Industry News

Practice Note - Court duty scheme for private law family clients

18 November 2016

The Law Society has issued a new practice note, which includes best practice guidance for anyone involved in or considering involvement in providing pro bono advice under a private law family court duty scheme.

These schemes are becoming increasingly widespread following the withdrawal of legal aid for private family matters in 2013 (subject to exceptions in cases of domestic violence or child abuse) and consequent increase in the number of litigants in person.  Similar schemes have existed for housing law and criminal cases for some time, but these are funded through the legal aid scheme and there are some differences in the regulatory issues relating to them. 

The Law Society warns that there are compliance risks which must be addressed if you provide legal services at court on a duty basis, usually on a rota, in such schemes.  The way the duty schemes usually operate are that individuals are directed to a duty scheme desk on arrival where they can discuss their case and obtain advice.  After the hearing, the individual is given a written notes of the advice and the court decision, as well as any follow up action required and details of any other available support/services, which is sent to the individual for their information. 

In particular, you should be aware of the following:

SRA Handbook: even where acting on a pro bono basis, practising solicitors are still bound by the whole of the SRA Handbook; non-practising solicitors are only bound by Principles 1 - 3 (upholding the rule of law, acting with integrity and maintaining public trust); in-house solicitors are bound by different regulatory requirements, as set out in the Practice Note: In-house pro bono practice: regulatory requirements;

Scope: the scope of the pro-bono services to be provided should be decided (e.g. contact arrangements, financial issues, whether advocacy will be provided). In particular, the Practice Note sets out certain principles by which you should abide where children are involved (para 3.1) and if you are advising on financial matters, you must still comply with AML requirements. You must ensure the client is aware of your obligations, including your duty not to mislead the court through act or omission and also the costs implications of incomplete disclosure and the potential for a pro bono costs order (para 3.2); 

Specific advice/situations: you should be clear about the advice you should would give in emergency and domestic abuse situations, as well as about the availability of mediation, public funding and any relevant duties under the Equalities Act;

Unbundled work: duty scheme work involves similar risks to other ‘unbundled’ work, in which advice is only given about a particular event under a partial retainer (refer to the Practice Note on this);

Duty of care: you are still under a duty of care in relation to the retainer and this may extend to third parties. Advice based on inadequate information is a significant risk with duty scheme advice and care should be not to make any assumptions about the facts. It is extremely important to make a written note of the information provided by the client and also make a written note of the advice given to it. This even extends to advising the client on how/where you intend to store this information;

Duties: you should be aware of the following duties:

  • your duty to the client includes explaining to them your responsibilities and any limitations and conditions on your acting for them, while acting in their best interests. This may mean you cannot act (e.g. in extremely complex cases or where the ‘client does not have the intellectual or emotional capacity suitable for the services you offer’);
  • your duty to the court (Chapter 5 of the SRA Code of Conduct), but be aware that if you provide advocacy services for the client, you should not go on record as the solicitor acting, as the court could impose additional responsibilities on you;
  • your duty to the opposing party (Chapter 11 of the SRA Code of Conduct);

Scope: a leaflet outlining the scope of your retainer is recommended, which can be supplied to the client, covering issues such as the remit of the scheme, how it works, the limits of the advice, what it covers, details of the particular legal adviser, including their qualification; 

PII: advice provided under the duty scheme should be backed by your PII, so you should notify your insurer about the scheme. The impact of participation in the scheme should be minimised if you can produce a protocol on the scheme, including the scope of it and other steps and information outlined above. Individual non-practising solicitors without PII should ensure the scheme itself has sufficient cover;

Complaints information: must still be provided to pro bono clients;

Conflicts issues: are more likely to arise than in other duty schemes due to the nature of 2 or more opposing private parties being involved, so your scheme should include a process for determining (quickly, before the initial interview and on an ongoing basis if new information comes to light) which party you will act for where both request legal advice, as well as for checking whether any conflict arises in relation to your practice’s existing clients. Best practice advice is that you carry out checks on all relevant parties including any relevant third party, property, company or trust.

Other duties: relating to confidentiality, supervision, information about level of qualification, referral fees apply equally to pro bono duty scheme work;

Advocacy: there is a risk that if you do provide advocacy services, the retainer will become more akin to a full retainer due to the likelihood of negotiating with third parties and instructing expert witnesses. You should be careful to ensure you specify the limits of your service. It is also advisable that matters such as the court's expectation in terms of going on the record (to ensure you do not inadvertently become responsible for correspondence, negotiations and procedural issues) are clarified with the relevant court;

McKenzie Friend: this could be considered as an alternative to providing services under the duty solicitor scheme; 

Protocol: the recommended issues to be covered by a scheme protocol are set out in paragraph 6 of the Practice Note.


Action: if you are involved in this pro bono duty solicitor work:

  • ensure your documentation is consistent with the specimen wording and client letter in the Practice Note;
  • ensure your PII insurer is notified;
  • ensure the scheme is covered by rules or a protocol which covers the points addressed in the Practice Note;
  • ensure your internal procedures (eg conflicts searches, anti-money laundering) are amended to reflect the priority of requests where advice is being provided at court under the duty scheme;
  • ensure any solicitors from your practice are aware of this best practice guidance and the steps required to minimise your exposure to regulatory risk;
  • risk register - this should reflect the practice’s potential risk arising the duty scheme (compliance, legal and operational risk).

 

Ian Braithwaite
Client Relationship Manager

T: 0113 385 4483
M: 07432 695 289
E: ian.braithwaite@lbslegal.co.uk

For General Enquiries: Email enquiries@lbslegal.co.uk
24 hour Helpline 0845 0563949
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