6 October 2011
Managing partners, practice managers and any staff concerned with the management and day to day operations of practices.
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The Financial Services Authority (FSA) has introduced new record keeping requirements for mortgage arrears handling. As a result, some practices may need to introduce call recording. This practice note advises on how to comply with the relevant legislation on recording calls.
Practice notes are issued by the Law Society for the use and benefit of its members. They represent the Law Society's view of good practice in a particular area. They are not intended to be the only standard of good practice that solicitors can follow. You are not required to follow them, but doing so will make it easier to account to oversight bodies for your actions.
Practice notes are not legal advice, nor do they necessarily provide a defence to complaints of misconduct or of inadequate professional service. While care has been taken to ensure that they are accurate, up to date and useful, the Law Society will not accept any legal liability in relation to them.
For queries or comments on this practice note, contact the Law Society's Practice Advice Service.
Must - A specific requirement in legislation or of a principle, rule, outcome or other mandatory provision in the SRA Handbook. You must comply, unless there are specific exemptions or defences provided for in relevant legislation or the SRA Handbook.
Should
These may not be the only means of complying with legislative or regulatory requirements and there may be situations where the suggested route is not the best possible route to meet the needs of your client. However, if you do not follow the suggested route, you should be able to justify to oversight bodies why the alternative approach you have taken is appropriate, either for your practice, or in the particular retainer.
May - A non-exhaustive list of options for meeting your obligations or running your practice. Which option you choose is determined by the profile of the individual practice, client or retainer. You may be required to justify why this was an appropriate option to oversight bodies.
SRA Code - SRA Code of Conduct 2011
2007 Code - Solicitors' Code of Conduct 2007
OFR - Outcomes-focused regulation
SRA - Solicitors Regulation Authority
outcome - outcome
IB -indicative behaviour
The FSA's new requirement is as follows:
'From 25 December 2010 , if you call a borrower on behalf of a lender or Third Party Administrator (TPA) to negotiate repayment terms and/or forbearance options, you will need to record that call. You will therefore need to make the necessary arrangements for this to happen and for records to be retained by or readily accessible to the lender and/or TPA. Records must be kept for three years from the date of the call.'
If you monitor and record telephone calls you must comply with the Regulation of Investigatory Powers Act 2000 (RIPA), the Telecommunications (Lawful Business Practice)(Interception of Communications) Regulations 2000 (SI 2000/2699) (the LBP Regulations) and the Data Protection Act 1998.
RIPA makes it an offence to intercept a communication in the course of its transmission by means of a public telecommunication system.
If you record telephone calls so as to make them available to a third party you are intercepting those calls.
However, interception is lawful if both the person making the call and the person receiving the call have consented.
The LBP Regulations set out further circumstances in which interception by way of call recording is lawful. These include:
You should consult the LBP Regulations and must identify a lawful basis for your call recording. If you are call recording in order to meet FSA requirements this is likely to fall under the exemption for regulatory practices and procedures.
A further requirement of the LBP Regulations is that you have made all reasonable efforts to inform every person who may use your telephone system that calls are recorded.
Telephone calls will contain personal data. Its processing is subject to the provisions of the Data Protection Act 1998. This requires you to:
If you are relying on consent in order to record a call, the Information Commissioner's Office (ICO) has advised that 'there must be some action from which consent can be inferred, for example, the caller saying 'yes' when asked or proceeding with a telephone call after hearing a message saying that calls are recorded'. The ICO has also pointed out that consent must be freely given.
To help your firm comply with the regulations on call recording, you should:
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