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Legal

NEWS

AUGUST 2017 THE MAGAZINE OF THE CONFEDERATION OF THE SOUTH WALES LAW SOCIETIES

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LEGAL NEWS

CONTENTS PRESIDENT REPORTS

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Johnathan Hine

At the time of writing we are in the second week of the Wimbledon fortnight and about the middle of the Tour de France. My preference is for the latter rather than the former I confess.

UPDATES

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Supporting Access to Justice

REGULARS

FEATURES

10 Chancery Lane News

Access to legal advice makes an enormous difference to people’s lives, reducing poverty and suffering.

Rachelle Sellek

Will the hot weather hold, now we’re about to take our summer holidays? I am writing this piece in the first week of July, having just returned from Chancery Lane, sweltering in temperatures which hovered around 30°C.

12 Top Tips on Combatting Fraud 14 Equality & Diversity SRA Requirements 2017 16 Holiday Illness Claims – Fraudulent or Not? 17 The Standard of Proof in SRA disciplinary proceedings

I’m currently six weeks into the ‘job’ and wondering where the time is going already.

18 Protecting your practice from modern day business risks

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necessarily the official views of the Confederation

Managing Editor

of South Wales Law Societies, Cardiff & District

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Law Society, or of the Editorial Board. The magazine or members of the Editorial Board are in no way liable for such opinions. Whilst every

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AUGUST 2017

LEGAL NEWS

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PRESIDENT REPORTS

Summer appears to have arrived, finally At the time of writing we are in the second week of the Wimbledon fortnight and about the middle of the Tour de France. My preference is for the latter rather than the former I confess. The nation’s fervent hopes are often dashed in the former. And so it would appear again this year. Mind you, Wales has had its share of disappointments in the Tour, not least the early exit of Geraint Thomas after a particularly unpleasant crash earlier in the week. We can’t have it all as they say!

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vents in the Presidential diary have been more limited of late from the hectic pace set at the beginning of the year. I was honoured to be invited as a guest by the Monmouthshire Incorporated Law Society to its annual dinner at the Celtic Manor on 7th July 2017. Both my wife and I thoroughly enjoyed ourselves at the event. I’d like to take this opportunity to both thank and congratulate Andrew Twomlow and the officers of the Society for their kind invitation and the success of the event. The after dinner speeches were particularly enjoyable, especially the reminiscences of the Judge, Andrews’ brother. Regrettably, I was forced to refrain from all alcohol that evening due to a very early start the next morning at Llandaff Regatta. As a consequence I elected to drive to and from the event. At the time, I confess thinking that this was probably not the best of moves, the wine flowing and all that. However, at 7.00am the next morning I was indeed congratulating myself on the restraint that allowed me to bounce out of bed at an early hour with a clear head. I suspect that the Monmouthshire Law Society were also the benefactors of my restraint as well! In any event, the evening was thoroughly enjoyable and the band who played after dinner particularly entertaining. I also managed to attend the Henley Royal Regatta again this year, though not in any official presidential capacity. I have been going to this event each year for at least 20 years in all. One of the prestigious events in the national social calendar, unlike many of the attendees I do actually go to watch the rowing! Though the après ski does have its attractions later in the day. Fortunately, the weather remained mainly dry for the three days we were there. All the more fortunate given that we were camping! ‘Hotel next year’ my wife told me, in no uncertain terms! On 24 July the official opening of the rebranded Business and Property Courts in Wales takes place in Cardiff. I have been fortunate to be invited and a suitably formal invitation arrived on my desk this morning. I am not entirely clear of the need for this “rebranding” but have read in other more weighty publications that it is a step to ensure the continuance of work for the Courts in London in the wake of Brexit. Only time will tell on that one but I suspect that London as a centre for dispute resolution will survive. After all, Brexit is unlikely to change the independence, integrity and expertise that is the attraction of our judicial system, regardless of whatever else it may actually change. Still, the event should be an interesting one.

