Liberty, compliance, and discipline in 2017
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Jean-Yves Gilg predicts a busy year ahead for private client practitioners and for law firms generally as they adapt to the new competence regime
Ongoing pressure on budgets and the reduction in cash in the system are likely to encourage litigation further in the private client sphere.
Just before Christmas, the Supreme Court heard the appeal in Ilott. The ruling, likely to be handed down in the first quarter of 2017, could extend the reach of the Inheritance Act. Melita Jackson’s estranged daughter, Heather Ilott, made a claim under the Act after being written out of her mother’s will. She won in the High Court and again in the Court of Appeal.
If the decision is upheld, it could widen the scope of the Act to claims based on needs rather than strict dependency. This would require clients to make their intentions much clearer and give explanations for their decisions if future claims are to be resisted.
Equally, at a time where households are under financial strain, this could also fuel further litigation, including putting original beneficiaries in a much stronger position to defend claims, especially if they too are competing for funds.
Only 116 Inheritance Act claims reached the High Court in 2015 – although this is nearly eight times as many as in 2005 – but many more are litigated in the county courts, for which we don’t have figures, and lawyers estimate that many more still settle out of court.
Making a will should also be an opportunity for clients to draw up powers of attorney, both for financial affairs and for health and welfare. Or at least to suggest to clients that they put down their wishes in writing should they lose capacity or should their capacity become impaired.
The case of Iraq war veteran Paul Briggs is the most recent illustration of the difficulties – practical, legal, and emotional – that arise. Briggs has been in a coma since a road traffic accident in July 2015. The policeman didn’t leave advance directions or powers of attorney, and his family have applied for clinically assisted nutrition and hydration (CANH) treatment to be withdrawn.
The case was heard in the Court of Protection in November. Even if the court finds against the family, its decision will provide further guidelines in the determination of patients’ best interests in such cases. The issue has preoccupied doctors, interest groups, and lawyers around Europe (a similar case is being heard in the French courts) and there could be momentum for the question to be considered in the European Court of Human Rights.
The related issue of deprivation of liberty safeguards is also likely to feature prominently on the agenda next year. Applications have been growing since the 2014 Cheshire West ruling and the Law Commission is working on reform proposals expected to be published in early spring.
Already, the Court of Protection has urged the government to ensure that individuals whose liberty may be restricted but who cannot be represented by family or friends must have access to a legal representative. These calls are likely to get louder.
Regulation and compliance
For solicitors and law firms generally, 2017 will also bring a new approach to the ongoing assessment of professional competence. The old CPD scheme fell away in October, replaced by a new continuing competence regime.
Gone are the prescriptive minimum hours. Instead, solicitors are expected to reflect on their needs, undertake the training or development which they believe is suitable, and reflect on whether the steps they have taken were appropriate before signing their competence statement every year.
Most lawyers told Solicitors Journal they were ready for the new regime, and the majority of firms are rolling the processes into their appraisal system. But with one-quarter of firms admitting to not being ready by the deadline, this could cause some uncertainty along the way as the system beds in.
With the question of competence for qualified solicitors now dealt with, one major reform project for the SRA is entry into the profession. Apprenticeship schemes have encouraged new applicants into the profession but they have not delivered the diversity objectives on the scale expected.
Plans for a solicitors qualifying examination (SQE) come with similar aspirations to encourage a wider variety of graduates to consider a career as a solicitor. This would split qualification in to two stages. Stage one would test candidates’ legal knowledge, while stage two would test their legal skills and would come after a period of work-based learning. The current consultation ends on 9 January 2017 and the SRA will likely make formal proposals before the summer.
At the other end of the professional spectrum, the issue most likely to focus attention is solicitors being struck off – not so much their numbers but the standard of proof. The Solicitors Regulation Authority has moved to applying a civil standard of proof in regulatory proceedings and appears convinced that it won’t be long before this is the standard applied in the Solicitors Disciplinary Tribunal too. The move has been resisted by the tribunal and both organisations are at loggerheads about whether this is likely to be the reality any time soon.
We would probably side with the SDT in thinking that the question is not so much about whether it’s the civil or criminal standard, but the robustness of the evidence needed to strike off. If that is the case, any adjustment to the standard of proof will be an organic, rather than statutory, development.
Jean-Yves Gilg is editor-in-chief of Solicitors Journal