Professional practice updates 2013

Professional practice updates January 2013

Proposed change to Rule B2.1.7: Conflict of Interest

Santander residential conveyancing panel

ECHR decision in Michaud v. Franc

Proposed change to Rule B2.1.7: Conflict of Interest

The Society is proposing to change the wording of Rule B2.1.7 so that the words "another party or prospective" occurring after the words "signature of" shall be deleted and the words "an unrepresented" substituted therefor.

The proposed new wording of Rule B2.1.7 is: "When you are acting on behalf of a party or prospective party to a transaction of any kind you shall not issue any deed, writ, missive or other document requiring the signature of an unrepresented party to that party without informing that party in writing that:

(a) such signature may have certain legal consequences, and

(b) he should seek independent legal advice before signature"

If you have any comments or queries, please email stellamccraw@lawscot.org.uk by 31 January 2013. These comments will then be considered by the Rules & Waivers Sub-Committee. The proposed change to Rule B2.1.7 will go before the Society's AGM on 22 March 2013.

Santander residential conveyancing panel

Santander have accepted the Society's representations on Santander's requirement to upload certified copies of Solicitor's practising certificates onto their online portal. Santander have been persuaded by the Society's move toward online PC renewal and the Society's plans for smart card PCs.

ECHR decision in Michaud v. Franc

The ECHR held unanimously on 6 December 2012, that the obligation on lawyers to report suspicions in the context of the fight against money laundering does not interfere disproportionately with professional privilege. The case was brought by a French member of the Paris Bar who argued that the obligation to report suspicions was incompatible with the principles of protection of lawyer-client relations and respect for professional confidentiality.

As this is a Chamber judgment, it is not final as any party may, in the three months after delivery, request that the case be referred to the Grand Chamber of the Court.

The original application was lodged in January 2011 and there has been considerable interest in the case. The CCBE, amongst others, were granted leave to submit written observations as third party interveners.

The case relates specifically to French lawyers, but it is relevant as it stressed the  importance of confidentiality and of legal professional privilege. At the same time, the court considered the obligation to report suspicions was necessary in pursuit of the legitimate aim of prevention of disorder or crime, since it was intended to combat money laundering and related criminal offences. The court gave careful consideration to the European money laundering directives, article 8 of the European Convention on Human Rights and the importance of the confidentiality of lawyer-client relations and of legal professional privilege.

The court held that the obligation to report, as implemented in France, did not interfere disproportionately with legal professional privilege since lawyers were not subject to the requirement when defending litigants and there was a filter put in place by the legislation ensuring that the lawyers submit their reports to the president of their Bar Association and not to the authorities.

Although the regimes are not identical, as the UK legislation goes further than the French legislation, the decision is of interest as it maintains the status quo and reinforces that lawyers are gatekeepers and must report in certain circumstances. However, subject to those obligations, confidentiality and legal professional privilege remain fundamental principles on which the administration of justice in a democratic society is based.

This summary of the case was submitted by - Alison Matthews, Compliance Consultant, Alison Matthews Consulting Ltd, 89 Oakfield Road, Selly Park, Birmingham.B29 7HL Tel: 0121 4728638