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I was mollified to note the recent comments of the new Lord Chancellor on his appointment to his role. Realistically, a failure to defend the independence of our judiciary from scurrilous attacks in the media is likely to cause far more lasting damage to the reputation of our judicial system than changing the name of a branch of the courts. I trust that such declared intent is manifest when the first new attacks on the judiciary in the press surface. I also read with considerable interest the comments of the President of the Supreme Court, Lord Neuberger, in Australia of late. Am I the only one who reacted by thinking ‘at last!’ when reflecting on the comments made about Legal Aid and the practical access to justice issues that have ensued from those decisions? We did indeed “take a wrong turn” and are now reaping the rewards of such short-sightedness in a desire to save money at all costs. I wholeheartedly agree with his lordship in his comment that it is hypocritical of a government to espouse access to justice whilst at the same time removing the system that allows that very access to take place. Regrettably, I suspect there will be no changes in the short or medium term. Still, the summer is upon us. The sun is shining and holidays beckon. I trust you will all be able to find some time to take a well-deserved break and relax. My best wishes to you all for the summer. l Jonathan Hine President OF THE Confederation of South Wales Law Societies JonathanH@jacklyndawson.co.uk


PRESIDENT REPORTS

Another year, another president... I’m currently six weeks into the ‘job’ and wondering where the time is going already.

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o begin with, I want to say thanks to my predecessor, Paul Hopkins, who did a fantastic job last year (although he has left me with some extremely big shoes to fill!) On the upside, it does mean that a good proportion of my programme for the year is already set as I can repeat some of the excellent events that Paul organised last year. I have already hosted the annual Managing Partners Lunch which was held at Eversheds Sutherland’s offices on 27 June (and many thanks to Eversheds Sutherland for so kindly making its facilities available to us; the catering was excellent). The event is proving an excellent opportunity for managing (and other senior) partners to network with their peers. Although the profession as a whole is extremely diverse with many firms representing many different interests, we have more in common with each other than you might think. The profession is going through a period of significant change and whilst I am sure that we will all rise to meet it, the ability to come together as one legal community makes us all stronger. Thanks to our sponsors for the lunch. Lloyds Bank remain a staunch supporter of the Society but I was really pleased that we were able to introduce two new sponsors to the Society; JLT Specialty, the country’s largest PI insurance broker and Nasstar plc, a specialist provider of managed IT services to the legal sector Later in the year I will be organising a second CDLS Legal Quiz… Well Paul did announce at last year’s Quiz that it was the ‘inaugural annual Legal Quiz’! I was happy to be on the winning team last year but somehow I don’t think I’m going to be permitted to take part this year. The JLD has also requested that we run an Admissions Ceremony again this year and that we look to hold it as an annual event. I will be delighted to do so and, with SRA figures showing that there are 135-140 training contracts registered each year in Wales (a significant proportion of these must be within our region), I hope that this event will attract ever more interest from newly qualified lawyers. I have the role of COLP with my firm, Acuity Legal, and the particular pressures that Compliance Officers are under are therefore dear to my heart. One initiative that I am keen to get off the ground this year is a Compliance Officers’ Networking Group. I am contacting Compliance Officers from as many of our member firms as possible with the first meeting to be held in September but if you haven’t been contacted and want to get involved do please get in touch with me directly. I also intend to organise a media relations event to bring solicitors together with local media representatives. Solicitors are a valuable source of expertise for the media and it will be a great opportunity for our members to meet journalists and build connections. The media can also be a powerful tool in the armoury of solicitors, particularly those with public interest stories and campaigns to highlight. So, if you fancy developing a sideline in TV and radio appearances then watch out for more information in our newsletters.

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In passing I must say a few words about Robert Bourns who, at the time of writing, has just stepped down as President of The Law Society. Robert has been a truly inspiring President at a time when solicitors and the solicitors’ profession has been under pressure from a number of quarters. One of the themes for his year had been ‘pride in the profession’ and, having had the opportunity to hear Robert speak on several occasions over the course of the last year, I can honestly say that there has been no better advocate for the profession. I am pleased to see that his successor, Joe Egan, intends to continue the pride in the profession theme during his presidential year. As solicitors in Wales, we also need to take pride in the work that we do and, in the words of Joe Egan, ‘shout it from the rooftops’. We do a huge range of fantastic work in Wales that is the equal of any that is done throughout the UK but we don’t promote this enough. The more we do so the more we will attract this work. This will in turn attract lawyers of the highest calibre to work in Wales as they realise that quality of life in Cardiff does not mean a compromise on their career. With the inauguration of the new Business and Property Courts in Wales in July we will also have the infrastructure to back this up and ensure that our clients can be properly supported in the resolution of their disputes in Wales without having to travel to London. As I said earlier, the profession is facing a period of significant change and we will have to adapt to survive but I am confident that in our region we have the skills and the wherewithal to not only survive but to flourish and thrive. I am looking forward to the year ahead. l Rachelle Sellek President OF THE Cardiff & District Law Society yourvoice@cardifflaw.org


