Law Commission consultation on wills a welcome step towards modernisation

A public consultation by the Law Commission is a welcome step towards updating our will-making laws to keep them fit for purpose in the 21st century, the Law Society of England and Wales said today.

The Law Commission consultation paper seeks feedback from the public on a range of issues around how wills are made and how the law protects will-makers from fraud.

“Making arrangements for after we pass away is something we all have to do, and something solicitors assist their clients with every day,” said Law Society president Joe Egan.

“While the basics of how we make wills have stood the test of time, other aspects are in urgent need of updating to reflect modern life, and this will be a welcome opportunity for solicitors to help shape a new, fit for purpose wills law.

“Our Wills and Equity expert committee have been working closely with the Law Commission throughout this project, and will continue to do so through the consultation process.”

Key issues raised in the consultation paper the Law Society will be focusing on include:
· Giving the court greater flexibility to uphold wills that do not meet legal requirements
· Using the Mental Capacity Act test to establish capacity to write a will
· Introducing a statutory presumption of capacity to write a will
· Reducing the age at which someone can make a will from 18 to 16
· The possibility of online or electronic will writing in the future.

“Some of the proposals, such as allowing the court more flexibility when there are harmless errors in a will but the deceased person’s wishes are clear, show immediate promise and are likely to get a positive response from solicitors,” said Joe Egan.

“Others, such as enabling wills to be made electronically in the future, raise important but challenging questions, especially on how safe electronic wills would be from fraud or undue influence against vulnerable people. We will need to examine these issues carefully to help the Law Commission avoid unintended consequences such changes might create.

“We congratulate the Law Commission on tackling this important law reform task and thank them for the open and constructive way they have been working with our experts throughout this project. We look forward to working with them as it continues.”
13 July 2017

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Positive elements to Queen’s Speech but whiplash plan brings sting in the tail

The Queen’s Speech for the 2017 Parliament has set out a comprehensive agenda with much that will be received positively by the solicitor profession, the Law Society of England and Wales said today.

Prominent in the government’s agenda is a package of measures to make the legal changes needed to facilitate Brexit.

“Unravelling and redefining ties and laws made over the past 40 years, while providing as much certainty to individuals and businesses as is possible is a task of real complexity, ” said Robert Bourns.

“The government’s focus on providing this certainty is welcomed, and we hope the series of bills announced today will allow Parliament to work through these issues carefully, and give them the scrutiny they deserve.

“We will continue to offer the government the expertise and insights of the solicitor profession, and encourage it to draw on that to create a new relationship with the European Union that preserves and enhances our economy, our jobs, and the rights we all enjoy.”

The prominence given to a renewed focus on protecting the rights of the most vulnerable was also warmly welcomed.

“Our laws must be accessible to the most vulnerable in our society, and it was pleasing to see that the government will give this attention in the coming parliamentary session,” said Robert Bourns.

“A significant focus on combating modern slavery, both at home and abroad; law changes to protect victims of domestic violence; and updating our employment law to reflect modern working practices are all important steps which can help those who need it most.

“The UK is a world leader in promoting human rights, and the government’s commitment actively to enhance this commitment and ensure our rights are there for all of us is to be applauded and is important to the reputation of the UK.”

Government plans to continue with reforms to modernise the court system and reduce personal injury claims met with a more mixed response.

“Continued progress towards the careful modernisation of our courts system is to be welcomed, although care will need to be taken to ensure that justice is not diluted as it is modernised,” said Robert Bourns.

“However, we are very disappointed that the government has decided to revive its misguided whiplash reforms.

“It will be a clear injustice if the government persists with denying essential legal advice to those injured through no fault of their own – if government is truly committed to targeting fraudulent claims, it should do just that.”

Robert Bourns concluded: “The Law Society looks forward to working with the government to represent the views and offer the expertise of the solicitor profession as it advance an ambitious agenda for the next two years.”

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Consumer protections swept away by regulator

News that the Solicitors Regulation Authority (SRA) is set to push ahead with changes to the rules governing solicitors was today greeted with dismay by the Law Society of England and Wales.

“The SRA’s role is to regulate solicitors to ensure consumers are protected – yet here it is opening the door for some solicitors to work in unregulated entities, sweeping away long standing rules referencing conflicts of interest, proper professional indemnity insurance and access to the compensation fund (underwritten by the profession) so if something does go wrong consumers could struggle to recover any losses,” said Law Society president Robert Bourns.

