1.1 Who should read this practice note?
Solicitors who hold client money.
1.2 What is the issue?
Clients who have provided funds to you following instruction may request that you continue to hold the funds pending decisions that are yet to be taken. In certain circumstances, it may be convenient for you to hold the money rather than to return and then reclaim it for work undertaken.
This practice note aims to clarify the position relating to the retention of client funds, and provides an overview of the requirements imposed upon firms under the SRA Accounts Rules 2011 (SAR).
2 Requirements under the Solicitors' Account Rules
As effective from 14 July 2008, the SRA approved a number of amendments to the SAR. The amendments introduced specific obligations for the prompt return of surplus client funds and reporting to clients if funds are retained.
Under rule 14(3) SAR you are required to return client money to your clients promptly - that is, as soon as there is no longer any proper reason to retain those funds. Payments received after you have already accounted to your client, for example by way of a refund, must also be paid to your client promptly. The rules do not define 'promptly' however, guidance note (vi) of rule 14 SAR guidance states that it should be given its natural meaning in the circumstances you find yourself.
2.1 The purpose for retention
It may sometimes be more convenient for your client for you to hold onto relevant funds than to return them if it is likely that you will need to use those funds to execute further instructions. For example, if your client is selling shares in a company following a buy-out, they might ask you to hold onto funds pending investment decisions on which you will be advising, or for other transactions in which you would be involved.
In these circumstances you should be aware of the rules governing client money, which aim to prohibit you as a solicitor from acting as a banker to your clients (see 2.5 below).
There may be also be some instances when, during the course of a retainer, the specific purpose for which particular funds were paid no longer exists. For example, the need to instruct counsel or a medical expert. Rule 14(3) SAR is concerned with returning funds to clients at the end of a matter or the substantial conclusion of a matter, and is not intended to apply to ongoing retainers. However, guidance note (vii) of rule 14 SAR states that you must always act in the best interests of your client. In these circumstances you should therefore take instructions to establish whether the money should be returned to your client or retained to cover the general funding or other aspects of the case.
2.2 Informing your client
If funds are to be retained, rule 14(4) SAR states that you must:
- inform your client promptly in writing to provide details of the amount held at the end of the initial matter for which you were instructed and the reason for continued retention of funds.
- inform your client in writing at least once every twelve months thereafter, of the amount of their money that you retain and the reason for that retention, for as long as you continue to hold it.
2.3 Surplus funds
Accounting to a client for any surplus funds will often fall naturally at the end of a matter. Guidance note (vi) of rule 14 SAR refers to other retainers that may be more protracted; even when the principal work has been completed, you may still need to retain funds, for example, to cover outstanding work in a conveyancing transaction or to meet a tax liability. Again, in such circumstances you should inform your client promptly in writing and provide details of the amount held at the end of the matter and the reason for retention, as set out in rule 14(4) SAR.
2.4 Holding client money outside of the client account
Rule 15(1) SAR allows you to hold funds outside the client account by, for example, retaining it in a safe in the form of cash, or placing it in an account in your name which is not a client account. This rule relates to situations where money should properly be held in a client account, but your client has given instructions that the money should be held by you outside the client account for his or her own convenience.
This envisages an ongoing retainer, not simply a means of holding money for your client. In these circumstances instructions must be given by your client in writing, and you must also ensure that you are complying with the record-keeping provisions of rule 29 SAR where necessary. You should also note that it is improper to establish ongoing arrangements in relation to a particular client (blanket agreements) to hold funds outside the client account (rule 15(2) SAR). For further information see the Law Society's practice note on anti-money laundering.
2.5 Solicitors as bankers
The Solicitors Disciplinary Tribunal has determined that, as a solicitor, it is not a proper part of your everyday business or practice to operate a banking facility for third parties, whether or not they are your clients. As stated in guidance note (v) of rule 14 SAR, any exemption under the Financial Services and Markets Act 2000 (see section 3) is likely to be lost if a deposit is taken in circumstances which do not form part of your practice.
With this in mind, you should assess each case on its own merit based upon the individual circumstances that present themselves. If there is a good reason to continue to hold your client's money pending its investment or use in further transactions on which you continue to advise and act, it is unlikely that this would amount to a breach of the SAR. However, you should review this position if there is likely to be any significant delay in receiving further instructions.
On 18 December 2014, the SRA issued a warning notice about improper use of client account as a banking facility.
3 Exemption under the Financial Services and Markets Act 2000
Under the Financial Services and Markets Act 2000 (the Act) the Financial Services Authority (FSA) is the single statutory regulator of financial services business. Under the Act, if you undertake 'regulated activities' you are required to either:
- be regulated by the FSA, or
- rely on the Part XX exemption
This exemption makes special provision for professional firms which do not carry on mainstream investment business but which may carry on regulated activities in the course of other work such as conveyancing, corporate, matrimonial, probate and trust work. This enables firms regulated by the SRA which meet certain conditions to be treated as exempt professional firms and to carry on activities known as exempt regulated activities.
As part of the transfer of regulation of consumer credit activities to the Financial Conduct Authority (FCA), transitional arrangements were put in place for firms affected by the changes until 30 September 2014. Following discussions with the FCA, the SRA has secured agreement to extend the transitional arrangements for consumer credit up until 31 October 2015.
If your firm qualifies for this exemption, you do not need to be regulated by the FSA, but will be able to carry on exempt regulated activities under the supervision of and regulation by the SRA. However, If you take a deposit from your client in circumstances which do not form part of your practice as a solicitor, you are likely to lose the exemption.
You should therefore ensure that the purpose for retention of your client's money is confirmed in writing and kept under review so that your exempt status is not placed at risk.
4 Money laundering
You should be cautious when being asked to hold onto sums of money by your client, and to be mindful that there are criminal sanctions against assisting money launderers. Please refer to our anti-money laundering practice note for further information in this area, and to assist you in meeting your obligations under the UK anti-money laundering and counter-terrorist financing regime.
5 More information
5.1 Legal and other requirements
5.2 Further products and support
5.2.1 Practice Advice Line
The Law Society provides support for solicitors on a wide range of areas of practice. Practice Advice can be contacted on 020 7320 5675 from 09:00 to 17:00 on weekdays.
5.2.2 Law Society Consulting
If you require further support, Law Society Consulting can help. We offer expert and confidential support and guidance, including face-to-face consultancy on risk and compliance and finance and accounting. Please contact us on 020 7316 5655, or email email@example.com.
Find out more about our consultancy services
5.2.3 Law Society Practice notes
5.2.4 Law Society publications
5.2.5 Accountancy services
Armstrong Watson, Law Society endorsed accountancy firm for the whole of the North of England, has the experience to provide clear cut advice on any client money queries you may have. From completing vast numbers of SRA Accounts Rules reports and from presenting CPD accredited training on the Rules, they have the experience to resolve your issues.