Solicitors' Code of Conduct 2007

Rule 15 – Overseas practice

 

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Rule 15.11 was amended on 1 October 2010 by the Solicitors' Code of Conduct and SRA Recognised Bodies Regulations (Miscellaneous) Amendment Rules 2010 to reflect various legislative changes. View rule 15 with 1 October 2010 change highlighted

Rule 15 of the Code of Conduct was amended on 31 March 2009 as part of a general updating of the rules to introduce firm-based regulation and legal disciplinary practices as provided for in the Legal Services Act 2007. View rule 15 with 31 March 2009 changes highlighted

Introduction

Rule 15 is specific to overseas practice, which is defined in rule 24 (Interpretation) and means practice from an office outside England and Wales, except in the case of an REL, where it means practice from an office in Scotland or Northern Ireland.

Rule 15 applies the provisions of these rules to your overseas practice. Sometimes rule 15 disapplies one of these rules, or a provision in one of the rules, and in some cases substitutes alternative provisions.

Rule 15 also makes specific provisions in relation to accounts, deposit interest and professional indemnity, because the equivalent domestic rules do not apply to your overseas practice.

The purpose of applying different provisions to overseas practice is to ensure similar protection for clients but by way of rules which are more adaptable to conditions in other jurisdictions.

Rule

15.01 Core duties (rule 1) application, and conflicts of rules

The core duties
  • (1)
    • (a)

      Rule 1 (Core duties) applies to your overseas practice.

    • (b)

      In relation to activities outside England and Wales which fall outside the scope of practice as defined by rule 24, whether undertaken as a lawyer or in some other business or private capacity:

General application of these rules to overseas practice
  • (2)
    • (a)

      Subject to (3) and (4) below, these rules apply, in relation to practice from an office outside the UK:

      • (i)

        to a solicitor as an individual, whether or not the solicitor's firm or employer is subject to these rules;

      • (ii)

        to a solicitor-controlled recognised body (as defined in rule 24); and

      • (iii)

        to a lawyer of England and Wales other than a solicitor, and to a non-lawyer, in relation to practice as a manager of a solicitor-controlled recognised body,

      and notwithstanding the application of the rules to its solicitor managers and solicitor employees, a recognised body which is not a solicitor-controlled recognised body is not itself subject to these rules in relation to practice from such an office.

    • (b)

      Subject to (3) and (4) below, these rules apply, in relation to practice from an office in Scotland or Northern Ireland:

      • (i)

        to a solicitor or REL as an individual, whether or not the solicitor's or REL's firm or employer is subject to these rules;

      • (ii)

        to a solicitor-controlled recognised body;

      • (iii)

        to an REL-controlled recognised body (as defined in rule 24);

      • (iv)

        to a lawyer of England and Wales other than a solicitor, to a European lawyer registered with the Bar Standards Board and to a non-lawyer, in relation to practice as a manager of a solicitor-controlled recognised body or an REL-controlled recognised body; and

      • (v)

        a solicitor who was formerly an REL, when practising as a lawyer of an Establishment Directive profession,

      and notwithstanding the application of the rules to its solicitor and REL managers and its solicitor and REL employees, a recognised body which is not a solicitor-controlled recognised body or an REL-controlled recognised body is not itself subject to these rules in relation to practice from such an office.

Modification of these rules in relation to overseas practice
  • (3)

    If this rule states that a rule or a provision of these rules does not apply to your overseas practice, you may disregard that rule or provision in relation to your overseas practice, but you must comply with any alternative provision which is substituted by this rule.

  • (4)

    If compliance with any applicable provision of these rules would result in your breaching local law, you may disregard that provision to the extent necessary to comply with that local law.

15.02 Client relations (rule 2)

  • (1)

    Rule 2 (Client relations) does not apply to your overseas practice but you must comply with (2) to (4) below.

  • (2)
    • (a)

      You must pay to the client any commission received, unless:

      • (i)

        the client, having been told the amount of the commission (or an approximate amount if the precise amount is not known) has agreed that you or your firm may keep the commission; or

      • (ii)

        in all the circumstances it is not reasonable to pay the commission to the client.

    • (b)

      In deciding whether it is reasonable to pay a commission to a client you must have regard to all the circumstances, including the law governing the retainer and the prevailing custom of lawyers in the jurisdiction in which you are practising.

  • (3)

    If you are a sole practitioner, a partner in a partnership, or a recognised body to which this rule applies, you must not exclude or attempt to exclude by contract all liability to a client. However, you may limit your liability, provided that such limitation:

    • (a)

      is not below the minimum level of cover you would need in order to comply with 15.26 below;

    • (b)

      is brought to the client's attention; and

    • (c)

      is in writing.

