Part 2
Regulatory framework

Part 2.1
Regulation of solicitors and university law clinics¹

Linden Thomas^*

The majority of people who run university pro bono programmes are solicitors. Therefore, this section sets out the regulatory framework that permits solicitors employed by universities to deliver legal services to the public.

As mentioned in the Introduction to this Handbook, at the time of writing the solicitors’ profession is facing significant regulatory changes. On 25 November 2019 the Solicitors Regulation Authority (SRA) Standards and Regulations (‘Standards’)² will replace the 2011 SRA Handbook.³ The SRA has promised guidance to accompany the new Standards. However, at the time of writing some of this is still to be published and the final version of the Standards is not yet available.⁴ Readers are therefore encouraged to check the most recent version of the Standards and accompanying guidance on the SRA website in order to verify that the position set out in this Handbook remains correct.

Regulation of solicitors

The regulatory framework for the legal profession in England and Wales derives from the Legal Services Act 2007 (LSA). The LSA established the Legal Services Board (LSB), which has overarching responsibility for the regulation of legal services. There are ten separate bodies, known as ‘approved regulators’, which fall under the LSB’s remit. The approved regulator for solicitors is the Law Society of England and Wales. However, as the LSA requires a separation between regulatory and representative functions, the SRA was established in 2007 as an independent arm of the Law Society and is the independent regulator of solicitors and law firms.⁵

The SRA sets out the standards and requirements that it expects the community it regulates to achieve and observe. As explained above, the new Standards, which will come into effect on 25 November 2019 and replace the 2011 Handbook, introduce a number of significant changes to the ways in which solicitors are regulated. These include:

• the replacement of ten mandatory principles with seven, which are described by the SRA as ‘the fundamental tenets of ethical behaviour that [they] expect all those [they] regulate to uphold’⁶

• the creation of two separate codes of conduct: one for firms and one for solicitors

• allowing solicitors to carry out ‘non-reserved’ legal work from within a business not regulated by a legal services regulator

• allowing solicitors to provide reserved legal services on a freelance basis, subject to certain conditions.

Reserved and non-reserved legal activities

Before commencing any explanation as to the legal services that a solicitor may or may not provide to members of the public, it is first necessary to understand that legal services can broadly be divided into two categories: reserved legal activities; and non-reserved legal activities. The way in which you choose to set up your clinic will probably depend upon the type of legal services you intend to offer and which of these categories they fall into.

There are also some limitations on solicitors providing legal services that include immigration work and financial services (including debt). These are addressed in Parts 2.15 and 2.16.

What are reserved legal activities?

The Legal Services Act 2007 (LSA) prescribes that certain legal activities are ‘reserved’. Reserved legal activities can only be carried out by persons who are authorised to do so, or who are otherwise exempt.⁷ Those activities that are reserved are listed at s 12(1) of the LSA:

A description as to what constitutes each of these activities is contained in Schedule 2 of the LSA.

There are a number of activities falling within the above definition that could potentially be carried out by a university law clinic – conducting litigation and exercising rights of audience both being obvious examples.⁸ These are considered in further detail below. However, it is a criminal offence to carry out a reserved legal activity without being either an authorised person or exempt; therefore, it is important for solicitors to understand whether the activity they propose to engage in is reserved or not.⁹

Conduct of litigation

‘Conduct of litigation’ is defined at Schedule 2 of the LSA as:

For these purposes, ‘court’ includes First-tier and Upper Tribunals.¹¹ It seems to be commonly accepted that it does not include the Employment Tribunal or First-tier (Social Entitlement Chamber), neither of which restrict rights of audience. Therefore, conducting litigation (or exercising rights of audience) in either of those tribunals would not amount to reserved activity.¹²

It is clear from the definition at Schedule 2 that in all other proceedings in courts where rights of audience are restricted, actions such as service of a claim form would amount to reserved activity. However, ‘performance of any ancillary functions’ has been interpreted narrowly by the courts. Therefore, actions such as engaging in general correspondence with an opposing party, drafting documents prior to proceedings being issued, giving legal advice in relation to matters in dispute and engaging in alternative dispute resolution (except where this has been ordered by the court) will not amount to ‘performance of ancillary functions’ and therefore will not be reserved activities.¹³

Exercising a right of audience

The LSA in Schedule 2 defines a ‘right of audience’ as ‘the right to appear before and address a court, including the right to call and examine witnesses’. As the same definition of ‘court’ applies here, solicitors undertaking representation and advocacy in those exempted tribunals detailed above would be an unreserved activity. However, appearance in the County Court, for example, would be a reserved activity.

Solicitors should give careful consideration as to whether the work they propose to undertake is reserved and may wish to take a risk-averse approach where in doubt, given the criminal sanctions for conducting reserved activity when not permitted.

Carrying out non-reserved legal work

From 25 November 2019 a solicitor working for an organisation that is not regulated by the SRA (or by any other legal services regulator) is able to provide non-reserved legal services to the public on behalf of their employer.¹⁴ It is anticipated that large commercial organisations such as banks, accountancy practices and supermarkets will seek to engage solicitors to work in this way, without the need for their organisation to be regulated in the same way as a law firm, which can be both onerous and costly.¹⁵

Solicitors employed by universities can also rely on this relaxation of the regulatory framework and are able to provide non-reserved legal services to the public on behalf of their institution. These services may be provided on a pro bono basis or for a fee.

It is important to bear in mind that although the university will not be regulated, the solicitors themselves are still regulated and are subject to those SRA Standards that apply to individual solicitors.¹⁶ Solicitors employed in this way are required to explain to their clients the regulatory protection that is available to them.¹⁷ They must also explain:

• the insurance arrangements that they have in place and make it clear that they are not covered by the SRA Minimum Terms and Conditions¹⁸

• that their clients will not be eligible to apply to the Solicitors Compensation Fund^{19, 20}

• which activities will be carried out by them as a solicitor authorised by the SRA²¹

• that their employer is not SRA regulated.²²

The SRA has produced a guidance note entitled ‘SRA Standards and Regulations guidance for the not for profit sector’, which contains a checklist of those matters that should be explained to clients in a client care letter before commencing work for the client, along with example wording.²³ The recommendations contained in that guidance note have been incorporated into the precedent client care letter in Part 5.1.7 of this Handbook. For more information on client care letters, please refer to Part 2.4: Client care and taking on new clients.

Solicitors delivering legal services from a non-regulated entity are not permitted to hold client money, which may impact on the type of services a university clinic is able to offer.²⁴

In summary, if none of the legal services offered by your clinic are reserved then you may provide them to members of the public on behalf of your university, as long as you fulfil the requirements for individual solicitors contained in the Standards and provide the requisite information to your clients prior to commencing work.

Carrying out reserved legal work

If any of the legal services provided to the public through the university’s clinic are reserved activities, the clinic must either be authorised to provide such activities, or otherwise be exempt from authorisation.

With the implementation of the new Standards, the regulatory position set out by the SRA has been brought in line with the statutory position under the LSA. The LSA provides that reserved activity may be carried on by an employee who is an authorised person, unless the employee is providing the reserved activity to the public or a section of the public as part of the employer’s business.²⁵ It does not matter whether the activity is being done with a view to profit or on a pro bono basis.²⁶

This means that solicitors employed by organisations that are not regulated by the SRA can carry out reserved activities on behalf of their employer. For example, a solicitor employed by a university could engage in a reserved activity, such as litigation, when acting on behalf of the university. However, the same solicitor may not engage in any reserved activities on behalf of a member of the public in their capacity as an employee of the university where to do so forms part of the university’s business. This is the case even where the services are being provided pro bono.

There is no definition in the LSA as to what amounts to part of an employer’s business. However, guidance on the SRA website recommends that solicitors consider the following non-exhaustive list:

Solicitors supervising in university law clinics will almost certainly find themselves providing relevant services to the public or a section of the public as part of their employer’s business. There are a multiplicity of factors which are likely to lead to this conclusion, not least that law school clinics:

• tend to be funded by the university and are often housed in university premises

• are referenced by universities when marketing their courses to potential students and when promoting the university’s public engagement work

• are commonly staffed by solicitors who have been recruited specifically for the purpose of providing legal services through the clinic

• are often covered by the university’s own public indemnity insurance.²⁸

Therefore, the requirement for authorisation or exemption will apply where reserved activities are to be provided.

When is a clinic exempt from authorisation?

The circumstances in which a clinic may be exempt from the requirement to be authorised to provide reserved legal activities are set out below.

Under the transitional provisions at s 23(2) of the LSA

Section 23(2) of the LSA permits not-for-profit bodies to ‘carry on any activity which is a reserved legal activity’ during a transitional period.²⁹ A not-for-profit body is defined as:

As most universities are charities, they may fall within this definition and therefore continue to deliver reserved activities.³¹ However, the position on this is perhaps not as clear cut as it may seem. In the ‘SRA Standards and Regulations guidance for the not for profit sector’ there is a case study which indicates that a university would not fall within the definition of a ‘non-commercial body’ under the LSA.³² It is unfortunate that the SRA guidance on this point does not align with the statutory wording and does not offer further explanation.

In any event, if the transitional period is brought to an end, the not-for-profit body would need to become authorised.³³

Universities seeking to rely on the exemption at s 23(2) should keep in mind that it expressly permits not-for-profit bodies to ‘carry on’ providing reserved activities. Again, there is arguably some lack of clarity here. If ‘carry on’ is interpreted as ‘to continue’ to do an activity, this would mean that any clinics delivering reserved activities for the first time since the transitional provision came into force on 1 January 2010 may not rely on the exemption.

However, ss 13, 14 and 15 of the LSA all use the term ‘carry on’ in the sense of ‘engaging in’ an activity rather than ‘continuing to engage in’ an activity you were previously undertaking, and would not make sense if they only applied to those who were engaged in reserved activity before the LSA came into force. Furthermore, the SRA guidance suggests all not-for-profit organisations and charities may rely on the exemption and makes no mention to the statutory reference to ‘carry[ing] on’.³⁴

SRA-regulated independent solicitors

Up to the introduction of the Standards in November 2019, solicitors practising alone have been required to have their practice authorised. The practice had to be a separate legal entity known as a sole practitioner firm. However, following the introduction of the Standards it is possible for solicitors to offer some services without the practice itself being authorised or the need for the creation of a separate legal entity from which to provide those services.³⁵ In its guidance, the SRA refers to individuals delivering services in this manner as ‘SRA-regulated independent solicitors’,³⁶ although that term is not used or defined in the Standards.

The SRA guidance states that:

We use the term independent solicitor to describe a self-employed solicitor who is:

• practising on their own, and does not employ anyone else in connection with the services they provide

• practising in their own name (rather than under a trading name or through a service company)

• engaged directly by clients with fees payable directly to them without that practice being authorised.³⁷

Where the independent solicitor’s practice consists entirely of activities that are not reserved legal activities, no authorisation is required.³⁸ Where reserved legal activities are to be offered, it is still possible for the solicitor to provide these on their own account, without authorisation, as long as certain criteria are met.³⁹ For example, the solicitor must:

• have at least three years of post-qualification experience

• be self-employed and practising in their own name, and not through a trading name or service company

• not employ anyone in connection with services that they provide.⁴⁰

Given that the vast majority of solicitors running university law clinics will be employed by the university and will provide their services on behalf of the university, they will not be trading on their own account as SRA-regulated independent solicitors and therefore will not be able to rely on this exemption. However, external solicitors employed in private practice or in-house at another organisation, wishing to practise as a volunteer with a university pro bono clinic, may be able to undertake both reserved and non-reserved activity, acting on their own account as an SRA-regulated independent solicitor, providing they comply with the requirements at Regulation 10.⁴¹

Schedule 3 of the LSA

There are further exemptions set out at Schedule 3 of the LSA. However, they are very specific and are unlikely to assist solicitors wishing to undertake reserved activities in university law clinics. For example, in relation to conduct of litigation, Schedule 3 provides that a person will be exempt if they are not authorised, but are granted a right to conduct litigation by the court in relation to those proceedings. It is unlikely to be viable to seek such permission in each piece of litigation that a clinic may take on.

If I am not exempt, how do I become authorised?

The SRA is able to authorise three different types of business:⁴²

• A sole practice: This is where solicitor is practising on their own account, providing services in their own name, or a trading name. Solicitors working in universities will not be working for sole practices, as the services will be provided on behalf of the university.

• A legal services body:⁴³ This is a firm in which all of the managers and those who hold an interest in the business are lawyers. A legal services body might include a partnership, company or limited liability partnership. Again, universities will not fit into this definition.

• A licensable body (commonly known as an alternative business structure (ABS)): An ABS is an entity that provides legal services, and which is managed or owned and controlled by both lawyers and non-lawyers.⁴⁴ In order for the ABS to perform reserved legal activities, it must be licensed to do so by a regulator.⁴⁵ Given that law clinics tend to make up a very small part of a university’s offering, it is unlikely to be feasible to turn the entire institution into an ABS. However, some universities have chosen to set up subsidiary companies from which to deliver their legal services to the public. See Part 2.2 for more detail on the practicalities of setting up an ABS.

Where a clinic is authorised, it will be subject to the Code of Conduct for firms contained in the Standards.⁴⁶

Our clinic does not do any reserved work. Is there any reason why we might want to seek authorisation anyway?

Even where your clinic does not undertake any reserved activities and therefore does not need to be authorised, you may still decide to seek authorisation. There are a number of reasons why this might be an attractive option. For example, authorised practices are able to offer clients greater protections, such as the requirement to have indemnity insurance that complies with the Minimum Terms and Conditions (see below) and the right of recourse to the Solicitors’ Compensation Fund.

Reserved activities and external partnerships

Some clinicians may be keen to offer their students the opportunity to engage in reserved legal work, such as conducting litigation, but will have neither the resources nor the institutional backing to seek authorisation to do so through their university. In such cases, an alternative option is to adopt what is commonly referred to as an ‘externship’ arrangement, and partner with external organisations such as law centres, third-sector advice agencies and law firms that are authorised to carry out reserved activity and to arrange for students to undertake placements with them.⁴⁷ The duration of such placements can vary depending upon the external partner’s needs and student capacity.

Further guidance on establishing an externship arrangement can be found in Part 1 of this Handbook.

Using external solicitors as volunteers in a university-run clinic

Many university clinics rely on external solicitors to increase the capacity of their clinic by advising on client cases and/or supervising students in doing the same. The capacity in which the external solicitor is volunteering with the clinic and their eligibility to do so should be established at the outset. It is important to be clear on whose behalf the legal service is being provided. For example:

• Is the service being provided on behalf of the university, with the volunteer solicitor operating under the supervision of the solicitor employed by the university?

• Is the volunteer solicitor providing the service on behalf of their employer and, if so, is their employer an authorised firm or an unregulated organisation?

• Is the volunteer solicitor providing the service on their own behalf as a SRA-regulated independent solicitor?

It is important to be clear about these arrangements so that:

• appropriate supervision can be put in place, as required under the Code of Conduct for Solicitors (see below)

• it is clear whether the volunteer solicitor is permitted to undertake reserved activities

• accurate information can be given to the client as to the protections available to them

• it is clear whether appropriate insurance cover is in place and, if so, on whose insurance the volunteer will be relying.⁴⁸

Universities may wish to consider entering into a written agreement with individual volunteers or –where the partnership is at an organisational level – with their employers, to address issues such as confidentiality, data sharing, quality of student supervision, insurance, etc.

Supervision of staff, professional and student volunteers in a university clinic

There are many different types of people who may be involved in the provision of legal services through a university law clinic. These can include:

• student volunteers

• staff employed by the university

• external lawyer volunteers.

Standard 3.5 of the SRA Code of Conduct for Solicitors states:

Standard 3.6 goes on to provide that:

The SRA guidance for not for profits provides that the degree of supervision and the proximity of the supervision will vary depending upon the type of work being undertaken and the qualification, knowledge and experience of those being supervised.⁵¹ Therefore, student volunteers are likely to require much closer supervision than an experienced external volunteer. Solicitors working in university law clinics should be mindful of their obligations as supervisors and ensure appropriate systems are in place to enable them to oversee work being done for clients. They should also consider the training requirements of those they are responsible for and ensure that these are met. See Part 1 for further guidance on training for students.

It is important to set out clearly in the client care letter the scope of the work that the solicitor is responsible for before undertaking work on a matter.

Holding a practising certificate

Section 1 of the Solicitors Act 1974 states that you will not be ‘qualified to act as a solicitor’ unless:

• you have been admitted as a solicitor

• your name is on the roll

• you have a valid practising certificate issued by the SRA.

Acting as a solicitor

Sections 20 and 21 of the Solicitors Act 1974 make it a criminal offence for a person who is not qualified to act as a solicitor (for example, because they do not have a valid practising certificate) to wilfully pretend to be so qualified or to refer to themselves in any way that would imply that they are so qualified.⁵²

Therefore, where an individual is described as a ‘solicitor’ they should either:

• hold a current practising certificate; or

• make it clear that they are not qualified to act as a solicitor because they do not have a valid practising certificate.⁵³

Simply putting ‘non-practising solicitor’ at the end of your name or job title may not be sufficient to get around this requirement, as members of the public will not necessarily understand what is meant by that description.

Bear in mind that it may also be possible to impliedly hold yourself out as a solicitor through your actions, even where there is no reference to being a solicitor or legal practitioner in your job title. The only way to avoid any risk of this is to make it expressly clear that you are not qualified to act as a solicitor.⁵⁴

Employed in connection with the provision of legal services

Under s 1A of the Solicitors Act 1974, you will be treated as ‘acting as a solicitor’ (and will therefore need to hold a practising certificate) if you are employed in connection with the provision of legal services by any of the following:

• a person who is qualified to act as a solicitor

• a partnership where at least one member is qualified to act as a solicitor

• a body recognised under s 9 of the Administration of Justice Act 1985

• any other authorised person entitled to provide reserved legal services; this would include a licensed body, or a body authorised by another approved regulator.

The SRA’s guidance on this states that:

It is recommended that solicitors providing legal services on behalf of a university law clinic ought to have a current practising certificate in place unless absolutely satisfied that they are covered by one of the limited exemptions.

Solicitors working in university law schools: position before 25 November 2019⁵⁶

Up to and including 24 November 2019, a solicitor employed by a university to deliver, or supervise the delivery of, legal services to members of the public on behalf of the university, was likely to fall within the definition of an in-house solicitor under the Solicitors Practice Framework Rules.⁵⁷

The Practice Framework Rules (PFRs) permitted an individual to practise as a solicitor:

It was the reference to ‘Rule 4’ of the PFRs (specifically, Rule 4.10) that enabled in-house solicitors to provide pro bono legal advice to a client other than their employer. However, this could only be done where the following conditions were met:

• the work was covered by professional indemnity insurance reasonably equivalent to that required by the SRA

• either: no fees were charged; or the only fees charged were those received from the opposing party by way of costs if the client was successful and all costs were paid to charity

• the solicitor did not undertake any reserved legal activities, unless the provision of relevant services to the public or a section of the public (with or without a view to profit) was not part of their employer’s business.⁵⁹

Each of these requirements is addressed in turn below.

Professional indemnity insurance reasonably equivalent to that required by the SRA

Solicitors working in private practice were required to obtain insurance that complied with Minimum Terms and Conditions (MTCs).⁶⁰ As set out above, Rule 4.10 made it clear that in-house solicitors wishing to do pro bono must do so under ‘reasonably equivalent’ terms to the MTCs.⁶¹ However, the SRA did not provide any guidance as to how ‘reasonably equivalent’ ought to be interpreted, or as to what a reasonably equivalent insurance policy might include.

Universities contemplating whether they have insurance that satisfies this test should have taken into account factors such as the overall indemnity cover provided by university insurers for any single event and the risk and value of cases being taken on by the clinic. Further guidance on ensuring your clinic has appropriate insurance in place both up to and after 25 November 2019 is set out at Part 2.3.

Charging fees

The proviso that fees must not be charged was likely to be overcome easily for most university law clinics, given that nearly all provide their services on a pro bono basis.

Undertaking reserved legal activities

As is the case from 25 November 2019, a law clinic either needed to be authorised or exempt in order to provide legal services that include reserved legal activities. If the services provided were limited to non-reserved activities, then no authorisation or exemption was required and solicitors could act for members of the public under the provisions of PFR 4.10.

Part 2.2
Establishing a law clinic as an alternative business structure¹

Nick Johnson

In view of the potential restrictions that could arise if the transitional provisions under s 23(2) of the Legal Services Act 2007 (LSA) are not extended indefinitely,² and for further reasons suggested below, the option of applying for an alternative business structure (ABS) licence has been pursued by some law schools, in order to ensure that their activity is sustainable in the light of any regulatory change. Providing such activity stays within the limits of any charitable objects of the university or any of its subsidiary bodies, the ABS licence also enables clinics to charge for certain services.

Universities that are considering applying for an ABS licence will need to address the following issues:

• Which regulator should be approached?

This is very much a decision for the law school/university concerned. Licences are granted by a range of regulators, including the Solicitors Regulation Authority (SRA), the Bar Standards Board (BSB) and the Chartered Institute of Legal Executives (CILEx). References to processes here are based on seeking a licence from the SRA. This is likely to be the regulator of choice for many university clinics, as it is likely to fit most closely with the professional profile of the clinic staff and with the likely career destinations of the largest proportion of the university’s students.

• Which legal entity should hold the licence?

The licence is granted to a specific legal entity. Given that the licence is granted on the basis of the identity of certain managers, it may not be practicable for the licence to be granted to a university as this could entail investigation into the personal circumstances of many senior figures within the institution and potentially the governing body. It is likely to be more appropriate to grant the licence to a separate legal entity (such as a charitable company limited by guarantee). Specific employees of the university can then be appointed as directors and managers of that entity. This model is not unusual in higher education. Most UK universities run subsidiary companies, often to perform specific functions, and such entities may themselves be subsequently sold off.

• Identify the compliance officers

All practising entities are required to identify a Head of Legal Practice³ and a Head of Financial Affairs,⁴ commonly referred to as Compliance Officers for Legal Practice (COLPs) and Financial Affairs (COFAs). These persons should be sufficiently senior to enable them to carry out their role. Both persons must be suitably qualified (in the case of the COLP, legally qualified) as they have a crucial role in reporting potential regulatory infringements. It is incumbent on both officers to report all infringements to the regulator (in contrast to the more limited responsibility of a traditional firm to report material breaches⁵).

• Identify appropriate managers

In addition to the COLP and the COFA, it is necessary to identify those people who will act as managers of the entity. The regulator will undertake character and suitability checks on all managers. It is important to ensure that such people are sufficiently senior within the organisation to ensure that they can make representations to the appropriate people within the university (e.g. Estates and Directors of Finance) if university policy or activity conflicts with the requirements of the licensed entity.

• Insurance

Many university law clinics rely on the insurance of their institution rather than carrying specific professional indemnity. Where the legal services are provided through an ABS it will be necessary to ensure appropriate insurance is in place to cover legal services provided through that entity. Unless a waiver is obtained, this will probably need to be specific insurance approved by the relevant regulatory body.⁶ Rather than relying on existing university insurance, which is unlikely to meet regulatory requirements, it is likely a separate policy which satisfies the Minimum Terms and Conditions will be required.⁷ More detailed guidance on insurance can be found in Part 2.3 of this Handbook.

• Policies

The process of obtaining the licence requires scrutiny of the practice’s policies and processes. These might include, for example, processes for holding client money, payment of interest, complaints, and equality and diversity policies. It is important that these are properly established and made available as required as part of the process of granting the licence.

• Status of students

Given the more formal arrangements for engaging students through an ABS, it is necessary to clarify their status as persons within the practice. It may be necessary to prepare a formal agreement that students are required to sign, in which it is made clear on recruitment to the clinic that students may be subject to disciplinary action by the regulator, even when unqualified, for failing to observe key obligations.⁸ The regulator may raise the following concerns during the application process:

– the high ratio of qualified to unqualified staff: such concerns can be allayed by outlining specific arrangements for supervision and training

– the processes by which students can be disciplined for infringements: these can include using the university’s own Student Disciplinary processes if needs be.

• Relationships with third parties

It will be necessary to review arrangements with third party organisations, law firms and referral agencies to ensure that these are acceptable to the regulatory authority granting the licence. In some cases it may be necessary to draw up memoranda of understanding to ensure that issues such as terms of referral and insurance arrangements are clearly set out. Note that this is good practice when working with third parties in any clinic setting, even where the clinic is not an ABS.

It will also be necessary to agree a series of agreements between the ABS and the university on such issues as data sharing, occupation of premises, rights of access and provision of finance and HR functions. To the extent that staff are employed by the university rather than the entity which holds the licence, it may be that they will need to be formally seconded by the university to the subsidiary entity – the ABS licence holder – to ensure sufficient control of them by the regulated ABS entity.

• Establish compliance review procedures

Taking on an ABS licence will almost certainly require a review of management compliance procedures. For example, the ABS will need to have registers of interests, conflicts and complaints; a system of file review; and clear policies on such matters as money laundering, client interest and data protection.