UPDATES

SUPPORTING ACCESS TO JUSTICE: ARE YOU READY? legal advice sector to help secure the free legal advice services that exist and to extend services to parts of the country where none exist so that vulnerable people can access the help they need in order to enforce their rights. There are three main ways lawyers can help the Access to Justice Foundation: 1. Unclaimed Client Accounts – It’s Not Just Peanuts Unclaimed client account balances become an annoyance for firms as they must be analysed and explained to auditors each year. Law firms can donate these dormant client account monies to the Foundation. The Foundation is able to provide indemnities for these donated funds. Individually, dormant client accounts may only hold small amounts of money, but the money can really add up. In 2015 this source of funds raised over £200,000. Access to legal advice makes an enormous difference to people’s lives, reducing poverty and suffering. Successive cuts in public funding for free legal help have had a huge impact on the most vulnerable in society and whilst we cannot seek to fill the gap left by these cuts, helping vulnerable people must be a priority. The Access to Justice Foundation aims to help these people by raising funds and distributing them to organisations that support those who need legal help but cannot access legal aid or afford to pay. As a lawyer you will know that access to justice is about people who need help to enforce their rights. From the client who is worried about being threatened with eviction if they complain about a Landlord refusing to complete repairs on the property, to clients wanting advice about their employment rights after being treated unfairly following their return to work after an injury. Without the means to enforce the rights that people have, the rights themselves are meaningless. Free legal advice provision is vital. With access to even a one - off piece of legal advice, the escalation of many of these issues could be avoided. The Access to Justice Foundation is working closely with the pro bono and free

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2. Pro Bono Cost Orders If a civil case is won with pro bono help, pro bono costs can be ordered by the court, or included in settlements. The costs cover any period when free representation was provided and the amount is based on what a paying client would recover. The costs must be paid to the ATJ Foundation (s194 of the Legal Services Act 2007). We then distribute the money to projects that give free legal help. Claiming pro bono costs is a straightforward process; for more information see our website. 3. Legal Support Trust Events The third way you can support the Foundation is by taking part in one of our fundraising events for Reaching Justice Wales, who support local advice services across Wales. The Swansea Legal Walk is taking place on Thursday 14 September and the Cardiff Legal Walk is on Thursday 28 September. The walks are a great opportunity for colleagues to come together to raise money for free legal advice charities. For more information about any of these projects and for contact details please see our website www.atjf.org.uk. l


REGULARS

chancery lane

Will the hot weather hold, now we’re about to take our summer holidays? I am writing this piece in the first week of July, having just returned from Chancery Lane, sweltering in temperatures which hovered around 30°C.