  • (4)
    • (a)
      • (i)

        You must not enter into an arrangement to receive a contingency fee for work done in prosecuting or defending any contentious proceedings before a court of England and Wales, a British court martial or an arbitrator where the seat of the arbitration is in England and Wales, except as permitted by statute or the common law.

      • (ii)

        If you enter into a conditional fee agreement with a client in relation to such proceedings, you must explain, both at the outset and, where appropriate, as the matter progresses:

        • (A)

          the circumstances in which the client may be liable for your costs, and whether you will seek payment of these from the client, if entitled to do so; and

        • (B)

          if you intend to seek payment of any or all of your costs from the client, you must advise the client of their right to an assessment of those costs.

      • (b)

        You must not enter into an arrangement to receive a contingency fee for work done in prosecuting or defending any contentious proceedings before a court of an overseas jurisdiction or an arbitrator where the seat of the arbitration is overseas except to the extent that a lawyer of that jurisdiction would be permitted to do so.

15.03 Conflict of interests (rule 3)

Rule 3 (Conflict of interests) applies to your overseas practice, except that you do not have to comply with 3.07 to 3.22 (provisions relating to conveyancing of land) if the land in question is situated outside England and Wales.

15.04 Confidentiality (rule 4)

Rule 4 (Confidentiality and disclosure) applies to your overseas practice.

15.05 Business management (rule 5)

  • (1)

    Rule 5 (Business management in England and Wales) does not apply to your overseas practice but you must comply with (2) to (4) below.

  • (2)
    • You must not set up as a solicitor sole practitioner outside England and Wales, or as an REL sole practitioner in Scotland or Northern Ireland, unless you have been entitled to practise as a lawyer for a minimum of 36 months within the last 10 years.

  • (3)

    You must ensure that your firm has at least one manager who has been entitled to practise as a lawyer for a minimum of 36 months within the last 10 years, if you are:

    • (a)

      a solicitor manager of a firm which is not a recognised body, and solicitors control the firm, either directly as partners, members or owners, or indirectly by their ownership of bodies corporate which are partners, members or owners, or

    • (b)

      a solicitor or REL manager of a firm which is not a recognised body and which is practising from an office in Scotland or Northern Ireland, and solicitors and/or RELs control the firm, either directly as partners, members or owners, or indirectly by their ownership of bodies corporate which are partners, members or owners.

  • (4)

    If you are:

    • (a)

      a solicitor sole practitioner practising from an office outside England and Wales, or an REL sole practitioner practising from an office in Scotland or Northern Ireland;

    • (b)

      a solicitor or REL manager within (3)(a) or (b) above;

    • (c)

      in relation to an office outside the UK, a solicitor-controlled recognised body or a manager of a solicitor-controlled recognised body who is a lawyer of England and Wales or a non-lawyer; or

    • (d)

      in relation to an office in Scotland or Northern Ireland, a solicitor, an REL, a solicitor-controlled recognised body or a manager of a solicitor-controlled recognised body who is a lawyer of England and Wales or a non-lawyer, an REL-controlled recognised body or a manager of an REL-controlled recognised body who is a lawyer of England and Wales or a non-lawyer,

    you must ensure that the firm is managed and supervised with a view to ensuring that its affairs are properly conducted at all times; and that clients' matters receive proper attention, and are supervised so as to ensure that the quality of the work is checked with reasonable regularity by suitably experienced and competent persons within the firm.

15.06 Equality and diversity (rule 6)

Rule 6 (Equality and diversity) does not apply to your overseas practice, but rule 1 (Core duties) will always apply.

15.07 Publicity (rule 7)

  • (1)

    Rule 7 (Publicity) applies to your overseas practice, except as set out in (2) and (3) below.

  • (2)

    Rule 7 does not apply to the website, e-mails, text messages or similar electronic communications of any practice you conduct from an office in an EU state other than the UK.

  • (3)

    Rule 7.07 (Letterhead, website and e-mails) does not apply, but:

    • (a)

      if an REL is named on the letterhead (including a fax heading) of an office in Scotland or Northern Ireland, the letterhead must also identify:

      • (i)

        the European jurisdiction(s) – local or national as appropriate – under whose professional title the REL is practising;

      • (ii)

        the REL's professional title(s), expressed in an official language of the European state concerned; and

      • (iii)

        the fact that the REL is registered with the Solicitors Regulation Authority of England and Wales; and

    • (b)

      you must make clear on your firm's letterhead (including a fax heading) that it is the letterhead of a law firm, if you are:

      • (i)

        a solicitor sole practitioner practising from an office outside England and Wales, or an REL sole practitioner practising from an office in Scotland or Northern Ireland; or

      • (ii)

        a solicitor manager of a firm which is practising from an office outside England and Wales, and solicitors control the firm, either directly as partners, members or owners, or indirectly by their ownership of bodies corporate which are partners, members or owners; or

      • (iii)

        a solicitor or REL manager of a firm which is practising from an office in Scotland or Northern Ireland, and solicitors and/or RELs control the firm, either directly as partners, members or owners, or indirectly by their ownership of bodies corporate which are partners, members or owners.