Regular compliance review meetings should be instigated, at which complaints, concerns about potential breaches of practice rules and ‘near misses’ can be discussed. Universities might consider engagement of students in the practice committee structure. Again, many of the above ought to be considered good practice, even where a clinic is not an ABS.

Advantages and disadvantages of applying for ABS status

As the above suggests, the process of applying for the ABS licence is rigorous. Those universities that have been through the process report that they generally found the regulator willing to engage in discussions over aspects of clinic practice which are unusual (e.g. the use of student volunteers). This enables an applicant to review and tighten up procedures and particularly to address its relationship with the university.

It will be necessary to undertake a full policy review and clarify aspects of practice to obtain the licence. These discussions will assist in ensuring that both the clinic and the university are clear about what is required to maintain the licence.

It is also necessary to develop clear processes around the issue of reporting to the regulator. This needs to provide clarity about reporting matters of professional concern and clear routes for staff to be able to report concerns.

The establishment of a separate legal entity to hold the licence will require you to address the issue of who the managers and directors of the subsidiary should be. It will be necessary to obtain support from senior staff in the university to guarantee the clinic has sufficient influence within the institution to ensure that action is taken to preserve the licence and that nothing is done which jeopardises it. This also provides a vehicle with which a clinic can engage and contract with outside organisations and maintain a degree of autonomy within the university structure. It also ensures clarity so that, for example, issues such as Freedom of Information Act requests, which might be used by other parties, can be dealt with by the practice rather than the university.

The existence of a separate entity arguably provides greater clarity for those lawyers operating within the practice as to where regulatory responsibility lies.

Note that the process of obtaining the licence can be long and relatively expensive. It is likely that the university will wish to appoint external lawyers to provide support, although many consultants are able to provide similar services. Ultimately, much of the work to obtain the licence will need to be undertaken by law school and university staff, which will involve a considerable investment of staff time. Application processes are generally relatively straightforward, although the regulator will require information about the managers and their backgrounds. There will also be some increased costs, most notably insurance: this will be an additional overhead where the regulator requires professional indemnity insurance that meets its minimum requirements. The application costs vary depending on the regulator, but may be substantial.

One potential benefit of holding a licence is that a clinic will be able to charge for services, subject to it remaining within its charitable objectives. However, it is questionable whether or not sufficient money can be earned to recoup fees spent and this issue will need careful consideration, both as to the financial benefit and whether or not such a focus detracts from the social justice mission of a clinic.

Any arrangements for billing and holding client money will require engagement with the university finance department, and conflicts can arise between the rules relating to the handling of client money and university standing financial procedures. The practice will need to have clear agreed protocols with those administering its accounts, in particular an understanding of the need for client confidentiality, as well as an understanding of the regulator’s accounting rules.

Reporting and recording requirements will entail some additional burden but also provide a clear incentive to ensure that responsibility for regulatory issues is clearly allocated and dealt with within the practice.

A further potential benefit of obtaining the licence is to enable the law school to more clearly articulate a clinic’s strategy. This in part stems from an original idea behind ABSs, which was to look at different ways of providing access to justice and to see if outside investment – or, indeed, other professional expertise – would be able to deliver access to justice more effectively.

One specific model which has been identified is that of a ‘teaching law firm’, an idea that clearly mirrors the medical model which is often invoked for law school clinics. However, a university’s position as an educational organisation can enable the practice to focus, in part, on the provision of public legal education and to look at addressing the justice gap through educational means – part of the ‘alternative business’ that runs alongside the main legal practice.

Further, such alternative businesses can also investigate and evaluate, as a research objective, new methods of delivering access to justice, in keeping with the university’s research function. The model that this perhaps most closely resembles is the American Bar Association’s establishment of an Access to Justice Innovation Centre.⁹ Establishing a clinic as a separate legal entity and obtaining the licence can provide a platform to seek to develop and evaluate access to justice issues, in keeping with the key strategic objectives of many universities. However, whether developing or articulating such a mission requires the expense and time of establishing an ABS will be a matter for each clinic to decide itself on the merits.

Part 2.3
Insurance

LawWorks

Arranging professional indemnity (PI) insurance is an important requirement for a law clinic to consider. All clinics should be insured against the risk of liability in respect of providing legal advice, assistance and/or representation given to clients. Under the Solicitors Regulation Authority (SRA) rules, clinics must ensure that insurance cover is in place which meets the regulatory minimums. Cover should explicitly extend to students and supervisors.

Prior to 25 November 2019, the minimum sum insured for any one claim had to be £2 million,¹ in order to ensure compliance with the Minimum Terms and Conditions (MTCs) set out in the SRA’s Solicitors Indemnity Insurance Rules (SIIR) for ‘qualifying insurance’.

However, from 25 November 2019 the requirements were modified when the SRA’s Handbook reforms were introduced. Under the SRA’S changes to the Code of Conduct for Solicitors, solicitors practising in a ‘non-commercial body’ must ensure that the body takes out and maintains indemnity insurance that provides ‘adequate and appropriate’ cover in respect of the legal services provided.² The meaning of ‘adequate and appropriate’ is discussed further below.

There are different options of how to secure insurance cover depending on the type of clinic you decide to operate and what structure it follows.

Student-led clinics

Where advice is researched, written and delivered by students working or volunteering under supervision from someone else:

• Where supervision is ‘internal’ to the university (e.g. by an academic or practitioner within the law school and employed by the university):

– Insurance under the university’s existing policy may be sufficient: you must notify the insurance provider of the activities being conducted at the clinic.

– A separate insurance policy for the clinic may be necessary: you will need to arrange and pay for a separate policy to cover the work of the clinic only.

• Where supervision is ‘external’ to the university (e.g. by a solicitor from a local law firm):

– Cover could be provided by extending the existing university policy to include ‘external’ supervisors, e.g. lawyers from local law firms.

– Coverage could be provided by the law firm’s insurance provider, with agreement and confirmation from the parties.

• Where an advice agency hosts the clinic (supervision is either internal or external to the university):

– It may be possible to rely on an insurance policy held by a partner organisation, where an advice agency is involved in the delivery of the clinic, subject to their agreement and confirmation that the activity is covered by the policy.

Solicitor-led clinics

Where advice is given directly from solicitor to client, but where the law school facilitates the clinic service and students provide administrative support and/or are shadowing the solicitor giving the advice:

• The solicitor might be employed by the university or by an external law firm and assisting with the clinic in a voluntary capacity:

– Coverage may be provided by a volunteer lawyer’s firm’s insurance (where applicable): it would be advisable to confirm that the policy extends to pro bono work.

– The university insurance policy may be extended to cover any written work provided by the students and/or solicitor employed by the university to the client on the clinic headed paper. Otherwise, any written notes are provided to the client on law firm headed paper and covered by law firm insurance.

Under SRA rules all solicitors providing advice must be covered by ‘qualifying’ professional indemnity insurance, unless a waiver from these requirements has been given by the SRA. The same applies for RELs and RFLs (Registered European Lawyers and Registered Foreign Lawyers) undertaking pro bono work in clinics.

Qualifying insurance is cover that complies with the SRA’s Indemnity Insurance Rules; further information can be found here: www.sra.org.uk/solicitors/handbook/indemnityins/.³

LawWorks waiver and insurance

LawWorks has obtained an SRA waiver that can be applicable to clinics which are part of the LawWorks Clinics Network; this document waives the requirement to follow the Solicitors Indemnity Insurance Rules (SIIR) and instead requires the clinic to only have ‘adequate and appropriate’ insurance.

This reflects the SRA’s new language to describe the insurance requirement for not-for-profit bodies, namely that insurance cover should be ‘adequate and appropriate’. Previously, the requirement had been to secure insurance that would be ‘reasonably equivalent’ to the MTCs of the SIIR.

Unfortunately, the SRA has not provided a definition or produced guidance to assist clinics in interpreting the phrase ‘adequate and appropriate’. The phrase is clearly intended to enable clinics to move away from the minimum monetary amounts contained in the MTCs (i.e. £2 million).

LawWorks understands that the SRA’s new language, while not changing the underlying requirement to have insurance cover in place, is intended to encourage clinics towards a more realistic assessment of the likely claims that might actually be brought against them. In order to determine what might be an adequate and appropriate cover, it will be necessary to look at the potential risks to clients if things go wrong and ensure there is sufficient cover for this. This will depend on the service you provide and the risk profile of your organisation, and the key to the assessment will be to ensure that clients are protected.

It is not possible in the context of this section to be more specific, and in time we expect the SRA to issue further guidance. If you are at all unsure whether your insurance cover is compliant, you should contact the SRA helpline directly (call 0370 606 2577 or email professional.ethics@sra.org.uk), and seek confirmation in writing. Another source of help is the Law Society’s Practice Advice Service on 020 7320 5675/practiceadvice@lawsociety.org.uk.

Also waived are certain of the other outcomes set out in the SRA Code of Conduct relating to written prior notification to clients of a complaint procedure; complaint handling and advice as to the overall costs of a client’s matter. It does, however, impose conditions related to each of these subjects. All solicitor volunteers must be provided with a copy of the waiver. The current waiver expires on 14 January 2022.

Further information about the LawWorks waiver from the SRA can be found at: www.lawworks.org.uk/solicitors-and-volunteers/resources/sra-professional-indemnity-insurance-rules-waiver

LawWorks insurance

LawWorks has in place a policy of insurance which, at LawWorks’ discretion, may be extended to clinics and volunteers undertaking pro bono work on behalf of clinics registered with the Clinics Network. This policy has recently been revised to include cover for in-house lawyers and/or law firms working on pro bono projects.⁴

While the policy is not generally used for clinic work or appropriate for a law school clinic, it may be made available to clinics in exceptional circumstances – for example, to cover an in-house member team who would not ordinarily have an existing PI policy in place. LawWorks regards its insurance offer as a ‘safety net’ policy, so the cover provided will only extend to circumstances where no other PI insurance is available. For example, the PI insurance scheme will not apply if a clinic is undertaking pro bono legal work through a law centre and the law centre’s PI insurance provides coverage.

Coverage of clinics is not automatic and must be agreed by LawWorks. Prior to approaching LawWorks to discuss this possibility, clinics should investigate alternative options. To be considered for coverage under the LawWorks policy, a clinic must complete an application form (available from LawWorks) accepting the terms and conditions, and a clinic will not be covered unless express confirmation from LawWorks is given in writing.

More information on LawWorks insurance can obtained from clinics@lawworks.org.uk.

Immigration work

For organisations undertaking immigration work, the Office of the Immigration Services Commissioner (OISC) expects organisation-wide PI insurance to cover the provision of advice and for the limit of indemnity to be above £250,000.

Insurance advice

To assist with finding a new insurance policy or for advice, please refer to the website of the British Institute of Insurance Brokers (BIBA).⁵ Information provided to insurers must be clear and comprehensive so that insurers understand the full extent of any liability they are covering.

Clinics should bear in mind that insurers and brokers may not have experience of the work of pro bono clinics; consequently, they need to ensure that insurers understand the nature of the work being undertaken and by whom. Failure to explain the activities of clinics effectively to insurers could, in certain circumstances, render such cover void.

Other insurances to consider

Apart from professional indemnity cover, it is also important to ensure that other relevant insurances, such as public liability cover, are in place.

Part 2.4
Client care and taking on new clients

Lee Hansen^*

In this section we highlight steps that should be taken at or prior to a first client interview, including conflict screening. We also look at client care, which is about ‘providing a proper standard of service, which takes into account the individual needs and circumstances of each client’.¹ This includes consideration of the information given to a client prior to giving advice or taking on a case.

Having clearly defined procedures for client intake will place your service on the best footing for the initial client interview and beyond; it will also provide reassurance to your students (whatever their level of experience) and should help to ensure that any lawyers involved in supervising client work will be compliant with the requirements placed on them by their regulators.

This section sets out a number of points to consider; however, the particular requirements that apply to your clinic may vary depending on how the service is regulated. The Solicitors Regulation Authority’s (SRA’s) requirements will be relevant to many clinics, as the majority are staffed by practising solicitors. Therefore, reference is made in this section to the SRA’s rules on conduct.² Part 2.18 sets out some provisions that apply specifically to barristers. The particular approach taken may also be influenced by other factors including your institution’s policies and procedures (e.g. in the area of data protection) and any requirements laid down by your insurer.

Intake guidelines

As a matter of good practice, clinics should develop written guidelines setting out the areas of law in which advice, casework or representation is available. These should be accessible to all volunteers and staff of the clinic, and for new clinic participants training on these should be a part of their induction. The guidelines should also set out any criteria that apply to potential clients, for example an income limit or other financial requirements.

It may be that your clinic does not take on certain types of matters for regulatory reasons, for example immigration, consumer credit or reserved activities may be excluded from your service.³ Such areas where assistance cannot be provided should be set out clearly in the guidelines.

Client information, instructions and documents

Naturally clinics will need to receive and record certain client information. They will need information to conduct conflict checks, as noted below. It is important to ensure that client contact information is completely and accurately recorded. Even if your service is providing one-off advice you will need to have contact details so that you are able to contact the client to correct any errors in the unlikely event that an inaccuracy in the advice is discovered.⁴

A preferred method of communication may also be noted, for example email, and special procedures for contact may be needed and recorded, for example in cases of domestic violence where the client specifically does not want an advice letter sent to their home address or does not want you to contact them via a landline.

Advisers will also need to take down a full and clear record of the client’s instructions. These can be confirmed in the advice letter or in a written record filled out at the conclusion of the interview.

The clinic will often take copies of client documents in order to properly advise the client. Unless the clinic has secure storage facilities for deeds, etc. it is important to retain copies and not to take the originals.

Conflict screening

The 2011 SRA Code of Conduct defined conflict of interests as:

Under the SRA Glossary, which accompanies the new SRA Standards and Regulations, separate definitions provide that:

• a conflict of interest ‘means a situation where your separate duties to act in the best interests of two or more clients in relation to the same or a related matters conflict’

• an own interest conflict ‘ means any situation where your duty to act in the best interests of any client in relation to a matter conflicts, or there is a significant risk that it may conflict, with your own interests in relation to that or a related matter’.⁶

This section will focus on client conflicts in particular. However, solicitors should also keep in mind that they must not act where there is a conflict, or a significant risk of conflict, between them and their client. For example, an own interest conflict might arise if a potential client is seeking advice about a complaint they have against a company in which the supervising solicitor holds shares. Students should also be trained to look out for situations in which they might find themselves with an own interest conflict.⁷

Client conflicts

When taking on a new client a clinic should undertake conflict checks to ensure that there are no actual or potential conflicts of interest with a current or former client. The duty to avoid conflicts is a matter of professional conduct for solicitors and barristers. It is an approach that is ‘known about and adopted by others providing legal advice’,⁸ and should be followed as a matter of good practice.

Particular areas in which a university should not act include where the other party is a student, staff member of the university or if the complaint is against the university. It will therefore be necessary to ensure as a part of the intake procedure that checks are made that others involved are not university students or staff.

In order to conduct a conflict check you will need the full name of the opposing party. Additional information may also assist for the purposes of conducting the check, for example date of birth and address. This is particularly handy when checking against common names like ‘John Smith’. Any current or previous aliases of the client or opposing party should also be taken and checked.

You will also need to conduct a check using your prospective client’s name. A current or former client may have listed them as an opposing party, and your system for checks or your database should reveal this. An electronic case management system is not essential, but can be an efficient way to conduct conflict checks and allow for potential conflict issues to be flagged.

Where the clinic works with external volunteer solicitors or barristers there will often be a need to share details of potential clients with them so that they can carry out their own conflict check. In some cases this may make it more complex to utilise the services of pro bono solicitors in drop-in clinics.⁹ Therefore, pro bono lawyers may be better suited to an appointment-based rather than drop-in-based clinic where conflict checks can be carried out in advance. In accordance with data protection requirements you should ensure that prospective clients have consented to their data being shared in this way.

A conflict check should be performed prior to providing any legal advice or assistance to a client. As a practical matter you will want to ascertain whether or not there is a conflict at the earliest possible juncture to avoid any inconvenience to the client. For example, it would be regrettable if a straightforward conflict was discovered at an interview where the client had been waiting for their appointment for some time.

Your advice and case recording procedures should clearly indicate that a conflict check has been performed, against which individuals (e.g. client and opposing party), the date that it was undertaken, by whom and the outcome of the check, i.e. usually that there is ‘no conflict’. A form can be designed to allow for this to be recorded quickly (see example below).

Figure 1: Recording a conflict check

In the sphere of free legal advice, conflicts of interest pose a particular problem. That is, declining to provide a service to a prospective client in order to maintain professional obligations, may have the result that an impecunious client may be unable to find alternative sources of assistance. Conflicts of interest can in this sense create a barrier to accessing justice.¹⁰ In view of this and the need to promote access to justice, consideration should be given as to whether any exceptions to the conflict rules apply.¹¹ There is a narrow exception in the SRA Code requiring written consent and a substantial common interest by both parties.¹²

A related principle that arises when considering conflicts is the duty of confidentiality owed to one’s clients. As this has the potential to conflict with one’s duty to disclose material information to a current client it is often considered together with conflicts issues. Chapter 4 of the SRA Code deals with the need to maintain confidentiality in these circumstances, while reconciling this with the duty of disclosure.¹³ This may require a practitioner to cease to act.

One potential solution in these circumstances is to set up an information barrier in order to separate lawyers, staff, records and management acting for or with either client. University law clinics are usually modest and discrete operations taking place within larger institutions and so it may not be feasible to separate out operations in this way.

A further solution if conflicts arise would be to come to a referral arrangement with other local or like services, which would need to be done with informed client consent.¹⁴

Client identification

Linked to the issue of conflicts is the question of identification. In order to accurately conduct conflict checks we might either take a client at face value when they provide their details, or we might take further steps to positively identify that our clients are who they say they are, for example by requiring them to produce photographic identification. This latter approach is the most prudent and is supported by para 8.1 of the new SRA Code for Solicitors which provides that ‘You identify who you are acting for in relation to any matter’.¹⁵

Requiring clients to provide identification will also protect your clinic against persons seeking to establish a false identify or operating under a false identity for fraudulent purposes.¹⁶

Requesting client identification will also help you to comply with your anti-money laundering obligations.¹⁷

Time limits

It is certainly the case that any applicable time limits or limitation periods should be confirmed when advice is provided. Even prior to advice, when enquiries are received and before accepting instructions to act, clinic volunteers and staff should assess whether or not there are approaching time limits and inform prospective clients of the potential impact of missing a time limit. It would not only be regrettable if a time limit were to expire while a client was waiting for their first appointment, or following an interview if the time limit were to pass while they were waiting for their advice; it is likely that the clinic or its staff could face accusations of negligence if the matter has not been addressed.

Relevant staff and volunteers should have access to a table of limitation dates so that pending time limits may be readily calculated. Care should be taken with particularly brief limitation periods (for example in public law or employment matters). What may seem on its face as a non-urgent enquiry may actually be quite urgent when regard is had to a pending limitation date, so it is advisable to have incoming queries reviewed by experienced staff to check for this.¹⁸

Clinics taking forward ongoing matters will need systems in place to flag relevant limitation dates as well as other critical milestones (e.g. filing dates, court dates). A valuable skill in this regard involves being able to calculate a particular limitation date, although this cannot always be done with precision.

Staff and volunteers’ knowledge of time limits should also include an awareness that in some circumstances time limits may be extended. This depends on the particular area of law, and some time limits are not able to be extended. Therefore, that a time limit has passed prior to the client approaching your service will not necessarily negate the value of advice.

Client care

Client care includes consideration of the information provided to a client prior to the provision of legal services. The particular requirements that apply will depend upon the regulatory status of the clinic and those operating under its auspices (for example if the clinic employs practising solicitors). The necessary disclosures are often done in the form of a client care letter but may be done in other formats, for example a client information sheet.¹⁹

Although many of the matters requiring disclosure do not need to be communicated in writing, it may be easier to demonstrate compliance – as well as being more useful for a client – if the information is provided in writing. You could consider streamlining this process, for example by including information on the clinic website and building this into scripts that advisers, students or administrative staff use leading up to or at the client interview.

Client disclosure: Key areas for attention

Data protection

Under the Data Protection Act 2018 it is necessary to explain to your client why you wish to obtain any personal data, for what purposes and that you will treat it confidentially. For further detailed guidance, see Part 2.14: Data security.

Complaints policy

Your clinic should have a policy in place to address client complaints.²⁰ Having a clearly accessible complaints policy will give clients the opportunity to raise any concerns and thereby help to avoid matters escalating unnecessarily. It will also help you to identify any areas where your systems or processes could be adjusted to better meet the needs of your clients.

You could also provide avenues to clients to provide feedback (including compliments) about the services received; this is an excellent way to capture evidence of the value of your service to the community it serves.²¹

You should provide details in writing at or before an initial interview of where or how the client can access your complaints policy.²² You should also provide details of how to complain to the Legal Ombudsman, including timeframes and contact details.²³

Free services and costs

The SRA Handbook deals with disclosure of fees.²⁴ Most university clinics offer a free service, and in this case it is advisable that they clearly state that the service being offered is for free. Regulated fee-charging clinics will have more detailed disclosure requirements.

Even if a service is offered for free there may be some costs associated with a client pursuing a course of action. For example, there may be a risk to the client of receiving an adverse costs order if they are or will be engaged in litigation. There may be other costs associated with the client’s case such as court fees, expert and witness fees. The client should, at the outset, and if the case is ongoing then as the matter progresses, ‘receive the best possible information… about the likely overall cost of their matter’.²⁵

The client should also receive information about any public funding that may be available for their matter.²⁶ In addition, other available sources of funding for the client’s matter should be disclosed, including legal expenses, insurance or funding that is available through a trade union.²⁷

Regulated status and insurance

Where the service is regulated or provided by regulated persons, the SRA Code provides that you are required to disclose whether and how the service is regulated,²⁸ and there are also requirements for disclosure relating to insurance arrangements.²⁹

The EU Provision of Services Regulations 2009 provides additional disclosure requirements in relation to compulsory insurance cover (in addition to a range of additional matters).³⁰ These apply to services that are defined in reg 2(1) as ‘self-employed economic activity normally provided for remuneration’. The vast majority of university law clinics operate on a pro bono basis and therefore fall outside of the scope of the regulations. If any aspect of your clinic does operate on a remunerated basis then refer to the Law Society practice note for guidance on implementing the regulations in your clinic.³¹

SRA waivers

Where there is an SRA waiver in place the waiver itself may be a source of further disclosure requirements. For example, LawWorks obtained a waiver from the SRA for clinics registered to its network. This requires clinics that rely on the waiver and that are not covered by qualifying insurance to disclose to clients in writing that the ‘Solicitors Regulation Authority’s compulsory insurance scheme will not apply and appropriate information as to the arrangements in place for indemnity insurance cover’.³²

A waiver may also waive the need for compliance with certain disclosure requirements.³³

Service level agreement

A client care agreement, albeit one which is shorter than that used by full service law firms, should set out the service levels that you agree with your client.³⁴ For example, if your clinic provides written advice following an initial fact-finding interview you may set out in writing prior to the initial interview the clinic’s commitment as to the period of time by which an advice letter will be provided.

Contact details

A client care agreement should set out contact details of the person directly handling the matter, their status (as applicable) and any other person responsible for the matter.³⁵

Limiting or defining the scope of your assistance

You may confirm in writing the agreed action or next steps arising from an initial consultation.

Whatever the scope of the assistance provided at your clinic – whether it is an advice-only service, providing one-off advice or ongoing casework – the clinic should clearly define the scope of its assistance in writing. This can help manage the client’s expectations about the level of assistance that the clinic has agreed to provide. Any extension to the agreed assistance should be confirmed in writing.

Termination of the agreement

In the usual course of things your assistance with a matter will conclude at the point when the clinic has completed the service that has been agreed, for example, following a fact-finding interview it has provided the requested advice. For ongoing work or even one-off advice you may wish to set out the circumstances in which you will terminate the agreement. Reasons for terminating the agreement might include losing contact with the client or a breakdown in confidence between the clinic and the client. The position under the SRA Code is that ‘when deciding whether to act, or terminate your instructions, you comply with the law and the Code’.³⁶

Summary

In summary:

• Clinics should adopt practices and procedures to ensure clients receive a proper standard of service.

• While the position of a clinic will depend on its particular regulatory status and that of its employees and volunteers, the following factors should be considered as a matter of good practice:

– Having intake guidelines that clearly set out your service’s remit.

– Having procedures for the capture of essential information (such as contact details), and relevant documents and instructions.

– Having a system for conflict screening and recording the outcome of conflict checks.

– Having a system for establishing a client’s identity for the purpose of conflict screening and to avoid identity fraud.

– Closely monitoring time limits or limitation periods, including those applicable to prospective clients enquiring with the service or who have been offered an appointment.

