A summary of changes in regulation and practice agreed by the Law Society of Scotland in response to the restrictions caused by the coronavirus pandemic

The Law Society of Scotland’s teams of staff, committee members and volunteers have been putting in a huge amount of work to try and mitigate difficulties facing members due to the coronavirus crisis. Below are some of the key outcomes as at the end of March. The situation remains subject to change and readers should check the various headings on the Coronavirus Updates web page, accessed from the Society’s home page, for the up-to-date position.

The Society continues to welcome feedback from members as to issues they are facing: email comms@lawscot.org.uk

Property transactions

Read “Property market closing off despite advance notice extension".

Legal aid

Work continues between the Society and the Scottish Legal Aid Board, following an initial four point plan developed by SLAB to help address the profession’s concerns over continuing payments. This principally concerned making full use of existing interim payment schemes, allowing earlier and more regular claims, and SLAB seeking new powers to pay a proportion of interim claims without a detailed account. The Coronavirus (Scotland) Act 2020, sched 4, part 10 now makes provision.

On 27 March SLAB announced that from 1 April, interim payments can be submitted for advice and assistance (including ABWOR), fixed payments and for summary accounts (non-fixed payments including summary appeals).

The platform now exists for solicitors claim interim payments in respect of almost all types of account. SLAB hopes that further improvements to its systems will allow more frequent interim payments by May.

Details of these and other administrative changes can be found at www.slab.org.uk assurance schemes have been suspended for the time being, though reviews being worked on will be completed.

Attending court

Subject to communications from the court, solicitors should exercise their personal judgment on their own and others’ health in deciding whether to attend court, and their professional judgment about whether it is necessary to attend personally. If not, they should attempt to contact the court and their client, and keep a record of having done so. Consider working collegiately with other solicitors to reduce the numbers attending.

Instructing counsel

The Faculty of Advocates issued a Dean’s ruling on 24 March to extend rights of counsel to appear without the instructing solicitor (currently available in civil matters) to all criminal matters excluding trials. The Society was not consulted; it does not change the obligation of solicitors to instruct counsel or solicitor advocates. The Society reminds all members of their responsibility to liaise with both clients and counsel about any changes to their availability during this time.

Wills

Where instructions have already been taken, a will can be executed (a) by being sent to the client for signing and return, if a suitable witness is available; (b) failing which, it can be signed during a video call and witnessed by the solicitor or another person on the call who is not excluded from witnessing; (c) failing either of these, the client can sign and return the will and it can either be replaced at a suitable later occasion or, should the client die, the will can be “set up” in confirmation as having been signed by the client.

If instructions have to be taken, the solicitor must be satisfied through a video call that the client has capacity and is not being unduly influenced. New clients can be identified as noted under “Client ID” below.

Refer to the web page for the full guidance.

Powers of attorney

Since it is rarely appropriate to delay completion of a power of attorney, a six-stage execution procedure has been agreed with the Public Guardian under which the document is sent to the granter in advance; the granter shows the solicitor by video call that it remains unsigned; the client is interviewed to satisfy the statutory requirement; if the solicitor is satisfied that the document can properly be certified, they should then request the granter and any witness to sign, and show the solicitor the signed document; this should then be returned promptly to the solicitor. It is the principal deed that must be certified. “Caution should be exercised in proceeding in this way for new clients.”

Refer to the web page for the full guidance.

AML certificates

The AML certificate submission period has been extended to end on Friday 12 June 2020 instead of Friday 10 April.

Financial compliance

Accounts certificates still require to be submitted within the set timescales; in case of difficulty members should get in touch by email to Accountscertificate@lawscot.org.uk

The Society will not be carrying out any on-site inspections until further notice, but is taking steps to implement remote monitoring and will contact a sample of firms to take part in a remote exercise in due course.

If you have concerns about how to keep your cashroom running, you may want to consider outsourcing the work during the current situation. This will enable you to use the Government’s furlough scheme for your cashroom staff while maintaining a finance and cashiering function that could allow your business to operate. See For members/Business support.

CPD requirements

The Regulatory Committee has agreed that minimum CPD requirements for the 2019-20 practice year are suspended. The CPD hours should be viewed as indicative figures to be met if possible. All CPD training courses and events have been suspended until at least 17 June, but CPD remains available in various forms including private study and online, and members “should strive to undertake CPD wherever it is professionally necessary”.

Trainees who are due to qualify prior to 30 June are now required to complete 48 hours of TCPD, of which a minimum of 32 must be from an authorised provider and a maximum of 16 from a non-authorised provider. If present circumstances prevent them reaching 48 hours, they must undertake to complete these by the end of the practice year. The Ethics course must be completed in full.

Trainees

In addition to the CPD relaxation, the Society has confirmed that the requirement to work from home for an extended period should not impact a trainee’s ability to reach the standard of the qualifying solicitor and qualify in due course. Training managers and supervising solicitors should use their professional judgment to decide what works for them by way of supervision. Trainees cannot be made redundant except through the Society, but can move to part time status during their training contract (contact the Society if this is to be done), but may be able to take advantage of the UK Government’s furlough scheme: check the Government website for updated guidance about accessing the scheme.

Client ID

A procedure is suggested for identifying and verifying clients remotely, but any “red flags” must be addressed before proceeding and if a solicitor cannot complete adequate due diligence they should not proceed with the transaction.

Continue to submit applications for re-accreditation meantime.

Specialist accreditations

All current specialist accreditations due to expire on or before 30 June 2020 will be extended automatically by 12 weeks, without the need for a new application to be submitted. The Society is in contact with the Lord President’s Office to see if automatic extensions to family mediator accreditations can be permitted. Family mediators should to submit applications for re-accreditation meantime.

General business advice

The Society’s accounting partner Anderson Anderson & Brown has a helpful article here.

Information on Government support for business, and individuals, can be found in the feature "We can work it out?" in this issue and in the Tax briefing.

Wellbeing

We also have a separate article on wellbeing while working from home.

Elsewhere
  • The Lord President has issued guidance on compliance with family court orders during the COVID-19 outbreak, encouraging parties to maintain existing arrangements or agree alternatives. If time cannot be spent with a child, the courts will expect remote video contact, failing which by phone. Link from scotcourt.gov.uk/home, which gives access to all temporary arrangements announced by the courts.
  • Be scam aware! HMRC has warned of scammers claiming to be from HMRC offering financial support as a result of COVID-19. If you receive an email, text or call claiming to be from HMRC that asks you to click on a link or give information such as your name, credit card or bank details, it’s a scam.

 

 

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