15.08 Fee sharing (rule 8)

Rule 8 (Fee sharing) applies to your overseas practice.

15.09 Referrals of business (rule 9)

  • (1)

    Rule 9 (Referrals of business) does not apply to your overseas practice, but you must comply with (2) below.

  • (2)

    When you accept referrals of business from other persons and when you refer business to other persons, you must ensure that there is no breach of rule 1 (Core duties) or any other applicable provision of these rules.

15.10 Relations with third parties (rule 10)

15.11 Litigation and advocacy (rule 11)

Rule 11 (Litigation and advocacy) applies to your overseas practice in relation to litigation or advocacy conducted before a court, tribunal or inquiry in England and Wales or a British court martial. Rule 11 does not apply to your overseas practice in relation to litigation or advocacy conducted before a court or tribunal of another jurisdiction, but rule 1 (Core duties) will always apply.

15.12 Framework of practice (rule 12)

Rule 12 (Framework of practice) applies to your overseas practice.

15.13 In-house practice overseas (rule 13)

  • (1)

    Rule 13.04 (Pro bono work) applies to your overseas practice. The other provisions of rule 13 (In-house practice, etc.) do not apply to your overseas practice, but you must comply with (2) below.

  • (2)
    • (a)

      Subject to (b) below, you may act as an in-house lawyer, but only for:

      • (i)

        your employer;

      • (ii)

        a company or organisation controlled by your employer or in which your employer has a substantial measure of control;

      • (iii)

        a company in the same group as your employer;

      • (iv)

        a company which controls your employer; or

      • (v)

        an employee (including a director or a company secretary) of a company or organisation under (i) to (iv) above, provided that the matter relates to or arises out of the work of that company or organisation, does not relate to a claim arising as a result of a personal injury to the employee, and no charge is made for your work unless those costs are recoverable from another source.

    • (b)

      If you are a solicitor registered in another state under the Establishment Directive with the professional body for a local legal profession you may practise in-house to the extent that a member of that legal profession is permitted to do so.

15.14 Recognised Bodies (rule 14)

  • (1)

    Rule 14 (Recognised bodies) applies to a recognised body in relation to the recognised body's overseas practice.

  • (2)

    Rule 14 applies to your overseas practice as:

    • (a)

      a manager of a recognised body, if you are a lawyer of England and Wales or an individual non-lawyer;

    • (b)

      a member of, or the owner of a share in, a recognised body which is a company, if you are a solicitor or (in relation to practice from an office in Scotland or Northern Ireland) an REL,

    except that 14.02(2)(c), (3) and (4) apply only to the extent that a rule applies to the recognised body, manager or employee by virtue of this rule or rule 23.

  • (3)

    If you are a solicitor or an REL you are not required to comply with rule 14 in order to practise through a firm which has no office in England and Wales, but you must comply with 12.01(2) or 12.02(2).

15.15 Deposit interest

  • (1)

    You must comply with (2) below, if you are:

    • (a)

      a solicitor sole practitioner practising from an office outside England and Wales, or an REL sole practitioner practising from an office in Scotland or Northern Ireland;

    • (b)

      a solicitor-controlled recognised body or (in relation to practice from an office in Scotland or Northern Ireland) a solicitor-controlled recognised body or an REL-controlled recognised body;

    • (c)

      a solicitor manager of a firm which is practising from an office outside the UK, and solicitors control the firm, either directly as partners, members or owners, or indirectly by their ownership of bodies corporate which are partners, members or owners; or

    • (d)

      a solicitor or REL manager of a firm which is practising from an office in Scotland or Northern Ireland, and solicitors and/or RELs control the firm, either directly as partners, members or owners, or indirectly by their ownership of bodies corporate which are partners, members or owners.

  • (2)

    If interest ought, in fairness, to be earned for the client on client money held under (1) above, you must ensure that:

    • (a)

      the client money is dealt with so that proper interest is earned upon it, and that the interest is paid to the client;

    • (b)

      the client is paid a sum equivalent to the interest that would have been earned if the client money had earned proper interest; or

    • (c)

      any alternative written agreement with the client setting out arrangements regarding the payment of interest on that money is carried out.

