Stephen Lawson considers the Law Society’s practice notes and their benefit for private client practitioners
When lecturing, I sometimes like to ask attendees how many practice notes are produced by the Law Society that are specifically relevant to private client practitioners (not including those relevant to multiple practice areas such as money laundering, business management or complaint handling). Few practitioners know how many there are – and even fewer admit to reading them. This article is therefore a celebration of practice notes. I am a passionate advocate for the free legal information that is voluntarily provided by leading experts within the field of private client work. I won’t name some of my legal heroes who have contributed to them, but they include leading practitioners, leading barristers and university lecturers – all providing wisdom and expertise, free of charge.
How can I read the practice notes?
It doesn’t cost anything to access the Law Society’s practice notes, but readers will need a ‘My LS’ account. It is worthwhile opening one of these, and I promise it doesn’t take long to do so. The best way to access a practice note is to type its name into a search engine, which should lead you to it. We’ve also included links to the relevant practice notes in the table in this article. On the website there is a ‘sign up’ page which requires you to confirm your name, email address and password, and there is a contact helpline in the event of difficulty. It is important to note that anyone can open an account – you don’t have to be a solicitor.
What are the practice notes?
It is not the place here to look in detail at each of the practice notes – their relevance speaks for themselves – but I will repeat my opening proposition that the contents of these practice notes represent best practice provided free to practitioners by leading specialists. So, let’s take a look at some of them.
This practice note deals with good practice in relation to Larke v Nugus enquiries. Many Larke v Nugus letters that I see still make reference to the long-replaced 2011 practice note. It has in fact been revised and updated on four occasions since then – which shows just how important it is to keep up to date and to check that the version you are reading is the correct one. The latest version of the disputed wills practice note takes account of the UK General Data Protection Regulations – which were not, of course, in force when Larke v Nugus was decided back in 1979.
One reason for reading any of the practice notes is to ensure that you and your firm comply with good practice, as recommended by the Law Society. To be blunt, it is self-interest. You don’t want to be in a position where something happens on a file and you (perhaps without knowing it) have acted contrary to good practice, since you are then ‘on the back foot’ if a complaint or claim is made against you. The file retention practice note says that firms must have a clear policy on the storage and destruction of wills and estate documentation – this is the case whether or not a firm has any particular legal accreditation.
I come across too many firms who destroy will preparation files after six years – but the Law Society quite rightly points out that challenges to wills often arise many years after the original advice was given. Some firms keep will files indefinitely while others have a policy of holding the original will for 50 years from the date of creation. While there is no absolute rule, solicitors should always err on the side of caution – even if a later will has been made. This point is particularly significant, of course, if a later will is subsequently found to be invalid (for example, due to lack of testamentary capacity), as a previous will can then become effective – again, this is often missed by practitioners.
This is another practice note that has recently been updated, with the latest version dated 4 July 2023. It suggests that solicitors should clarify who they would be acting for in a transaction and identify whether there is any conflict of interest. I have to reflect that, sadly, I still come across cases where a member of the public will ring a solicitor and say “mum wants to give me her house” – or words to that effect. Some solicitors will carry out that transaction without ever meeting or speaking to a client. The Law Society quite rightly says that a lawyer’s role is more than just drawing up and registering the necessary deeds and documents to affect the making of a gift. It states that a solicitor must ensure that a donor fully understands the nature, effect, benefits, risks and foreseeable consequences of making the gift, to enable them to make an informed decision about the proposed transaction – and to determine whether the donor has the capacity to make that decision. The practice note says that you “should spend time with the donor” to enable you to evaluate their instructions, assess whether they have the mental capacity to make a gift, clarify their domestic and financial circumstances and establish that they are the legal and beneficial owner of the assets they wish to dispose of. Again, I still see lawyers who think that this process is satisfied simply by sending a client care letter to the client containing all or some of this information.
This practice note was last revised in May 2023 – the Law Society Committees certainly work hard to keep practice notes up to date! Clients who are considering the appointment of a professional executor must be provided with sufficient information to make an informed decision about the appointment and its related costs. One of the issues that the Law Society says should be taken into account is that: “if the estate is small or straightforward it might not be appropriate to encourage the client to appoint a professional executor.” Sadly, I see some firms who always like to put themselves forward as an executor – whatever the size or complexity of the estate. Breaching this position could result in a complaint to the Solicitors Regulation Authority (SRA) that a solicitor did not act in the best interests of a client.
Another practice note revised within the last couple of months. Most solicitors realise that they will be putting themselves in a position of conflict if they prepare a will where a gift is left to them, their family or their colleagues – but many practitioners miss the wider effect of the regulatory issues arising from this.
The Law Society says that there may be circumstances in which it would be appropriate to accept instructions from a client who is related to an employee or partner, and who proposes a significant gift to that employee or partner or a member of their family in their will. It is this wider position that is sometimes missed by practitioners. The SRA says that “if you draft a will where the client wishes to make a gift of significant value to you or a member of your family or an employee of your business or their family you should satisfy yourself that the client has first taken independent legal advice with regard to making the gift”. The Law Society advice reflects this: “even if you consider the instructions to be appropriate, before preparing the will, you should consider consulting the firm’s compliance officer for legal practice (COLP) … or a senior experienced practice member.” The person consulted must consider potential conflicts of interests and the best interests of the client. The practice note goes on to reflect that in some circumstances it may be sufficient for the client to confirm in writing that they do not wish to obtain independent legal advice. The issues are far too complex to consider in detail in this article – but I highlight that, in my own experience, I have seen practitioners fail to consider these wider regulatory issues.
I have already referred to the desire of some practitioners to have themselves appointed as a professional executor. It is a strongly held view of mine that in some circumstances it is in the best interests of clients to consider the appointment of a professional executor, but some professional executors fail to consider the long-term consequences of such an appointment – particularly if, for example, a practitioner is reaching retirement or if there are problems with an estate (insolvency or any litigation about it). A professional executor can sometimes unexpectedly get drawn into litigation.
Mental capacity guides
In this article I have tried to draw attention to the practice notes that are most relevant to private client practitioners – but I would also like to take this opportunity to highlight the additional guides that are applicable to clients with mental capacity issues. These can equally become relevant to private client practitioners when dealing with clients who may lack mental capacity – and this makes the guides about identifying financial abuse and meeting the needs of vulnerable client essential reading.
I hope you’ve found this article to be helpful and informative. These practice notes can help you reflect best practice in your work, but they can also help you to avoid complaints or claims in the first place – as I hope my brief summary has shown.