• There are a number of matters that, depending on the regulatory position, may or must be disclosed to clients. These include data protection requirements, a complaints policy, that the service is free, and its regulated status.

Part 2.5
Anti-money laundering

Christopher Simmonds

Introduction

Money laundering is often seen as something that stems from high-level crime. The mind conjures up images akin to those from Goodfellas and other similar movies with mobsters sitting around tables in diners and restaurants owned and operated by large-scale organised crime syndicates, in order to make it appear as though money obtained through criminal activities has come from legitimate sources.

But while such an image has a basis in fact, money laundering occurs across a spectrum of criminal activity. No doubt organised crime continues to form a part of the overall landscape, but even what we consider to be lower value crimes can result in money laundering. This can cover a wide range of offences, including relatively small-scale drug dealing, theft, benefit fraud, etc.

The legal sector has long been a target for people seeking to legitimise the source of funds. The policy paper National risk assessment of money laundering and terrorist financing 2017 assessed there to be a high risk associated with the abuse of legal services in money laundering, although the risk associated with the abuse of legal services in order to facilitate terrorist financing is low.¹ Perhaps more worrying is that while the 2015 National risk assessment assumed that the majority of money laundering in the legal sector involved complicit legal professionals,² more recent work suggests that the majority of money laundering occurs due to wilfully blind or negligent professionals.³

The potential role of law clinics in facilitating money laundering will vary depending on the nature of the clinic and the range of services that the clinic offers. This section will help you to:

• understand your legal obligations

• assess how much of a risk your clinic poses in light of the activities it undertakes

• implement such precautions as are needed to demonstrate that you are meeting best practice within the sector.

It is necessary at this stage to include a caveat on the contents of this section. The recommendations that are made are just that – recommendations. For some clinics the scope of their activities will mean that their legal obligations do not require them to undertake all of the recommended actions.

Similarly, given the ambiguity of elements of the legal framework, certain elements may or may not apply to clinics, and in such cases the recommendations work on the basis that they do apply.

You should therefore read this section as a best practice guide and, in particular, clinics should remember the need for a risk-based approach to anti-money laundering. Each clinic is individual and what is put in place should reflect the nature of the clinic’s work and its client base.

The guidance contained in this section should be read in conjunction with the Legal Sector Affinity Group’s Anti-money laundering: Guidance for the legal sector 2018, which has been approved by HM Treasury.⁴

Your legal obligations

Three key pieces of legislation constitute the framework for anti-money laundering activity within England and Wales. These are:

• the Proceeds of Crime Act 2002 (POCA)

• the Terrorism Act 2000 (TACT)

• the Money Laundering, Terrorist Financing and Transfer of Funds (Information on the Payer) Regulations 2017 (the Regulations).

The POCA and TACT create a series of offences that relate to money laundering and terrorist financing. These are broken down into two categories:

• offences that can be committed by any person

• offences that can only be committed by a person working within the ‘regulated sector’.

In turn, the Regulations set out certain administrative requirements that must be undertaken by those who fall within the scope of the Regulations.

It is perhaps more useful to consider the legislative framework in these terms, rather than by listing the provisions that are contained within each of the three key pieces of legislation.

Offences that may be committed by any person

The POCA (as amended) creates a number of money laundering offences that can be committed by any person, including:

• concealing criminal property (s 327)

• entering into, or becoming concerned in, an arrangement knowing or suspecting that it facilitates the acquisition, retention, use or control of criminal property by or on behalf of another person (s 328)

• the acquisition, use or possession of criminal property (s 329).

For the purposes of the POCA, criminal property includes money, all forms of property whether real or personal, heritable or moveable, and things in action and other intangible or incorporeal property that constitute a person’s benefit from any conduct that constitutes an offence in the UK. It is irrelevant who carried out the conduct or who benefited from it (s 326).

Similarly, the TACT introduces a range of offences that can again be committed by any person, including:

• fundraising for the purposes of terrorism (s 15)⁵

• use of money or property for the purposes of terrorism, or possessing money or property with the intention, or with reasonable cause to suspect that it might be used for the purposes of terrorism (s 16)

• arranging for money or property to be available to another knowing, or having reasonable cause to suspect that it may be used for the purposes of terrorism (s 17)

• facilitating the retention or control of terrorist property by concealment, removal from the jurisdiction, transfer to nominees, or in any other way (s 18).

The TACT also contains a general obligation that where a person believes or suspects that one of the offences listed above have been committed, and that belief is based on information which has come into their possession in the course of a trade, profession or business, or in the course of their employment, then there is a duty to disclose that information to the police. If they fail to do so then they commit a criminal offence (s 19).

While both the POCA and TACT contain further offences, those listed above are the most relevant to the work of a law clinic within a university. As such, it is essential to ensure that procedures are in place to ensure that offences are not committed through the work of the clinic.

Offences within the regulated sector

The POCA and TACT also contain offences that can only be committed within the ‘regulated sector’. These primarily relate to a failure to notify authorities of potential criminal activity under the Acts, and tipping off persons suspected of committing offences.⁶ In each case, the offences are only triggered if an offence is suspected because of information that has come into a person’s possession in the course of a business that is within the ‘regulated sector’.

These offences may not be relevant to all clinics, but in determining whether you are working within the regulated sector it is first necessary to bear in mind the employer.

Many clinic staff are not employed directly by the law clinic as it is not a legal entity in its own right. Instead, their employer is the university, and it is therefore necessary to consider the activities of the university as a whole when determining whether we are within the regulated sector. For some, they will be employed directly by the clinic, for example where the clinic has been established as an alternative business structure (ABS).

The meaning of ‘regulated sector’ is identical in both the POCA (see Schedule 9) and TACT (see Schedule 3A). There are 21 separate categories of work that are considered to fall within the regulated sector, and the vast majority of those categories will not cover the work of either the law clinic or, for that matter, the university. Perhaps the key provision is Part 1, Paragraph 1(n) (of both Acts), namely:

Clearly some clinics will not be involved in any of the activities listed and therefore the other elements of the definition will be of no concern. There are clinics, however, that provide advice to start-up businesses and may offer advice on the creation of a company structure. Similarly, in some civil actions (such as criminal injuries compensation cases) it may be necessary to advise on the creation of a personal injury trust or similar.

For those clinics we come to the grey area, mentioned in the introduction to this section, namely: are we covered by this definition?

For example:

• Are we participating in a financial transaction in circumstances where we have no client account and do not handle money for and on behalf of the client? There is no definition of ‘financial transaction’ provided in the legislation.

• Are we acting as a firm or sole practitioner? For those clinics that have set themselves up as an ABS, this is perhaps an easier question to answer. They will be regulated by the Solicitors Regulatory Authority and will be an entity in their own right and are therefore likely to fall within the definition.⁷

But what of those clinics that still fall within the remit of the university?

Guidance suggests that the definition excludes in-house solicitors, which will include solicitors working within most university law clinics.⁸ However, unlike the majority of in-house solicitors we are not solely advising our employer. We also advise members of the public. Some clinics also use external lawyers volunteering on a pro bono basis. So does this change the position?

There is no simple answer. Each clinic must consider its own position in forming a conclusion. That said, it is perhaps best to err on the side of caution. While the guidance issued has a statutory basis and has been approved by HM Treasury, the position remains ambiguous. It is therefore recommended to assume that if you are participating in any of the listed activities, then it is best to ensure that you have policies and procedures in place to ensure compliance. These are considered in more detail later in this section.

Application of the Regulations

The application of the Regulations is almost identical to the definition of the regulated sector contained within the POCA and TACT, and therefore if a clinic considers that it falls within that definition then it is likely that the provisions of the Regulations will also be relevant.

Again, there is some conflict here between the stated purpose of the Regulations and the guidance that has been issued to the legal profession. For example, in the anti-money laundering guidance issued by the Legal Sector Affinity Group, it states that HM Treasury has confirmed that it would not generally consider the following to constitute participation in a financial transaction:

• payment on account of costs to a legal professional or payment of a legal professional’s bill

• provision of legal advice

• participation in litigation or a form of alternative dispute resolution

• will-writing, although you should consider whether any accompanying taxation advice is covered

• work funded by the Legal Services Commission.⁹

Later in the guidance, however, sham litigation is considered to be a risk area that should be considered¹⁰ and so it would appear that the conduct of litigation would be very relevant, particularly where litigation would result in the transfer of funds from one party to another, for example in the case of a breach of contract claim against a small business.

It is perhaps telling that the phrasing of the above would not ordinarily be considered to constitute participation in a financial transaction. This in turn suggests that there may be circumstances in which those activities could fall within the definition of a financial transaction, and it is therefore likely best to err on the side of caution.

Implementing control measures

In the following section, we will consider what steps clinics need to take to ensure compliance with their legal obligations. As has been mentioned above, as a bare minimum clinics should ensure that they are not committing offences under the POCA and TACT. Where, however, the clinic is also carrying out work that could be considered to fall within the scope of the regulated sector and the Regulations, there are additional steps that must be undertaken.

A risk-based approach

For clinics whose work does fall within the scope of the Regulations and which are therefore within the regulated sector, there is a legal requirement that they carry out a risk assessment in order to identify the areas where the business is at risk of being used for the purposes of money laundering and/or terrorist financing, and to implement control measures to reduce the risks facing them.¹¹

However, for all clinics, conducting a risk assessment reduces the potential liability of the clinic. Even for clinics that do not consider themselves to fall within the scope of the Regulations, a risk assessment can achieve the following:

• Identify areas where the clinic’s work may be targeted for the purposes of money laundering and implement control measures in order to avoid criminal liability under the POCA and TACT.

• Ensure that defences available under the POCA and TACT are available in the event that the clinic’s work is used for the purposes of money laundering or terrorist financing.

• Record the reasons why the clinic would not fall within the scope of the Regulations in order to demonstrate that the clinic has considered its legal responsibilities in full.

In order to carry out an appropriate risk assessment, you should consider the risk profile of the work that you are engaged in, including:

• your customers

• the countries or geographical areas within which your business operates

• your products or services

• your transactions

• your delivery channels.¹²

The above risks should be considered in light of the additional guidance set out in the Legal Sector Affinity Group’s guidance. The points that are considered of greatest relevance in the clinical setting are summarised below, but you should refer to the guidance in order to satisfy yourself that your clinic faces no other risks.

Key risks

While some of the risks highlighted in the guidance seem to be of little relevance to clinics (for example, working for politically exposed persons) others are of more relevance, including:

1. high turnover of clients and relatively short-lived cases

2. acting for clients without meeting them (for example, through Skype clinics, written instructions etc.)

3. clients with high cash turnover businesses

4. creation of trusts, companies and charities

5. sham litigation.

In the case of points 1 and 2 above, the nature of clinics can make it difficult to properly establish the identity of our client base.

In terms of point 3, where clinics act for small businesses those may be retail start-ups where the vast majority of transactions will be cash. It may be that the clinic will act for small businesses defending breach of contract claims, where again there is a high cash turnover. It may even be that the businesses we are pursuing for clients in consumer claims have a high cash turnover. In such cases, the risk of sham litigation is high (see below).

For those clinics that are engaged in small business work, criminals can use trust and company structures in order to retain control of criminal assets and create difficulties for law enforcement agencies investigating possible offences. In respect of point 4, clinics should therefore be wary of receiving instructions for carrying out the routine steps involved in forming an entity without advice on the appropriateness of the structure.¹³

In terms of point 5, sham litigation occurs where the nature of the dispute has been fabricated in order to disguise the transfer of assets obtained through criminal activity. This is perhaps one of the greatest risks faced by clinics. Key warnings would be where a client is ready to settle too easily, for example where a claimant is willing to settle far below the value of the claim, or a defendant is willing to settle for too high an amount. Similarly, it could occur where a defendant to a claim offers to settle where the prospects of success for the claimant were low.

All of these factors should be taken into account when implementing control measures.

Control measures

Because the nature of the work that we carry out in clinics is generally lower risk than would be the case in private practice, the risks that we face can be dealt with through relatively easy measures, namely by ensuring that we carry out appropriate customer due diligence that is proportionate to the nature of the work that we are doing.

The risks outlined above would ordinarily be reduced to acceptable levels by ensuring that we carry out sufficient checks to satisfy ourselves as to the identity of the client and, importantly, any other parties to the case.

Customer due diligence

Taking steps to identify the client can help to significantly reduce the risk of money laundering. Customer due diligence (CDD) should not be seen as just a ‘tick-box exercise’, and should take place at the start of the contractual relationship with the client.

Where possible, original documents are the best way of ensuring that CDD is properly carried out, although this may be easier in the case of an individual as opposed to a business or trust.

Documents such as a passport, national identity card, driving licence, etc. bearing the photograph of the client, together with some other official document confirming the client’s name and address, are ideal ways of ensuring the identity of the client.

In some cases, it may be that the client uses different names for some reason or another. In such a case, it will be necessary to satisfy yourself that the client is who they claim to be, such as by obtaining alternative documentary verification.

In the case of a company or trust, if it is well established then lesser steps can be taken. In the case of a registered company, a search of Companies House to establish the name, registered address and company directors may suffice. In the case of an unincorporated business, sole trader or partnership, checking trade directories, establishing the identity of the owner or instructing person, etc. in the same way as an individual client may be sufficient.

If the client does not have suitable identification then it is necessary to consider the risk posed. If the subject matter of the dispute would not involve a financial transaction (for example, a complaint to a local authority) then the risk of money laundering is low. Similarly, even if the transaction is financial, if the other side is well established (such as a local authority, NHS Trust or national company) then again the risks of money laundering are low.

It is important to document the steps that have been taken in the CDD process for the client file and this will help to demonstrate compliance with the legal provisions.

For further details on client care and procedures when taking on new clients, see Part 2.4.

Policies and procedures

Documenting your risk assessment and control measures in appropriate policies and procedures will help to ensure compliance with the legislation and will reduce the risk of an offence being committed. In university-based law clinics, it is essential to draw students’ attention to the policies.

Simply having a policy or procedure may not be enough, though. As with health and safety considerations, it is also essential to demonstrate that you are complying with your own policies and procedures. This will include training staff and students on the relevant policies and procedures and documenting that you have done so. You may want to consider asking students in particular to confirm that they have read and understood their obligations under the policy before they undertake work in the clinic.

Additional requirements under the Regulations

For organisations that are within scope of the Regulations, there is also a requirement to have a Money Laundering Reporting Officer. This person is responsible for determining whether the circumstances of a case require reporting to the National Crime Agency. They should be of sufficient seniority to make the decision as to whether a report is necessary and, if so, to take such steps as they consider appropriate in order to ensure an adequate report is made.

Summary

• All clinics should ensure that they do not commit an offence under the POCA and/or TACT.

• In order to do so, a risk assessment should be carried out to identify the risk profile of the clinic and any control measures that have been implemented to reduce the risk.

• In the event that a clinic does not consider that it falls within the scope of the regulated sector and the Regulations, it should document the reasons for this within the risk assessment.

• Clinics should ensure that they implement appropriate CDD policies and procedures and train staff and students on them.

• If the clinic is subject to the Regulations, then the clinic should appoint a Money Laundering Reporting Officer.

Part 2.6
Signposting and referrals

Lee Hansen^*

Advice services undertake signposting and referral, indicating alternative sources of assistance where they are unable to help a client who has approached them for advice. This is of particular significance to law school clinics due to the nature and timing of the service provided, with many clinics closing outside of term-time.

In the 2015–16 LawWorks Clinics Network Report it was reported that 16,471 enquiries were received by law school clinics.¹ Of all these enquiries, law school clinics were able to deliver advice in 46 per cent of cases. The clinics were able to provide information, signposting or referrals in response to 38 per cent of enquiries. This left 16 per cent of enquirers who were unable to receive any information, signposting or referral from the law school clinics.²

There are a variety of reasons why your service may not be able to provide advice, and therefore the appropriate response to a client’s enquiry is signposting to other sources of assistance or referral.³

For example:

• closure outside of term-time

• the enquiry is outside the subject area advised on by the clinic

• the client falls outside the target area (e.g. household income exceeds the clinic’s thresholds or they are located outside of the clinic’s geographical catchment area)

• conflict of interest

• lack of capacity or competency in the relevant area

• the complexity or urgency of the client’s enquiry is not suitable for the clinic to assist with

• the clinic provides an information, signposting and referral service rather than advice

• the advice sought falls within an area the clinic is not authorised to advise on (for example, debt or immigration advice).

It is important to have a system in place to promote effective signposting and referrals in these cases to help prevent referral fatigue and deliver access to justice.

What is signposting and referral?

In England and Wales, it is important to understand the two terms that are used in this context and the difference between the two.

A commonly accepted definition of signposting is set out below:

Referral involves more active involvement in the process of directing a client to another organisation. It may involve contacting the other organisation with the client’s consent to confirm that the other organisation is able to accept the referral and to provide any required information, again with client consent:

In individual cases those working and volunteering in clinics will be faced with the decision of whether to provide more straightforward signposting information or a more active referral. The principles set out later in this section will assist with this.

Referral roundabout

The ‘referral roundabout’ refers figuratively to the problem of enquirers or prospective clients being bounced from service to service without being able to gain the help they need. The problem arises in a context in which there are limited sources of free or low-cost help and/or there is a lack of information available on potential sources of help.

This is linked to the problem of referral fatigue, which has been described as follows:

This longstanding problem has been exacerbated in the context of legal aid cuts and cuts to local authority funding, resulting in an advice sector that is under considerable strain.

Set out below are some of the potential impacts of referral fatigue:

• a client may give up seeking help if referrals or signposting do not result in them receiving relevant advice

• a client may become disillusioned with the legal system if they are given referrals or signposting information that does not lead anywhere

• ineffective signposting and referral can waste time. If the client’s case involves time limits for taking action, then seeking help at a ‘dead-end’ referral may cause problems for resolving the legal issue in the required time

• it is undesirable for a client to have to repeat their story to strangers time and again; this is particularly problematic where the subject matter involves something that is traumatic or sensitive

• providing an ineffective referral may deter clients from seeking help from your service again or recommending it to others in need.

Key principles of effective signposting and referral

What follows are the key principles of effective signposting and referral, aimed at helping clients to avoid the referral roundabout and to find a more direct path to an appropriate source of advice and assistance. All volunteers and staff who interface with the public should be aware of these principles. Several of them are good practice and will apply to all client interaction, not only in preliminary dealings and when considering signposting and referral. They are derived and adapted from Getting off the referral roundabout: Effective legal referral: a video and workbook developed by Kingsford Legal Centre, an Australian Student Law Clinic and Law Centre.⁷

1. Value and respect the client

2. Effective and appropriate communication

3. Identify the needs of the client

4. Know your own service

5. Know the legal system

6. Know service providers

7. Meet the client’s needs

8. Prepare the client for interview

1. Value and respect the client

A professional relationship that is founded on value and respect for the client can help us to effectively assess clients’ needs and therefore best direct them to an appropriate source of assistance. We can show that we value and respect clients by:⁸

• being sensitive to the particular needs of the client

• not being judgemental and approaching the problems that they present objectively

• demonstrating patience and empathy

• demonstrating a commitment to confidentiality.

2. Effective and appropriate communication

Effective and appropriate communication helps clinic staff and students to assess clients’ (or potential clients’) needs. For example, active listening and relevant questioning techniques can be used to clarify and confirm the person’s requirements.⁹ This can be done in the first encounter with a potential client, whether by telephone or in person.

Clarity in communication is also important when describing ‘the purpose and limits of the services provided by your own agency’.¹⁰ Consider how you and your clinic staff and volunteers can ensure this in your clinic marketing materials, as well as in face-to-face encounters and when handling telephone enquiries.

We should adjust our communication to meet our clients’ needs – using plain English ‘appropriate to the client’s level of education without being condescending’.¹¹ We should avoid jargon and, where we need to use technical legal expressions, do so with appropriate explanation. For example, your clinic might not undertake any contentious work. A client will not necessarily understand what is meant by that term. It will therefore be clearer to explain to the client that your clinic is not able to assist with any matters that are being dealt with by the courts.

It is also important to be aware of a range of factors that can impact upon communication, ‘things such as cultural, lingual or language differences, education and literacy levels, disabilities and mental illness to name just a few’ and to tailor your communication appropriately.¹²

3. Identify the needs of the client

This step is concerned with identifying the information, signposting and referral needs of the client. This will involve ‘identifying both the legal and non-legal issues and the urgency or otherwise of each one’.¹³ You will also need to have some regard to how complex the client’s issues are, as this will help you to understand whether generalist or specialist support may be required.

In identifying the needs of a client:

1. Some information will be needed on the substance of the legal help required.

2. The stage that any dispute is at will also be relevant.

3. The capability of the client themselves to act or access other services will also be relevant.

With regard to points 1 and 2 above there is no need for you to take full details of a client’s case in order to identify their needs, and in fact it would not be appropriate to do so where you are not able to offer the client advice. However, it is, for example, unlikely to be enough just to know that a client has a dispute with their employer. Instead, you will want to know broadly what type of dispute it is (e.g. has the client been dismissed? Do they think they have been discriminated against?) and what stage the dispute is at (for example, has the client already brought a claim? Or did the issue only arise yesterday?). This will enable you to direct the client to the most appropriate alternative source of support. If the dispute has only just arisen then signposting to an initial advice service might be appropriate. Whereas, if the client is in the middle of ongoing ligation, a referral to a firm of solicitors or local law centre might be the best course of action.

With regard to point 3 above, you may need to consider whether the client has any vulnerabilities that could be a barrier to them accessing other advice or support. There may also be particular communication needs, for example where the client has limited English, a cognitive disability or low levels of literacy.¹⁴ There may be emotional blocks to clients taking action or other support needs, for example due to mental health issues. Or there may be digital barriers to access if a client does not have access to email or the internet. Finally, the client may have geographical access issues, for example if they are situated in an area with no local or nearby advice organisations, if they do not drive and/or if there are poor local transport links.

4. Know your own service

It is important for staff and students to know about their own clinic, the services it provides and any limits in place for that service, so that they can then accurately provide this information to potential clients and other stakeholders that might refer or signpost clients to you.¹⁵ It is a waste of everyone’s time if a client is booked in for an advice appointment with a clinic only to find out that their query falls outside an area of law that the clinic can assist with. Other important information to know includes the level of service available (e.g. advice only or representation) and timescales over which advice may be provided.

5. Know the legal system

Clinic participants may have varying knowledge of the legal system depending on their level of experience. Student volunteers may well have very little experience. However, there is a certain basic knowledge of the law and the legal system that anyone involved in providing signposting information or referrals in the clinic should possess.¹⁶

Some areas worthy of particular attention include:

• that there are different areas of law, e.g. employment, criminal and family law

• that it is not always obvious that a problem may have a legal aspect to it, e.g. welfare benefits or consumer issues

• the range of different courts and tribunals

• an awareness of alternative dispute resolution, e.g. that referral to a mediation service might be an option

• an awareness of limitation dates (so that clients can be made aware that they may need to seek advice quickly).

Note that the above should not be used as a basis on which to give clients advice, where a clinic has determined that it is not able to do so. However, they are often essential pieces of information in order to be able to direct a client to the most appropriate alternative service.

6. Know service providers

Once students and staff of the clinic understand the client’s support needs and have ascertained that their own service is unable to assist, the next important step is to select appropriate organisations that may be able to assist the client.¹⁷ This requires knowledge of alternative potential service providers and should extend to those that can help with both the legal and non-legal issues that have been identified.

Various techniques can be used to acquire and consolidate such knowledge. For example:

• Participation in formal and informal networks, particularly those of relevance to the local community or to relevant communities of interest. These might include local law society committees or networks, local advice agency networks, etc.

• Use appropriate tools and resources, such as referral databases and guides. Some examples of referral databases and online guides and search forms include:

– The LawWorks Signposting & Referral Index, which is available to members of the LawWorks Clinics Network: <https://www.lawworks.org.uk/solicitors-and-volunteers/resources/signposting-referral-index>

– The Law Society’s Find a Solicitor website: <http://solicitors.lawsociety.org.uk>

– The UK government’s Find a Legal Aid Adviser or Family Mediator website: <https://find-legal-advice.justice.gov.uk/>

– The OISC Adviser Finder to find registered immigration advisers: <https://home.oisc.gov.uk/adviser_finder/finder.aspx>.

By knowing the level of service provided by other agencies, clinics are also able to manage client expectations about the service they may receive if they are signposted or referred to them.

It is important to have an understanding of the following details of other agencies:

• Which services are provided and by what method. For example, are they telephone-based services, drop-in or appointment services?

• Any geographical catchment or other eligibility criteria (such as an income limit, age requirements (e.g. youth support, pensioner services), veterans, specific health/mental health eligibility requirements).

• Accurate contact details (e.g. phone numbers, street address, email address and opening hours).

• For legal services, the areas of law they cover.

• Whether the service is free or if there are any fees.

• Whether there is any access to interpreter services and whether access to interpreters is free.

