SRA Handbook

Application, waivers and interpretation

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Version 13 of the Handbook was published on 01/04/2015. For more information, please click 'History' Above

5th Section: Application, waivers and interpretation

Chapter 13: Application and waivers provisions

The SRA Code of Conduct applies to you in the following circumstances (and "you" must be construed accordingly):

Application of the SRA Code of Conduct in England and Wales

13.1

Subject to paragraphs 13.2 and 13.7 to 13.11 below and any other provisions in this Code, this Code applies to you, in relation to your activities carried out from an office in England and Wales, if you are:

(a)

a solicitor, REL (subject to paragraph 13.12) or RFL, and you are practising as such, whether or not the entity through which you practise is subject to this Code;

(b)

a solicitor, REL or RFL who is:

(i)

a manager, employee or owner of a body which should be a recognised body, but has not been recognised by the SRA;

(ii)

a manager, employee or owner of a body that is a manager or owner of a body that should be a recognised body, but has not been recognised by the SRA;

(iii)

an employee of a sole practitioner who should be a recognised sole practitioner, but has not been recognised by the SRA;

(iv)

an owner of an authorised body or a body which should be a recognised body but has not been recognised by the SRA, even if you undertake no work for the body's clients; or

(v)

a manager or employee of an authorised non-SRA firm, or a manager of a body which is a manager of an authorised non-SRA firm, when doing work of a sort authorised by the SRA, for that firm;

(c)

an authorised body, or a body which should be a recognised body but has not been recognised by the SRA;

(d)

any other person who is a manager or employee of an authorised body, or of a body which should be a recognised body but has not been recognised by the SRA;

(e)

any other person who is an employee of a recognised sole practitioner, or of a sole practitioner who should be a recognised sole practitioner but has not been recognised by the SRA;

and "you" includes "your" as appropriate.

13.2

Chapters 10, 12, 13, 14 and 15 of the Code apply to you if you are a solicitor, REL or RFL and you are:

(a)

practising as a manager or employee of an authorised non-SRA firm when doing work of a sort authorised by the authorised non-SRA firm's approved regulator; or

(b)

an owner of an authorised non-SRA firm even if you undertake no work for the body's clients.

Application of the SRA Code of Conduct in relation to practice from an office outside England and Wales

13.3

[Deleted]

13.4

[Deleted]

13.5

[Deleted]

13.6

[Deleted]

Application of the SRA Code of Conduct outside practice

13.7

In relation to activities which fall outside practice, whether undertaken as a lawyer or in some other business or private capacity, the following apply to you if you are a solicitor, or REL:

(a)

Outcome 11.1; and

(b)

Outcome 11.2.

General Provisions

13.8

The extent to which you are expected to implement the requirements of the Code will depend on your role in the firm, or your way of practising. For example, those who are managing the business will be expected to have more influence on how the firm or business is run than those practising in-house but not managing a legal department, or those practising as employees of a firm.

13.9

You must deliver all outcomes which are relevant to you and your situation.

13.10

Where in accordance with this chapter, the requirements of the Code apply to a licensed body, this Code applies to the regulated activities carried on by the body.

13.11

Where the licensed body is an MDP, the Code applies to the body, any solicitor, REL or RFL who is a manager, employee or owner of the body and any other person who is a manager or employee of the body as follows:

(a)

in relation to any regulated activities; and

(b)

in relation to any other non-reserved legal activities:

(i)

outcomes 1.7, 1.9 to 1.11 and 10.6 apply to the body; and

(ii)

outcomes 1.7, 1.9 to 1.11, chapters 4, 10, 11 and 13 to 15, apply to a solicitor, REL or RFL who is a manager, employee or owner of the body.

13.12

This Code applies to an REL practising as a manager, employee, member or interest holder, of an Exempt European Practice to the same extent that it applies to In-house practice.

Waivers

In any particular case or cases the SRA Board shall have the power, in exceptional circumstances, to waive in writing the provisions of these outcomes for a particular purpose or purposes expressed in such waiver, to place conditions on and to revoke such a waiver.

