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In-house Division

Practice Advice Service: Your in-house questions answered

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The Law Society’s Practice Advice Service provides the answers to a number of recent in-house-related queries posed to the team.

The Law Society’s Practice Advice Service is a free confidential telephone helpline for solicitors. Our team of solicitors answers questions on a wide variety of areas, including anti-money laundering, cybercrime and compliance. We also run a number of other helplines and for more information, please visit our Helplines page www.lawsociety.org.uk/support-services/help-for-solicitors.

The service operates Monday to Friday 9:00am-5:00pm and you can call us on 020 7320 5675.

Below is a selection of recent questions posed to our team which you might find useful.

I am concerned about sensitive information being sent by email. Is encryption of emails a legal requirement?

There is no legal requirement to encrypt data. However, failure to do so in appropriate circumstances may lead to breaches of data compliance and confidentiality pursuant to the Data Protection Act 1998 and outcome 7.5 of the SRA Code of Conduct 2011.

Encryption is one of the methods firms can adopt to secure data, particularly for email as personal data and sensitive information may be disclosed when an email has been sent to an incorrect recipient. Firms should have a policy governing the use of encryption particularly when sending emails which contain sensitive personal data or financial information. The Information Commissioner may take regulatory action in cases where a lack of encryption has led to a loss of data.

The Information Commissioner has published a guide on encryption which is available at:

www.ico.org.uk/for-organisations/guide-to-data-protection/encryption.

Further information on practical tips to protect your firm from scams is available at www.lawsociety.org.uk/Support-services/Practice-management/Scam-prevention/practical-tips-to-protect-your-firm-from-scams.

I am in-house counsel for a limited company litigant. Can I represent my employer in court?

Pursuant to rule 39.6 of the Civil Procedure Rules, a company may appear at a hearing through a duly authorised employee by permission of the court. Permission, which should be sought in advance of the hearing, will usually be granted unless there is some particular and sufficient reason why it should be withheld. The court will take into account whether the company is able to afford legal representation, the ability of the proposed representative to do the work and whether the representative is able to understand and discharge the obligations involved in the litigation.

You should note that permission will not normally be granted for jury trials and contempt proceedings. Also, the Admiralty and Commercial Courts Guide at paragraph M3.1 states that, because of their complexity, it is not appropriate in most Commercial Court cases for a company litigant to be represented by an employee.

For further information, please see Practice Direction PD 39A, paragraphs 5.2-5.6, which deal with the representation of companies by their employees.

Does the Law Society recommend any electronic verification companies for anti-money laundering (AML) purposes?

Yes, the Law Society has selected Experian and Accuity as its preferred suppliers for anti-money laundering e-verification, and has negotiated preferential rates for Law Society members. Firms are not required to use the Law Society’s preferred suppliers for e-verification as part of their AML compliance, nor are they precluded from using other reputable e-verifiers.

E-verification is a tool which may assist solicitors in meeting their client due diligence obligations under the Money Laundering Regulations 2007.

Firms that decide to use the Law Society’s preferred suppliers should  take steps to ensure that they understand the services being offered and how those services can be used to meet their anti-money laundering obligations with respect to their particular firm and client demographic.

When choosing an electronic verification service provider, you should look for a provider who:

  • has proof of registration with the Information Commissioner’s Office to store personal data
  • can link an applicant to both current and previous circumstances using a range of positive information sources
  • accesses negative information sources, such as databases on identity fraud and deceased persons
  • accesses a wide range of ‘alert’ data sources
  • has transparent processes enabling you to know what checks are carried out, the results of the checks, and how much certainty they give on the identity of the subject
  • allows you to capture and store the information used to verify an identity.

For further information, please see the Law Society’s Practice Note on Anti-money Laundering at www.lawsociety.org.uk/advice/practice-notes

Do sections 19 and 21A of the Terrorism Act 2000 override legal professional privilege?

No. Section 19(5) does not require disclosure by a `professional legal adviser` of either information which they obtain in ‘privileged circumstances’, or a belief or suspicion based on information which they obtain in ‘privileged circumstances’, in each case without an intention of furthering a criminal purpose.

Section 21A(5) provides that a person does not commit an offence under the section if they are a ‘professional legal adviser’ and the information or other matter came to them in `privileged circumstances`, again without an intention of furthering a criminal purpose.

For more information, please refer to chapter 7 of the Law Society’s practice note on anti-money laundering, which is available at www.lawsociety.org.uk/advice/practice-notes

This column is compiled by the Law Society’s Practice Advice Service, telephone 020 7320 5675. Comments relating to the questions should be sent to Mrs Anjali Mouelhi, Solicitor Technical Lead, The Law Society, 113 Chancery Lane, London, WC2A 1PL.

While every effort has been made to ensure the accuracy of the information in this article, it does not constitute legal advice and cannot be relied upon as such. The Law Society does not accept any responsibility for liabilities arising as a result of reliance upon the information given.

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About the In-house Division

Your In-house Division is dedicated to meeting the needs of in-house lawyers working in the corporate and public sectors, not-for-profit organisations and charities.

See our 2016/17 Engagement Programme.