• Disability access.

• Whether services are by referral from other providers only or whether clients can access the service directly. Sometimes there may be different contact details provided for the public and some services are only available by referral from other organisations, not individuals.

7. Meeting the client’s needs

This step is about ensuring that the services to which you are referring the client match the needs of the client, and that the method of referral (signposting or referral) is appropriate to the client’s needs.¹⁸

As is noted in the referral roundabout handbook:

A number of steps can help to ensure that the signposting or referral is done in a way which best meets the client’s needs:

• Make sure that information provided to clients is accurate and current, including whether there are limitations on the services being referred/signposted to.

• Be realistic in describing what assistance the client will receive from the service to which they are being referred. For example:

– ‘there may be a waiting list’

– ‘it’s an advice-only service’.

• Use interpreter services where necessary.

• Sometimes more than one signposting or referral option should be identified and offered to a client.

• You might invite the client to come back to you for further guidance if the signposting or referral is unsuccessful.

8. Prepare the client for the interview

Finally, whether signposting or referring to a lawyer or alternative advice service or offering a client an appointment with your own clinic, there is information that you can provide to help them prepare for the interview. If there are particular communication needs, for example the need for an interpreter, you should make arrangements for this.

Avoid creating any unrealistic expectations about what a lawyer may be able to achieve for the client. If you are able to indicate how long the client will have with the lawyer this will help them plan to make the best use of their time. Finally, help the client identify the relevant documentation to bring along with them. There is a helpful list on the LawWorks website of documents a client should bring along to an interview.²⁰

Referral systems

There are various ways for you to record the details that your clinic holds about organisations to signpost or refer clients to. It may be a paper-based list or you may use an electronic referral system containing a list of organisations, the services they provide and their contact details, etc. This could range from an Excel spreadsheet to an online database.

You may wish to design your own online database, and this is something that could be done in collaboration with other local service providers.²¹

Some existing online referral systems include:

• NellBooker: <https://www.nellbooker.net>

• Refernet: <https://www.refernet.co.uk>

• CLOCK: <https://clock.uk.net>

However, for more basic systems you could build a referral list using an Excel spreadsheet or a printed manual. Students can also be involved in building and maintaining your referral list. For example, students who have a good knowledge and involvement in local community organisations will be well placed to contribute.

If using a printed manual, you could include pockets in which to slide relevant pamphlets and updates. Naturally, it is important to ensure that any system you use is kept up to date so that you can continue to provide appropriate referrals.

Referrals under the SRA Standards and Regulations

The new SRA Standards and Regulations came into force on 25 November 2019 and replaced the 2011 SRA Handbook. Therefore, clinics making referrals should be mindful of paragraph 5 of the new Standards, which sets out how referrals must be dealt with and what information must be shared with the client.²²

As with the previous Handbook, the Standards are particularly concerned with situations in which either referring party will derive a financial benefit. It will remain the case that payments for introductions should not be made in certain circumstances, such as where clients are subject to criminal proceedings.

Paragraph 5.3 of the new Standards makes it clear that in all cases, a client must only be referred, recommended or introduced to a separate business where the client has given their informed consent to the same. Therefore, where making referrals to another organisation, it would be good practice to keep a record of the client’s consent for you to do so.

Summary

By their often seasonal nature, law clinics may often respond to a high proportion of enquiries by providing a referral or signposting information. It is important to have effective systems in place in order to avoid sending clients on the referral roundabout and in order to avoid the problem of referral fatigue.

There are certain key principles of effective referral that all persons interfacing with the public should know about. These are:

1. Value and respect the client

2. Effective and appropriate communication

3. Identify the needs of the client

4. Know your own service

5. Know the legal system

6. Know service providers

7. Meet the client’s needs

8. Prepare the client for interview

You can develop your referral system online or on paper. Online options present you with a particular opportunity to collaborate with local networks.

Finally, the SRA Handbook and LASPO have particular outcomes, requirements and prohibitions relating to referrals; these tend to be circumstances where an introduction is made pursuant to some financial arrangement.

Part 2.7
Quality assurance: Advice standards

Tony Martin

Introduction

In the late 1990s, the then Legal Aid Board created the Legal Aid Franchise Quality Assurance Standard (LAFQAS). To a large extent, this was driven by the agenda of value for money for taxpayers in public expenditure. LAFQAS followed the introduction of franchising in 1993.¹ By 2003 LAFQAS had been replaced by the Specialist Quality Mark (SQM). Holding the LAFQAS and then the SQM was a requirement for all legal aid contract holders.

The Law Society’s rival quality mark, Lexcel, was developed from the Law Society’s practice management standards, which were awarded as a result of membership of specialist panels. Introduced in 1998, initial take-up was slow. By 2004 Lexcel had been awarded to only 265 private practices, 113 local authorities and three in-house/commercial departments.² Three years later, however, the promoting of Lexcel had led to it being awarded to 700 practices, including over 100 local authority legal departments.³ By the tender round in 2011, legal aid suppliers could hold either the SQM standard or Lexcel; this remains the case today.⁴

The Legal Services Commission (LSC) also developed the General Help Quality Mark (later known as the Advice Quality Standard (AQS)), which was devised as a funding mechanism for the now severely reduced legal aid funding and was a complementary standard to the SQM. On 1 April 2013, the LSC was replaced by the Legal Aid Agency, an executive agency of the Ministry of Justice, and the ownership of the AQS was transferred to the Advice Services Alliance.⁵

In 2014 the Low Commission reviewed the quality standards in the not-for-profit sector.⁶ Currently, over 700 separate local advice services across England and Wales hold the AQS,⁷ while over 1,700 solicitors’ firms, in-house legal departments and law centres are Lexcel accredited. These range from sole practitioners to multi-partner firms, local government legal departments to the Government Legal Service. Practices are spread across the regions.

Absent are the largest city firms, with the notable exception of Mishcon de Reya LLP and Slater and Gordon.⁸ It has been suggested that the Lexcel standard is not as relevant to city law firms that have already established their reputation for high-quality work. City firms ‘perceived Lexcel to be more relevant to firms at the smaller end of the profession’ in order that individual firms could signal the firm’s quality to clients less accustomed to purchasing legal services.⁹

In September 2018 there were 10,456 solicitor practices, recognised bodies and alternative business structures regulated by the Solicitors Regulation Authority (SRA) in England and Wales.¹⁰ It can be estimated that around 16 per cent of those are therefore accredited with Lexcel. Therefore, it is a reasonable prospect that law students are heading for practice in an accredited organisation.

In addition to organisations being accredited, the Law Society also has an accreditation scheme for individual solicitors specialising in certain areas of law:

• Children law

• Clinical negligence

• Conveyancing quality scheme

• Criminal litigation

• Family law

• Family mediation

• Immigration and asylum

• Immigration law advanced

• Mental capacity (welfare)

• Mental health

• Personal injury

• Wills and inheritance

While the requirements vary according to specialism, the process focuses on the need to demonstrate expertise in the particular practice area.

Need for quality assurance

That a measure of quality assurance is required in law school pro bono clinics is beyond doubt. For example, the Joint Pro Bono Protocol states that ‘pro bono legal work should always be done to a high standard’.¹¹ Furthermore, the Legal Services Board states that:

The SRA also imposes requirements to ensure the quality of advice. For example, Standard 3.2 of the Code of Conduct for Solicitors, RELs and RFLs in the SRA’s 2019 Standards and Regulations provides that solicitors must ensure that the service they ‘provide to clients is competent and delivered in a timely manner’.¹³

However, it is important to remember that while quality standards can measure the extent to which a clinic complies with written procedures and certain minimum standards, they do not measure the quality of either the advice or of the learning experience for any law student involved in the delivery of advice.

In recognition of this, the Advice Services Alliance, owners of the Advice Quality Standard, are piloting a peer review process, via an online platform, so that external experienced reviewers will review a sample of case files to ensure that the advice given is competent and reflects current best practice.¹⁴

Clinics and advice quality standards

There are a number of things that clinic managers must consider when deciding whether to apply for a quality standard:

• The potential impact, if any, on:

– student involvement

– client confidence

– involvement of external supervisors (solicitors and barristers)

– funding arrangements and applications.

• The benefits of an external audit process.

• The cost to the clinic (some guidance is given below but in all cases a quote should be obtained as there are many variables).

• The degree of changes that may be required to obtain the accreditation.

Advice standards options for clinics

There are three ‘advice standards’ options that may be available to clinics.

• Specialist Quality Mark (SQM)

• Lexcel

• Advice Quality Standard.

The pro and cons of each are considered below.

Specialist Quality Mark (SQM)

Pros:

• The SQM was introduced in 2002 as a quality management system for legal aid providers.

• It aims to enable legal services providers/organisations to demonstrate that they are well managed, provide good levels of client care and have systems in place to ensure delivery of good quality advice.

• The SQM is owned by the Legal Aid Agency, but contracted to Recognising Excellence Ltd.

Cons:

• The SQM is more relevant to legal aid contract holders than university pro bono clinics.

• Many legal aid suppliers have moved from the SQM to Lexcel.¹⁵

• In the view of the Low Commission: ‘Unfortunately, it has never been fundamentally reviewed and it has become out of date. There is no longer any active development of the standard by the Legal Aid Agency.’¹⁶

Information on the numbers of organisations holding the SQM is not readily available, nor is the cost information.

Lexcel

Pros:

• Lexcel is widely acknowledged as an industry standard. The Law Society’s view is that: ‘Lexcel is the Law Society’s legal practice quality mark for excellence in legal practice management and client care. It provides a flexible, supportive management framework to help practices and in-house legal departments develop consistent operational efficiencies and client services, manage risk effectively, reduce costs and promote profitability. It is the most appropriate Standard for the legal profession as it was written by solicitors for solicitors.’¹⁷

• Given that it is widely adopted, it is likely that a student subsequently qualifying in private practice, in house or in a law centre will work within an organisation holding Lexcel, so it can be seen as good preparation for professional practice.

Cons:

To use Lexcel a clinic must be either:

• a law practice in the form of a partnership, limited liability partnership, sole practitioner, incorporated law firm or alternative business structure (ABS) authorised and regulated by the SRA,

or

• an in-house legal department: including those in corporations, public sector, law centres, not-for-profit and government organisations.

While Lexcel is designed for any legal practice – regardless of the size or type of work undertaken from private practices in England and Wales and international markets, to not-for-profit organisations and in-house teams in organisations and local authorities – the entity applying for it must be an SRA-regulated entity. While solicitors employed by universities to supervise student law clinics are practising in-house, most clinics are a very small part of the university and may not meet the management requirements of Lexcel. Nonetheless, the standards, which in many ways overlap with the SRA Standards and Regulations, provide a useful framework for the organisation of clinics.

The costs of Lexcel include an annual assessment fee and a registration fee. The annual assessment is based on a daily rate of between £600 and £800 (as at July 2019). The number of days needed to carry out the assessment will depend on the size of the organisation and the number of practice areas, but for most clinics it is likely to be between one and three days. The registration fee is based on the number of fee earners, with two to 15 fee earners being £225 plus VAT (as at July 2019).¹⁸

Advice Quality Standard (AQS)

Pros:

• The AQS is the quality mark for organisations that provide advice to the public on social welfare issues.

• The AQS claims that it ‘is an independently assessed quality mark that, when awarded, demonstrates a well-managed service. It has been developed specifically to assure quality legal service provision and will identify you to clients, funders, and other agencies who refer to you’.¹⁹

• The AQS is owned by the Advice Services Alliance (ASA), a nationally recognised body supporting advice services nationwide.

• Over 700 advice providers hold the AQS, from national bodies like Citizens Advice to local advice centres.

• There is an emphasis on continuous improvement.

Cons:

• The AQS is not as widely recognised as Lexcel.

• The AQS is not the standard used by most solicitors and is aimed predominantly at the advice sector.

• The clinic concerned must fit within the social welfare criteria (which does not include advice on family law or commercial law advice to small businesses, for example).

While the AQS is owned by the Advice Services Alliance, the assessment process is independently managed by Recognising Excellence.²⁰

The costs of the AQS is a registration fee of £175 (discounted by £100 if an application for assessment is made within three months of registering), an initial (one-off) desktop audit fee (£475) and a biennial audit fee dependent on the number of staff. For four to 15 staff, the cost is £1,250. These are for the level two audit only (see below).

As with Lexcel, the AQS provides a useful framework for the organisation of clinics, client care and the delivery of advice.²¹ On balance, the AQS is likely to be the most accessible and relevant starting point for many law clinics. This has also been recognised by LawWorks, who have promoted the AQS to clinics registered with its network.²²

Audit process: A case study

This section draws on the experience of one student legal advice clinic (BPP University Law School’s Legal Advice Clinic) undergoing the AQS audit.

The AQS recognises three levels of client-based work:

• the Information Service

• the Advice Level

• the Advice with Casework Level.

The Information Service covers:

• providing general information, e.g. leaflets or an information kiosk provided in a reception or waiting area. Clients select the information they want themselves and there is no direct guidance by a receptionist or other staff member

• signposting, e.g. providing factual information about the role of another organisation or how to find or contact that organisation

• assisting clients to find information that relates to their enquiry, e.g. providing clients with leaflets, website addresses or other details which will help them contact other organisations, such as the Department for Work and Pensions (DWP).

The Advice Level covers:

• diagnosing clients’ problems

• giving information and explaining options

• identifying further action the client can take

• giving basic assistance, e.g. filling in basic forms, contacting third parties to seek information.

This will generally be done in one interview, although there may be some follow-up work. The client then retains responsibility for further action.

The Advice with Casework Level covers the above plus:

• the service may also be providing a casework service, i.e. taking action on behalf of clients in order to move the case on. This may include negotiation and advocacy on the client’s behalf to third parties on the telephone, by letter or face to face. By definition, most cases will involve follow-up work with the service provider retaining responsibility for this.

There is also a separate Telephone Service audit where advice is provided by this method.

The service is then judged against various standards within the framework. It would be a long process to set out the framework in full here, and anyone considering applying for the AQS (or indeed for any quality standard) needs to read the framework carefully.²³ In general terms, however, this requires a clinic to have policies and procedures that comply with the framework and to demonstrate adherence to those policies and procedures. The form of client consent is likely to need amending, to allow for the auditor’s access.

The desktop audit considers the policies and procedures required for first applications. This is followed by the onsite audit, which involves the inspection of files, interviews with staff and student volunteers and looking further into any issues arising under the desktop audit. Client consent is needed for the inspection of their files, which can be incorporated into the standard consent forms used with clients. If there are corrections needed from either the desktop or onsite audit then 28 days are allowed to comply. Once awarded, there is a requirement for re-auditing every two years.

There is a clear benefit to having an external auditor look at your policies and procedures and the extent to which you adhere to them. BPP’s experience was that the audit made clinic staff look critically at the clinic’s policies and procedures and how far BPP’s practice mirrored those policies and procedures. The process ensured that staff gained a fresh perspective on file reviews and overall it was a positive learning process.

The award of the AQS has allowed BPP to demonstrate externally (to clients, partner agencies, etc.) our commitment to quality. Within the university itself, the award of the AQS raised the profile of the clinic. In addition, there were many positives in the report of the auditor, which provided staff and students with welcome feedback and encouragement.

Part 2.8
Quality assurance: Higher education and clinical legal education

Nick Johnson

For those who run clinics in higher education where the clinic’s activities are part of the curriculum, the issue of quality assurance is one that, at some stage, will have to be faced, especially when developing a new module or programme of study.

Each higher education provider has a primary responsibility for ensuring that its programmes offer a high quality of education; that students achieve required standards; and that assessments are appropriate, rigorous and fair. Despite the existence of common principles of higher education quality assurance, each individual institution will have its own processes that will need to be followed. For this reason, the comments in this section are of necessity general. The first port of call for those seeking to introduce or further develop clinical programmes will be their own faculty or university quality assurance department.

Quality assurance processes are often seen by academic staff as opaque and confusing, especially when enthusiasm for the subject area being taught is far greater (as would be expected) than enthusiasm for quality processes. Those administering quality assurance processes and providing guidance may seem remote from the day-to-day activity of academic staff. However, engagement with the quality framework in an institution is necessary and, in many cases, highly beneficial when establishing and developing clinical programmes. Often, through engagement with such processes the clear educational benefits of clinical legal education can be clearly demonstrated.

This section highlights some of the key issues associated with validating, reviewing and developing a clinical module or course. Assessment is clearly a key focus of the quality assurance process and although this section highlights some issues associated with assessment, this is dealt with in detail in Part 3 of this Handbook and you should refer to that section when considering some of the issues referred to here.

Quality assurance framework in the UK

The framework for quality assurance for UK universities is set out by the Quality Assurance Agency (QAA) which, by agreement with the statutory higher education regulator, the Office for Students, is responsible for providing guidance to higher education providers on ensuring the quality of provision.¹ This is done principally through the UK Quality Code for Higher Education. The provisions the Code, which covers 12 specified areas of quality assurance, will in practice be largely incorporated into local institutional policies which will have been developed to ensure compliance with the Code.

For those developing clinical programmes and modules, therefore, many institutional policies will already give guidance to ensure that modules developed fit within the QAA Code. For those wishing to look in more depth at the Code, of particular relevance are those areas that relate to course design, assessment, learning and teaching, partnerships and work-based learning.²

The QAA also produces Subject Benchmark Statements, which set out the nature of study and the academic standards expected of graduates in specific subject areas, outlining what graduates in a particular subject might reasonably be expected to know, do and understand at the end of their programme of study. The Law Subject Benchmark Statement³ provides extensive guidance, which is discussed further below. For those whose clinical programmes seek to cover some of the learning outcomes of vocational courses (such as the Legal Practice Course skills), the written standards for particular courses also give guidance on the levels of competence expected.

It is beyond the scope of this section to discuss in detail the quality assurance framework for higher education and for specific professional qualifications.⁴ However, clinical programmes often present particular issues that will need consideration when either validating, reviewing or engaging in the assessment of the quality of any programme offered. The purpose of this section is therefore to consider the issues that apply specifically to clinical programmes and to address some of the quality assurance issues which are raised by faculty, university and external assessors when establishing and running clinical programmes. It will be seen that established clinical practice, including much of that outlined in this book, reflects good quality assurance practice in general, supporting the assertion of many clinicians that law clinics are a potent and high-quality educational experience.

Clinical modules will often differ in the style of teaching and assessment from other law school modules, particularly those that are more likely to focus on specific legal content. While clinical modules may have a focus on a particular area of law, teaching and assessment methods commonly used on, for example, core modules are unlikely to be suited to clinical modules.⁵ Further, particularly in those modules that involve ‘live client’ work, concerns may be raised that students will have very different learning experiences, depending on the clients they see and the area of law they deal with. It is a good idea to address such issues at the outset of a review or validation process.

Specific quality assurance issues in clinical legal education

Designing and developing modules

Learning outcomes

When developing a clinical module, the first step ideally is to specify learning outcomes (LOs). It is easy to assume that skills development will be the primary focus of any clinic module and suggest learning outcomes based on these. While skills development is a key part of many clinic modules, a law clinic is a powerful teaching and learning tool for such topics as legal ethics, law and society issues, and principles and practice of the justice system, as well as potentially providing a grounding in a subject area (e.g. housing, family or even commercial law).

Examples of typical learning outcomes are set out in the sample module specifications set out in Part 5.4 of this Handbook. Defining LOs at the start of the development (or, indeed, the review) of a module provides clear focus for the module and gives a clear steer on the best method of assessing students. It also addresses some of the issues associated with consistency of experience, which are often raised when introducing or reviewing clinic programmes.

Assessment methods

The QAA guidance provides that assessment should be:

• reliable, consistent, fair and valid

• inclusive and equitable

• explicit and transparent. ⁶

Assessment and feedback are to be ‘purposeful and support(s) the learning process’ and students to be supported and prepared for assessment.⁷ Assessment should also encourage ‘academic integrity’.⁸

The requirement that assessment should be consistent can present difficulty for those running live client modules. The claim is often made that inevitable differences in student experience when dealing with live clients, mean that assessment will not be fair: for example, one student or group has a particularly interesting case or another has a challenging and difficult to handle client.

This does present a challenge. QAA standards clearly require students to be provided with an ‘… equivalent high-quality learning experience’, although differences in experience will undoubtedly arise in other modules, for example dissertation and research modules.⁹

To some extent, the requirement is countered by the fact that the same standards require providers to ensure that the learning environment is ‘accessible, relevant and engaging to all students’ and ‘encourages and enables students to take an active role in their studies’.¹⁰ Many clinicians would argue that the experiences they enable clearly do both these things, even if this may come at the perceived expense of ‘equivalence’.

As well as ensuring that assessment processes are robust, with clear marking criteria and moderation processes, it is most important to ensure that the assessment method clearly aligns with the identified LOs. It is unlikely to be appropriate, for example, to assess an LO that seeks to develop a student’s capacity to reflect on their performance by simply assessing performance in a particular skill such as legal writing or interviewing. Other methods, such as viva or a reflective journal, will be more appropriate. A variety of assessment methods, even if a module only has a single point of assessment, will be best if the LOs are widely drawn.

Quality assurance processes will rightly require formative assessment and feedback opportunities to be included and identified in course design. A law clinic is usually rich in opportunities to provide students with feedback but consideration should be given to how this may be recorded and evidenced. Consideration should be given to what opportunities there are for formative feedback during and at the end of a module. Feedback is clearly an integral part of reflective learning and, given the bond between clinical legal education and reflective learning,¹¹ course design should highlight the occasions when formal feedback is given to provide students with the essential material to reflect on.

Finally, student feedback is an essential part of the quality assurance process. Many clinics, as well as having centrally gathered feedback from students provided by their university, will often as a matter of course seek more specific written feedback on students’ learning and working experience. This represents a valuable source of information not just as to the quality of supervision and experience in a clinical module but also, if carefully constructed, gives an indication of whether or not the learning experience of students reflects the intended LOs.

Contact hours

Given the relationship between academic credit and notional study hours, many institutions will require a clear breakdown of hours devoted to particular activities when validating a course or module. This will entail identifying not just the numbers of large and small group sessions (lectures, seminars and tutorials) but also any supervision sessions.

Identifying contact hours is clearly essential for timetabling. However, given that staff:student ratios are normally lower in a law clinic than in traditional seminars, and the numbers of lectures and seminars may well be fewer, particularly in live client modules, this may present a problem when validating courses. Given the ‘workshop’ nature of clinic activity, formal contact time with clinic staff is often less than on modules with a more standard format. With university management being increasingly concerned about the effect of reducing contact hours on Key Information Set (KIS) data, those developing clinic courses may well find themselves urged to fit clinic modules into the same format as other more content-based modules.

As well as being inappropriate for clinic modules, such an approach presents a significant risk of undermining students’ learning experience. Clinic participation often results in students committing time in excess of that normally required by a credit-bearing module because they are highly motivated. This will not necessarily be reflected in comparison between the numbers of timetabled sessions with other modules. Therefore, unless a realistic element of time allocation is built into clinic modules to ensure students’ actual workload in the clinic is properly reflected, and excessive dependence on the traditional lecture/seminar format avoided, there is a danger that students’ learning experience both in clinic and in other modules will be adversely affected.

Conduct of live client work and work-based learning requirements

To some extent, whether undertaken with an external organisation or via an in-house clinic, most clinic work in university law schools can be described as work-based learning, whether or not the learning outcomes relate to specific employability objectives. The QAA Code indicates that work-based learning should:

• consist of structured opportunities for learning

• be achieved through ‘authentic activity’

• be supervised.¹²

The QAA Code also indicates that work-based learning opportunities should ‘enable students to apply and integrate areas of subject and professional knowledge, skills and behaviours’.¹³

As other contributions to this Handbook suggest,¹⁴ structured learning through following clinic processes and supervision are clear attributes of clinics and their work. When seeking validation it is possible to stress the way in which clinical modules meet standards for work-based learning.

Further, the way in which work-based learning will often be seen as a way of integrating and synthesising knowledge, skills and behaviours suggests that clinical modules are more appropriate in the latter stages of an undergraduate or postgraduate course, which are likely to have higher level learning outcomes.

Partnership working

Part 1 of this Handbook discussed examples of partnership working, where clinical legal education experience is provided by an external agency. The QAA directs higher education providers to consider any specific issues in relation to the workplace environment and deal with them appropriately. In most cases, a formal agreement between the workplace and the institution should be in place to outline the responsibilities of each partner. Similarly, students engaged in external placements should have some formal agreement that governs their work and responsibilities at the host organisation.

The Code states that such placements should be delivered ‘through a meaningful partnership between students, employers and the education organisation’ and that those involved ‘understand and respect’ their respective roles.¹⁵ As suggested, appropriate training and support needs to be provided for students going into an external organisation, and responsibility for this identified. Opportunities should be ‘inclusive, safe and supported’ and ‘designed, monitored, evaluated and reviewed’ in partnership.¹⁶

Notably, the Code states that ‘feedback from internal and external stakeholders’ should be used to inform course content.¹⁷ Working with external agencies does provide an opportunity for a teaching team to use feedback from partner organisations to develop and enhance materials when reflecting and reviewing a module.