New Law Society committee members There are new faces from Wales on the Law Society’s law reform committees. Jade Cox, from Everett Tomlin Lloyd and Pratt (and South Wales’s representative on the national JLD committee), Trevor Coxon from Wrexham Borough Council and Rachelle Sellek from Acuity Legal (and, of course, president of Cardiff & District Law Society) have joined the Wales committee. Byron Jones, of the School of Law and Politics, Cardiff University, has joined the Wills and Equity committee. Congratulations to all of them. I hope they enjoy Law Society committee work and find it as fruitful as I have done. I will be encouraging you to join other Law Society committees next year when the vacancies arise. Committee membership is for a 3 year term, which can be renewed twice to a maximum of 9 years (though this is becoming rare). Please consider joining a Law Society committee. New team of office-holders The July meeting marked the end of the presidency of Robert Bourns. Robert had effectively been president of the Law Society for 18 months, ever since Jonathan Smithers lost the confidence of council over the Veyo affair - Veyo was his project. Ever since then, and particularly with the review of Law Society governance, the council has looked to Robert for leadership and he has not let us (or the profession) down. In addition to his presidential office, Robert had to discharge the duties of the chief executive for several weeks as a result of the resignation of Catherine Dixon as chief executive. His energy, enthusiasm, intellect, judgment, imperturbability, sense of humour and ability to overcome the shortcomings of others made him an outstanding president, the best president to have held office during my time on council. The new president is Joe Egan from Bolton, who joined council when I did in 2006. He was profiled in The Times on 29 June. As a result of the article, Robert Bourns joked that Joe was the 68 year old member of the Labour party whose time had come! I had no idea Joe was a socialist but I should have known - he often used to boast about how rich he is. Anyway, the secret is out. Apparently he is now known as Uncle Joe in Chancery Lane. The other office-holders are Christina Blacklaws, who represents Women in Law, and Simon Davis, who represents the City. They are a strong team and the Society is in good hands. Governance review The Council Chamber in Chancery Lane has been out of commission since last summer because its roof is dangerous (and as they’ve now found asbestos, it is unlikely we will meet in the chamber until December). This month we met in the Reading Room. This was the first council meeting held at the Law Society for a year. The atmosphere was completely different to when we last met in the building. The fact that council learned that staff call the vice president Uncle Joe suggests a relaxed, friendly atmosphere. Last year, when staff turnover was rising, the atmosphere was tense. The change in atmosphere is due to the leadership of the office-holders and Paul Tennant, the interim chief executive. All of council were delighted that he has agreed to extend his tenure until next July so he can lead the organisation as it makes the transition to the new governance structure. The new arrangements have not been finalised but the structure which is emerging is of council meeting slightly less often, probably 5 times a year

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and delegating power to a main board. The main board will be accountable to council, will meet 8 times a year and oversee the work of two or three other boards (policy, regulation and membership and operations) and the senior executive staff team. All boards should have settled terms of reference and be populated this autumn and start work at the beginning of next year. The size and composition of council are yet to be determined. This is a reasonably quick, yet sensible pace of reform. Most council members didn’t think reform was needed. It became necessary because the former chief executive didn’t respect council. She thought it was too male, pale and stale and told members so. She raised the expectation that council would be changed. I believe that both she and Jonathan Smithers wanted to drive their reforms through within months so they would be seen by posterity as a reforming president and a modernising chief executive. But these matters take time: ICAEW, the chartered accountants’ body, has taken 3 years to reform itself and the process isn’t over, so the 18 months taken by the Law Society to date is not unreasonably long. The profession and the Law Society will have to live with the new arrangements for several years, so it is sensible to take the time to get them right. Highlights of the year The Cardiff meeting and the acceptance of my motion to rename the Old Council Chamber in Lloyd George’s honour were the highlights of the year as far as I am concerned. But for most council members, the event of the year was the melodramatic resignation of Catherine Dixon as chief executive. Accountability of the executive In several meetings in 2016 I questioned the former chief executive about the rising turnover in staff. Each time I received the same unsatisfactory bland reply. I asked these questions in front of more than 100 people, 25 of whom would have been members of her staff. Each time I compared the current figures with those she’d given at previous meetings. When she tried to avoid these questions by omitting the figures in her report, I asked why the figures were mysteriously unavailable. Other council members questioned her similarly on other matters. The number of these other matters kept rising. This is holding the chief executive to account. I was considering proposing a motion of no confidence in the chief executive, as was another council member. I believe she would have survived a motion of no confidence, however. I mention this for two reasons. First, like the other council and committee members, I want the Law Society to thrive and represent the profession effectively. I want to be a loyalist. Throughout 2016 I felt that I was in the opposition. It’s a relief not to feel like that any longer. Second, you should know that council members ask awkward questions of the executive - office-holders, staff and the SRA. Jonathan Smithers was (rightly) given a very hard time over Veyo by council members and told on one occasion he should consider his position. So don’t think that being president of the Law Society is a sinecure or that the council is like a stuffy gentlemens’ club. It can be a far harsher environment that that. Your president, office-holders and chief executive deserve respect because they are doing difficult jobs on behalf of the profession, but they cannot take our respect for granted and must work hard to retain it. The debate about governance review is a debate about accountability and respect. l David Dixon DixonD@cardiff.ac.uk

Twitter: @saldixie


FEATURES

TOP TIPS ON COMBA The well-publicised Mishcon de Reya £1 million fraud case, when its client was duped into buying a London property from a seller dishonestly posing as the owner, has sent ripples of alarm throughout the legal community.

