Are you committing a criminal offence?

Hopefully, we are all confident that our firms are compliant with UK laws and regulations. We have anti-money laundering procedures in place and are well on the way to understanding outcomes-focused regulation. The Law Society recently issued a practice note to inform us of the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 which came into force, rather appropriately, on Friday 13 June.

The regulations are not new but are a consolidation of previous rules, though I suspect the contents will be news to many. They are difficult to unravel and apply to some areas of solicitors’ practice, yet the consequences of making mistakes could be severe.

I have looked at the regulations from the perspective of a criminal solicitor attending a client under arrest. Under the regulations, we have to work out whether an agreement with a client is an ‘on-premises’, ‘off-premises’ or unlikely ‘distance’ contract.

Most of our agreements will be on-premises as we usually meet clients in our offices. If I meet my client at the police station, however, it will be an
off-premises contract.

The key issue that flows from this is that the client is entitled to a 14-day cooling-off period. If you don’t inform the client of this, not only will the contract be unenforceable but you could be committing a criminal offence.

Individual solicitors could be criminally liable as well as corporate bodies and their conniving or neglectful officers. Defences are available but it is the defendant’s responsibility to prove that someone else was at fault, or that they took all reasonable precautions and all due diligence exercised to avoid committing the offence. The defences are not available without leave of the court, or without first having provided details of the real culprit to
the prosecutor.

The regulations also state that no work should be carried out during that period unless the client provides their express written consent on a ‘durable medium’ – even in urgent situations.

In order to ensure our right to be paid for emergency work, we must provide clients with information about their right to cancel, potential costs, and ask them to sign a document confirming that they wish us to act during the cooling off period.

It is notable that the section dealing with work carried out during the cancellation period refers to the supply of ‘water, gas, electricity or district heating’. These regulations make complete sense in that context, but they are confusing when dealing with a client in custody, who may be struggling to understand what is going on, and wants you to get them out. But without going through the required steps and obtaining a client’s signature, we may go unpaid for our time at the police station or, indeed, at court the next day when we do secure their release. Failure to deal with the right to a cancellation period at all and you might find yourself in need of advice. SJ

Helen McDowell is the managing partner at Peters & Peters