Subject Benchmark for Law

As indicated above, part of the QAA framework includes the provision of ‘subject benchmarks’, which provide non-prescriptive guidance for those delivering courses in subject areas. The Subject Benchmark for Law was last updated in 2015.¹⁸ It provides extensive guidance on both the attributes that a law graduate can be expected to have at the end of a programme of study in law, and methods of teaching, learning and assessment.

A detailed consideration of the Subject Benchmark is beyond the scope of this section. Further, the Subject Benchmark applies across a whole course or programme of study so not every item will need to be addressed within a single module. However, it is recommended that those developing and promoting clinical programmes consult and use it when developing programmes of study. In many senses, it provides a wide and varied set of attributes for a student and a diverse range of teaching and assessment methods, many of which are reflected in clinical programmes (such as the ability to gain an awareness of the principles and values of law and justice and the use of a variety of methods of delivering the curriculum). The use of the statement provides potentially significant support to anyone seeking to establish clinical modules within their law school, as it supports the type of engaged learning with which clinical legal education is associated.

Part 2.9
Clinical legal education as solicitor qualifying work experience

Victoria Roper, Rachel Dunn and Vinny Kennedy

Introduction

The Solicitors Regulation Authority (SRA) is intending to introduce a new qualification regime for solicitors. During the relevant consultation process, there was strong support for retaining the requirement for solicitors to undertake a period of legal work experience before qualification.¹ The SRA has, accordingly, decided to keep a two-year work experience requirement, which will in future be known as qualifying work experience (QWE).

At the time of writing, it is anticipated that QWE will replace the current ‘period of recognised training system’ in September 2021.² When the new system is introduced, a broader range of work experience will potentially be able to qualify as QWE. There will also be more flexibility about when such QWE can be undertaken and scope to satisfy the requirement within up to four different firms, educational institutions or other organisations. This means that, in future, clinical legal education (CLE) work undertaken by students at university/within a student law clinic could ‘count’ towards QWE. Universities and law clinics will not be mandated to offer QWE, but may choose to do so if they wish. The SRA hopes that the changes will promote access to and diversity within the profession.

In this section we will discuss the background and detail of the SRA’s plans, and analyse the practical considerations clinicians will need to take into account should they decide to confirm CLE as QWE. The arguments for and against offering CLE as QWE, and how employers might perceive solicitors with such experience, are outside the scope of this section, but such issues are explored in our 2018 Law Teacher article, ‘Clinical legal education as qualifying work experience for solicitors’.³

SRA’s proposals in relation to qualifying work experience

How will QWE be different to the current regime?

The SRA has published Draft SRA Authorisation of Individuals Regulations (as amended) (the Draft Regulations) setting out its proposals in relation to QWE.⁴ Note that references in this section are to the latest version of the Draft Regulations available at the time of writing, and readers should check the final implemented version to ensure compliance, as there may be further changes.

The Draft Regulations provide that:

The new system is much more flexible than the current regime, and will allow a candidate with a portfolio of work experience gained at a number of different firms, educational institutions or organisations to meet the QWE requirement, provided that their work experience adds up to at least two years’ full time equivalent (and provided it is confirmed in accordance with the Draft Regulations – discussed further below). ‘Educational institution’ is currently undefined in the Draft Regulations but it seems clear that the SRA intends this to include universities.

It appears the SRA will adopt a fairly light-touch approach to the regulation of QWE and does not intend to be as prescriptive as it is under the current regime. The SRA’s justification for this is that the SQE Stage 2 Examinations (which are expected to be taken at the end of the QWE) will test a candidate’s competence to practise and therefore heavier oversight is unnecessary.⁶

The current system and the new system of QWE are compared in Table 1 below.

Table 1: Current and proposed regimes compared

What type of work experience will be allowed to constitute QWE?

The Draft Regulations do not prescribe the type of work experience that can contribute to the QWE. Rather, they state that QWE must comprise of experience of providing legal services which provides the candidate with the opportunity to develop some or all of the prescribed competences for solicitors (discussed further below).⁷

The SRA has said that:

The Draft Regulations make reference to QWE comprising experience of ‘providing legal services’, which may indicate that purely simulated work will not count, although the position is not particularly clear.

Clinical legal education as qualifying work experience

What type of CLE will be allowed to constitute QWE?

Universities should note that the SRA has indicated that multiple clinical experiences undertaken with the same institution will only count as one ‘arrangement’, although this is not stated in the Draft Regulations themselves. It appears that the SRA is not proposing to impose a minimum time period for any QWE arrangement, including CLE.⁹

Universities employ various forms and models of CLE. Therefore, the first question clinicians are likely to ask is: what type of CLE can constitute QWE? The SRA has said that ‘clinical legal education and working pro bono or in student law clinics’ could count as QWE.¹⁰ The difficulty, of course, is that these terms have no legal or universally agreed definitions and are open to interpretation. Nor are ‘CLE’ or ‘law clinics’ expressly referenced or defined in the Draft Regulations. The key question clinicians must ask themselves, just as any other provider of QWE will have to do, is whether students are given the opportunity to develop all or some of the solicitor competences.

In March 2015, the SRA published a competence statement for solicitors. This defines the standards for practice as a solicitor and therefore the knowledge and competences that aspiring solicitors need to demonstrate in order to qualify.¹¹ The statement consists of three parts:

• a statement of solicitor competence

• the threshold standard

• a statement of legal knowledge.¹²

It is the statement of solicitor competence that is particularly relevant for QWE, and clinicians should consider the competences stated therein and whether students are given the opportunity to develop some or all of them. What is meant by ‘some’ of the competences is not defined.

The SRA has made it absolutely clear within the Draft Regulations that all that is being confirmed is that the opportunity for development has been provided;¹³ law clinics will not be required to confirm the student is competent (this being tested at SQE Stage 2). The SRA has highlighted that the new regime will allow individuals to obtain QWE with more than one organisation, so that they develop different competences at different times and places.¹⁴

The responsibility to ensure that a candidate has undertaken sufficient QWE prior to sitting SQE Stage 2 firmly rests with the candidate, and not upon those who provide confirmation. Universities may need to make this clear to their students. Universities may also take a view that it is only worth offering QWE if students are given the opportunity to develop a reasonable number of competences.

At Northumbria University, where we work, we have undertaken an exercise whereby we have mapped the activities students undertake in our in-house clinic, the Student Law Office, on to the competences in the statement of solicitor competence (see Table 2 below). We are confident that the Student Law Office gives students the opportunity to develop most of the competences.

The opportunity to develop the competences is what is key rather than the type or model of CLE concerned, although the form and model may have an impact on the practicalities of supervision and confirmation (discussed further below). This will particularly be the case where the CLE or pro bono work is undertaken by a student on a voluntary, extra-curricular basis. In such circumstances it is likely that the student will have had the opportunity to develop competences, and therefore the Regulations regarding confirmation (referred to below) could still apply to such experience.

However, there will be no formal method of assessing the work undertaken by the student. This may create difficulties upon confirmation whereby the solicitor may not feel there is sufficient evidence to make the required confirmation. Universities may therefore conclude that for CLE and pro bono work undertaken on a voluntary basis, no confirmation will be available. As suggested previously, this will need to be clearly communicated to students. Nevertheless, you are welcome to use Table 2 below as the basis for your institution’s own mapping exercise if you so wish.

Table 2: Northumbria’s Student Law Office mapped to the statement of solicitor competence¹⁵

Practicalities

In this section, we will consider the key practicalities that law schools will need to consider if they are to offer clinical legal education as qualifying work experience: supervisory and confirmation arrangements, and how to calculate the period of QWE gained.

Supervisory and confirmation arrangements

The Draft Regulations provide that candidates must arrange for each firm, organisation or institution in which they have undertaken their QWE to provide a ‘confirmation’ in a prescribed form. In this section we will therefore explain:

• who can provide this confirmation and the implications for CLE specifically

• the matters that must be confirmed

• the implications for supervision in clinics.

Who can provide the required confirmation?

Regulation 2.2¹⁹ states that only the following people can provide the required confirmation of QWE:

Anyone providing the required confirmation will need to have taken sufficient steps to satisfy themselves as to the matters they are confirming (discussed further below). It is worth highlighting that the definition of a solicitor will include those who are on the roll, but do not have a current practising certificate, something that has been subject to some criticism.²⁰

Who gives the confirmation statement will likely depend on the supervisory model of the CLE in question. Few law clinics will have a COLP, but many will employ an internal supervisory model with solicitors in the clinic acting in a supervisory role.²¹

Where the internal supervisory model is adopted, confirmation provided by the solicitor with supervisory responsibilities for that particular student will satisfy the provisions within Draft Regulation 2.2(b), as specified above. Alternatively, if there is a solicitor with overall supervisory responsibility for the running of the clinic, they could provide confirmation for all students as this would provide consistency. Either would satisfy Draft Regulation 2.2(b), although the supervisor with overall responsibility would need to satisfy themselves as to the matters they are certifying (which makes this the less efficient model involving additional work over and above the time spent on supervision by the supervisor).

If clinics employ a non-solicitor supervisory model they should still be able to provide a QWE confirmation. The solicitor providing the confirmation need only be working within the ‘organisation’ and therefore they do not have to have direct responsibility for supervising students within the legal clinic. Provided someone in the organisation is a solicitor and can provide the required confirmation, this should satisfy Regulation 2.2(b). The solicitor would need to satisfy themselves as to the matters they are certifying.

Universities that offer a model of CLE where students are supervised by external solicitors should be covered by Regulation 2.2(c). However, prior to suggesting that such experience could be confirmed as QWE the law school will have to first agree, ideally contractually, with the external legal services provider that such confirmation can and will be provided. The law school should consider how it will protect itself/its students so as to ensure confirmation is provided in accordance with the Draft Regulations. Clarity should be sought as regards exactly who has agreed to provide the confirmation, and that they have agreed to review the candidate’s work/receive feedback from the person supervising the work (where relevant). It should also be clear what would happen in the case where the relationship between the legal services provider and the law school (or individual student) were to cease. Again, ideally this is likely to involve contractual obligations.

Regulation 2.2(c) appears to be drafted widely enough that a university that offers CLE which does not involve a solicitor in any capacity (internal or external) and does not otherwise employ a solicitor could still provide confirmation of QWE if it could persuade an external solicitor to review the student’s work, obtain feedback and give the required confirmation. It is suggested that most solicitors would be reluctant to do so, although perhaps the institution’s external lawyers might be willing to undertake this role to further cement the client/law firm relationship.²²

Matters that must be confirmed

The Draft Regulations specify the matters which have to be confirmed; and that prior to providing such confirmation, the person must take sufficient steps to satisfy themselves as to those matters. The matters which the persons specified in Draft Regulation 2.2(a)–(c) have to confirm are as follows:

Where the person providing the required confirmation has also supervised the CLE experience, proving the required confirmation may be a relatively straightforward process that does not necessitate a lot of extra work (although see comments below in relation to calculating the period of work experience). However, any model which requires a person other than the CLE supervisor to provide the confirmation will involve additional work over and above that required for supervisory purposes. The solicitor giving the confirmation will need to satisfy themselves as to the matters they are confirming in relation to that particular student. It is suggested this would likely involve, whether or not the solicitor was external or internal, undertaking a review of the work the student has done (such as a review of a training diary or portfolio of work) and receiving feedback from the person or persons who supervised the student’s work (i.e. the things specified in Draft Regulation 2.2(c)). It appears that the SRA does intend to issue some further guidance on this point in due course.²⁴

Implications for supervision in clinic

In contrast to supervision of a traditional training contract, the SRA does not specify in the Draft Regulations who can provide supervision of an individual undertaking QWE. While it seems possible that anyone can provide QWE supervision, a solicitor must provide the actual confirmation, and this may impact in practice on who supervises. Some solicitors who provide confirmation may be happy not to have been involved in supervision and to base their confirmation on a review of the student’s work. Others might want to have been involved, at least to a certain extent, in supervision so as to ensure that they can confidently confirm whether or not the experience provided the candidate with an opportunity to develop some or all of the solicitor competences.

It is clear that the SRA has provided a great amount of discretion to supervisors of work experience in terms of:

• who can actually supervise

• the type and number of competences that the individual has the opportunity to develop

• the type of work undertaken.

This flexibility is useful for universities as they employ a wide range of supervisory models and differ greatly in terms of type and breadth of the work undertaken.

Calculating the period of QWE gained

As referred to previously, Draft Regulation 2.1 states that a candidate’s QWE must amount to at least two years’ full-time equivalent. There is no real guidance on how exactly to calculate an individual’s QWE, but the period of time to be credited as QWE will need to be decided by the institution providing it (i.e. the person giving confirmation), rather than the SRA.

The SRA has also commented that it expects:

This issue may not be subject to further regulation, as the SRA says it will not be possible to draft regulations that will cover every individual situation, and decisions should be made on each candidate’s circumstances.²⁶

There are a number of potential issues with calculating the period of QWE for CLE that will be discussed in this section (over and above the current lack of guidance regarding calculation). Where possible, we will suggest solutions to such issues or highlight alternative areas for further consideration.

Issue 1: Calculating the period of QWE when CLE is part time/ad hoc

The new model lends itself very well to law firms, where trainees and paralegals will work a set amount of hours per week, making it easier to confirm that they have had the opportunity to develop the solicitor competences over a period of two years. This becomes more difficult with CLE, however, which is usually undertaken on a part-time basis. Consideration will need to be given as to how much full-time equivalent the part-time work equates to.

Some CLE is timetabled, where students are required to attend and are expected to undertake additional work outside of these timetabled sessions. For others, such as at Northumbria Law School’s Student Law Office, attendance is not timetabled and arrangements are made directly between the supervisor and students. For others yet still, students undertake CLE on a voluntary basis and as such attendance is sporadic and not monitored. Therefore, students do not work a set amount of hours or days and the full-time equivalent is harder to calculate and monitor.

The statements made by the SRA indicate that those who provide confirmation in relation to CLE will need to provide confirmation of the period of QWE based on the work actually undertaken by the student. This means that they will not be able to estimate the amount of time the student has worked on cases, nor will they be able to take an average based on the notional learning hours of the module/average time spent per week.

For example, at Northumbria Law School, we expect students in the Student Law Office to dedicate an average of 12.5 hours per week, over the 20 weeks the module runs, i.e. 250 hours in total. However, we would not be able to confirm that each student who completed the Student Law Office had undertaken 250 hours as the standard number of hours allocated to QWE. We would need to consider how many hours each individual student has actually worked.

Issue 2: Monitoring attendance and absence

We believe providers will need to credit QWE based on the amount of time an individual spends working in their particular firm or institution. If it is literally just a case of adding up the hours a student has worked, then presumably a student cannot be credited any hours where they have missed a session, even for legitimate reasons such as sickness. If a student is ill or is absent for other reasons, it still does not appear that this missed time can count towards QWE.

For training contracts under the current system, the SRA is clear that matters relating to holiday and sickness leave should be agreed between the trainee and employer within the terms and conditions of employment.²⁷ The terms and conditions of employment are likely to be compliant with the Equality Act 2010, in particular with regards to making reasonable adjustments.²⁸ Universities will therefore need to ensure that any policy adopted is compliant with the current legislation on disability.

Student law clinics may or may not currently track attendance, illness and absence, and the real challenge will be in terms of calculating exactly how many hours individual students have worked (as referred to above). Keeping track of attendance and hours may be easier for smaller legal clinics, supervised by a small number of people. For larger legal clinics, this may be more challenging. Potential methods to monitoring attendance are discussed below as part of the solutions to these issues.

Issue 3: Over-inflation of hours worked

Where reliance is placed on students to keep accurate records – for example, attendance outside of timetabled hours, hours undertaken on a voluntary basis or hours spent completing a task – students may be inclined to work too many hours in clinic to obtain more QWE. This could lead to over-inflation of the hours worked or it could have a detrimental impact on their other studies.

Issue 4: Relationship between a university and a law student is not an employer/employee relationship like that of a law firm and a trainee

Policies regarding sickness and absence are usually contained within an employment handbook and form part of an employee’s contract of employment. Absence without good reason may result in a loss of wages, the employee being disciplined and, in the worst-case scenario, dismissal.

However, CLE students are not employees, and the main sanction for non-attendance in assessed CLE settings is normally a lower mark (or in particularly bad cases, failure of the module). There may be no repercussions for failing to attend voluntary CLE a student has signed up for. The repercussions for non-attendance in clinic are not as serious as those an employee would face in practice. Also, our experience is that non-attendance rates due to sickness or for other reasons in clinic are higher than one generally encounters in private practice on the part of fee earners. These things mean it is reasonable to expect that there may be more issues with non-attendance in a clinical setting than at a law firm.

Solutions and further considerations

In light of the above issues, the following are suggestions of possible solutions or areas to which further consideration would need to be given.

• Individual attendance, including hours worked, will need to be monitored and recorded by the institution/organisation offering CLE rather than the onus being placed on students – this may necessitate a change in policy/procedure. Although such records may not need to be as detailed as records kept by an employer, it will still be an additional administrative burden on the institution/organisation.

• Taking each student’s attendance and monitoring time spent on CLE can be done in a couple of different ways, but each could be problematic. The two potential ways we have considered are:

– Student time recording: We already ask our students in the Student Law Office to time record all of their activities, and we could base their period of QWE on this. However, as referred to above, there is a risk students may exaggerate time spent, although this may be partly addressed by having a policy whereby there is a maximum period of time that can be confirmed. Students sometimes also forget to time record, so supervisors may have to ‘police’ time recording more regularly. Alternatively, it will need to be made clear to students that where they have failed to time record in the proper manner, they will not be credited with time retrospectively.

– Swipe card monitoring: For legal clinics that have a designated space, student card swiping could monitor attendance when a student enters and leaves the space. We currently have a swipe card system in the Student Law Office, although it is used to restrict access to clinic students rather than to monitor hours worked. This would lessen the administrative task of supervisors keeping track of each individual student. However, this method may not be that reliable, as students may enter the space but not actually conduct any work that would count towards their QWE.

• Legal clinics may want to have a policy in place that details the minimum/maximum amount of time they are prepared to confirm so as to avoid over-inflation of hours recorded by students.

• The solicitor who directly supervises the student may wish to have some oversight on the monitoring of attendance and hours worked, perhaps checking time has not been claimed for periods of absence, etc. (which will also need to be recorded) and ensuring that the amount of time is not disproportionate to the amount of work produced. Alternatively, if the solicitor overseeing the legal clinic is confirming the work for every student, they will need to trust that each individual supervisor has been monitoring attendance adequately, to ensure they are not crediting hours of QWE that have not actually been attained. Monitoring attendance becomes crucial here.

• Clear, robust polices will need to be in place that detail how time is calculated and the circumstances that would impact upon this, such as sickness and absence. In particular, policies will need to set out expectations from students and how non-attendance/lack of work will impact on both their grade and period of QWE confirmed. Equality Act considerations may also need to be borne in mind with regard to the formulation of policy.

• Irrespective of the approach taken by the institution/organisation to monitoring attendance and hours worked, this will need to be clearly communicated to students.

• General Data Protection Regulation considerations will need to be taken into account with regards to the storage and retention of student data. Such matters are outside the scope of this section but are dealt with in Part 2.14 of this Handbook.

Summary

While a number of matters relating to QWE remain unclear, this section is intended to provide practical support and guidance to those who may be considering the possibility of offering CLE as QWE. We are working with the Clinical Legal Education Organisation (CLEO),²⁹ which has set up a working group to consider the issues raised by the SRA’s proposals. This group will consider the practicalities of legal clinics using CLE as QWE and intends on providing best practice guidance, once it has consulted with members. This section is designed to encourage debate and the development of such best practice and we are happy to receive any comments or suggestions.

In review:

• From September 2021 CLE may be able to count towards a candidate’s two-year QWE requirement.

• Universities/law clinics will not be mandated to offer CLE as QWE, but may do so if they wish, provided they comply with the SRA’s Regulations (currently in draft form).

• The Draft Regulations do not prescribe types of work experience/CLE that can and cannot count, but place emphasis on work experience giving students the opportunity to develop some or all of the solicitor competences.

• Conducting a mapping exercise similar to that in Table 2 above may be able to assist with evaluating whether the CLE in question gives students the ability to develop some or all of the competences.

• What is meant by ‘some of the competences’ is not defined, so QWE providers will need to decide for themselves whether they think the CLE in question covers enough of the competences to warrant confirming it as QWE.

• Certain information about the QWE would need to be confirmed to the SRA. The confirmation arrangements within the Draft Regulations are widely drafted and appear to be compatible with a wide range of supervisory models – both internal and external.

• Working out what period of QWE can be credited for CLE is likely to be tricky, and thought needs to be given to developing clear policies and procedures regarding monitoring attendance and hours that can be consistently implemented.

Key considerations checklist

• Will students have the opportunity to develop ‘all or some of the solicitor competences’?

• Who will provide confirmation?

• How will you calculate the period of QWE gained? Consider:

– How you will convert part-time work to full-time equivalency

– How you will monitor individual student hours, attendance and absence.

• What additional policies and procedures would need to be implemented to ensure consistency and protection for both legal clinics and students?

• How will these policies/procedures be clearly communicated to students and all staff?

• Do arrangements with any external law firms (if any) need to be reviewed and amended?

Part 2.10
International student participation in law clinics: immigration issues

LawWorks

Introduction

This section deals with the immigration rules applicable to foreign students volunteering in law clinics, both university-led and other clinics.

In practice the immigration issue for all clinics is whether immigration checks must be or ought ideally to be carried out and, if so, when to undertake immigration checks and how to go about those checks. Additionally, there may be limitations on the number of hours that students are permitted to work in clinics.

For the purpose of this section it is assumed that foreign student volunteers are present in England and Wales either as EEA/Switzerland nationals or under the Tier 4 (General) student category, i.e. students coming to the UK for post-16 education. For university-led clinics it is assumed that the university is also the Tier 4 sponsor. Different rules and practices may be applicable for students present in the jurisdiction under a different tier, or where a Tier 4 sponsor is not the university at which the student is currently enrolled.¹

This section reflects the law and guidance as of summer 2019, and provides policy guidance if you are a student coming to the UK under Tier 4 of the points-based system, and should be read alongside the Immigration Rules (Part 3: Students). These can be found on the Home Office pages at the GOV. UK website.² Immigration rules and Home Office guidance is subject to change, and this section is not a substitute for legal advice.

Volunteer, worker or employee?

Illegal working rules generally apply to the employment or engagement of individuals as workers under a contract of service (employment) or other contract (worker) and not to volunteers.

Whether foreign students engaged by clinics are volunteers or employees (or unpaid workers) will depend on all of the circumstances, including the terms (whether express or implied, written or oral) of their engagement. As a result the role of a volunteer may in practice give rise to employment or worker status; hence, in some circumstances it may be advisable for organisations to comply with illegal working rules when taking on volunteers.

If you are in any doubt as to whether your clinic volunteers are employees or workers then you should carry out right-to-work checks as a precaution, or seek legal advice.

Volunteers

Who is a volunteer?

The essential quality of volunteering is a freedom to choose whether or not to work, or, put another way, an ability to come and go as you please. This means that a contract of employment between clinics and volunteers must not exist. This would not, however, preclude an agreement being in place, for example because a clinic wished to outline its guideline voluntary working hours; however, any such agreement should be expressed as no more than a reasonable expectation.

The Home Office’s Tier 4 policy guidance makes it clear that Tier 4 students can volunteer and explains how the Home Office differentiates between ‘voluntary work’ and ‘volunteering’.³ For example, volunteers do not have a contract and are not paid, though reasonable travel and living costs can be reimbursed. Volunteers usually assist a charity, voluntary organisation or public sector organisation. In this context it is also important to consider the distinction between volunteering and ‘voluntary worker’ under the illegal working rules (see What is voluntary work? below).

If clinics are concerned that volunteer roles may give rise to an employment, worker or ‘voluntary worker’ status they should undertake immigration checks as outlined later in this section. In addition, clinics will need to ensure that any such work complies with all relevant limitations, for example in terms of permitted number of hours.

Volunteer agreements

As a matter of good practice clinics are recommended to ensure that volunteer agreements are in place (examples of which are contained in Part 5.1 of this Handbook). However, if volunteer agreements are used, they should avoid the use of contractual language and the creation of mutual obligations, which could be regarded as creating contractually binding obligations between the parties.

The agreement may:

• include a reference to any training necessary for the volunteer role

• include a reference to a supervisor for the volunteer, with regular supervision meetings

• treat volunteers in line with its equal opportunities policy

• reimburse out-of-pocket expenses where there are receipts or similar evidence of cost to the volunteer

• provide insurance cover for the volunteer

• implement good health and safety practice.