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lthough conveyancers are an obvious target for the increasing threat of rogue house owners and buyer deposit redirection fraud, it’s not just conveyancing practices that need to be on their guard. As a legal practice, you’re tempting prey for cyber criminals, not only because you hold large sums of money, but also vast volumes of valuable client information. The number, variety and sophistication of cybercrime grows daily, ranging from distributed denial of service attacks and phishing scams to hacking and ransomware. To qualify my argument, here are some recently quoted cybercrime statistics: National Fraud Intelligence Bureau’s 2016 figures show 159 recorded losses of buyer deposits which is an 85% year-onyear increase; Office of National Statistics quotes 5.8 million cybercrime incidents which equated to 40% of all recorded criminal activity in 2016; Action Fraud estimates the cost of cybercrime is currently £193 billion per year; BIS Information Security Breaches Survey revealed that 81% of large organisations have experienced a security breach with the cost per company being, on average, between £600,000 and £1.5 million. And this is only the tip of the iceberg. Under-reporting is a big issue. Many cybercrimes go unreported for fear of criticism and disciplinary action. You have a professional responsibility, enforceable by industry regulators, to identify, contain and remediate breaches, cyberattacks included. Aside from your regulatory obligations under the SRA Code of Conduct, you face new pressures from indemnity insurers who’ll want to see plans in place to thwart criminals when renewing policies and setting premium rates including run-off cover. There’s a plausible case for the need for a separate cyber insurance policy, over and above PII, to address the risks posed by cyber criminals and assist the recovery of potential losses incurred. Not forgetting your other compliance responsibilities. The Data Protection Act 1998, Money Laundering Regulations 2007, Proceeds of Crime Act 2002, Terrorism Act 2000 and new EU General Data Protection Regulation applicable from May 2018 to name a few. The stakes are high but there’s much you can do to mitigate risk by creating a robust, reliable and secure cyber environment. Access our previously published ‘Desktop security: 10 top tips’ article for more in-depth advice on how best to manage risks within your IT infrastructure. We cover topics such as operating systems, email attachments, file transfers, data back-ups, passwords and more. Visit www.quill.co.uk/desktop-security. Because cyber security is such a serious business risk, we’re extending our earlier guidance here with some top tips on combatting fraud so that you can take proactive steps to tighten your defences: Beware of outside-of-the-norm behaviour and requests for monies According to the Solicitors Regulation Authority (SRA), 75% of cybercrime reports are so called ‘Friday afternoon frauds’. These cases involve criminals intercepting and altering emails being sent between two parties (solicitor and

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client), mostly bank details in order to redirect funds. If you’re suspicious, raise queries, several times if needs be, and ideally via a known telephone number. As part of this, you could set up a dummy run with a £1 transfer. Once receipt’s been confirmed, you’re ready for the real McCoy. If it turns out to be completely legitimate, those concerned will appreciate your stringent questioning and testing. Review your new client intake procedures When new clients instruct your firm for their legal matters, what checks do you carry out on them? A cursory glance at someone’s passport, driving licence or utility bills is no longer sufficient for purpose. Seek out as much detail as possible on both identity and credit history so that you’re confident your clients are who they say they are, have the means to pay for your services and that your hard-earned profits aren’t ending up in the greedy hands of racketeers. Also, tell clients upfront – both face-to-face and within your client care documentation – that you’ll never ask them to send money to a different account than that already provided. That way, they can be on the lookout too and immediately contact you should they receive any communications of this nature. Define your client money handling processes Money is of course the biggest incentive and the SRA’s referred to £7 million of client money being lost to cybercrime in the last year. With the SRA Accounts Rules at the forefront of your mind, make a clear distinction between client and office monies, assign duties to your cashiering team members, designate reporting lines and outline timescales throughout. For example, you may specify only appointed staff should transfer money and make it a habit to take deposits as late as practicable so there’s less money on account at any given time. As well as giving your clients a higher level of service, you’ll lessen the risk of financial theft. Create disaster recovery and business continuity plans To form an adequate series of responses to unexpected emergencies, attempted crime amongst them, produce carefully written disaster recovery and business continuity plans. These will contain information on the types of crises which could befall you, how you should act if they do, roles of primary staff members, phases of recovery, emergency contact numbers, anticipated outcomes and records of test or genuine disaster situations. The ultimate objective is to put your firm in the strongest position to deal with critical incidents with minimum disruption to the running of your business. This is yet another area we’ve written about extensively before. Read our ‘Top ten disaster recovery and business continuity planning tips’ for further details. Visit www.quill.co.uk/disaster-recovery-planning. Develop a risk management policy and monitor activity Prevention is always better than cure so set out your preventative and detective measures within a risk management policy. These may comprise IT-based solutions such as SSL encryption and anti-virus software to physical security devices such as CCTV surveillance and burglar alarms. Your policy will address how to classify, deal with and communicate risks. Analyse your business closely for signs of unusual activity that could indicate


