to business. People are predicting the worst downturn in the economy in 300 years. If firms are to survive, what steps can they take? Here's a start with a few suggestions:

• re-evaluate your overheads - do you need to spend what you did before (on property for example)?
• re-evaluate how you produce your work - can you do it smarter at lower cost of production?
• re-evaluate how you deliver client care - they've got used to the convenience of visiting you remotely, it's more convenient for them - the competition for clients when the lockdown will be fierce
• re-evaluate how you meet your compliance obligations - do changes allow you to do this in a more slick manner (remote viewing, signatures etc)?
• re-evaluate business continuity and distaster recovery plans
• how will you ensure staff safety as the lockdown is eased (PPE, social distancing, cleaning surfaces etc)?
• consider what you want to achieve - do you want to stay in business? If you actually want to find a buyer for your firm do some housecleaning & prep. If you want to expand, decide what you're looking for.

Just a few thoughts - what others should people consider?

On 4th May 2020 HM Land Registry issued new guidance to identity verification and the signing of deeds. Please note, these are stated as being temporary. They have extended the classes of people who they are happy verifying identity. 

Here is a link to their press release: https://www.gov.uk/government/news/changes-to-identity-verification-and-signing-deeds?utm_medium=email&utm_source=govdelivery&utm_term=

Here is a link to Practice Guide 67A with more detail on the extension of classes of people who can verify identity: https://www.gov.uk/government/publications/temporary-changes-to-hm-land-registrys-evidence-of-identity-requirements-pg67a/practice-guide-67a-temporary-changes-to-hm-land-registrys-evidence-of-identity-requirements

Here is a link to Practice Guide 8 with more information concerning the process for the execution of deeds: https://www.gov.uk/government/publications/execution-of-deeds/practice-guide-8-execution-of-deeds

In these times where we are supposed to be working remotely – how to you get documents signed? If you are used to posting documents out for signature – should you be making your clients walk/drive out to the post box?

Even without the coronavirus there was a strong argument for using digital signatures to make life easier for your clients, to speed up the process, improve conversion rates, improve efficiency and profitability. Now, the alternative is almost as bleak as: not being able to convert work or bring it to a conclusion = no income!

Last autumn the Law Commission concluded that there was no legal barrier to digital signatures being good signatures in law. Earlier in March this year the Law chancellor confirmed this – even for wills and deeds. https://www.lawgazette.co.uk/law/electronically-signed-deeds-are-legal-lord-chancellor-confirms/5103306.article

In October 2019 the Law Society issued guidance for digital signatures: https://www.lawsociety.org.uk/support-services/advice/articles/signing-and-exchanging-documents/

The Legal Aid Authority has, amongst other guidance for coping with the coronavirus crisis, stated that it will accept digital signatures in place of wet signatures: https://www.gov.uk/guidance/coronavirus-covid-19-legal-aid-agency-contingency-response#history

Several categories of particular importance come to mind:

1. Client Care Letters, CFAs, Retainers and other internal documents you need clients to sign – whilst in some circumstances you can operate on terms of trading, in others it is not possible, or you may not want to run the risk.
2. Wills & LPAs – sadly this is likely to be a growth area for the next few months. People will be faced with their own mortality. You can’t go out to visit people to take instructions and get them to sign – especially the elderly – for risk of infecting them. However, it may be urgent for them to get these documents completed (and you might need the money as other revenue streams may be constrained!). You will need to be careful about checking capacity and understanding. You will need to consider insuring against heightened risk, getting indemnities from the beneficiaries etc. However, a solution has to be found. Witnessing the signatures is also an issue.
3. Property – this is an area where I fear there will be a significant slow-down. We do not want any other problems adding to that. The Lord Chancellor has stated that a digital signature is a good legal signature, even for a deed. However, deeds for the transfer of land will not be registrable until the Land Registry issues a notice saying they will accept them. Over to the Land Registry to sort this out ASAP please. There is a potential issue over fraud. They need to square this circle quickly and find a solution.

Other areas are affected, but these spring to mind with particular urgency.

We believe that we have come across a solution which easily allows you to arrange for the electronic signature and does not require you to first of all buy a case management system. It also claims to have a solution for the witnessing of signatures. Contact us if you would like to learn more.

It certainly will have an effect but what it will be no-one knows. Here are my thoughts for what they’re worth. I’d welcome other people’s opinions. This is obviously a fluid situation.

By Practice Area

Conveyancing – likely to take a hit – is moving house unnecessary travel? I wouldn’t be surprised if this will be a bit like the financial crisis in 2007, although, hopefully shorter.

Civil Litigation – courts likely to shut, already hearing on in-person hearings being adjourned. If they do, then cases will gum up in the system, as will cashflow from concluded cases – unless they settle out of court.

Mediation & other forms of ADR – face to face will stop – on-line will increase, especially as the courts will not be operating or be slower.

Criminal – crims are likely to keep ‘working’ – but courts likely to slow down - Jury trails are to stop from April onwards, don’t know if will affect cashflow. Not sure how much social distancing can be done in a police cell. Let’s hope the LAA will continue to process your payment claims with their normal speed and accuracy!

Family – likely to slow for now and then be very busy once we are allowed to move about again.

Immigration – likely to move on-line. Those firms that rely on face-to-face work are likely to suffer more

Commercial Property – pretty much the same as for domestic conveyancing.

Employment – likely to be very busy for employment lawyers – with people being made redundant or changed working arrangements.

Commercial – likely to be a spike as companies seek assistance with their documents, but then falling away as commercial activity is subdued.

Insolvency – likely to increase but be impacted by the inability to shift the main asset if that is a building.

Corporate – likely to be a lot to start off with as businesses seek assistance, and then some ongoing as those which are in better shape see opportunities

Private Client – likely to see a significant increase at all levels, although completion of probate might be held back by the slow down of the property market.

Suggested Immediate Action

1. Try as best as you can to identify the impact on the likely model of what you think might happen. Identify the cases likely to be stuck and the areas that are likely to slow down or get busy. Put in place plans A, B & C. Analyse the likely impact on cashflow (It’s lack of cash that kills most businesses). We can help to provide additional resource – is needed. Please contact us.
2. Look to how you will get new work in these changed times. Those relying on digital means are best equipped – although competition is likely to intensify. If you are relying on footfall etc then look at other methods. Again, we may be able to help. Please contact us.
3. Move as much as you can on-line. By now most firms will have put in place home working. This may be a sysmic shift in our working patters. I suspect that after this is over a lot of businesses will continue with a lot more homeworking than was the case before. Look to move onto the cloud – there are case management systems out there that are on true cloud. Video conferencing and conference calling are now available as options. Electronic signing of documents by parties has recently been approved by the Lord Chancellor as good signature – even for deeds. If you would like assistance with any of this we can help, either suggesting technological solutions or specialist support.

These rules came into effect as mandatory on 6th December 2018. They affect you if you are regulated by the SRA and carry out work in the following practice areas:

Services for the public: 

• Domestic Conveyancing
• Probate
• Motoring Offences
• Employment Tribunal Work
• Immigration

Services for Business:

• Debt Recovery up to £100,000
• Employment Tribunal Work
• Licensing

We have a Support Package to help you: https://hunningsconsultancy.co.uk/?page_id=3249

Here is a link to the rules and guidance on the SRA website: https://www.sra.org.uk/solicitors/guidance/ethics-guidance/transparency-in-price-and-service/