All work should be expressed as voluntary. A volunteer agreement usually provides that both parties may end the agreement at any time with no notice period or threat of breach of contract. In practice, as most clinics require students to make a specific commitment, it may be difficult to satisfy this requirement.

A volunteer agreement should set out the organisation’s expenses policy in relation to volunteers. Where there is a genuine expense payment incurred as part of voluntary work, the volunteer should be reimbursed those costs provided that they are actually, and reasonably, incurred. Expenses claims should be supported by evidence (receipts, tickets, etc.).

Expenses may include:

• travel

• meals taken while volunteering

• postage and telephone costs

• care of dependants while volunteering

• the cost of protective clothing or special equipment necessary for the role.

Employees

Who is an employee?

Certain circumstances can give rise to employment relationships between foreign student volunteers and clinics. A contract of employment exists if the following four conditions are fulfilled:

• the individual undertakes to provide their own work and skill in the performance of some service in return for remuneration

• in performing that service, the individual is subject to a sufficient degree of control by the other party

• there is mutual obligation between the parties, which means:

– an obligation on the individual to do work that is offered by the other party

– an obligation on the other party to pay the individual (whether or not work is provided), and in some cases an obligation also to provide work

• the other provisions of the contract are consistent with it being a contract of employment.

Voluntary work

What is voluntary work?

The illegal working rules make a distinction between volunteering and ‘voluntary work’ (unpaid). Volunteering is un restricted; ‘voluntary work’ is unpaid work that is restricted in the same way as employment or other types of work as set out in this section.

Tier 4 (General) students can do ‘voluntary work’ only if permitted to work under the terms of their visa, but any such ‘voluntary work’ must not exceed the number of hours permitted during term-time. For example, if you are permitted under your visa to work for 20 hours during term-time and you have paid work of 15 hours a week during term-time, then you cannot do more than five hours’ voluntary work per week.

‘Voluntary work’ is not a separate category recognised in employment law, in which an absence of an obligation to pay for work done would clearly be a significant factor in determining an individual’s status. As a result, in practice it is possible that the range of relationships captured by the illegal working rules is wider than simple employment law definitions. Therefore, in order to avoid any voluntary arrangement giving rise to the status of ‘voluntary work’, clinics are advised to focus on the characteristics of volunteers set out elsewhere in this section to ensure that they are demonstrably present in any volunteering role.

Factors that may be taken into account when considering whether it is voluntary work or volunteering are:

• ‘Voluntary workers’ will usually have contractual obligations to perform the work (e.g. to attend at particular times and carry out specific tasks) with the employer being contractually required to provide the work.

• Students who are ‘volunteering’ do not have a contract; they must not be substituting for an employee or receiving payment in kind as unpaid work, although a non-binding volunteer agreement including reimbursement of out-of-pocket expenses is acceptable and good practice (see above).

University clinics

Depending on the particular circumstances, it may be advisable for some university-led clinics to comply with illegal working rules when taking on student volunteers (not least, as the administrative burden may for many be minimal).

The features of university clinics that could conceivably give rise to a risk that the relationship would be treated as one of employment, worker or ‘voluntary work[er]’ include:

• Once recruited as a student clinic volunteer, an obligation (whether express or implied, written or oral) to work regularly at clinics, i.e. volunteer students who are not free to ‘come and go as they please’.

• Assessment of students’ clinic work and/or integration of clinic work into a course of study, for example where students undertake work placements that are integral and related to the course and are assessed as part of the course (see Work placements below).

• The contractual relationship between universities and students – many universities have now introduced ‘model contracts’, following a recent review by the Competition and Markets Authority.⁴ Most university-student contracts will not give rise to any employment rights or obligations, but additional course-specific agreements could be added or appended, for example assessed clinic activity (again see Work placements below).

• Clinics that charge in respect of some of their services (this is unlikely to be a consideration in practice for most clinics).

As a Tier 4 sponsor, universities are required to ensure that all students requiring a visa have valid immigration permission to study. Consequently, depending on the particular circumstances – including clinics’ corporate status and any procedures to ensure compliance – clinics may be in a position to adopt a zero-risk approach to interpreting the illegal working rules without taking on significant additional administrative burdens; those checks having already been undertaken (and subject to ongoing monitoring) by the wider organisation within which the clinic sits. In such circumstances, clinics should also ensure that any work complies with any relevant limitations, for example in terms of the permitted number of work hours.

Other partnering agencies and non-university clinics

Subject to limited exceptions, many non-university clinics may avoid the need to undertake immigration checks altogether, provided they ensure that the relationship between the clinic and volunteer does not give rise to employment, worker or ‘voluntary work[er]’ status, for example by ensuring that in practice volunteers can ‘come and go as they please’, subject to any reasonable expectation that might be included in the volunteer agreement (see above).

Should non-university clinics determine that there is a risk that a volunteer role gives rise to employment, worker or ‘voluntary work[er]’ status, illegal working checks should be undertaken in respect of all student volunteers in order to verify their status, regardless of what students claim to be their status. In such circumstances, clinics should also ensure that any work is compliant with any relevant limitations, for example in terms of permitted number of hours.

Work placements

Should university clinics be concerned that volunteering arrangements give rise to employment, worker or ‘voluntary work[er]’ status, it may be possible to satisfy the requirements of the rules concerning work placements (which are generally permitted), subject to limited restrictions.

Work placements are intended to enable the student to gain specific experience of working in the field for which they are studying. Tier 4 students are allowed to undertake work placements where they are integral and related to the course and are assessed as part of the course. Clearly, students’ work, whether in the capacity as employees or otherwise engaged by clinics is, subject to the particular circumstances, capable of coming within the definition of ‘work placement’. Clinical legal education course providers will need to ensure that they structure their courses accordingly, but a work placement scheme can be run by the sponsor institution or a partner body. Universities running clinics in which students participate on an extra-curricular basis will not be able to satisfy the definition of a ‘work placement’.

The main advantages of work placements are:

• a formalised arrangement so as to manage any risk that the illegal working rules are breached

• to ensure that the requisite number of hours, both in terms of a particular course of study and the immigration rules, are satisfied. Whether this is a factor will depend on an individual student’s permitted Tier 4 (Student) working hours as well as the length of a course of study and the type of course (see below). In some cases a greater number of hours might be permitted under the work placement rules as compared with the maximum hours permitted by the Tier 4 (Student) restrictions.

Activity as part of a course-related work placement is restricted to no more than one-third of the total length of the course undertaken in the UK, unless:

• the student is following a course at degree level or above and is sponsored by a Higher Education Institution (HEI) or by an overseas HEI to undertake a short-term Study Abroad Programme in the UK, in which case the work placement is restricted to no more than 50 per cent of 33 per cent of the total length of the course, depending on the course/sponsor⁵

• there is a statutory requirement for the course to include a specific period of work placement that exceeds this limit.

Tier 4 education sponsors should provide clinics with letters confirming that the work placement forms an integral part of the course and does not, by itself or in combination with other periods of work placement, breach the above restrictions. The letter should also include the terms and conditions of the work placement, including the work that the student will be expected to do, and how and when they will be assessed.

While student employees are undertaking work placements as required by their course, this period of placement is not included within the period of term-time employment permitted by their immigration conditions (which may include limitation on working hours). A student could therefore undertake a work placement while also undertaking other part-time work, as the work placement is part of the course.

Clearly, university clinics will need to undertake illegal working checks, as outlined above and below, in circumstances where students enter into work placements in university clinics, with checks having already been undertaken by the university prior to students entering on to courses.

Clinics that are unsure as to whether students are engaged under a work placement for the purpose of the rules should seek legal advice as to the particular arrangement. Non-university clinics that receive requests to host university students under work placement schemes will need to undertake illegal working checks.

Immigration rules

Individuals from the European Economic Area (EEA) and Switzerland are generally permitted to come to the UK and work as volunteers, although the position may change depending on the position with the UK leaving the European Union. Additionally, Tier 4 (General) students (i.e. non-EEA and Switzerland) are generally able to volunteer at clinics without restriction. However, clinics that engage volunteers in circumstances where the relationship could give rise to employment, worker or ‘voluntary work[er]’ status should consider the applicable immigration rules. The immigration rules applicable to foreign student volunteers are different depending on their nationality.

EEA (and Swiss) students

EEA students are those students from the following countries:

Austria, Belgium, Bulgaria, Croatia, Republic of Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden (and the United Kingdom).

EEA nationals have the right to work in the UK. At the time of writing, there are no restrictions on EEA students volunteering in law clinics.

Swiss nationals have the same rights as EEA nationals since June 2002, under the Agreement on Free Movement of Persons between the EC and the Swiss Confederation. This is reflected in the Immigration (EEA) Regulations 2016, which include Switzerland within the definition of an EEA state.

Non-EEA

Students granted permission to be in the UK as Tier 4 (General) students and who are permitted to work will have an endorsement in their passport or biometric residence permit that states they are permitted to work and the number of hours of work allowed during term-time, e.g. 10 hours or 20 hours in a week, considered to be Monday to Sunday. If this information is not set out in these documents, the student does not have the right to work. Students who have the right to work are permitted to work full-time during vacations.

Short-term students are not permitted to work, either in the term-time or the vacation, nor undertake a work placement.

Croatian nationals

Croatian nationals have not been subject to worker restrictions and no longer require worker authorisation from the Home Office since 1 July 2018. Croatian nationals may now demonstrate their right to work in the same way as any other EEA national.

Employer’s obligation to prevent illegal working

It is unlawful to employ someone who does not have the right to reside and the appropriate right to work in the UK or who is working in breach of their conditions of stay.⁶ Clinics engaging volunteers as employees, workers or as ‘voluntary work[ers]’ should conduct a right-to-work check on all students in order to verify their status and avoid any sanction for breach.⁷

To comply with their obligation to prevent illegal working, an employer must:

• carry out right-to-work checks on all prospective employees before the employment starts

• conduct follow-up checks on employees who have a time-limited permission to live and work in the UK, or require a document to evidence their right as in the case of non EEA family members of EEA nationals, or an application pending

• keep records of all the checks carried out

• not employ anyone it knows or has reasonable cause to believe is an illegal worker.

The consequences of a breach of the immigration rules are:

• a civil penalty may be imposed if an employer employs someone without the right to undertake the work for which they are employed. The maximum civil penalty is £20,000 for each individual who does not have the right to work. A civil penalty may also impact on the institution/employer’s sponsorship license

• a criminal offence will be committed if an employer knew or had ‘reasonable cause to believe’ that the employee did not have the appropriate immigration status.

Defences

Clinics will not have an excuse if:

• no prescribed right-to-work check has been undertaken before employment commenced

• a document has been accepted that clearly does not belong to the holder

• documentation clearly shows the person does not have the right to work/stay in the UK and/or do the job in question

• the endorsement demonstrating work entitlement or the biometric residence permit has expired

• someone is employed in circumstances where clinics know they are not allowed to work in the UK, regardless of whether checks have been carried out

• the statutory excuse has expired

• a ‘reasonably’ apparent forgery has not been detected.

Immigration checks

The Home Office guidance sets out three basic steps to conducting a right-to-work check.

1. Obtain original versions of one or more ‘acceptable documents’:

• A passport, national identity card, Immigration Status Document, Registration Certificate or Document Certifying Permanent Residence, current Biometric Immigration Document, Permanent Residence Card issued by the Home Office, a birth certificate combined with a National Insurance number (see Home Office guidance).

2. Check the document’s validity in the presence of the holder. Check:

• the documents are genuine and belong to the person presenting them

• photographs/appearance and dates of birth are consistent across documents

• expiry dates for permission to be in the UK have not passed

• the reasons for any difference in names across documents

• any work restrictions to determine what type of work they are allowed to do.

3. Make and retain a copy and record the date the check was made.

• Ensure it is a clear copy in a form that cannot be altered.

• Copies should be kept securely for the duration of any employment period and for two years afterwards; the copy must then be securely destroyed.

There is an online right-to-work check service at www.gov.uk/view-right-to-work; however, it will not be possible to conduct an online check in all circumstances, as not all individuals will have an immigration status that can be checked online. The online right-to-work checking service sets out what information you will need, but if an online check is not possible you should conduct a manual check. Currently, the online checking service only supports checks in respect of those who hold:

• a Biometric Residence Permit

• a Biometric Residence Card

• status issued under the EU Settlement Scheme.

For a more comprehensive step-by-step guide as to how to undertake right-to-work checks, including which documents are acceptable, please consult the latest Home Office guidance.

Please note that the Home Office regularly updates its guidance. As at the time of writing, the latest Home Office guidance is at:

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/773780/An_employer_s_guide_to_right_to_work_checks_-_January_2019.pdf

See also Tier 4 of the points-based system – Policy guidance:

https://www.gov.uk/government/publications/guidance-on-application-for-uk-visa-as-tier-4-student

Part 2.11
Digital security

Christopher Simmonds

This section discusses the issues associated with digital data security and storage of information in a clinic. It is accompanied by a case study in Part 2.12 on Intralinks, a cloud-based system used by BPP University’s clinic to manage client data, which is made available by LawWorks to clinics in its network.

Introduction

This section considers the responsibilities that are imposed on clinics to ensure that the data we hold in relation to clients, students and staff is handled securely and lawfully.

The section will consider the legal and regulatory obligations, before going on to consider some of the issues that clinics face in the management of data.

Legal and regulatory obligations

When considering what steps to take in order to ensure the integrity of your digital files, it is essential to consider the legal framework that applies in order to assess what steps are necessary and proportionate to take. There are also a number of regulatory requirements that should be taken into account, particularly by clinics carrying out reserved legal activities.¹ As with so many things, digital security in a clinic involves an element of risk assessment, a consideration of the likelihood of a breach, coupled with the severity of the repercussions should a breach occur. Understanding your legal obligations will help to inform that risk assessment.

Legislative framework

General Data Protection Regulation

The General Data Protection Regulation² (GDPR) and the Data Protection Act 2018 (DPA) are substantial, and a detailed discussion of their provisions is beyond the scope of this section. However, the overarching role of the GDPR is to regulate the way in which entities process personal data. For the purposes of the GDPR, personal data is defined as any information that relates to an identified or identifiable natural person, and an identifiable natural person is defined as:

It is therefore likely that a substantial amount of the electronic data held by law clinics will fall within the scope of the GDPR and DPA, as it will likely contain personal data in relation to clients, students and/or staff.

As a result, it is important to ensure that information which is held digitally complies with the requirements of the GDPR. The GDPR sets out a number of principles that underpin the processing of any personal data (‘the GDPR Principles’), namely that any processing of the data should be:

• lawful and fair⁴

• for purposes that are specified, explicit and legitimate⁵

• adequate, relevant and not excessive⁶

• accurate and up to date⁷

• time-limited (i.e. the data is not kept for longer than is necessary)⁸

• done in a secure manner.⁹

Processing of personal data should also only take place if at least one of the following criteria is met:

The GDPR also recognises that certain categories of data are worthy of special protection in light of the fact that the misuse of such data would conflict with a person’s fundamental rights. These categories of data are referred to as ‘special category data’ and are defined as data relating to:

• racial or ethnic origin

• political opinions

• religious or philosophical beliefs

• trade union membership

• sex

• sexual orientation

• genetics

• biometrics (where used for ID purposes).¹¹

The default position is that the processing of such data is prohibited unless one of ten criteria¹² are met, namely:

• The data subject has given explicit consent to the processing of the personal data for one or more specified purposes.

• Processing is necessary for the purposes of carrying out the obligations and exercising specific rights of the controller of the data subject in the field of employment and social security and social protection law.

• Processing is necessary to protect the vital interests of the data subject or of another natural person where the data subject is physically or legally incapable of giving consent.

• Processing is carried out in the course of its legitimate activities with appropriate safeguards by a foundation, association or any other not-for-profit body with a political, philosophical, religious or trade union aim and on condition that the processing relates solely to the members or former members of the body or to persons who have regular contact with it in connection with its purposes and that the personal data are not disclosed outside that body without the consent of the data subjects.

• Processing relates to personal data which are manifestly made public by the data subject.

• Processing is necessary for the establishment, exercise or defence of legal claims or whenever courts are acting in their judicial capacity.

• Processing is necessary for reasons of substantial public interest.

• Processing is necessary for the purposes of preventive or occupational medicine for the assessment of the working capacity of the employee, medical diagnosis, the provision of health or social care or treatment or the management of health or social care systems and services.

• Processing is necessary for reasons of public interest in the area of public health.

• Processing is necessary for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes.

It should be noted that a personal data breach could result in a penalty of up to €10,000,000 or 2 per cent of the organisation’s total worldwide turnover of the preceding financial year, whichever is the higher.¹³

A breach that concerns the processing of special category data is treated particularly seriously given the potential impact on a person’s fundamental rights. Such a breach can attract a fine of up to €20,000,000 or 4 per cent of the organisation’s total worldwide turnover for the preceding financial year.

A number of factors will be taken into account when considering whether a penalty should be imposed and, if so, the extent of any penalty. These factors include, but are not limited to:

• the severity of the breach

• any steps taken to mitigate the damage to data subjects

• the categories of personal data affected.¹⁴

Professional negligence

In addition to our legislative obligations, we also have a duty of care to our clients. They are entrusting us with their personal data and with information that, if it came into the public domain, has the potential to cause them harm.

The test for professional negligence requires a claimant to establish that the defendant acted in a way that no other reasonable member of the profession would have acted. In order to prevent claims for professional conduct arising from data breaches, it is therefore essential to take into account industry best practice when implementing data security measures.

Regulatory framework

SRA Standards and Regulations: Code of Conduct for Solicitors, RELs and RFLs

In addition to the legislative framework, there are clear regulatory requirements to ensure that confidentiality is maintained and that client information is secure. Key provisions contained within the SRA Code of Conduct¹⁵ include:

• 6.3: [a solicitor must] keep the affairs of current and former clients confidential unless disclosure is required or permitted by law or the client consents

• 7.1: [a solicitor must] keep up to date with and follow the law and regulation governing the way [they] work.

Silver linings: Cloud computing, law firms and risk

Although now somewhat out of date, most notably in light of the introduction of the GDPR, Silver linings: Cloud computing, law firms and risk¹⁶ remains the only guidance issued by the SRA on issues surrounding data security and, in particular, in relation to the growing use of cloud storage.

While the guidance needs to be read in the context of the GDPR, much of it remains relevant and the considerations that need to be taken into account remain the same.

In addition to the points addressed above in terms of the SRA requirements, the guidance also highlights the need to ensure that the SRA is able to access information in the event that it is required to intervene in the practice.¹⁷ It also highlights some of the discrepancies in the way in which personal data is protected in different jurisdictions, particularly raising the example of the USA and the lack of protection for personal information in American law.

Implementing data security

Taking the legal framework set out above, it is therefore possible to identify a number of key factors that data security measures need to achieve, namely:

• Client data must be kept securely and in a manner that prevents accidental or deliberate processing that goes beyond that which the client has explicitly agreed to.

• When processing data, steps must be taken to ensure that data is not accidentally or deliberately released into the public domain.

• Industry best practice should be followed wherever possible.

• Any data storage should be implemented in such a way that it can be provided to regulatory bodies if required.

When considering data security arrangements for your clinic, it is a good idea to engage with university IT security teams. They can be asked to do due diligence on any software you are contemplating using in the clinic and may also be able to recommend improvements to clinic procedures and processes in order to maximise data security.

The remainder of this section sets out the considerations that you should take into account when protecting the electronic data that your clinic holds. For a further consideration of electronic data storage and transfer solutions, associated compliance issues and a discussion of some of the software available on the market that may be suitable for use in clinics, see Part 2.13.

Local or cloud storage?

When considering the steps that you need to take in respect of data security, the first step is to identify where files are currently being stored. While this may seem to be obvious, in the context of university-based law clinics the physical location of computer storage is not necessarily obvious.

Many universities allow staff and students to save work to a dedicated drive. Unlike the ordinary C:\ drive, which is located on the hard drive of the computer, laptop or tablet, this drive is located and managed centrally. This allows the IT service to monitor and address any issues that might arise.

In some cases, the drive will be hosted on servers owned by the university and that are physically located within the university itself. Increasingly, though, universities are using third party storage arrangements, including cloud storage such as Microsoft OneDrive or Azure, Google Drive, etc. in order to reduce the costs associated with hosting a physical server.

Local storage

Where the files are stored on campus, on servers owned and maintained by the organisation, then the points to consider are perhaps more straightforward.

Ensuring that your data is held securely is the main consideration. However, universities are large organisations and tend to invest heavily in their information technology infrastructure, including security features such as firewalls and anti-virus software. Their systems are therefore relatively secure and are likely more secure than those of many small law firms that have significantly less IT support.

Internal security should also be considered. It is good practice to make arrangements with the university’s IT team to limit access to drives containing clinic documentation to a prescribed list of individuals working or volunteering with the clinic. Where a staff member moves to another role or a student’s time with the clinic comes to an end, their access should be removed. The university’s IT team can also be asked to give written confirmation that they will not access the contents of servers on which clinic documentation is stored without prior consent of specified staff members working in the clinic or senior managers within the law school.

Ensuring the continuation of data in the event of an emergency should also be considered. While the move to the paperless office is something that the legal profession has aspired to for a number of years, most of us still retain both paper and digital records. If both are stored in the same location, however, with servers and paper records in the same building, then the risk of loss is higher. For example, in the event of a fire in the building, both digital and paper records could be lost. Keeping digital and paper records in different locations, or at least backing up digital records to an alternative server, can help to ensure integrity of the data in the longer term.

Cloud storage

Cloud storage is becoming increasingly more popular, both personally and for organisations. It reduces the costs of maintaining hardware and often has added benefits, such as access to the most up-to-date software packages, for example the latest version of Microsoft Office in the case of OneDrive.

However, the use of cloud storage can still present some issues for clinics.

The first issue is access. One of the benefits to cloud storage is that it is accessible anywhere. For many of us, cloud storage has become our go-to due to the fact that it means we can work on documents in the office, at home and even when travelling abroad for work with equal facility, and without having to worry about whether we have the most up-to-date version. For clinic work, though, allowing access to documents off site can cause issues.

Under the provisions outlined above, we have a duty to ensure our client’s privacy and to ensure that their case remains confidential, but limiting access to cloud folders can be problematic. Students are often living in shared accommodation. Accessing client’s documents or even information from home poses significant risks both in terms of the GDPR but also in terms of professional obligations.

Another issue with cloud computing is the location of the servers. As highlighted above, the protection of personal data is stronger in some countries than in others. With cloud storage, the information is still on a physical server somewhere in the world. In order to comply with the GDPR it is necessary to take steps to ensure that the server location is somewhere where there is sufficient respect for personal data (the EU, for example).

Third party software

Third party software can also pose certain challenges for clinic work. Again, this arises from the fact that often software is procured by the university rather than the clinic staff and so the full nature of the software may not be known. It is essential to perform due diligence on any software that is proposed to be used in the clinic, in order to establish whether it is fit for purpose and will meet the requisite security standards.

End User Licence Agreements (EULAs)

As we move increasingly towards a society driven by big data, more and more of the software that we use is capturing the information that we enter into it in order to understand more about us. This can be for a range of reasons, whether it is for research, in order to more effectively target marketing, or just to improve the product for those using it.

It is therefore essential to understand the terms of the end user licence agreement (EULA) to understand what information is being collected and what it is being used for. This can be especially important in relation to case management software or software that is being used for processing the client’s information, such as scanning software.

Storage locations

As with cloud storage of documents, software can also be web hosted with data inputted being stored on the cloud. The location and protections afforded to that software are therefore equally important.

Email, document transfer and document encryption

The transfer of documents can also raise specific issues in relation to digital security. Email in particular raises certain risks. The autofill function on email software can lead to emails being sent to the wrong recipient. In the majority of cases, errors are easy to rectify with little impact, but there is always a possibility that an email may be misdirected to someone with knowledge of the case.

As a result, it is important to consider whether steps should be taken to ensure the secure transmission of the data. Document encryption software can be expensive and will likely need to be approved by the university’s IT services. Implementing such software should therefore be considered in terms of the risk of documents going astray and the impact that such a breach would have. One solution may be Intralinks VIA, which is the subject of a case study in Part 2.12.

An alternative to consider is agreeing standard passwords with clients at the outset of a case. Password-protecting documents with a password set by the client would minimise the risk of information becoming publicly accessible, and most word processing packages have the option to password-protect documents.

Similarly, transferring documents in other ways should also be considered. Where clinics assess the work of students, it may be necessary to provide external examiners with portfolios of work. Secure transfer by courier is expensive but prevents future difficulties. Alternatively, secure USB sticks are now available with a significant amount of storage and high-level encryption.

Conclusion

As with so much of the work that we do in clinic, digital security is a matter of risk assessment. It is important to assess the likelihood of a breach in conjunction with the severity of a breach in order to determine what steps it is reasonable to take to protect the client’s personal data.

Simple steps, such as checking the location of cloud storage servers, can prevent significant issues in the long term.