A 2016 survey of consumers conducted by Ipsos Mori showed that 86% felt solicitors’ businesses should have professional indemnity insurance.

“If solicitors are allowed to work in unregulated entities the protections that attach to the communications between solicitors and clients (and vice versa) may not apply. Clients seek advice about deeply private and often sensitive issues – they must be able to rely on the exchanges with their solicitor being covered by legal professional privilege as they currently are for solicitors in regulated entities.”

Responding to a 2016 Law Society survey, a substantial number of solicitors expressed real concern with many of the proposed changes to the handbook including 82% saying encouraging solicitors to work in unregulated businesses would damage the solicitor brand – a brand that the Competition and Markets Authority (CMA) identified as synonymous with quality advice.

Robert Bourns added: “The purpose of the SRA is to regulate the solicitor profession ensuring the protection of consumers – that it is pursuing a deregulatory agenda to the detriment of both members of the public and a profession regarded the world over as the gold standard is frankly baffling.

“At the moment a member of the public can walk into a solicitor’s office on any high street in England and Wales and be assured they are fully protected in the unlikely situation something goes wrong – now, if the SRA proceeds, we will have the current clarity blurred so consumers cannot easily tell what kind of outfit their solicitor works for.

“For the SRA to claim that these consumer protection risks can be managed by a ‘consumer information strategy’ to be developed in the future, is simply not realistic. They acknowledge the harm of consumer risk and confusion (also recognised by consumer groups and the CMA), but carry on regardless.”

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Accelerated asylum appeals put speed before justice

Accelerating the appeals process for people seeking asylum who have been detained would risk undermining justice and fairness, the Law Society of England and Wales said today, urging the Tribunal Procedure Committee to reject plans put forward by ministers.

Law Society vice president Joe Egan said: “Rushing detained asylum and immigration appeals risks unjust decisions and unlawful removals.

“In an area of law where the stakes for appellants are so high, we must maintain an impeccable standard of fairness.

“There must be effective judicial oversight of asylum and immigration appeals. Quicker, fairer hearings can be achieved under the existing rules with a better resourced appeal system.”

Home Office data has revealed more than 40% of asylum and immigration appeals are successful, underlining the importance of an accessible and fair appeals system.

Joe Egan said: “It is for the courts to decide the merits of each case. An administrative decision by the Executive to fast track an appeal would pre-empt the outcome, remove vital judicial oversight, disenfranchise the appellant and inevitably prejudice the case.”

The proposed scheme, which extends from the 12 days ruled unfair in 2015 to 25 days, imposes a severely restricted timetable for the determination of often complex asylum appeals. As appellants would be detained during this time, they would have limited access to their solicitor, further undermining their ability to assert their rights.

Nor do the government proposals adequately show how vulnerable people will be protected or screened out of the fast track scheme. For example, it would be extremely damaging to detain someone with mental health issues, who has been tortured or raped.

Joe Egan added: “There is a real risk that speed would prejudice the integrity of the appeal process for people who are often extremely vulnerable and anxious, who may have suffered a terrifying ordeal.”
18 April 2017

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Caution at competitive tendering for housing duty contracts

Clarity over new rules for solicitors’ firms wishing to tender for 2018 civil legal aid contracts were today welcomed by the Law Society of England and Wales.

However, the Society has considerable concerns about a proposal for price-competitive tendering for Housing Possession Court Duty Schemes which will be consulted on until 17 March 2017.

Duty scheme contracts are issued on the basis that there is only one for each court – the process therefore has to be competitive – but in a new departure the Legal Aid Agency (LAA) has said this time it has to be price competitive.

“We see considerable problems in price-competitive tendering – the cheapest offering will not necessarily be the best. This could result in a race to the bottom which may impact on professional standards,” said president of the Law Society of England and Wales Robert Bourns.

“A price war will not improve services and could negatively impact on clients.”

“The LAA needs to set out what steps it will take to mitigate this risk. It should also keep in mind that cuts in payment only compound years of cuts for the solicitors that look after the interests of our most vulnerable citizens. It may mean that contracts which are already at best only marginally economically viable for firms become unsustainable.”

Though the Law Society has concerns about the price-competitive tendering element, there were elements to the proposals which it welcomed.

“In the bulk of cases contracts will be awarded to those firms that match the LAA’s stipulated standards and this is something we can welcome as it helps underpin quality.”

