1. Introduction
1.1 Who should read this practice note?
All solicitors practising in private practice in England and Wales. Solicitors established in another jurisdiction in the European Union will be subject to the relevant rules in the host state.
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1.2 What is the issue?
Directive 2006/123 on services in the Internal Market (the Directive) imposes new obligations on you in respect of information you give to clients. It was implemented in the United Kingdom via the Provision of Services Regulations 2009 (the Regulations).
Whilst the Directive's main focus is how Member States and regulators govern service providers, some direct obligations are imposed on service providers. It imposes certain quality of service requirements on solicitors including new requirements about the information you must provide clients in terms of the professional indemnity insurance provider, VAT number, non-judicial dispute resolution procedures and information regarding the Solicitors' Code of Conduct.
These new obligations may require changes to your website and the standard letters that you issue. These changes are reflected in recently revised Law Society practice notes on client care letters and complaints management.
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2. Duties of service providers
The 'Duties of service providers' are set out in Part 2 of the Regulations. The Regulations impose the following new obligations that you should provide to clients:
- Your VAT number (Regulation 8(1)(g));
- Details of your professional indemnity insurance (Regulation 8(1)(n));
- Details of how to access the detailed professional rules applicable to you (Regulation 9(1)(d));
- Details of complaint resolution procedures (Regulation 10(1))
The Regulations stipulate a number of options and requirements as to how the information should be provided.
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2.1 Professional indemnity insurance
To comply with Regulation 8 (1)(n) you must make available to clients information about your professional indemnity insurance. This must include the name of the insurer, the contact details of the insurer and the territorial coverage of the insurance.
It should be noted that this obligation is in addition to rule 18.1 of the Solicitors' Indemnity Insurance Rules (which require you to disclose certain information, upon request, in respect of the compulsory indemnity insurance relevant to that claim).
If you are in the Assigned Risk Pool (ARP) must give the contact details of the ARP Manager. For example:
Capita Commercial Insurance Services Ltd
40 Dukes Place
London
EC3A 7NH
0870 402 7788
ARP@capita.co.uk
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2.2 Making the information available
Regulation 8(2) sets out the ways in which information about VAT and Professional Indemnity Insurance can be 'made available'. You may choose one or more of the following ways:
- supplied on your own initiative - for example, given in writing to the client at the outset;
- made easily accessible to the client at the place where the service is provided or the contract concluded - for example, by being available in hard copy at the firm's offices;
- made easily accessible to the client electronically by means of a web address supplied by your firm; or
- provided in any information documents supplied to the client by your firm which set out a detailed description of the service the firm provides - such as the terms of business.
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2.3 Solicitors' Code of Conduct
To comply with Regulation 9 (1)(d) you must provide on request information on the professional rules applicable to you and how to access them. Should such a request be made you should refer to the Solicitors' Code of Conduct and provide a link to the relevant section of the Solicitors Regulation Authority website.
To comply with Regulation 11 you must provide this information in a clear and unambiguous manner and in good time before the conclusion of the contract or, where there is no written contract, before the service is provided. Save where this information is requested under Regulation 9 after the provision of the service. Making information available on a website or including either the information itself or a notice as to where the information can be obtained within the client care letter would ensure that the relevant information is provided at the beginning of your relationship with the client.
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2.4 Information about complaint resolution
To comply with Regulation 10(1) you must inform clients of the role of the Legal Complaints Service (LCS) (and in due course the Office for Legal Complaints (OLC)) in resolving disputes and where further information can be obtained in this respect. The Regulation states that this information must be provided in any information document in which the provider gives a detailed description of the service.
The provisions of the Regulations do not alter the manner in which a lawyer would deal with a complaint or a potential professional negligence claim. When providing the LCS / OLC contact details to the client you may in addition wish to set out the way in which complaints and claims should be dealt with in practice ie highlight to clients that your internal complaints procedures are generally the appropriate starting point for raising complaints or concerns prior to proceeding to the LSC/OLC.
The practice note on complaints management has been updated to reflect these changes.
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2.5 Provide information in a clear and unambiguous manner
To comply with Regulation 11 you must provide the information above in a clear and unambiguous manner and in good time before the conclusion of the contract or, where there is no written contract, before the service is provided. By making the information available on your website or including the information (or details of where the information can be obtained) within the client care letter, you will ensure that the relevant information is provided at the beginning of your relationship with the client.
In respect of the complaints procedure, you must also provide this information within the initial 'client care' correspondence at the outset of the matter, even if also made available elsewhere.
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3. More information
3.1 Further products and support
3.1.1 Practice Advice Line
The Law Society provides support for solicitors on a wide range of areas of practice. Practice Advice can be contacted on 0870 606 2522 from 09:00 to 17:00 on weekdays.
3.1.2 Department for Business Innovation and Skills guidance
The Department for Business Innovation and Skills has produced Guidance for Business on the Provision of Services Regulations which sets out the requirements under the Regulations in detail. It is not specifically addressed to the legal profession.
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3.2 Status of this practice note
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.
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3.3 Terminology in this practice note
Must - a specific requirement in the Solicitors' Code of Conduct or legislation. You must comply, unless there specific exemptions or defences provided for in the code of conduct or relevant legislation.
Should - good practice for most situations in the Law Society's view. If you do not follow this, you must be able to justify to oversight bodies why this is appropriate, either for your practice, or in the particular retainer.
May - a non-exhaustive list of options for meeting your obligations. Which option you choose is determined by the risk profile of the individual practice, client or retainer. You must be able to justify why this was an appropriate option to oversight bodies.
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3.4 Acknowledgements
The Law Society has worked in close collaboration with the Solicitors Regulation Authority on the production of this practice note.
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