  • (3)

    In deciding whether interest ought, in fairness, to be earned for a client on client money, you must have regard to all the circumstances, including:

    • (a)

      the amount of the money;

    • (b)

      the length of time for which you are likely to hold the money; and

    • (c)

      the law and prevailing custom of lawyers practising in the jurisdiction in which you are practising.

15.16 European cross-border practice (rule 16)

Rule 16 (European cross-border practice) applies to your overseas practice, to the extent that such practice is European cross-border practice as defined in 16.01(1).

15.17 Insolvency practice (rule 17)

Rule 17 (Insolvency practice) does not apply to your overseas practice except in relation to appointments appertaining to orders made in the courts of England and Wales.

15.18 Property selling (rule 18)

Rule 18 (Property selling) applies to your practice from offices in Scotland or Northern Ireland but not to your practice from offices outside the UK.

15.19 Financial services (rule 19)

  • (1)

    Rule 19 (Financial services) does not apply to your overseas practice except as provided in (2) below.

  • (2)

    Rule 19 applies to regulated activities you conduct:

    • (a)

      from an office in Scotland or Northern Ireland; or

    • (b)

      into the UK from an office outside the UK.

15.20 Rights and obligations of practice (rule 20)

Rule 20 (Rights and obligations of practice) applies to your overseas practice.

15.21 Separate businesses (rule 21)

  • (1)
    • (a)

      Rule 21 (Separate businesses) applies to you if you practise from an office in England and Wales and you have a separate business, wherever the separate business is situated.

    • (b)

      If you do not practise from an office in England and Wales but you practise from an office outside England and Wales and you have a separate business, rule 21 does not apply but you must comply with (2) below, wherever the separate business is situated.

  • (2)

    In relation to your separate business:

    • (a)

      you must do nothing in the course of practice, or in the course of making referrals to the business or accepting referrals from the business, which would contravene rule 1 (Core duties);

    • (b)

      you must not allow the separate business to be held out or described in such a way as to suggest that it is carrying on the practice of a lawyer regulated by the Solicitors Regulation Authority;

    • (c)

      you must ensure that all paperwork, documents, records or files relating to the separate business and its customers are kept separate from those of any firm or in-house practice, even where a customer of the separate business is also a client of the firm or in-house practice;

    • (d)

      you must not allow the client account of your firm or in-house practice to be used to hold money for the separate business, or for customers of the separate business in their capacity as such; and

    • (e)

      you must ensure that if you or your firm refer(s) a client to the separate business, the client is first informed of your interest in the separate business, that the separate business is not regulated by the Solicitors Regulation Authority of England and Wales, and that the statutory protections attaching to clients of a lawyer regulated by the Authority are not available to clients of the separate business.

15.22 Waivers (rule 22)

Rule 22 (Waivers) applies to your overseas practice.

15.23 Application of these rules (rule 23)

Rule 23 (Application of these rules), with the exception of 23.01(3), does not apply to your overseas practice.

15.24 Interpretation (rule 24)

Rule 24 (Interpretation) applies to your overseas practice.

15.25 Commencement and repeals (rule 25)

Rule 25 (Commencement and repeals) applies to your overseas practice.

15.26 Professional indemnity

  • (1)

    You must comply with (2) below in relation to your overseas practice, unless you are practising only in-house in compliance with 15.13.

  • (2)
    • (a)

      You must ensure that in relation to your overseas practice you are at all times covered by insurance or other indemnity against professional liabilities.

    • (b)

      The extent and amount of the insurance or other indemnity need not exceed the current requirements of the Solicitors' Indemnity Insurance Rules or any other current rules made under section 37 of the Solicitors Act 1974 but must be reasonable having regard to:

      • (i)

        the nature and extent of the risks you incur in your overseas practice;

      • (ii)

        the local conditions in the jurisdiction in which you are practising; and

      • (iii)

        the terms upon which insurance or other indemnity is available.

15.27 Accounts

Practice from an office outside the UK
  • (1)

    You must comply with (3) and (4) below in relation to practice from an office outside the UK if you are:

    • (a)

      a solicitor sole practitioner who has held or received client money;

    • (b)

      a solicitor-controlled recognised body which has held or received client money as a firm;

    • (c)

      a lawyer of England and Wales, or a non-lawyer, who is a manager of a solicitor-controlled recognised body which holds or receives client money;

    • (d)

      a solicitor manager of any other firm which is controlled by solicitors, either directly as partners, members or owners, or indirectly by their ownership of bodies corporate which are partners, members or owners, if the firm holds or receives client money;

    • (e)

      a solicitor who holds or receives client money as a named trustee;

    • (f)

      a lawyer of England and Wales, or a non-lawyer, who is a manager of a solicitor-controlled recognised body and who holds or receives client money as a named trustee.