Further, making sure that central university services understand the role of the clinic and the work that it does will mean that they are able to provide much more tailored advice on the systems that you are using and will allow them to react more quickly and effectively to any issues that arise.

Part 2.12
Document management case study: Intralinks VIA

Tony Martin

Intralinks VIA is an external document management system, which student pro bono clinics can obtain free of charge through LawWorks. It can be used as an electronic file management system, thus eliminating the need for paper files. It should be noted, however, that it is not a complete file management system and in particular does not operate as a database and cannot be used for potential conflict of interest checks.

Intralinks is owned by Synchronoss Technologies, a US company, but the data entered in Europe is stored within Europe. It is compliant with both the General Data Protection Regulation 2018 and with Solicitors Regulation Authority requirements. It is used by many large solicitors’ firms when acting on mergers and acquisitions.

Intralinks’ own description is that it is the ‘secure enterprise platform for simple file sync and share, collaborative team workspaces, large-scale virtual data rooms and structured workflows’.¹ The company claims a 20-year track record of enabling high-stakes transactions and business collaborations, and also claims that the system has been used by more than three million professionals.

Intralinks allows documents to be accessed on any computer or tablet anywhere. This is both the key benefit and the risk.

Intralinks permits the creation of folders and sub-folders and allows access to be given at three levels:

• Viewer: can only see documents.

• Editor: can download and upload documents and change documents.

• Owner: effectively an administrator in that they can do everything an Editor can do, but also control who has access. They can also create other Owners.

When a person is added to an Intralinks folder (or sub-folder), they receive an email requiring them to complete a registration form, which requires them to complete the following fields:

• first name

• last name

• password

• phone number

• security question (for password recovery).

In a clinic setting the typical use of Intralinks for file management purposes might be:

The file model is customisable with the ability to keep adding further sub-folders as required. An Owner can determine who is given access to each file or sub-folder. So, for example:

• students working on a particular client matter can be given Editor access to the entire Administration folder but only to the specific client that they are working on

• an external supervisor can be given Editor access to the client’s folder of the case they are supervising

• a client can be given Editor access only to the Client documents sub-folder of their client file, thus allowing them to upload their own documents

• where a client requests a copy of their file, they can be given Viewer access to their file.

In this way all participants are able to access and, in a controlled way, add to the client file.

Security

In order to maintain client security the following factors need to be considered:

• Owner(s) should be staff members of the institution that runs the clinic.

• In case of the incapacity of an Owner, it is prudent to have a minimum of two Owners.

• Access should only be given to those who have a legitimate reason for needing access. In granting access, the Owner should grant access only to the folder or sub-folder needed and to only allow the level of access (Viewer or Editor) the individual requires.

• Anyone granted access to a client folder or sub-folder must have agreed to (and be bound by) the clinic’s client confidentiality policy.

• As soon as practical after the conclusion of the case, access to a client folder or sub-folder should be removed for everyone except the Owner(s). This should be a part of the file archiving regime.

• Everyone accessing client folders or sub-folders must consider the environment in which they are working and whether their screen is visible to other people. Particular care should be taken with shared computers.

• Where confidential documents are downloaded from Intralinks, the user must delete these from both their computer drive and from the recycle bin, once they are no longer needed.

• Restrictions could be put in place to require that Intralinks is only accessed on university network computers in order to ensure any downloaded documents are not on personal devices.

• When confidential documents are printed, they must be disposed of using a secure waste disposal system, which will usually require the documents to be brought into the clinic for disposal.

• While Editors (and Owners) have the ability to delete documents from Intralinks, deleted documents are always recoverable by an Owner. In addition, Intralinks records the identity, date and time that anyone accesses a folder or sub-folder.

Part 2.13
Lawyering in a digital age: Reflections on starting up a virtual law clinic

Ann Thanaraj and Michael Sales

In this section, Ann Thanaraj and Michael Sales share their experience and reflections on setting up and running a virtual law clinic (VLC). The section should be read in conjunction with Part 2.11: Digital security and the Online/Virtual clinics: Open Justice Law Clinic case study in Part 1.

Legal practice and the legal profession are undergoing a vast change and as those who are responsible for the education of the future generation of lawyers, we need to make a fair prediction of the sorts of knowledge and skills necessary for new lawyers to be successful based on the emerging technology and trends, especially in the practice and delivery of legal services.¹ At the outset it must be stated that the preparation of students in this regard is disruptive and fluid as the landscape changes at an exponential pace. Knowledge of this area among academics in professional legal education appears to be developing, with examples of communities of practice growing in this area of legal education.²

Having written about the emerging trends in the delivery of online legal services, we hope to encourage and inform law schools to consider changes to their curriculums that are necessary to make them fit for purpose. Building upon a practice report titled ‘Lawyering in a digital age: a practice report on the design of a virtual law clinic at Cumbria’ in 2015, and offering a digitally transformative strategy towards a ‘digital lawyering’ curriculum in ‘Making a case for a digital lawyering curriculum in legal education’ in 2017, here we will share our reflections on the design of a VLC and suggest topics for consideration that may become a useful theoretical framework for a module on future lawyering, with the aim to equip and empower our future lawyers with the skills for the future workplace.

This work is framed around the role of law schools in addressing the emerging trends in the profession. The virtual law clinic (VLC) has been designed to enhance and digitally transform legal education for students, and is also used as a tool for training through a tripartite system of student-academic-legal professional. The entire process is recorded and archived for feedback, reflection and evaluation to help turn the experiences gained into actual learning and development. The VLC is a form of technology-enhanced clinical legal education that facilitates the integration of practical and lawyering skills with professional values through the process of internalisation to develop a sense of professional identity.

The VLC, supported by a curriculum on technology, together make up the digital lawyering framework. It is a theoretical framework that enables students to develop their awareness of law in a deep and active learning context supported with feedback, while developing judgement skills, professional responsibility and professional identity and values of working online through the examination of one’s own personal epistemology by way of constructive reflection.

The VLC has also developed opportunities for international and intercultural experience.³ Within this framework, reflection is a crucial component of conceptualising the learning. Research on the benefits of learning using the VLC, including areas for improvement in the construction and pedagogic design of the VLC, is continuous and ongoing to ensure that the framework meets the objectives of equipping students with the knowledge, awareness, skills and attributes for legal practice.⁴

In developing legal education to meet the emerging trends in practice, specific to digital lawyering, the ‘digital lawyering’ framework aims to contribute to students’ awareness and understanding of the extent of professional competencies required of a lawyer in a digital legal practice, recognising an awareness of the current trends in the delivery of legal services and knowledge of new technologies required to meet those demands. This also goes to address the need to raise awareness of the effects of modern technology on society and creating an understanding of the digital literacy within society, and how individuals must adapt to the needs of different groups in order to promote an inclusive attitude.

Through this work, it is intended for students to explore the uses of technology in law, such as for client interviewing, negotiating and managing a case, including time keeping, collaborative learning through communication, interactions, advising clients and dealing with all aspects of a case.

It is expected that students will gain an awareness and skills from using technology and understanding the risks of using technology for legal practice, and of safety, privacy, appropriateness and ethical issues posed by the use of technology in practice. This helps students acquire the skills they need to contribute successfully to the professions. As such, the VLC integrates theory and practice by combining academic inquiry with actual experience and constructive reflection, with the aim of increasing knowledge, developing skills, clarifying values and developing students’ capacity to contribute to the changing legal practice.

Setting up and design principles of VLCs

A VLC is a secure, encrypted online portal created to deliver professional legal services, advice and practice between a lawyer and a client; an undertaking that is bound by all the usual professional responsibilities, standards and ethics of a lawyer, and one that takes place in an authenticated, private and secure platform which complies with the relevant electronics, technical and data security standards. This undertaking or practice is what Ann has termed in her research papers as ‘digital lawyering’. In legal education, digital lawyering needs to be accompanied by a solid interdisciplinary curriculum that raises awareness, knowledge and skills required for the understanding of theoretical manifestations of digital practice and the necessary aptitude of a professionally responsible lawyer for the purpose of collaborating, advising clients, undertaking dispute resolution and other forms of legal transactions.

The practice of digital lawyering is a relatively new concept, both in terms of its adoption by the profession and in its definition, although the use of technology to enhance legal practice and process is not a new initiative. The digital and IT resource list in Part 5.5.6 of this Handbook offers a wealth of examples of creative uses of technology in legal practice.

In England and Wales, the introduction of the Legal Services Act 2007 (LSA 2007) sought to change the legal landscape, making the legal services market more commercially focused, innovative in its services and delivery and allowing a more diverse market for consumers. The Act created an opportunity for lawyers and non-lawyers to work together to deliver legal services through alternative business structures, supported with a flexible approach to how legal services are being offered to clients; and through this to offer greater access to justice for clients who may not be able to afford legal help or may not have accessibility geographically or physically to a law clinic.

The distinction as to whether an online portal is used as a space for retrieving legal advice or accessing templates for an individual’s own use⁵ – or if it is an online portal where a lawyer is involved in handling a legal matter – is vital. Different professional conduct and ethical implications may arise when conducting digital lawyering as opposed to using online tools to seek a solution to a legal problem. Further, there are no bespoke guidelines or professional body requirements in England and Wales on the features and functionalities that should be present in a virtual law clinic.

In setting up a VLC, designers will need to be mindful of a number of key factors, such as:

• the type of intended legal practice, the architecture of the practice in relation to its unique aspects, typical problems which are raised and the typical needs of a client

• the technology chosen to enable an online service, including the sorts of services on offer and the affordances/limitations of the chosen technologies

• integration of the technology with other systems and processes in the firm/clinic, ensuring a seamless experience for all users

• accessibility and inclusivity functionalities in the technology including seamless and responsive use across the various interfaces (mobile, tablets, PCs)

• privacy, encryption and data security features in the chosen technologies and infrastructures that combine the technologies for the intended experience and use

• intended user interface and structure of the client journey

• step by step navigation

• the desired client experience.

We advocate that regardless of the technology and features chosen, the key purpose of a virtual law clinic is its ability to deliver legal services online to clients through the secure client portal with safe and secure handling of client information, maintaining confidentiality and minimising the risks of privacy and security breach.⁶

Out-of-the box, the cloud-based solutions

Microsoft Teams is a cloud-based solution that provides a range of tools suitable for the deployment of VLCs. Private groups can be set up within a team site for lawyer/client communications, with tools including real-time video conferencing, live chat and document management with version control.

The simple learning curve for non-technical users makes Teams a particularly attractive option as a platform for VLCs. Aside from the user-friendly user interface, those administering a VLC can deploy an AI-driven ‘help bot’ to provide answers to frequently asked questions, such as ‘How do I message a user?’ or ‘How do I upload a document?’ and receive a near-instantaneous response.

Using the @User notation on the discussion board within a Teams site can be used to send notifications to users about an update to a topic or a change to a document.

Another cloud-hosted option for building a VLC is Slack. Although less feature-complete than Teams in its out-of-the box state, Slack has many apps available to transform it into a VLC solution, including support for video conferencing, integration with a document storage/sharing platform such as Google Drive, OneDrive or Dropbox, and the ability to provide notifications and workflow.

Slack largely works in a similar way to Microsoft Teams and provides a private channel for lawyer/client communications, enabling them to discuss a case, share and collaborate on documents and be notified of updates within Slack or via email.

Organisations that are not comfortable cloud-hosting their VLC may prefer an on-premises solution. One particular example of a mature, self-hosted collaboration platform is RocketChat, which like cloud-hosted offerings provides tools for video conferencing, file sharing and live chat within private channels.

All of the platforms listed above are GDPR-compliant and their creators are committed to ensuring that their customers are aware of their GDPR obligations. Other platforms are, of course, available.

Bespoke creation

The VLC we designed has evolved over several years, drawing upon feedback from users, law firms and students, and empirical research on the sorts of learning and experience students are developing from using the VLC as a training tool. Over the years, we have developed some key functions and embedded these into the online portal.

These include:

• all activities relating to the client and legal matter being undertaken via the encrypted and secure portal, rather than through various different pieces of technologies outside the intended portal

• an enhanced client retrieval system, including search functionality of all documents and correspondence in relation to a matter, which the client can track and view

• document automation through template searches and downloads

• intuitive legal forms for clients to complete, including informative educational video tutorials on various aspects of areas of legal services on offer (not legal advice but information on rights and practical tips)

• video and audio-conferencing facilities to enable online dispute resolution

• archiving, recorded transcription of communication, recorded video conferencing for interviews, negotiations and general e-meetings, including relevant permissions written in a user-friendly manner setting out the purpose and use of recordings (which are all purely for student feedback, evaluation and improved learning through reflection)

• online discussion threads with clients and others in the firm

• automated checks on confidentiality, conflict of interest, privacy and security

• integrated project management tools with calendar and time recording to help meet deadlines and keep tasks flowing and updated

• notification alerts to clients on updates made to their case file, alerting them to emails, status updates, to pay invoices or respond to requests for information or documents.

From our experience of designing a VLC and undertaking annual updates on the platform, you may want to consider the following points if you are thinking of creating a bespoke VLC:

• Identify a clear purpose for creating and setting up a VLC for education and training of law students, such as:

– instigating a small but powerful initiative towards digital transformation of legal education for learning and training purposes

– taking an integrated ecosystem approach to learning, teaching and assessment of practical legal skills to deliver an outstanding learning experience

– designing meaningful learning activities via the VLC to position students’ learning for future-readiness by emboldening them with the knowledge and skills needed to thrive in a technologically-mediated world of work

– developing staff to deliver cutting-edge educational practices that are recognised as being at the forefront of the sector by drawing upon emerging technologies and pedagogic practices across the education, legal and professional sectors.

• Consider whether the VLC supplements existing clinical experience and/or offers alternative access to legal support. To do this, it is important to:

– address client needs due to flexibility and wider reach of services

– be clear on issues of jurisdiction, and any limitations on the service that can be provided

– be mindful of the appropriateness of using a VLC when dealing with sensitive areas of the law and consider accessibility issues.

• Once a clear purpose is established, consider the required features and functionality of the VLC:

– What do you want the VLC to be capable of doing/achieving?

– What do you want to do on a VLC platform?

– What sort of user experience would you like your clients to have?

– What sorts of user interface will deliver the intended user experience?

– How will clients be supported on the use of different features and functionalities to navigate through the platform?

– How will a client be on-boarded to the VLC process of service delivery, including being fully aware of how expectations will be managed, communications, turnaround times, billing and fees (where applicable), clear lines of terms of engagement, liability, complaints and remedies?

– In an unbundled service model, responsibilities and accountabilities are key factors that need precision and clarity, such as what part of the work is handled by a third-party and what the implications are.⁷

– To what extent does your design brief for the VLC take a privacy-by-design approach, including compliance with data security regulations and best practice and compliance with platform regulations and best practice?⁸

– What sorts of work from on-boarding to completion of legal matters become automated? This may include elements of document automation, jurisdictional checks and conflict of interest checks.

– If tasks or checks are automated, how is accuracy determined? To what extent should the lawyer check the accuracy of the automated outputs?⁹

• Understanding of effective delivery of online service:

– Does the client portal offer accessible and meaningful navigation and user support?

– To what extent do the technologies used afford an effective method or tool for activities such as client interviewing, negotiating and managing a case – including time keeping, scheduling, etc.?

– To what extent do the technologies offer encrypted and embedded security features – handling, sharing and safe storage of data, safety and privacy – and enable appropriate use of technology practices?¹⁰

– Can users of the platform use the features and functionalities of the platform to its fullest affordances?

– To what extent are those using technology or working in a VLC emboldened with digital literacy and knowledge, including the need to adapt one’s practice for an inclusive client base?

– To what extent are those using technology or working in a VLC digitally empowered through the time and training to reflect and refine on their experience of working collaboratively online and building relationships online?

– Can individuals in the VLC interpret, understand and apply the Code of Conduct and Professional Standards statements to establish a client-lawyer relationship online?

– To what extent do the online system and processes and the technology lend themselves to safe handling of data?

– Is continuing professional development (CPD) made available and encouraged around the skills, knowledge and aptitude necessary for a competent digital professional to represent a client in a manner that is consistent with the rules of the profession?

Regulation and compliance of VLCs

The practice of law, online dispute resolution and the establishment of online courts is on the increase within the jurisdiction of England and Wales. The House of Lords recently published a set of recommendations on the regulation of the internet, in particular whether online platforms have sufficient accountability and transparency.¹¹ A paper co-authored with colleagues from Northumbria University’s Northumbria Internet and Society Research Interest Group (NINSO) sought to explore whether adequate processes are in place to moderate content effectively, proposing a number of mechanisms to improve regulations, including effective user education. This research also identified the power imbalance between the platform and the user, as well as the insufficiency of an approach to compliance centred on long and opaque terms and conditions that may be difficult to understand and interpret meaningfully.¹² The research took an evidence-based and holistic approach to a multidisciplinary challenge that will inform the Digital Authority, a new body whose creation has been commendably recommended by the House of Lords. Similarly, the guidance for the safe and ethical digital practice of law from our professional regulators has yet to shape the nature of digital legal practice.

In ‘Making a case for a digital lawyering framework’,¹³ Ann explores various examples of how technology is being used to aid and supply legal services, in its delivery, productivity and creativity. In England and Wales, the delivery of legal services – whether in a bricks-and-mortar law firm or on a virtual law firm platform – adhere to the same professional and ethical regulations and compliance requirements as set out by the Solicitors Regulation Authority (SRA) and Bar Standards Board, and rightly so. We advocate that with virtual law practice, there needs to be some further monitoring, additional guidelines and regulations from our regulators on safe, secure and ethical practices to help lawyers and clients address the challenges that come with professional online practice.

Our work on the VLC is guided by the best practice¹⁴ and guidelines on professional and ethical practice set out by the American Bar Association (ABA). Students undertaking this work will become familiar with ABA’s advisory recommendations, which set guidelines and minimum requirements for delivery of legal services online.¹⁵ The Law Society or the Bar Council are yet to develop any specific guidance in this area. Therefore, these are helpful threshold requirements and starting points to identify safe and ethical practices and compliance with existing professional rules.

Cloud computing considerations

Software-as-a-Service (SaaS) is a cloud-based software delivery model that enables the VLC application to be hosted by a secure, scalable third-party provider.

Considerable cost savings can be made by using a SaaS platform, as there is no requirement for internal hosting equipment (servers, storage or software licensing), which also translates into reduced IT staff expenditure. SaaS cloud hosting providers manage operating system security updates, infrastructure upgrades and offer robust, fully-tested data backup and recovery procedures.

Cloud providers offer flexible provisioning of server resources, allowing an application to scale up in terms of usage without the risk of performance bottlenecks. With early generation cloud platforms this incurred some downtime; however, modern cloud administration tools enable server memory, storage allowances and network bandwidth to be exponentially increased on-the-fly.

Larger cloud providers – including Amazon, DigitalOcean and Linode – have data centres in multiple locations across the globe, ensuring customers are able to select a location that is covered by the relevant data protection laws. This extends to backups that are kept within the same region, although at different sites, in order to provide redundancy in the case of a catastrophic failure of a particular data centre.

As a minimum, all cloud hosts support the installation of a secure SSL certificate and encrypted data transfer. Full disk encryption is also an option for highly sensitive applications.

Drawing upon the expertise of Dr De Silva’s work as Chair of the Law Society’s Technology and Law Reference Group and as a member of the EU Commission’s Expert Group on Cloud Computing and Technology,¹⁶ we have developed a set of principles of which to be mindful when handling cloud computing.

While it offers a broad range of advantages, especially in cost reduction and storage space for data, risks to data handling and storage is high as third-party providers are involved. As such, the handling of confidential information in all lawyer-client dealings could be breached without strict safeguards. A combination of our data laws, security laws and lawyers’ Code of Conduct could help manage such practice.¹⁷

When working with cloud computing service providers, we would advise clinics/firms to undertake due diligence over their cloud service provider for risks and compliance. The following factors should be taken into consideration:

• The service level agreement (SLA) will need to state explicitly that data is secured and handled in a responsible and ethical manner. If the software provider is working with a third-party hosting company it is important for the law firm to review the contract between these two companies. The agreement should outline the data handling, locality, security and backup procedures used for the law clinic data. This should be in line with data protection legislation and ethical practice of the jurisdiction in which the firm/clinic is operating from.

• There should be defined clauses in a SLA regarding the exporting and transfer of law clinic data, allowing the data owner to migrate to an alternative cloud host or obtain data for internal audit purposes or requests initiated by the authorities or regulators.

• Data should be available upon lawful request for access to data by foreign law enforcement agencies.¹⁸

• Confidentiality agreements may be required for those who have responsibility handling confidential law clinic data.

• Ensure compliance with the General Data Protection Regulation (GDPR), EU Data Protection Directive (95/46/EC) and the international information security standard ISO 27001, which is a framework of policies and process that sets out information risk management handling.

• Maintenance to the server platform and any handling of law clinic data should only be carried out with prior permission from the data owner.

• There is the right to sue the cloud provider for damages or terminate the contract for breaches typically around data storage, handling, retrieval.

Professional and academic development

In designing the functions of the VLC and in developing training and curriculum for students as support in the VLC module, we focused on:

• a curriculum that underpins knowledge and understanding of legal ethics and professional conduct rules, the interpretation of confidentiality and professional representation in online legal services

• a continual and robust programme of user development on information technology governance, security and protection, including a set of clear principles dictating codes of conduct when working online

• both a theoretical and practical understanding of SLAs, which covers the roles and responsibilities of software and cloud providers, negotiating of the management of the infrastructure and ethical handling and security of data

• understanding the operations and limitations of the types of technology used in the VLC

• ensuring that the mechanisms created in the VLC effectively undertake conflict of interest checks

• as online representation is borderless, being absolutely clear about jurisdictional restrictions and applicable governing law

• understanding when and to whom legal services should not be offered via a VLC

• understanding technology and the security risks

• clarity and distinguishing between legal websites and VLCs

• learning how to create a good online client experience for clients, including building a strong and trustworthy lawyer-client relationship online

• understanding user experience and user design architecture in creating a VLC

• awareness of alternative forms of technology-driven legal service delivery and keeping updated with best practice for the use of these delivery models, with a focus on the legal ethics of online delivery of legal services

• useful understanding of benefits and risks of automated document and service agreements, including any predictive technology

• learning how to work collaboratively in a team online, including multidisciplinary teams of experts

• being knowledgeable about perceived barriers to online legal service because of accessibility issues, lack of digital skills from potential clients and the impact of technology on access to the legal system, and consequently knowing when it is appropriate to use a VLC

• the evolving future of the work landscape and the skillset needed for a professional world mediated by technology, including new careers in law.

Further resources

Technological advancements in law clinics is a fast-developing area. As technology evolves and becomes capable of minimising many of our administrative burdens, there is a need to keep constantly updated on new developments. At the same time, there is a question to ask about the direction of the legal profession and practice, which is becoming mediated by technology. ‘Lawyering in a digital age’,¹⁹ is an international initiative that brings together a global audience to shape the direction of legal education fit for a digital age. The annual conference brings a globally connected set of speakers to shape conversations around how we are preparing students for practising and studying law in a digital age.

For further examples of the sorts of readings that could be helpful in understanding digital transformation of the legal profession, see Part 5.5.6 of this Handbook.

Part 2.14
Data security

Linden Thomas

A summary of the legislative and regulatory framework that governs data security is contained in Part 2.11: Digital security and is therefore not repeated here. That section focused particularly on data security in the context of the use of digital technology in law clinics. This section deals with more general considerations that clinicians should take into account in order to ensure that legal and regulatory obligations relating to data protection are met.¹

Who is responsible for data protection compliance within the clinic?

It is a good idea to designate a member of staff within the clinic to have responsibility for ensuring compliance with data protection requirements and for monitoring this on an ongoing basis. This role might include:

• ensuring that necessary policies and processes are in place and are regularly maintained and updated

• monitoring the clinic’s compliance with those policies and processes

• being a first port of call for any data protection-related queries

• making sure that training materials are up to date and that new staff, students and volunteers receive training on data protection before undertaking any client work

• being a point of liaison with others in the university with responsibility for data protection (see below).

What institutional policies and processes are in place and what support is available?

Universities process a significant amount of personal data and will therefore have policies and processes that govern how data should be handled and how any breaches ought to be dealt with.

Clinicians are advised to make contact with the individuals and/or teams in your own institutions that have responsibility for data compliance, in order to ensure that any processes implemented in the clinic are consistent with the university’s governing policies. Indeed, there may be a stipulation contained in your university’s policies that require you to seek their guidance. In any event, such colleagues can be a valuable source of help and support when seeking to navigate the complex legal and regulatory requirements involved in handling personal data.

What data is your clinic storing, handling and/or processing?

In order to ensure that you are processing data in a lawful manner, it is necessary to have a clear idea as to what data your clinic is handling. This can be achieved by carrying out an audit of the personal data the clinic holds in relation to students, clients, potential clients and others. Where a number of staff are involved in the operation of the clinic they should be asked to feed into the audit, in order to ensure that all categories of data are captured.

