Regulatory matters

David Pope highlights miscellaneous topical regulatory issues.

David Pope is CILEx Regulation’s entity authorisation and supervision manager.

Alternative dispute resolution: your obligations

Since the Alternative Dispute Resolution (ADR) Regulations came into force on 1 October 2015, we have had a number of enquiries regarding the obligations on members to comply with the legislation. Simply, any member operating their own legal practice (or, in fact, providing any service or product to consumers) needs to comply with the ADR Regulations. This requires you to include an additional statement within your client care and complaint handling information about ADR, whether or not you intend to use ADR as part of your complaints handling procedure.

For those businesses providing online services, there are additional requirements that you also need to be aware of which came into force on 15 February 2016. They relate to additional information that you must provide on your websites. The requirements stem from the EU Regulation on Consumer Online Dispute Resolution (ODR). An ODR platform will allow consumers, who have a complaint about a product or service bought online, to submit the complaint to a trader based in another EU member state.

These regulations may apply to your firm or entity, even if you would not ordinarily consider yourself to be an online trader. The then Department for Business, Innovation and Skills confirmed that this is likely to include legal practitioners who send and receive contracts, customer-care information, etc to clients via e-mail.

Guidance for CILEx members can be found on the CILEx Regulation website; in addition, more general guidance, including updates on online dispute resolution, can be found by searching for ‘alternative dispute resolution’ on the Business Companion website provided by the Chartered Trading Standards Institute.¹

First-tier complaints handling: changes to guidance

Following the Legal Services Board’s (LSB’s) publication of its updated requirements and guidance for regulators on complaints handling in July, we have made some amendments to our First tier complaints handling guidance.²  This now incorporates signposting to the Legal Ombudsman (LeO) and CILEx Regulation, with the appropriate timescales, within one document as well as setting out the requirements for ADR. A new table sets out the information our members will need to signpost clients to depending on whether they are employed in a regulated firm, working in their own firm or a CILEx Authorised Entity.

LeO has published its own signposting pack to help lawyers, which is available from its website.³  During 2015, LeO resolved 6,500 complaints. Residential conveyancing was the most complained about area of law, accounting for almost one-quarter (22%) of complaints resolved. Family law (14%), personal injury (12%), and wills and probate (13%) were the other main areas of complaint to the scheme.

At CILEx Regulation, we recommend using the information available on the LeO website to assist you in managing complaints.

LeO issued new guidance for first-time buyers in January, which outlined the responsibilities a lawyer has during the conveyancing process. On the move: a guide for first time buyers can be found on the LeO website.⁴  Making use of this guide should help inform clients and hopefully reduce any complaints.

Data protection: registering to protect your data

While it is often only the high-pro file cases relating to personal information that make the news, anyone who processes data relating to individuals is at risk if they do not look after it properly. So, the sole practitioner offering will writing and the multi-national firm will both have obligations to comply with the Data Protection Act 1998 because a failure to do so may constitute a criminal offence. Also, with financial penalties of up to £500,000, getting this right is very important.

You must not process personal data until you have provided the Information Commissioner with your name and address; a description of the personal data you will hold; the purposes for which the data is being processed; and a general description of the security measures you will take to protect personal data. This information is then entered into the Register of Data Controllers. The register, further information, form templates and guides are available at the Information Commissioner’s Office (ICO) website.⁵ 

The General Data Protection Regulation (GDP Regulation) was on track to come into force in the UK on May 25 2018. The Information Commissioner’s Office had started to produce a set of guidance on the GDP Regulation. However, the result of the 23 June 2016 referendum on membership of the EU now means that the government needs to consider the impact on the GDP Regulation. Updates will be provided on the ICO website.

Informing the public

As it is now over 18 months since the change of name to ‘CILEx Regulation’, we would expect all members to be referring correctly to ‘CILEx Regulation’, where appropriate, within all their business communications. This should include any websites or social media that you use, together with all entries on third party sites such as business directories.

Unfortunately, we also still continue to see designatory letters that are incorrect, for example, F.Inst.L.Ex or FILEx. The letters that you can use can be found on the CILEx website under ‘Getting Qualified: Membership grades and fees’.⁶ 

We request that you check your details on all your business communications, and on your firm’s website, to make sure that these are correct, so you show your current information as a member of CILEx.

Consumer protection

The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 SI No 3134 came into force on 13 June 2014.⁷  We continue to see instances where the normal cancellation period, which changed within the Act, is quoted incorrectly.

If you are running your own firm, then you should make sure that the correct documentation is supplied to your client and the up-todate cancellation period is quoted.

Risk management

The communication of information on risks is important in helping our members, those non-members who hold practice rights, and our entities to mitigate risks. The Entity Team has put together a suite of papers covering some of the main risks that you will see on a day-to-day basis in running your firm. They highlight the benefits of putting in place policies and procedures to address these risks, and where to find additional support and help. They can be found on the CILEx Regulation website under ‘Risk Management’.⁸

 Immigration advice and OISC regulation

The Office of the Immigration Services Commissioner (OISC) has recently provided clarification on the position of solicitors providing immigration advice in Law Centres® and other not for profit organisations. Section 84(2) of the Immigration and Asylum Act 1999 allows persons to provide immigration advice and services if they are authorised to practise by a designated qualifying regulator.

Barristers, solicitors and Chartered Legal Executives working in Law Centres are regulated by their respective regulatory bodies, so they do not need OISC regulation. However, there are requirements for Law Centres and not for profit organisations to be regulated. This is the case even where all advisers are solicitors, barristers or Chartered Legal Executives. If a member is uncertain about their current situation, they should seek guidance from the OISC.

Keeping informed

To connect more with our regulatory community, we launched a new LinkedIn group in May 2015. We are delighted that our group has attracted over 5,500 followers, who regularly receive posts from the CILEx Regulation team. So, why not connect with us and follow our posts?⁹