Practice from an office in Scotland or Northern Ireland
  • (2)

    You must comply with (3) and (4) below in relation to practice from an office in Scotland or Northern Ireland if you are:

    • (a)

      a solicitor or REL sole practitioner who has held or received client money;

    • (b)

      a solicitor-controlled recognised body or an REL-controlled recognised body which has held or received client money as a firm;

    • (c)

      a lawyer of England and Wales, an REL, a European lawyer registered with the Bar Standards Board or a non-lawyer, who is a manager of a solicitor-controlled recognised body, or an REL-controlled recognised body, which holds or receives client money;

    • (d)

      a solicitor or REL manager of any other firm which is controlled by solicitors and/or RELs, either directly as partners, members or owners, or indirectly by their ownership of bodies corporate which are partners, members or owners, if the firm holds or receives client money;

    • (e)

      a solicitor or REL who holds or receives client money as a named trustee;

    • (f)

      a lawyer of England and Wales, a European lawyer registered with the Bar Standards Board or a non-lawyer, who is a manager of a solicitor-controlled recognised body or an REL-controlled recognised body and who holds or receives client money as a named trustee.

Dealings with client money
  • (3)

    In all dealings with client money, you must ensure that:

    • (a)

      it is kept in a client account separate from money which is not client money;

    • (b)

      on receipt, it is paid without delay into a client account and kept there, unless the client has expressly or by implication agreed that the money shall be dealt with otherwise or you pay it straight over to a third party in the execution of a trust under which it is held;

    • (c)

      it is not paid or withdrawn from a client account except:

      • (i)

        on the specific authority of the client;

      • (ii)

        where the payment or withdrawal is properly required:

        • (A)

          for a payment to or on behalf of the client;

        • (B)

          for or towards payment of a debt due to the firm from the client or in reimbursement of money expended by the firm on behalf of the client; or

        • (C)

          for or towards payment of costs due to the firm from the client, provided that a bill of costs or other written intimation of the amount of the costs incurred has been delivered to the client and it has thereby (or otherwise in writing) been made clear to the client that the money held will be applied in payment of the costs due; or

      • (iii)

        in proper execution of a trust under which it is held;

    • (d)

      accounts are kept at all times, whether by written, electronic, mechanical or other means, to:

      • (i)

        record all dealings with client money in any client account;

      • (ii)

        show all client money received, held or paid, distinct from any other money, and separately in respect of each client or trust; and

      • (iii)

        ensure that the firm is able at all times to account, without delay, to each and every client or trust for all money received, held or paid on behalf of that client or trust; and

    • (e)

      all accounts, books, ledgers and records kept in relation to the firm's client account(s) are preserved for at least six years from the date of the last entry therein.

Accountants' reports
  • (4)
    • (a)

      You must deliver an accountant's report in respect of any period during which you or your firm have held or received client money and you were subject to (3) above.

    • (b)

      The accountant's report must be signed by the reporting accountant, who must be an accountant qualified in England and Wales or in the overseas jurisdiction where your office is based, or by such other person as the Solicitors Regulation Authority may think fit. The Authority may for reasonable cause disqualify a person from signing accountants' reports.

    • (c)

      The accountant's report must be based on a sufficient examination of the relevant documents to give the reporting accountant a reasonable indication whether or not you have complied with (3) above during the period covered by the report, and must include the following:

      • (i)

        your name, practising address(es) and practising style and the name(s) of the firm's managers;

      • (ii)

        the name, address and qualification of the reporting accountant;

      • (iii)

        an indication of the nature and extent of the examination the reporting accountant has made of the relevant documents;

      • (iv)

        a statement of the total amount of money held at banks or similar institutions on behalf of clients and trusts, and of the total liabilities to clients and trusts, on any date selected by the reporting accountant (including the last day), falling within the period under review; and an explanation of any difference between the total amount of money held for clients and trusts and the total liabilities to clients and trusts;

      • (v)

        if the reporting accountant is satisfied that (so far as may be ascertained from the examination) you have complied with (3) above during the period covered by the report, except for trivial breaches, or situations where you have been bound by a local rule not to comply, a statement to that effect; and

      • (vi)

        if the reporting accountant is not sufficiently satisfied to give a statement under (v) above, details of any matters in respect of which it appears to the reporting accountant that you have not complied with (3) above.

Guidance to rule 15 – Overseas practice

How these rules apply to overseas practice

  • 1.

    These rules apply, in different ways, to the following in respect of their overseas practice:

    • (a)

      solicitors;

    • (b)

      RELs;

    • (c)

      recognised bodies;

    • (d)

      non-lawyers who are managers of recognised bodies; and

    • (e)

      other lawyers of England and Wales and European lawyers registered with the Bar Standards Board, who are managers of recognised bodies.