ATTING FRAUD the beginnings of an attack. The sooner you’re able to counteract possible violations, the better, to effectively stop criminals in their tracks.

network to vulnerabilities. Set up some safe parameters for your staff to adhere to then educate your personnel in IT best practice.

Report every failed and successful attack There’s an onus on you to do so, and the legal profession can only clamp down on cybercrime if we truly know the extent of unlawful activity and methodologies employed. With more two-way conversations, trends can be recognised, scams identified at an earlier stage, alarms raised to others and appropriate responses carried out. Notify the SRA, Action Fraud, Information Commissioner’s Office and/or your insurers.

Evaluate your IT systems and suppliers We’ve already briefly mentioned the importance of running the latest operating systems, performing automated back-ups, installing firewalls, and using dedicated anti-virus and anti-spyware software for protection against hackers. There’s readily available software to reduce risk even more. Anti-money laundering checks, credit screens, conflict of interest searches, proof of identity document capture and breach warnings will preserve your matters and their associated finances. Or, you can go a step further and enlist extra back office services such as fully outsourced cashiering and payroll. Your outsourcing provider’s keen attention to detail will immediately highlight anomalies and alert you to dubious goings-on.

Consider your employees’ role in your business and engage your workforce in best-practice risk management Restrict certain tasks in your business, for example software installation, to assigned personnel. Small steps such as these can go a long way to minimising exposure to risk. One weak link is all it takes to open your business to intrusion. Similarly, if you employ home and remote workers, you’ll want to restrain use of unapproved devices and removable media, both of which carry their own security risks and can uncover your entire

Remember the SRA Code of Conduct here. Ensure outsourcing agreements – be it for cloud software or outsourced services – allow you to comply with your client protection duties. And ask about ISO certifications for reassurance that your supplier conforms to international security standards. l JULIAN BRYAN MANAGING DIRECTOR | QUILL

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FEATURES

Equality & Diversity SRA Requirements - 2017 As we wrote this article, a Member of Parliament has this week had the party whip suspended because she made an offensive racist remark. This in her words was “not intended to offend” however the word used has a highly derogatory and prejudicial meaning to a particular group of people. It might have been meant inoffensively, but at the very least it was insensitive, and may spell the end of a career for that particular individual.

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his is one illustration of many that serves to demonstrate that equality and diversity in the 21st Century UK still has a long way to go and there is more work to do if equality is meant to be more than an aspiration. On the 17th of July, the Solicitors Regulation Authority opened its MySRA system to the reporting of firm’s diversity data, and this may be a good time to reflect on this. While the SRA is not considered a good example to many solicitors for many things, its motivation with regards to diversity reporting is straightforward in that it wants to use the data it collects from the profession to understand how diverse the profession is and whether it needs to take action to increase diversity through different strategies and policies that either encourage it, or have some sort of punitive measure for those who seem to think they can ignore it. So, diversity forms have been made available to firms, and the management team of the firm needs to encourage their personnel to complete them. And if firms want the SRA to make the right choices in terms of diversity strategy, then they will need to encourage their personnel to answer the questionnaires as fully as possible, and not just tick the “prefer not to say” option. If the SRA are presented with a large percentage of submissions where the “prefer not to say” option is selected, then it will skew their analysis and enable the possibility of erroneous conclusions to be made. And if the regulator is making policy and strategy decisions based on the wrong conclusions this has the potential to affect all the firms it regulates negatively. It is also important to remember that, as well as submitting their data to the SRA, firms are responsible for the compilation of their own diversity data into a format that is easily readably by any client that may request it. It is for the firm to decide on what media they use to publish the data, for example whether they have it available for viewing on their website, or as a summary report in their reception areas. Finally, when a firm is considering how to publish their own Equality & Diversity data, they may wish to consider the format that the SRA have requested it in for their own analysis, and duplicate that (but remembering there are categories of data that should not be publicised), however it is very important to remember that any publication of diversity data must be done in a way that protects the anonymity of those personnel within the practice who have completed a diversity questionnaire. It should be published in such a way that it would be exceptionally difficult for any client to identify any specific person in the firm from reading the publication. If there is a risk that

