Changes to rule 2 – in force as of 1 March 2010

JUST A reminder that changes to rule 2.05 of the Solicitors’ Code of Conduct 2007 will come into force on 1 March 2010, when the emergency rule 2.08 will be revoked.

The changes reflect the repeal of the Solicitors’ (Non-Contentious Business) Remuneration Order 1994, which has removed the remuneration certificate procedure and clients’ statutory rights to information about challenging a bill.

The changes can be seen highlighted at http://www.sra.org.uk/solicitors/change-tracker/code-of-conduct/rule2.page?20100301#TOA-Rule-2-05

Due to the addition to rule 2.05, as part of its complaints handling duties, the firm will have to inform the client at the outset of the retainer in writing that:

They are entitled to complain about their bill;
There may also be right to object to the bill by making a complaint to the Legal Complaints Service (or the Office for Legal Complaints) and/or by applying to the court for an assessment of the bill under Part lll of the Solicitors’ Act 1974; and,
If all or part of the bill remains unpaid the firm may be entitled to charge interest.

New guidance to rule 2 will be added as note 49B.

Overhauling the CoP Rules

AT THE end of last year, Sir Mark Potter, president of the Court of Protection (CoP), was appointed to set up a committee to review the current Court of Protection Rules to ensure they provide an efficient and effective service. Mr Justice Charles and Mrs Justice Proudman have recently been appointed by Justice Secretary Jack Straw as chairs of that committee, and Jack Straw has announced that the rules will be overhauled.

The CoP faces allegations of mismanagement of funds and a high level of complaints regarding the appointment of professional deputies since its inception. It has also been accused of struggling with its workload and the public have voiced concerns over their treatment.

With most cases currently being heard privately, the media and the public are barred from the CoP’s deliberations. Judgements are only published on occasion. However, in the overall review being conducted by Sir Mark Potter, media access is expected to be on the agenda – potentially opening up the CoP to public scrutiny and hopefully assuaging the lack of confidence so far.

“I don’t have a problem with the media being present. There would, however, have to be anonymity for the vulnerable elderly people involved, the details of whose financial affairs were being exposed. I don’t think that they would want that all over the newspapers,” said Denzil Lush, the senior judge in charge of the CoP told the Times.

Out with the old…

After a fervent 13-month legal battle, on 13 January 2010 Louisa Watts, the 106 year old great-great grandmother, was forced to leave the care home in which she had lived for the past four years.

Even following an intervention by Prime Minister Gordon brown, expert evidence warning that to move the elderly in such a way could contribute to premature death and a 1,700 strong petition, the council closed Underhill House, a 40-year-old care home in Bushbury, Wolverhampton. Its residents were led out of the home in freezing temperatures during one of the worst weather spells of the year so far. The reason cited for closure by the council was that they believed the home was no longer fit for purpose, although in a 2007 assessment of the home by the Commission for Social Care Inspection in 2007, Underhill was graded as the second highest level – ‘good’. The closure was also

part of a series under a programme of £40 million budget cuts.

The decision to close Underhill House was made back in April 2009, a decision that was upheld by the Court of Appeal in October 2010. The European Court of Human Rights also recently considered an application for an interim order, but such an order was never granted.

Beware of will writers

RESEARCH BY the Law Society recently revealed the risks the public are being exposed to by unregulated, unqualified and uninsured will writers. The findings reveal badly-drafted wills that render the deceased’s estate wholly or partially intestate, poor tax planning and ‘vanishing wills’, as well as hidden charges that inflate the advertised price of the will. The findings indicate the full scale of the risks faced by the public in using a will writer who, unlike a solicitor, is not legally qualified, regulated and insured should something go wrong.

Law Society President, Robert Heslett, says: “What is most worrying is that their victims are often unaware that their will writers are not regulated, nor is there any mechanism for complaint. As the will writer is not insured, there is no means of redress if things go wrong.”

Consequently, the Law Society and Mencap have joined forces to protect vulnerable people from unregulated will writers. The Law Society stresses it is of particular importance to have a legally-binding will that will ensure adequate provisions are made. Law Society President, Robert Heslett, says: “When the victims of these wills are especially vulnerable people who need to be provided for in a trust, our advice to use the services of a solicitor is of particular urgency.”

In many cases, the unregulated will writers will sell ancillary services, such as, estate administration and power of attorney, meaning soaring costs and an even bigger mess when solicitors have to step in to rectify the situation.

The Law Society found that many will writers were advertising low cost wills, but that in reality the customer was given a much larger bill at the end of the process.

The Law Society’s findings come soon after the publication Lord Hunt’s review of regulation of legal services. Lord Hunt’s findings included concerns raised by what he referred to as a “fringe legal market” in will writing, probate and claims handling, which exposed the public to a growing risk.