  • 2.

    Because of the lighter touch regulation in respect of overseas practice, the rules regulate, in essence, the practice of individual solicitors and RELs in respect of their overseas practice (outside England and Wales for solicitors, and in Scotland and Northern Ireland for RELs), and the practice of recognised bodies. They also regulate individual non-solicitor lawyer and non-lawyer managers of recognised bodies. In some situations, the rules apply only to certain types of recognised body or solicitors involved in certain types of practice.

  • 3.

    The situation, in more detail, is as follows:

    • (a)

      A solicitor, as an individual, is subject to these rules in relation to practice from an office outside England and Wales, whether or not the solicitor's firm or employer is subject to the rules.

    • (b)

      An REL, as an individual, is subject to these rules in relation to practice from an office in Scotland or Northern Ireland (but not in relation to practice from an office outside the UK) whether or not the REL's firm or employer is subject to the rules.

    • (c)

      A "solicitor-controlled recognised body" (in which English lawyers form the dominant, or equal largest, group of lawyers – see rule 24) is subject to the rules in relation to practice from an office outside England and Wales;

    • (d)

      An "REL-controlled recognised body" (in which RELs and English lawyers together form the dominant, or equal largest, group of lawyers – see rule 24) is subject to the rules in relation to practice from an office in Scotland or Northern Ireland;

    • (e)

      A lawyer of England and Wales other than a solicitor is subject to the rules in relation to practice as a manager of a "solicitor-controlled recognised body" from an office outside England and Wales;

    • (f)

      A lawyer of England and Wales other than a solicitor is subject to the rules in relation to practice as a manager of an "REL-controlled recognised body" from an office in Scotland or Northern Ireland;

    • (g)

      A European lawyer registered with the Bar Standards Board is subject to the rules in relation to practice as a manager of a "solicitor-controlled recognised body" or an "REL-controlled recognised body" from an office in Scotland or Northern Ireland;

    • (h)

      A non-lawyer is subject to the rules in relation to practice as a manager of a "solicitor-controlled recognised body" from an office outside England and Wales;

    • (i)

      A non-lawyer is subject to the rules in relation to practice as a manager of an "REL-controlled recognised body" from an office in Scotland or Northern Ireland.

  • 4.

    A recognised body which is not a "solicitor-controlled recognised body" or an "REL-controlled recognised body" will not itself have to comply with the rules. However, individual solicitors who are managers or employees will still be subject to the rules (and so will individual RELs in Scotland or Northern Ireland).

  • 5.

    Non-lawyer employees of a recognised body or a recognised sole practitioner are not subject to the rules in respect of overseas practice.

  • 6.

    RFLs are not subject to the rules in respect of overseas practice.

Core duties – 15.01(1)

  • 7.

    Rule 1 (Core duties) applies to your overseas practice because these duties are fundamental to the legal profession. However, although lawyers' professional cultures are usually similar, legal and professional requirements vary from jurisdiction to jurisdiction, and therefore the specific expectations of clients, local lawyers and the courts will be different. It may be necessary to clarify in advance what rules you are bound by in relation to your dealings with your client, the opposing party and the opposing party's lawyer, and in particular it may be necessary to clarify in advance the rules by which the opposing party's lawyer is bound.

    In some jurisdictions all communications between lawyers (written or by word of mouth) are automatically regarded as not to be produced in court and as not to be disclosed to others, even the lawyers' clients. In other jurisdictions such communications must be marked "confidential" before they are to be regarded in this way. On the other hand, in some jurisdictions (as will normally be the case for an English solicitor) the lawyer has to keep the client fully informed of all relevant communications from the lawyer acting for another party, and marking a letter "confidential" is no more than a reminder to the recipient that it is not to be disclosed to anyone but the other lawyer's client. In some jurisdictions, if a lawyer wishes to indicate that a letter is sent in an attempt to settle a dispute, and is not to be produced in court, the lawyer should mark the letter as "without prejudice".

    These national differences give rise to many misunderstandings, so you need to be careful in conducting cross-border correspondence. Rule 16.05 lays down specific requirements in relation to cross-border correspondence in Europe.

Conflicts of rules – 15.01(4)

  • 8.

    A conflict of rules can arise when you are required to comply with two sets of rules, but if you comply with one you will breach the other. This situation can arise when:

    • (a)

      you are practising in another jurisdiction and you are required by local or EU legislation to comply with the rules of the local legal profession – for instance, you are a solicitor registered in another jurisdiction under the Establishment Directive, and there is a conflict between one of the local rules and one of the solicitors' rules; or

    • (b)

      you are practising under dual title, e.g. as a solicitor and as a New York attorney, and a rule of the New York Bar conflicts with one of the solicitors' rules.