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any individual can be easily identified, for example there may only be one person in the firm in a given protected characteristic, then the firm should not publish it, or the part that would identify the individual needs to be removed from the report. cpm21 has helped firms with the collation, analysis and report format for publication, and we are on hand to help again for those firms that need it. If your firm needs assistance with this, simply contact one of our consultants who will be pleased to help. l Paul Jones cpm21


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FEATURES

Holiday Illness Claims – Fraudulent or Not? There have been a lot of reports in the press recently about the rise in holiday sickness claims, with comments from tour operators about the fraudulent nature of such claims and the fact that holiday prices will rise if this is not stamped out. Spanish hoteliers have indicated they will refuse to offer all-inclusive holidays to British tourists and the police have also indicated, quite rightly, that they are considering criminal proceedings against claimants found to have made fraudulent claims.

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oliday illness claims against tour operators have been pursued by large numbers of tourists since the mid-1990s following the introduction of the Package Travel, Package Holidays and Package Tours Regulations 1992. Many claims have resulted in payments of compensation to tourists without tour operators raising the issue of fraud in such a public manner. So what has changed? It is true that claims management companies have been attracted to this work and we have all seen the press reports identifying the questionable methods that some claims management companies are adopting in order to encourage tourists to make claims. However, a thorough risk assessment combined with an understanding of what a claimant needs to prove to succeed with a claim should mean that most fraudulent claims would be identified fairly quickly and would not be pursued by solicitors – after all no solicitor representing claimants wants to be associated with a fraudulent claim any more than a tour operator wants to pay out on one. There is no doubt in my mind that the presence of claims management companies in the market is highlighting to tourists the fact that they can make a claim if they have been ill. I have certainly represented claimants who have suffered illness abroad who did not know that they could make a claim until they saw an article in the newspaper about a similar claim, and

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therefore I suspect that many potential claimants may not have made claims before because they were ignorant about their right to claim. It may also be that economic factors are also influencing the rise in claims. Whatever the reason, genuine claimants are going to be affected by the industry’s stance that the increase is due to fraudulent claims. The proposed increase in the small claims limit to £2,000 would lead to a reduction in these claims in any event. I would also suspect there to be calls in the future for these claims to fall within the fixed recoverable costs regime which may also have an impact. In the meantime, it is down to claimant lawyers to make the necessary checks to satisfy themselves that they are not assisting in the presentation of a fraudulent claim. To discuss a travel litigation claim with us please get in touch on 029 2066 0559. Your firm might also be eligible for a fee share on such matters if you are a member of Legal Network Wales. l KATHERINE ALLEN HUGH JAMES Katherine Allen is a partner at Hugh James and a specialist in all types of international personal injury litigation. She is a member of PEOPIL, TATLA, AAJ and APIL (Accredited Specialist in Accidents and Illness Abroad).


The Standard of Proof in SRA disciplinary proceedings As it stands, the Solicitors Regulation Authority has to prove allegations of misconduct to a criminal standard namely beyond a reasonable doubt. They have long sought to change this to the civil standard which is of course the lower standard of the balance of probabilities. do more to protect the public or instead cause significant damage to those who are regulated. It should be noted that as opposed to other professionals, a solicitor who is struck off is not only stopped from holding themselves out as a solicitor but is also unable to be employed or remunerated by any SRA authorised body. So for example, if a nurse is struck off, they could continue to work within the health care profession, for example as a healthcare assistant. By contrast, a solicitor who is struck off would be unable to work for a SRA authorised body even as a receptionist or marketing assistant without the prior written consent of the SRA and such consent if obtained only relates to that particular employment and employer. Another notable difference between a struck off solicitor and other professional would be that a solicitor who has been struck off where dishonesty has been found has very little prospect of being allowed to return to the profession whereas professionals in other spheres, such as for example health, would be more likely to be allowed to return to practise following a period of rehabilitation. Indeed a finding of dishonesty may not even result in an interruption to practise tor some whereas a solicitor will almost inevitably lose his career in such circumstances. These consequences distinguish the regulation of the legal profession from that of other professions, and support contentions that the SDT should retain the requirement for allegations to be proved to the higher standard.

