A Legal Practical Support Tool.
What is KnowHow?
Detailed Practice Notes written by our Professional Support Lawyers, guiding you through the key issues in each topic.
First interview - overview
The Solicitors Regulation Authority (SRA) has transformed its approach to regulation by adopting outcomes-focused regulation. The SRA Handbook, which contains the new SRA Code of Conduct 2011 (the 'Code'), came into force on 6 October 2011.
The SRA Handbook lists ten Principles which are mandatory. The Code of Conduct sets out how the Principles apply by reference to:
outcomes which describe what firms must achieve in order to comply with the SRA Principles
indicative behaviours, which specify the kind of behaviour that might establish compliance with, or contravention of, the SRA Principles
The Principles and outcomes are mandatory; the indicative behaviours are not.
Initial instructions and conflict of interest checks
Prior to meeting the client or taking instructions, sufficient information should be taken over the telephone or by email to enable a conflict of interest check to be carried out in compliance with the SRA Code of Conduct 2011. The check should be against the client, the other party and any relevant third parties. The full names of each person and any other name by which they have been known should be obtained.
It may be helpful for the client to provide in advance of the first meeting a written statement of the parties relationship with details of their financial circumstances where appropriate, perhaps using a questionnaire sent by email. Ask the client to bring any relevant documentation with them such as:
the marriage or registration certificate if civil partners
any pre or post-nuptial agreement
any living together agreement
any relevant deed of trust
Compliance with the requirements of the Proceeds of Crime Act 2002 is essential. Tell the client in advance of the first meeting of the documentation that you require. Law Society guidance may be found in the Family Law Protocol.
At the first interview consider the recommendations in the Law Society's Family Law Protocol. Ascertain whether reconciliation is a possibility and consider a referral to, for example, Relate. Consider whether it is a suitable case for alternative dispute resolution such as mediation or collaborative law.
Regard should also be had to the requirement introduced by the Family Procedure Rules 2010 for all potential applicants for a court order in relevant family proceedings, before making their application, to have followed the steps set out in the pre-application protocol for mediation information and assessment.
Are there any urgent issues that require immediate action such as:
an application for interim maintenance
a need to freeze or close accounts
an application to prevent dissipation of assets
the need to issue a petition immediately where there are jurisdictional issues
If there are jurisdictional issues it may be necessary to obtain advise from a foreign lawyer. This could give rise to increased costs.
Private funding and eligibility for public funding
Costs should be dealt with fully at the first meeting. Advice must be given as to the availability of public funding even if public funding work is not undertaken. Where public funding work is undertaken and eligibility ascertained, an explanation must be given of the statutory charge and payment of contributions.
For privately funded cases, full information about costs should be supplied. The SRA does not give a list of costs information that must be provided to clients. Instead, it describes outcomes that must be achieved in order to comply with the SRA Principles. Clients must be given the best possible information, both at the time of engagement and when appropriate as the matter progresses, about the likely overall cost of their matter. The information provided in relation to costs should be clear. It does not have to be in writing and should be in a form appropriate to the client's needs.
Consideration should be given, where appropriate, to an application for interim maintenance to include provision for legal costs or the possibility of entering into a Sears Tooth agreement.
Client care letters
There is no regulatory requirement to have either a client care letter or a terms of business document and there is very little information that the SRA specifically requires must be provided to the client in writing at the outset of their matter. However a client care letter will help ensure that the relevant SRA outcomes are achieved and compliance with other regulatory requirements .
Most of the information requirements can be found in Chapter 1 of the SRA Code of Conduct, which deals with client care.
Certain information does have to be provided in writing in relation to complaints and the ability to challenge the bill.
Use of checklists
The first appointment will largely involve information gathering. Consider the use of checklists to gather information. Form E/E1 may be a useful way of recording financial information.
Collation of documents
Where there is a financial claim upon divorce or dissolution of a civil partnership the Pre-application protocol demands that the parties give full and frank disclosure of their circumstances at an early stage. These claims centre on information gathering and the Family Law protocol encourages parties to use Form E/E1 for this purpose.
Documents received from clients should be recorded on the file and stored appropriately and, where, relevant returned to the client as soon as copies have been taken with a receipt for the client to acknowledge and return.
Financial advice and use of independent financial advisors
The rules relating to regulated activities must be complied with. Some firms will require authorisation directly by the Financial Services Authority (FSA) if they provide any form of mainstream investment, and others who restrict their work to non-mainstream work are regulated by the Solicitors' Regulation Authority (SRA). Reference should be made to the Law Society's Financial Services and Solicitors Information Pack.
Caution should be exercised when dealing with pensions or life policies; if unsure of the position, consider a referral to an independent financial advisor (IFA). When deciding upon an IFA, consider whether they would be suitable as an expert witness later in the proceedings.
Prepare a detailed contemporaneous note of the meeting setting out clearly your instructions, advice given and action taken or to be taken by whom and within what time frame; make clear the next steps. The language must be appropriate to the client. Copy this to the client with the retainer letter if not already sent to ensure that you have properly understood the clients' instructions and that the client understands what happens next.
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