The LAA published its headline intentions for the 2018 civil contracts on Friday – for most categories there is no significant change from the previous tender process or the contract terms.

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Whiplash plans under fire from Law Society

Plans to up the small claims limit for personal injury to £5000 today came under fire from the Law Society of England and Wales.

“These proposals will completely undermine the right of ordinary people to receive full and proper compensation from those that have injured them – often seriously – through negligence,” Law Society president Robert Bourns said.

“This five-fold increase will stop people getting the legal advice they need in order to bring claims for the compensation they are entitled to in law.

‘People may be tempted to try to bring claims themselves without expert advice. This will clog up the court system creating a David and Goliath situation where people recovering from their injuries act as litigants in person without legal advice – those defending claims can often afford to pay for legal advice. This undermines ordinary people’s ability to access justice – especially if defendants refuse to accept liability forcing people to fight through the courts without legal help.

“Spinning this proposal as an attack on the ‘compensation culture’ and claiming it will reduce premiums is misleading. If you are injured through no fault of your own you should be allowed to claim for that.”

Robert Bourns added: “We do however support the proposal to prevent claims being settled without medical evidence. This should curtail the practice of some insurers trying to persuade people to settle for less than their claims are worth without evidence of the actual value.”

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Independent judiciary underpins our democracy and rule of law

An independent judiciary is fundamental to Britain’s democracy and to the rule of law and it underpins the UK’s reputation for balance and stability, the Law Society of England and Wales said as it welcomed today’s comments from Attorney General Jeremy Wright that were supportive of the High Court judges in last Thursday’s Article 50 case.

“Attacks on the judges simply because they were doing their jobs does our country no credit and government ministers must be unequivocal in their support for the rule of law even if they disagree with the judgment,” Law Society President Robert Bourns said.

“It is part of the role of lawyers to defend unpopular causes and there has been an increasing narrative in recent months that seeks to conflate the jobs solicitors and barristers do with the causes they represent as part of our system of justice. The extension of this to disparaging and criticising judges is dangerous and damaging.

“This very narrative is undermining to a system which has evolved over many centuries and which helps ensure that power is not abused and that – where there are legal matters to be decided – citizens have recourse through the courts.

“The vote on 23 June threw up an unprecedented set of challenges – but it decided just one thing: that Britain would leave the EU. We are fortunate in this country to have a set of institutions which provide clarity and resolution of issues triggered by that referendum.

“This includes next month’s Supreme Court hearing on Article 50 which we hope will be greeted – whichever way it goes – with a much less inflammatory reaction.”

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Report shows risks to independence of UK legal profession

 

A strong and vibrant legal profession is vital to ensuring that the rule of law is upheld, the Law Society said today welcoming the report of the International Bar Association (IBA) Presidential Taskforce on the independence of the legal profession.

Law Society chief executive Catherine Dixon said, “A strong and vibrant legal profession is vital to ensuring that everyone has access to justice and that the rule of law is upheld. This important report identifies areas where legal independence is under attack across the world including in the UK.

“We must never take the independence of the legal profession for granted. In the UK legal professional privilege (LPP) is under attack. LPP is a cornerstone of our justice system in that it ensures a person can speak confidentially to their solicitor without the risk that confidentiality will be breached by a third party, including the State.

“The report also identifies a risk to the independence of the legal profession in the UK because the oversight regulator, the Legal Services Board (LSB), is a body of Government.  It is notable that in a recent LSB report outlining its vision of regulation this government body failed to recognise the importance of an independent legal profession, which if lost would undermine the very fabric of our society and our ability to maintain the rule of law.

“It is imperative in this context, and in light of the many threats to legal independence around the world, that the legal profession stands together. We cannot be complacent, and we must continue to fight to ensure the survival of strong, vibrant independent legal professions around the world.”

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Rights of vulnerable people in deprivation of liberty hearings

People unable to make decisions for themselves because they lack mental capacity must always have access to independent representation in court hearings about their personal liberty, the Court of Protection said today.

The Law Society of England and Wales intervened in the case of JM & others to help the Court of Protection in its efforts to find a solution to the lack of appropriate representatives available for vulnerable people in cases where decisions are made about their freedom.

Law Society of England and Wales president Jonathan Smithers said:

“Anyone living with dementia, Alzheimer’s or a learning disability must receive treatment that is in their best interests, whether they are in hospital, a care home or a family home. These cases can be about enforced medical treatment, restraint, limits on people’s movements or on visitors. Many families will understand the challenges of making decisions for a relative who is unable to give their consent.