  • 9.

    If a local rule applies, you cannot choose to comply only with that rule, if you can also comply with the solicitors' rule. You must comply with both, which will mean meeting the stricter standard. However, 15.01(4) addresses the possibility of a conflict of rules by disapplying any provisions of the solicitors' rules to the extent (and no more) that it conflicts with an applicable local rule. In a situation where compliance with both rules might be possible but perhaps create a bizarre result, application can be made to the SRA for a waiver.

  • 10.

    Rule 15 modifies the provisions of other rules to allow for adaptation to the legal and professional framework of the jurisdiction in which you are practising. Sometimes more general provisions are substituted, in recognition of the fact that legal and market conditions may be very different in other jurisdictions.

  • 11.

    Where a rule relates closely to the legal or regulatory framework in England and Wales it may be disapplied by rule 15 without a substitute. If a rule applies in part – for example rule 3 (Conflict of interests) – or in full – for example rule 4 (Confidentiality and disclosure), you will need to refer to that rule and its guidance, as well as the provisions in rule 15 and this guidance. Even if rule 15 has completely replaced the provisions of another rule, the guidance on the corresponding rule may help you to understand how you are expected to act.

Client relations – 15.02

  • 12.

    This provision embodies three general principles.

    • (a)

      You must account to your client for any commission or secret profit, unless your client agrees otherwise in full knowledge of the amount or approximate amount involved. However, the requirement does not apply if, in all the circumstances, it is not reasonable to pay the commission to the client, taking account of the wide differences in conditions outside England and Wales. For example, the general custom, or the custom in legal practice in that jurisdiction might make it reasonable to deal with commissions in a different way.

    • (b)

      You must not attempt to exclude all liability to your client. For more information on limitation of liability, see the guidance to 2.07 where appropriate to your overseas practice.

    • (c)

      You must not enter into an unlawful contingency fee arrangement (see also the guidance to 2.04).

Equality and diversity – 15.06

  • 13.

    Because rule 6 (Equality and diversity) largely reflects UK statutes its detailed requirements are unsuitable for application outside the jurisdiction. However rule 1 (Core duties) applies to your overseas practice. Rule 1.01 (Justice and the rule of law) requires that "You must uphold the rule of law and the proper administration of justice". This would normally include compliance with the equality and diversity provisions of the jurisdiction(s) in which you practise.

Publicity – 15.07

  • 14.

    The requirements of rule 7 (Publicity) on publicity apply except as regards the e-mails, websites, etc. of an office in an EU state other than the UK, and the requirements of 7.07 (Letterhead, website and e-mails) which are replaced by 15.07(3) in relation to your overseas practice. When considering your publicity in relation to the guidance to rule 7 you should bear in mind that the law of the jurisdiction in which your overseas office is based will apply rather than the law of England and Wales; and that you may also be directly subject to local rules. You should therefore interpret the guidance to rule 7 in the light of the following:

    • (a)

      Publicity intended for a jurisdiction outside England and Wales must comply with:

      • (i)

        any applicable law or rules regarding lawyers' publicity in the jurisdiction in which your office is based;

      • (ii)

        the applicable provisions of rule 7 and 15.07; and

      • (iii)

        if the publicity is intended for a third jurisdiction, the rules in force in the "target" jurisdiction governing lawyers' publicity.

    • (b)

      Your publicity will not breach rule 7 through being incidentally received in a jurisdiction where it is not permitted (this is important in relation to a website, which can be accessed worldwide).

    • (c)

      Your website must comply with the E-Commerce Directive 2000/31/EC and, if you are established anywhere within the EU, with the relevant implementing legislation and the rules which apply to you by virtue of your establishment in an EU state other than the UK.

Fee sharing – 15.08

  • 15.

    In general, you must not share your professional fees except with other lawyers or law firms, or with non-lawyer managers or owners within your firm, or with your employee, or with a retired manager, member, owner or predecessor, or the dependants or personal representatives of a deceased manager, member, owner or predecessor. You may, however, share your professional fees with a non-lawyer business for the purpose of facilitating the introduction of capital and/or the provision of services to your firm, though not in relation to European cross-border practice – see rule 8 (Fee sharing) and rule 16 (European cross-border practice) and the attached guidance.

Undertakings – 15.10(2)

  • 16.

    Rule 15.10(2)(a)(i) (undertakings given in the course of practice) applies to undertakings given by:

    • (a)

      a solicitor, however practising;

    • (b)

      an REL, however practising, practising in Scotland or Northern Ireland;

    • (c)

      a "solicitor-controlled recognised body" practising outside the UK or any of its managers who is a lawyer of England and Wales or a non-lawyer;

    • (d)

      a "solicitor-controlled recognised body" or an "REL-controlled recognised body" practising in Scotland or Northern Ireland or any of its managers who is a lawyer of England and Wales, a European lawyer registered with the Bar Standards Board or a non-lawyer.

