Posted by Dave Seager, consulting adviser to Legal Futures Associate SIFA Professional
Seager: Probate firms could do better
It was only in October last year, on the back of the Solicitors Regulation Authority’s (SRA) second annual assessment that I wrote in this blog about solicitors’ continuing competence.
However, no apologies for returning to this hot potato – which is unlikely to cool down anytime soon – in the wake of the regulator’s recent thematic review of probate services.
This drew my attention to something that probably should have been on my radar already.
It would be fair to say that the findings, whilst only from a cross-section of 25 firms, were quite alarming to the SRA when it came to continued competence. This was particularly so given that the SRA has the Legal Services Board breathing down its neck.
The review interviewed each firm’s head of wills and probate, and the main fee-earner, and not the COLP, who should have overall responsibility, but nevertheless, a teacher observation might read – Could do better!
Eight out of 10 heads of department were aware of the of the SRA’s continuing competency requirements but a worrying six out of 10 of the fee-earners were not aware of their obligation to remain competent.
Extrapolated across the profession, this would equate to 100,000 practicing solicitors not grasping the regulatory requirement to ensure they remain fully competent to work in their clients’ best interests.
Only 15 of the 25 firms assessed had a written continuing competence policy, but in seven of those 15, the head of department and fee-earner were unaware of it.
That the SRA anticipated a firm to have a written policy was not on my radar, but it obviously makes sense given the firm code of conduct and the COLP’s supervisory role. So not only did a significant proportion fail to do this, but half of those that did either failed to communicate its existence or, worse, produced a document merely to pay lip service to the requirement.
All the fee-earners said they had adequate supervision, but only seven of 30 files reviewed showed any evidence of supervision. This too suggests a worrying tendency towards lip service. Indeed, the SRA confirmed that over half of the department heads and fee-earners visited had no oversight at all.
Interestingly, most of the heads and all the fee-earners were regularly completing formal training on probate and estate management. However, in the majority of cases, this was only on the legal and technical aspects, rather than other areas of the Statement of Solicitor Competence that may be relevant to performing their role competently.
The review also highlighted that, while all 25 firms had a good awareness of client vulnerability, most firms could do far more to meet such clients’ needs.
Examples included providing key information on the legal matter and how it would be handled, the best possible costs information, and ensuring a timely service with regular updates. In short, this would again point to the need for a firm-wide written vulnerability policy, effectively communicated and adopted by all staff.
Certainly, the focus on solicitors’ continued competence will remain and this thematic review will only serve to further concern both the SRA and the oversight regulator.
As I have indicated previously, I truly believe that your carefully selected IFA partners, and certainly our own membership, can be useful allies here. Financial planning regularly overlaps and complements legal services and consequently, your partner IFAs are superbly equipped to offer training on the non-technical and legal aspects of estate planning and of course in other areas.
These are the areas that the SRA has identified are too frequently being overlooked but are still relevant to ensure complete competence. You will also find that these willing colleagues have excellent charters and policies for dealing with vulnerable clients or those who find themselves temporarily in vulnerable circumstances.
The SRA’s findings clearly show a disconnect between what they expect of a firm and its COLP in this arena, and what is current practice.
Therefore, if you are a COLP please speak to your financial planning partners, or indeed, if you are a department head or solicitor, speak to your COLP on this subject and make the introduction.
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