“When a vulnerable person doesn’t have friends or family to represent them during a decision to restrict their liberty, it is vital that person is able to participate in the decision-making process. If this is not possible then they must have a legal representative to protect their rights as well as their health and general welfare.”

In an unprecedented judgment, Mr Justice Charles, vice president of the Court of Protection, placed responsibility on the government to ensure that each vulnerable individual whose liberty is considered in the Court of Protection has appropriate representation when their case is considered. The judgment was achieved by way of four test cases (JM & others) where no appropriate representative could be found for reasons including resource constraints.

Mr Justice Charles also ruled that all future similar cases will be adjourned until a workable solution is found. This means that large numbers of such cases, concerning what are often crucial health and welfare decisions, will now be pending indefinitely.

Law Society president Jonathan Smithers added: “The Law Society gave evidence in this and other related cases because solicitors told us that vulnerable people’s rights are at risk. The Law Society has a role set out in statute which enables us to represent the public interest in cases like JM, where people’s rights are threatened.

“We recognise that the Court of Protection, local authority and government budgets are stretched. But those who are least able to defend themselves should not be sacrificed on the altar of austerity.

“Today’s judgment makes the government responsible for making sure vulnerable people are properly represented when important decisions are made about their care. We look forward to working with the Ministry of Justice to find a solution that is in the best interests of vulnerable people who come to the Court of Protection.”

10 March 2016

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Law Society Financial Benchmarking Survey shows majority of law firms weathered a challenging 12 months

The income of firms polled in the 2016 Law Society Law Management Section (LMS) Financial Benchmarking Survey has increased for a sixth consecutive year, with a median rise last year of 5.4 per cent, despite a challenging year.

The 2016 survey findings are generally positive, with net profit per partner rising for the fifth consecutive year and now standing at £146,600 per partner.

Law Society president Jonathan Smithers commented: “The Law Society welcomes the news of a continuing increase in income for the majority of firms surveyed, particularly after the challenges of the last decade. Our Future of Legal Services report brings together new and existing evidence to identify the key drivers for change over the next five years, together with the opportunities and potential threats. Having good management helps firms financially, which will be important for them to remain sustainable in the face of increased competition.”

One area of concern, however, is that a quarter of participating firms’ partners took more money out of their firms than they made in profits, up from a fifth last year.  For law firms to remain financially sound, it is important that a considerable amount is retained to fund working capital.

LMS chair Robert Banner warned: “The firms that take part in the Law Society Law Management Section Financial Benchmarking Survey usually have a particular interest in high performance and management. If a quarter of these firms are over-drawing then the proportion over-drawing for the rest of the profession is likely to be higher. The resources we offer members support firms to improve management processes across the board, including on this vital issue.”

The Financial Benchmarking Survey also indicates:

  • Increased fee income across most work types and most regions;
  • A rise in the breakeven point for a fee earner, up from £102,000 last year to £109,000 this year, mainly due to increases in fee earner costs and non-salary overheads;
  • That firms have a reasonably good handle on lock up (work in progress and debtors).

Paul McCluskey, Head of Professional Practices at Lloyds Bank Commercial Banking, which sponsors the survey, commented: “The last 12 months continued to offer challenges for many law firms and although the majority of results are encouraging, a key priority for all firms in 2016 will be to effectively manage their cash flow.”

Jon Cartwright of Hazlewoods, which undertakes the survey on behalf of the Law Society Law Management Section added, “There is no doubt that most mainstream legal practices are in good shape financially, and more confident as a result.  Medium term strategy planning is now firmly back on the agenda, although clearly some areas such as personal injury and criminal continue to be tricky.”

The 2016 LMS Financial Benchmarking Survey was based on questionnaires completed by 200 firms from across England & Wales with a combined income of £1bn. The full survey results will be published in March 2016.  The full survey results will be published in March 2016 with participants receiving a free copy of the report including a firm specific findings booklet. Other firms can purchase the report.

Responding to the headline report findings Paul Bennett a professional practice and regulatory partner with Aaron & Partners LLP said firms with excess drawings should: “Take advice now and improve their firm’s drawings position in the short to medium term given that lenders and the SRA are often concerned by financial mismanagement of this type. If it is being addressed the pressures will be much less as we go through 2016/7.”

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