    This guidance is derived from rule 15.01(2) and the definition of "practice" in rule 24.

Framework of practice – 15.12

  • 17.

    An overseas firm – that is, a firm which has no office in England and Wales – may have lawyer principals, directors and owners who are not registered with the SRA but would need to be registered if the firm had an office in England and Wales. An overseas firm may also have non-lawyer managers and/or owners, provided there is majority control by lawyers and no breach of applicable local rules, or rules applying in an Establishment Directive state.

    A recognised body which has non-lawyer managers or owners cannot have an office in an Establishment Directive state other than the UK unless the rules for local lawyers would permit a local lawyer to practise through a business of that composition and structure.

In-house practice overseas – 15.13

  • 18.

    If you are employed at an office outside England and Wales (or in Scotland or Northern Ireland if you are an REL) 15.13 replaces rule 13 (In-house practice, etc) with more general requirements. If your employer is structured in a way which would allow a solicitor (or an REL) to be a manager or owner under 12.01(2) and 12.02(2) you will be practising in a firm as defined in rule 24 and will not be practising in-house.

  • 19.

    Note also that if you are registered with another regulatory body under the Establishment Directive rule 15.13(2)(b) allows you to practise in-house to the extent allowed to the profession governed by that regulatory body. This may be more or less restrictive than the requirements of these rules.

Deposit interest – 15.15

  • 20.

    In relation to overseas practice, you are not bound by the interest requirements in the Solicitors' Accounts Rules 1998, but by those in 15.15. You must ensure that a client gets proper interest – but this is subject to the proviso that the circumstances must be such that interest ought, in fairness, to be earned for the client. This might not be so if the interest is or would be negligible, or it is customary in that jurisdiction to deal with interest in a different way. It is also open to you to enter into a written agreement with the client regarding the payment of interest.

European cross-border practice – 15.16

Separate businesses – 15.21

  • 23.

    Rule 21 (Separate businesses) and 15.21 do not regulate your separate business, but regulate the interface between a firm or an in-house practice and a business which is not regulated by the SRA, wherever the separate business is situated or carries on business. Therefore, if you have a separate business but have no office in England and Wales only 15.21 will apply. However, if you also practise from an office in England and Wales, the more detailed provisions of rule 21 will apply.

  • 24.

    Rule 15.21 completely replaces the provisions of rule 21 (Separate businesses) if you practise wholly outside England and Wales. It applies a lighter regime than rule 21. The requirements of 15.21 are mainly designed to ensure that:

    • (a)

      your compliance with rule 1 (Core duties) as a person regulated by the SRA is not compromised by your involvement with the separate business;

    • (b)

      you keep the separate business truly separate from any firm or in-house practice; and

    • (c)

      you ensure that people who obtain services from the separate business know it is not carrying on the practice of a lawyer regulated by the SRA.

Professional indemnity – 15.26

  • 25.

    In relation to overseas practice, you are not bound by the Solicitors' Indemnity Insurance Rules but by 15.26, which requires that you must be covered by insurance if you are a manager or employee of a firm. The insurance must be reasonable, and it is not "reasonable" insurance to have none at all. The extent and amount of the insurance under 15.26 need not exceed the minimum requirements for practice from an office in England and Wales, but local law may apply more onerous requirements.

Accounts – 15.27

  • 26.

    In relation to overseas practice, you are not bound by the Solicitors' Accounts Rules 1998 but by 15.27, which imposes similar but more general provisions. If an applicable local rule conflicts with a provision of 15.27, you will still be expected to comply with any other provisions of 15.27 that do not conflict.

  • 27.

    Although the Solicitors' Accounts Rules 1998 do not apply, they may provide useful information about keeping accounts, the kind of checks an accountant might make, and the preparation of accountants' reports. Also, if your firm has offices in and outside England and Wales, a single accountant's report may be submitted covering your practice from offices both in, and outside, England and Wales – such a report must cover compliance both with the Solicitors' Accounts Rules 1998 and rule 15.27(3) of the Solicitors' Code of Conduct 2007.

  • 28.

    The accounting requirements and the obligation to deliver an accountant's report in 15.27 are designed to apply to you in relation to money held or received by your firm unless it is primarily the practice of lawyers of other jurisdictions. The fact that they do not apply in certain cases is not intended to allow a lower standard of care in the handling of client money – simply to prevent the Solicitors' Accounts Rules 1998 applying "by the back door" in a disproportionate or inappropriate way.


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