Chapter 13A: Practice Overseas

13A.1

If you are an individual or body practising overseas, the Code does not apply to you, but you must comply with the SRA Overseas Rules.

13A.2

However, if the following circumstances apply then you must comply with the provisions of the Code that are applicable to you as set out in 13A.3 to 13.A.6 below:

(a)

a body practising from an office outside England and Wales, only if you are required to be an authorised body as a result of the nature of your practice and you have been authorised by the SRA accordingly;

(b)

a manager of such a body; or

(c)

an individual engaged in temporary practice overseas.

(d)

a regulated individual practising overseas who is providing reserved legal activities to clients in England and Wales on an occasional basis, in accordance with rule 2(e)(i) of the SRA Overseas Rules.

13A.3

The following provisions of the Code apply:

(a)

chapter 3 (conflicts of interests);

(b)

chapter 4 (confidentiality and disclosure);

(c)

chapter 5 (your client and the court), to the extent that your practice relates to litigation or advocacy conducted before a court, tribunal or enquiry in England and Wales or a British court martial;

(d)

outcomes 6.1 to 6.3 (your client and introductions to third parties);

(e)

chapter 7 (management of your business);

(f)

outcomes 8.1 and 8.4 (publicity);

(g)

outcomes 9.1 to 9.7 (fee sharing and referrals),except where they conflict with the SRA European Cross-Border Practice Rules, in which case the latter will prevail;

(h)

chapter 10 (you and your regulator);

(i)

chapter 11 (relations with third parties), except that Outcome 11.3 only applies if the land in question is situated in England and Wales; and

(j)

outcomes 12.3 to 12.6 (separate businesses).

13A.4

In addition, you must meet the following outcomes:

O(13A.1)

you properly account to your clients for any financial benefit you receive as a result of your instructions unless it is the prevailing custom of your local jurisdiction to deal with financial benefits in a different way;

O(13A.2)

clients have the benefit of insurance or other indemnity in relation to professional liabilities which takes account of:

(a)

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

(b)

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

(c)

the terms upon which insurance is available;

and you have not attempted to exclude liability below the minimum level required for practice in the local jurisdiction;

O(13A.3)

you do not enter into unlawful contingency fee arrangements;

O(13A.4)

you do not discriminate unlawfully according to the jurisdiction in which you are practising; and

O(13A.5)

publicity intended for a jurisdiction outside England and Wales must comply with any applicable law or rules regarding lawyers' publicity in the jurisdiction in which your office is based and the jurisdiction for which the publicity is intended.

13A.5

you must be aware of the local laws and regulations governing your practice in an overseas jurisdiction;

13A.6

if compliance with any outcome in the Code would result in your breaching local laws or regulations you may disregard that outcome to the extent necessary to comply with that local law or regulation.

Chapter 14: Interpretation

14.1

The SRA Handbook Glossary 2012 shall apply and, unless the context otherwise requires:

(a)

all italicised terms shall be defined; and

(b)

all terms shall be interpreted,

in accordance with the Glossary.

Chapter 15: Transitional provisions

15.1

For the avoidance of doubt, where a breach of any provision of the Solicitors' Code of Conduct 2007 comes to the attention of the SRA after 6 October 2011, this shall be subject to action by the SRA notwithstanding any repeal of the relevant provision.

15.2

The SRA Code of Conduct shall not apply to licensed bodies until such time as the Society is designated as a licensing authority under Part 1 of Schedule 10 to the LSA and all definitions shall be construed accordingly.

15.3

References:

(a)

in the preamble, to:

(i)

the Code being made under section 83 of the Legal Services Act 2007, and

(ii)

licensed bodies and their managers and employees, and

(b)

in Chapter 10, to:

(i)

an application for a licence (O(10.2)),  and

(ii)

the role of COLP and COFA (O(10.12) and IB (10.8)),

shall have no effect until such time as the Society is designated as a licensing authority under Part 1 to Schedule 10 of the LSA.

15.4

In Chapter 8, the provision in IB(8.2) relating to multi-disciplinary practices, shall have no effect until such time as the Society is designated as a licensing authority under Part 1 of Schedule 10 to the LSA.