Acing the SQE/Legal Services

Chapters

• Chapter 1 The Regulatory Role of the SRA
• Chapter 2 The Equality Act 2010
• Chapter 3 Money laundering
• Chapter 4 Financial Services
• Chapter 5 Funding Options for Legal Services

The regulatory role of the SRA

principles and risk-based regulation

• The SRA is the approved regulator for solicitors, the firms in which they work (and their non-lawyer employees), Registered European Lawyers and Registered Foreign Lawyers.
• The SRA adopts a risk-based approach to regulation.
• A firm must be authorised by the SRA to carry out reserved legal activities.

reserved legal activities

1. the exercise of a right of audience
2. the conduct of litigation
3. reserved instrument activities
4. probate activities
5. notarial activities
6. administration of oath

Reserved legal activities can only be carried out by those authorised by an approved regulator.

The approved regulators are:

1. Solicitors Regulation Authority
2. Bar Standards Board
3. CLIEx Regulation
4. Council for Licensed Conveyancers
5. Intellectual Property Regulation Board
6. Costs Lawyers Standards Board
7. Master of Faculties

• Anyone acting as a solicitor must have a practising certificate or else it is a criminal offence.

professional indemnity insurance

• All firms authorised by the SRA must take out and maintain professional indemnity insurance.
• Indemnity insurance cover must meet minimum requirements and be adequate and appropriate.
• Firms must be open with clients about their professional indemnity insurance provision.
• The cover required for a recognised sole practice under the minimum terms and conditions is 2 million pounds.
• Firms must be open with clients about their professional indemnity insurance provisions.

other regulated providers of legal services

• Barristers
• Chartered legal executives
• Licensed conveyancers
• Patent attorneys
• Trade mark attorneys
• Costs lawyers
• Notaries
• Chartered accountants

overriding legal obligations

The Equality Act 2010

The following characteristics are protected under the Equality Act:

1. Race
2. religion and belief
3. sex
4. sexual orientation
5. age
6. disability
7. gender reassignment
8. marriage/civil partnership
9. pregnancy and maternality

The Act outlaws certain forms of discrimination including:

1. direct discrimination
2. indirect discrimination
3. disability discrimination
4. victimisation
5. harassment

• There is a duty to make reasonable adjustments for disabled people.
• Discrimination is outlawed in certain circumstances including in the provision of services and the workplace.
• Equality Act 2010 allows employers, when deciding between two equally qualified candidates, to choose a candidate from an under-represented or disadvantaged group, so long as the employer reasonably thinks that people with a particular protected characteristic are disproportionately under-represented in the workplace

money laundering

• Money laundering is the process whereby the proceeds of crime are changed so that they appear to come from a legitimate source.
• The Government has introduced legislation to disrupt this process.
• Solicitors who undertake relevant business must comply with the Money Laundering, Terrorist Financing and Transfer of Funds (Information on the Payer) Regulation 2017 (SI2017/692).
• Under the 2017 Regulations, firms must appoint a money laundering compliance officer and a nominated officer, who will receive internal reports concerning money laundering and must consider whether to report the matter to the NCA.

Money_laundering

• Placement
• Layering
• Integration

purpose and scope of anti-money laundering legislation including the international context

Proceeds of Crime Act 2002 There are three legislation of anti-money laundering.

1. Proceeds of Crime Act 2002 ('PoCA');
2. Terrorism Act 2000 (as amended);
3. Money Laundering, Terrorist Financing and Transfer of Funds (Information on the Payer) Regulations 2017 (S.I.692/2017) (‘The 2017 Regulations’)

• PoCA: defines ML offences
• Terrorism Act 200: define terrorism funding and financing offences
• 2017 Regulations: define requirements for AML within regulatored sectors and customer due diligences

circumstances encountered in the course of practice where suspicion of money laundering should be reported in accordance with the legislation

• Shah v. HSBC [2012]: When reporting on the suspicion of money laundering, the Money laundering Reporting Officer has no obligation to investigate on the suspicion.

• the appropriate person or body to whom suspicions should be reported, the appropriate time for such reports to be made and the appropriate procedure to be followed

Disclosure to a constable, customs officer or nominated officer "MLRO) that property is criminal property It is made before the prohibited act (MLO makes a suspcious activity report ("SAR") to National Crime Agency ("NCA"), or

National Crime Agency

direct involvement and non-direct involvement offences, and defences to those offences under Proceeds of Crime Act 2002

• Direct involvement offences under PoCA 2002

1. Concealing 2. Arranging 3. Acquiring

• Non-direct involvement offences under PoCA 2002

Failure to Disclose

Failure to Disclose - Nominated Officer (regulated sector)

Failure to Disclose - Nominated Officer (Outside regulated sector)

Prejudicing an investigation/Tampering with Relevant Document

Defences under PoCA 2002

Defences to Direct Invovlement Crimes - Authorised Disclosure - Reasonable Excuse - Appropriate Consent - Adequate Consideration

Defences to non-direct involvement crimes Failure to disclose - Reasonable excuse - Privileged circumstances - No training - Disclosing a suspicious activity report - Disclosing an investigation - Disclosures within undertaking or Grou[ - Disclosure between undertakings - Disclosure to your supervisory authority - Dissuading illegal conduct

Defences to Prejudicing an investigation/Tampering with Relevant Document - No Knowledge/Suspicion - Professional legal Adviser

due diligence requirements Under the MLR 2017 you are required to:

identify your client and verify their identity on the basis of a reliable independent source (such as a passport) where applicable, identify the beneficial owners of the client, take reasonable measures to verify their identity so you know who they are and, if the beneficial owner is an entity or legal arrangement, take reasonable measures to understand its ownership and control structure assess and where appropriate obtain information on the purpose and intended nature of the business relationship or transaction and identify and verify the identity of a person who purports to act on behalf of a client and verify that they are authorised to act on behalf of the client

Financial services

• the financial services regulatory framework including authorisation, and how it applies to solicitors' firms
• recognition of relevant financial services issues, including the identification of specified investments, specified activities and relevant exemptions
• application of the Financial Services and Markets Act 2000 and related secondary legislation to the work of a solicitor
• appropriate sources of information on financial services.

Funding options for legal services

private retainer

As known as private funding, the client pays for the work done based on the solicitor's hourly charging rate.

conditional fee arrangements

If client wins the solicitor receives an enhanced fee calculated as a percentage of the solicitor's usual charging rate. If the client loses the solicitor receives a lower fee or no fee.

damages based agreements

If the client wins the solicitor receives a percentage of the damages received. If the client loses the solicitor receives no fee.

eligibility for criminal and civil legal aid

The legal aid scheme enables those who qualify to have their legal fees paid from public funds.

• Magistrates Court: Means Test (financial eligibility) and the Interests of Justice Test (Merits Test) for public funding in a magistrates' court. D meets Means Test if D is under 18 or in receipt of a passporting benefit
• Crown Court: D should mee the Means Test ONLY (financial eligibility) since Crown Court trials are deemed to automatically satisfy the Interests of Justice Test.

third party funding

A third party (usually a commercial funder) agrees to fund the litigation.

legal expenses insurance

Legal expenses insurance (LEI) is a type of insurance policy that provides coverage for the cost of legal expenses incurred in relation to a specific legal dispute or event. In England and Wales, legal expenses insurance is commonly offered as an optional add-on to other insurance policies, such as home insurance or motor insurance.