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ur regulator takes the view that in order to protect the public, cases of misconduct should only need to be proved to the lower standard. They point to regulators of other professions such as many medical regulators who apply the civil standard only in their disciplinary proceedings. Now that consideration is being given to a lowering the evidential burden in the Bar’s disciplinary proceedings, it is likely that calls from the SRA to lower the threshold in cases before the SDT will grow even louder. Whilst it is recognised that the SRA must ensure the protection of the public, it is unclear whether a reduction in the burden of proof would in fact

In any event, the SDT regularly hears disciplinary cases and the standard of proof rarely becomes an issue except in those cases where the SRA have failed to investigate allegations properly and fully. Given that the SRA seem to have available to them such significant resources to investigate allegations in contrast to the limited money available to those seeking to defend such allegations, it would seem that the answer to any SRA concerns would be to ensure cases of alleged disciplinary breaches are investigated properly and only presented to the SDT by way of clearly formulated allegations where clear evidence exists rather than rely upon a reduction in the burden of proof. l STEVE ROBERTS RICHARD NELSON LLP PARTNER, PROFESSIONAL DISCIPLINARY TEAM Steve Roberts is a Partner in the Professional Disciplinary Team at Richard Nelson LLP and specialises in defending solicitors in respect of investigations undertaken by the SRA and proceedings in the SDT.

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FEATURES

PROTECTING your practice from modern day business risks Reports state that there are an increasing number of criminals specifically targeting law firms. In addition to these threats, there are new regulatory obligations that bring with them new risks which need to be protected. Threats such as cyber-attacks and data breaches are all part and parcel of modern day business risks law firms now face.

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s recently highlighted in the media, cyber- attacks are increasingly becoming the norm. Sadly, it is more likely to be a case of ‘when’ not ‘if’ your practice will be attacked. Out of necessity, businesses have started to think more proactively, raising staff awareness through training, whilst also implementing new processes and procedures in place to effectively deal with an attack, or minimise the damage an attack may cause. This is particularly prevalent for law firms, due to the amount of personal and sensitive data that they hold, especially with the impending GDPR legislation which is effective from May 2018. What is described as a “cyber-attack” can come in variety of forms, including but not limited to a malware attack, malicious hack, a disgruntled employee, or simply caused by human error. Upon discovery that you have been affected, the damage to your practice could be anything from a breach of privacy (loss or theft of personal data, as well as third party or corporate data), or it could simply interrupt your business preventing you to trade, alternatively it could result in the discovery that a theft has occurred, all of which could cause you significant reputational harm. During or in the immediate aftermath of an attack, a firm need to make very important decisions and quickly. These decisions can come from all angles, with the need to consider protecting yours and your clients’ reputation and getting your business back on track as quickly as possible. Extensive expertise is often required, which could include forensic and security specialists to identify the cause, lock down and collect evidence as well as involving crisis management and PR support along with the need for legal counsel. Furthermore Regulatory obligations include, protection of client moneys and assets; along with having the responsibility to keep the affairs of clients confidential along with having to comply with legislation applicable to your business, including anti-money laundering and data protection legislation. Which means that all practices need to address ways to protect their overall risk profile, as cited in principle 1 and outcomes O(4.1) and O(7.5). Due to the concerns expressed by our clients of the modern day risks that they are faced with, we have developed a unique, seamless and interlocking insurance product specifically for the UK legal sector of England and Wales. The product incorporates Cyber, Crime, and

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Regulatory defence cost coverages alongside SRA compulsory PII insurance. For more information on how we can help protect you from modern day business risks, please contact myself or one of Lockton solicitors team on 0330 123 3870, or alternatively please visit our website www.locktonsolicitors.co.uk. l Brian Boehmer Lockton Companies LLP +44(0) 207 933 2083 | brian.boehmer@uk.lockton.com


Legal News August 2017  

The bi-monthly magazine from The Confederation of South Wales Law Societies, for legal professionals across South Wales.

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