Depending on the way your clinic is set up, it may be helpful to consider the data handled in relation to each different project or area of activity. For example, if students apply to volunteer with your clinic, you might handle the following student data as part of the application process:

• name

• university email address

• mobile number

• details given on the application form regarding past experience, suitability for the role, etc.

If the student’s application is successful, the clinic might then hold the following information for the duration of their time as a volunteer:

• name

• contact details (phone number/email address).

In relation to an in-house live client clinic, the following personal data might be held about clients:

• personal client data (including sensitive data), for example:

– name

– address

– contact details

– potentially race, gender, religion, etc.

– potentially details regarding health, if relevant to query

– personal legal issues (family law, employment, etc.)

• personal data (names, etc.) of other parties involved in the client’s query.

For each set of data, consider the following:

• Precisely what data is held?

• Why does the clinic process that data?

• Is it necessary to process that data and, if so, why?

• How long is it necessary to retain the data? (This is considered in more detail below.)

• Who is the data shared with?

• Is the clinic allowed to hold the data?

• Is the clinic the data controller or processer?

• How is the data held/processed?²

A template data audit is contained in Part 5.5.5 of this Handbook. The outcome of the audit should be considered carefully. You may find, for example, that the clinic is collecting data that is not required. In such cases, processes can be streamlined to remove any unnecessary questions from client questionnaires, etc. It is good practice to review and update the audit on a regular basis in order to ensure that any changes or developments in terms of data collection are considered, for example where a new project is established.

Obligations under the General Data Protection Regulation³ vary, depending on whether you are a data controller, joint controller or processor. There is a checklist available on the Information Commissioner’s Office (ICO) website that gives an indication as to which category you are likely to be in.⁴ Most clinics will be data controllers as they determine the purpose and means of processing the personal data that they hold.

Do you have a ‘lawful basis’ for processing the data you hold?

As outlined in Part 2.11: Digital security, data must only be processed where there is a lawful basis for doing so. There are six available lawful bases. In most cases, data processed by a clinic will be done on the basis that the data subject (i.e. the client or student) has given their express consent.⁵ Thought should be given as to how consent is obtained.

For example, clinics should consider:

• How can you ensure that the client’s consent is informed? It needs to be made clear to the client what they are consenting to.

• What information do you need to tell the client in order that they can give informed consent? Consider what you will do with the client’s data as part of the service you provide: who will it be shared with and how? For example, if you will share any of the client’s data with a third party, such as an external law firm that will provide volunteer lawyers to supervise, the client should be informed of this and their consent should be sought before the data is shared.

• How will you evidence that consent has been given? Often this will be through a written agreement (usually a client information agreement or similar). However, there may be times when clients give their consent verbally, for example when giving initial details of their query over the telephone for conflict checking purposes. Consider what information will need to be given to the client at this point, how it will be conveyed to them and how you can record their verbal consent to proceed (i.e. in a telephone attendance note).

• What information might you need to give students before they begin working in the clinic about how their data will be used? Does your student volunteer agreement need updating to make this clear and to seek their consent?

The Information Commissioner’s Office (ICO) has useful guidance, which offers good practice on obtaining consent.⁶

Do you have a privacy notice?

Law clinics must provide clients with privacy information at the time their personal data is collected from them. Where personal data is obtained from another source, it must be provided within a reasonable period and no later than one month after obtaining the data.

The ICO guidance contains a checklist, outlining the information that ought to be provided. It includes the following:

• the name and contact details of your organisation

• the name and contact details of your representative (if applicable)

• the contact details of your data protection officer (if applicable)

• the purposes of the processing

• the lawful basis for the processing

• the legitimate interests for the processing (if applicable)

• the categories of personal data obtained (if the personal data is not obtained from the individual it relates to)

• the recipients or categories of recipients of the personal data

• the details of transfers of the personal data to any third countries or international organisations (if applicable)

• the retention periods for the personal data

• the rights available to individuals in respect of the processing

• the right to withdraw consent (if applicable)

• the right to lodge a complaint with a supervisory authority

• the source of the personal data (if the personal data is not obtained from the individual it relates to)

• the details of whether individuals are under a statutory or contractual obligation to provide the personal data (if applicable, and if the personal data is collected from the individual it relates to)

• the details of the existence of automated decision-making, including profiling (if applicable).⁷

The information must be provided in a manner that is concise and easy to understand, so care needs to be taken when drafting to ensure it is written in an accessible style. Typically, this information will be contained in a privacy notice, which should be linked on the clinic’s website and in any marketing materials. Clinics may also include the information in, or appended to, the client care letter. Two examples of a privacy notice are included in Parts 5.2.2 and 5.2.3 of this Handbook; however, your university may have its own template for privacy notices that your clinic may be required to follow.

The precise content of privacy notices will vary between clinics, and will depend upon the service being provided and the way that data is handled by each clinic. The data audit recommended above should be used to inform the content of the privacy notice.

Do you have appropriate data processing and/or data protection arrangements in place with partners and service providers?

The ICO guidance states that:

One example of accountability that the guidance cites is having written contracts in place with organisations that process personal data on your behalf. Therefore, where your clinic engages any other individual or organisation to process data on its behalf (for example, to store data or delete it) they would be a data processor and a written agreement should be put in place to confirm what type of personal data is being processed, the duration of the processing, the purpose of the processing and so on.⁹ The ICO guidance gives examples of the kinds of clauses that any such agreement should include.¹⁰

What measures are in place to keep personal data secure?

Give careful consideration to the measures employed in the clinic to keep data secure. Digital security considerations are addressed in Part 2.11: Digital security and Part 2.13: Lawyering in a digital age: Reflections on starting up a virtual law clinic. However, thought should also be given to storage and transmission of hardcopy documents that contain personal data. For example, how can you ensure that access to hardcopy documents is limited to only those with authority to view them? Lockable rooms and filing cabinets are essential.

Also, what rules and processes can you put in place to avoid hardcopy documents being lost or stolen? This will be of particular concern where clinics take place off campus and must be transported from one location to another.

How do those studying, working and volunteering in your clinic know what their obligations are?

It is essential that all those who work, study and volunteer with the clinic understand their duties and obligations to keep data secure. Data security should therefore be factored into training sessions for new staff and students. Records should be kept of who has undertaken the training and has received copies of the relevant policies. It would be good practice to seek written confirmation that policies have been read and understood. Again, a clause to that effect could be included in student volunteer agreements.

Consider also how external volunteers will be made aware of their obligations and the university’s processes. Volunteer agreements and volunteer handbooks could both assist with this.

How long are you keeping personal data for?

Personal data must not be kept for longer than it is needed.¹¹ There is no ‘one size fits all’: the timescale will vary depending on the data concerned. For example, personal data relating to students applying to volunteer with the clinic will be needed for a much shorter period of time than details of clients advised by the clinic.

When considering retention periods, there will be a number of factors to consider, such as:

• the limitation periods of any potential claims arising out of advice given by the clinic; and

• the data needed to carry out conflict checks, in order to meet the ongoing obligation not to act where there is a conflict of interest.

The clinic should adopt a data retention policy detailing the length of time different types of records will be retained for. Processes should be put in place to ensure data is deleted upon the expiry of retention periods.

Do you know what you need to do if there is a data breach?

According to the ICO:

Clinics should have clear processes in place dictating what should happen in the event of an actual or potential data breach. Clinic participants should be trained to recognise where a breach may have occurred and should be clear as to who this should be reported to and the timescales for doing so.

It is important that staff and students understand their obligation to report breaches and near misses. It would be sensible to nominate a member of staff within the clinic to whom reports should be made in the first instance. This person can then determine whether the issue needs to be escalated further within the university. The university will have protocols in place which will dictate this.

It is likely that any breach will need to be reported to the university’s designated Data Protection Officer, who will then take a view as to whether it needs to be reported to the ICO. Not all breaches must be reported to the ICO, and will depend upon the likelihood and severity of the resulting risk to people’s rights and freedoms.¹³ Where this risk to rights and freedoms is likely, the ICO must be notified. Even where the duty to notify the ICO does not arise, the decision not to report should be documented, along with the rationale behind the decision.

Where the duty to report arises, the data breach must be reported without undue delay and, in any event, not later than 72 hours after becoming aware of it. It is therefore important that the matter is escalated through the appropriate internal channels within the university as quickly as possible once a breach is made known.¹⁴ Consideration will also need to be given as to whether the individuals whose data has been compromised ought to be notified.¹⁵

Even where no report is made to the ICO and/or data subjects are not notified, any breaches or near misses should be recorded, along with details of actions taken to avoid similar issues arising in the future.

Further resources

As outlined above, this section is intended to give an overview of some of the key considerations that you will need to take into account when contemplating data security in law clinics. For those wishing to learn more, there are a wealth of additional useful resources available on data protection and GDPR compliance. In particular, the ICO guidance referenced frequently through this section provides a detailed but accessible starting point.¹⁶

Part 2.15
Provision of immigration advice and services by university law clinics

Frances Ridout

Office of Immigration Services Commissioner

The Office of the Immigration Services Commissioner (OISC)¹ is the statutory regulator of immigration advice and services in the UK. The OISC was established by Part 5 of the Immigration and Asylum Act 1999² in response to growing concerns that vulnerable migrants, in particular asylum seekers, were falling prey to unqualified and unregulated immigration advice providers (often for extortionate fees). Even within the charitable sector, well-meaning but incorrect advice was provided, which could be devastating to an individual’s long-term prospects.

The ethos underpinning the regulator’s work fits squarely with the ethos of most, if not all, university clinics: that access to justice means that people receive advice that is of a sound and proper quality. The OISC has been in operation for the last 17 years and at the time of writing regulates approximately 3,000 advisers operating in 1,500 registered organisations.

Who needs to be OISC-registered?

Any person providing immigration advice and services in the UK who is not already regulated by a designated qualifying regulator (DQR)³ and thus a ‘qualified person’ under the Act, must be regulated by the OISC in order to provide immigration advice and services. Immigration advice and services relate to an application to the UK authorities for any type of leave to enter or remain (including asylum and immigration bail work), applications for British nationality and citizenship and admission to or residence in the UK under EU law.

It is important to note that it is the entity which the OISC registers and then, through the entity, the OISC also regulates the immigration advisers who provide the advice and services. To provide immigration advice and services while not regulated is a criminal offence.⁴ The OISC investigates and prosecutes those who operate when not authorised to do so.

The statute

Whether individuals working within certain bodies are in fact regulated by a DQR can be a complex issue. Solicitors working in law firms and barristers in chambers are likely to be fully regulated by their respective regulatory bodies; further, they are normally permitted to supervise non-legally qualified staff and volunteers to also provide immigration advice and services acting on behalf of the regulated organisation. Outside of law firms and chambers, however, the situation becomes less clear.

Solicitors working in practices that are set up as an alternative business structure⁵ and authorised to operate by a DQR can also supervise non-legally qualified staff and volunteers, and these individuals do not need to be regulated by the OISC.

However, practising solicitors working in law centres and certain charitable organisations that have been permitted to employ solicitors to provide advice and services to the public are permitted to provide immigration advice themselves, but are not (in England and Wales) permitted to supervise others in doing so.⁶

This means that while practising solicitors in these settings may be regulated by the Solicitors Regulatory Authority (SRA), or barristers regulated by the Bar Standards Board (BSB), other staff providing immigration advice and services must be regulated by the OISC. This therefore applies to students working and volunteering with such organisations as part of their clinical legal education programme (whether under the supervision of employed and qualified clinicians or volunteer barristers or solicitors).

What does this mean for university law clinics?

What does this mean for law clinics operating in the UK that provide immigration advice and services to the public? Those operating in England and Wales will need to consider carefully how they deliver their advice and services.

Where the services are provided entirely through a practising solicitor (even one employed by the university rather than a law firm), with all advice and any representations made to the UK immigration authorities’ being made in the solicitor’s name, then it is likely they will not need to be regulated by the OISC. This is the case even if students assist in the research or gathering of information that supports a particular application.

However, if advice and services are provided in the name of the law clinic or university (or in the name of the solicitor but on the headed paper of the law clinic or university), then the law clinic or university as an entity – and any non-solicitor staff and volunteers (including student volunteers) – will need to apply to the OISC for regulation.

Law clinics operating in Northern Ireland and Scotland should confirm with their respective regulators if they regulate students who provide immigration advice and services in the name of the law clinic.

Reality of registering a law clinic

There is no doubt that the regulatory position of university law clinics for delivering advice in this area has been a confused picture for some time. Some clinics have tentatively and nervously reached out to the OISC to try and resolve the regulation of work already being undertaken.⁷ Far from reprimanding these clinics, the OISC is keen to work with clinicians to support them through the regulatory maze, and find a flexible approach where good work can continue. All indications are that the OISC will continue with this approach.

Step 1: Registering the clinic

University law clinics wanting to give immigration advice should first start by registering the clinic as an OISC-approved body to provide legal advice by submitting the relevant form.⁸ This should be done regardless of whether the clinic is a separate legal entity or part of the university. The form is primarily designed for independent advice organisations, meaning some of the information requested is more difficult for law clinics to provide (for example accounts). However, the OISC is amenable to discuss such issues and often takes a flexible approach to the evidence submitted. It is likely that the OISC will want to do an audit as part of this registration process. Further details on the audit process are provided later in this section.

If a clinic has volunteer lawyers (or indeed employed barristers or solicitors) who give or supervise immigration legal advice at the clinic, they will need to be listed in this form. It is only necessary to list those providing immigration advice. The registration is updated each year, meaning that if this list changes, alterations can be made to the information quite easily.

Clinic supervisors (whether lawyers employed by the clinic/university or external barristers or solicitors who are volunteering) often need to change at short notice. If as a clinic you are able to show that you have adequate handbooks and processes in place, which ensure a consistency of service at times when another volunteer lawyer steps in to cover for a registered volunteer lawyer, the OISC is content.

Step 2: Authorising the student advisers

The turnover of students involved in clinics (whether immigration or otherwise) is inevitably high. Further, the academic year is very short, meaning that the moment students start in September/October they need to be in a position to immediately start in the clinic in order to complete a sufficient number of cases and have a meaningful educational experience.

Applications for new student advisers are twofold. Firstly, students need to complete an OISC ‘New adviser application and competence statement’.⁹ This relatively straightforward form can be completed within 20 minutes or so by the student with guidance from a member of staff. Again, the OISC takes a pragmatic position when the form asks for applicants to list all jobs and work experience. Clinics may wish to speak with the OISC before registering students, to get a flavour of the flexibility in this form.

Secondly, applicants need to have a suitable Disclosure and Barring Service (DBS) check.¹⁰ Depending on the university, it may be that a central Widening Participation team is able to assist with this. The cost of a DBS check is dependent on whether the activity is voluntary or not. If a student is working on an unpaid basis in a clinic the application will be free. If this is not the case then the basic check (the level required by the OISC) is £25. An enhanced check is £44. There is no discount for universities.

To qualify for a free-of-charge check volunteers must not:

• benefit financially from the position

• receive payment (except expenses)

• be on a work placement

• be in a trainee position or undertaking a course of study that will lead to a full-time role or qualification.¹¹

DBS forms are lengthy and can be complex (especially for international students). Submitting these forms and sending them in with copies of appropriate documents can be a very lengthy and drawn out task. The OISC is amenable to clinics submitting new registration forms without the DBS checks and then submitting these at a later date when the certificate has been processed. The OISC is also flexible in allowing those advisers to volunteer in the clinic while the registration and DBS checks are being processed. Clinics might find it useful to try and have a clinician able to complete the DBS forms for submission rather than relying on a different university department.

Being registered as Level 1 advisers¹² with permission by the OISC to provide Immigration Advice and Services up to Level 2 under supervision will be sufficient for most clinics to undertake advice work. Students can advise on work one level above that in which they are registered. Level 1 work is advice and assistance, Level 2 is case work and Level 3 is advocacy and representation. Within each of these levels there are three categories of work:

• Immigration (applications for variation of entry clearance or leave to enter or remain in the UK; unlawful entry; nationality and citizenships; and admission, residence in and citizenship of EU members states);

• Asylum and Protection; and

• Judicial Review Case Management.

If clinics want to offer advocacy in immigration matters this would be Level 3 work and therefore students would need to gain authorisation at Level 2 (which requires an additional application procedure). For a full list of areas that are permitted at each level please view the Guidance on Competence (2017).¹³

Advisers seeking authorisation with the OISC normally undertake a written competence assessment. For Level 1 registration, OISC takes a pragmatic view of students in clinics who are undertaking a law degree, and therefore normally do not require a test if there are sufficient arrangements in place for training and developing knowledge. The Guidance on Competence¹⁴ lists areas of knowledge, and skills and attributes.

• Knowledge includes: identifying that a client is subject to immigration control, applicable categories, relevant forms and time limits, requirements of the immigration rules and cases, and operational guidance.

• Skills and aptitudes include: the ability to draft letters, and demonstrate interpersonal skills, support vulnerable clients, gather evidence, identify appropriate resources, follow good practice, appreciate urgency and keep good records.

For Level 2 and 3 registration, this involves a written exam paper taken under exam conditions at an OISC test centre. Any adviser authorised by the OISC may apply through the registered organisation to take assessments at higher levels. There is no cost to the individual or organisation to make such an application. Law clinics might therefore consider whether they wish to make such applications for students where they feel the student has gained sufficient knowledge and experience and is interested in gaining a higher level of authorisation.

It is very important to note that students are only authorised to give legal advice at the clinic that has applied for their authorisation because it is the clinic itself which is registered, then the adviser through the clinic. Therefore, this is not transferable to another organisation or clinic. This will need to be stressed to students.

Given the short period of time that students volunteer with a clinic there may be no obvious benefit for the students undertaking examinations for the higher levels. If they undertake clinic work and therefore obtain the experience to do the examination, by the time the assessment is complete they are likely to be moving on from the clinic. Having said this, students may feel that it is a good qualification to gain.

What happens at an audit?

The OISC considers the clinic premises, handbooks, procedures and client file format to check that everything is to standard. The initial audit is a lengthier process (typically one day), but following this the audits are likely to decrease in length (typically half a day) and frequency depending on the size of the clinic. This is, of course, subject to a complaint being made or a problem being identified. The clinic will usually be asked for a list of cases in advance of the audit.

Teaching ethics through immigration regulation

There is no doubt that the regulation of law clinics is complex¹⁵ and has not been fully resolved. This niche area can feel unnecessarily bureaucratic, especially having to gain authorisation for each student within the clinic.

However, there are benefits. It is a great way to teach students about regulation and ethics. Linking ethics to regulation can often feel very abstract for students, and the immigration clinic context can be an effective way of practically tethering the two together. It is also an excellent mechanism to teach social justice, as the regulation is in place to protect vulnerable members of the public who have historically been exploited by some sections of the legal profession. It ensures students are exposed to and can reflect on certain realities when entering the legal profession; that not all barristers and solicitors act with integrity and to the highest standards of client care at all times.

The opportunities for teaching ethics that arise from working closely with a regulator are both obvious and subtle. The obvious professional ethics principles to discuss with students include: upholding the rule of law and the proper administration of justice,¹⁶ delivering a competent standard of work¹⁷ and acting with integrity,¹⁸ etc.

However, there is a wealth of learning to be had in situations where clients come to clinics having previously received bad legal advice. For example, is there a duty for the clinic to inform the client that they could make a complaint to the OISC or elsewhere? Is there actually a duty on an OISC-regulated clinic to make an anonymous complaint itself? How does a clinic uphold confidentiality in these circumstances? Is making a complaint against the wishes of a client acting in their best interests?

We are all well aware of the rich and diverse range of ethical issues that clinical legal education already produces. Students rarely fully appreciate the complexities of complying with a regulator, especially when they feel a long way off practising under the remit of the SRA or the BSB. Engaging with the OISC alongside legal education can be an effective tool to practically demonstrate the need for regulatory compliance.

Clinics work hard to ensure that some of the most vulnerable in society are respected and not taken advantage of, while simultaneously teaching students good practice. Both these principles underpin the work of the OISC, which aims to support the provision of good quality (usually free) legal advice that clinics provide to this vulnerable group in society.

While there is undoubtedly some bureaucracy involved in the OISC registration process it is clear that the OISC does not wish to create barriers to innovative programmes such as those designed by university law clinics. The OISC recognises that such programmes not only provide a much needed service to local communities but also lay the groundwork for competent and ethical immigration advisers of the future.

As more clinics start to register with the OISC it will in all likelihood be necessary for the OISC to consider how to make the application process more efficient, especially when the student advisers usually only need to be registered for a short period of time. This may, of course, lead to changes in the individual adviser authorisation process. However, for the moment the statute remains in force and an involved two-stage registration process continues, which considers both the acceptable legitimacy and standard of the clinic itself (how it operates and is managed), and the fitness and competence of the student advisers within the clinic.

Useful contact information

Should you be concerned that your law clinic may need to be regulated by the OISC, please contact the Voluntary Sector Support Group at the OISC (VSS@oisc.gov.uk). You can email the group with details of how your clinic operates and it will confirm whether or not you need to be regulated.

The Voluntary Sector Support Group at the OISC also has a dedicated section on its website that provides advice about regulation specifically for the voluntary and community sectors which may be helpful to consult. This can be found at <https://www.gov.uk/government/publications/guidance-for-the-community-and-voluntary-sector>.

Summary

• Most clinics wishing to give immigration advice and services will need to be registered with the OISC.

• Each individual adviser within the clinic will also need to be registered with the OISC. Their registration is linked to the clinic and is not transferable.

• Registered students within a registered clinic can advise under supervision to one level above that which they are registered.

Part 2.16
Provision of debt advice by university law clinics

Lee Hansen^*

There are significant regulatory barriers to university law clinics undertaking debt advice. This is an unsatisfactory state of affairs, as university clinics are well placed to provide assistance in this area of significant unmet need.

Unmanageable debt is a problem that may cluster, occurring together with other legal problems including those concerning benefits, housing, employment and relationship issues.¹ This means that clients may present to university law clinics with multiple issues alongside their debt problem. There is strong evidence of a link between unmanageable debt and poor mental health,² so the recent creation of barriers to people seeking legal help in this area is particularly troubling.

In this section we set out the regulatory arrangements that may prevent clinics from assisting clients in these cases and explore some of the potential workarounds.

Regulated activities and the general prohibition on giving debt advice

Section 19 of the Financial Services and Markets Act 2000 (FSMA) sets out a general prohibition on carrying on a regulated activity unless a person is authorised or exempt from this requirement (‘the general prohibition’).

A regulated activity includes:

• debt counselling

• debt adjusting

• debt collecting

• debt administration

• credit broking

• credit information services.

Contravention of the general prohibition is an offence and renders a person liable on conviction to up to two years’ imprisonment or a fine or both.³

University law clinics should ensure that appropriate systems and controls are in place, including adequate supervision, to avoid any contravention of the general prohibition by the institution, its staff, students and volunteers.

Debt counselling

Debt counselling is a regulated activity. It includes ‘giving advice to a borrower about the liquidation of a debt due under a credit agreement’.⁴

Credit agreement is defined as:

The Financial Conduct Authority (FCA) has stated that the expression liquidation of a debt has a wide meaning, including:

• paying off the debt in full and in time;

• agreeing a rescheduling or a temporary halt to paying off the debt;

• the debtor being released from the debt;

• agreeing a reduced repayment amount (including the creditor agreeing to accept token repayments);

• a third party taking over the debtor’s obligation to discharge the debt;

• discharging the debt or making it irrecoverable through personal insolvency procedures such as bankruptcy, a voluntary arrangement or a debt relief order.⁶

The FCA has stated that in order to fall within the ambit of debt counselling ‘advice must relate to a particular debt and debtor’.⁷ Therefore, advice given to the public will not come within the scope of this activity as it does not relate to ‘a’ debt.⁸ Accordingly, public legal education (PLE) such as Streetlaw sessions conducted by a university law clinic on consumer credit and debt issues or the preparation of written PLE materials are unlikely to be a regulated activity if they are undertaken for a sufficiently broad audience.

The FCA also distinguishes between regulated advice and the provision of information,⁹ noting that:

However, an express or implied recommendation as to a course of action that might be adopted will render such a communication ‘advice’. This means that it is possible for clinics which are not authorised to undertake debt counselling to provide ‘information-only’ services in which no advice or recommendations are actually given. However, it would be crucial to ensure that these services are closely supervised to ensure that inadvertent advice is not given.

The FCA notes that the ‘range of activities covered by debt counselling is wide’.¹¹ Examples of advice that are likely to be debt counselling according to the FCA include budgetary advice,¹² as well as statements such as:

• ‘I recommend you enter into a debt management plan’¹³

• ‘I recommend you prioritise the repayment of your electricity bill over all other debts.’¹⁴

Debt adjusting

Debt adjusting is a regulated activity. It includes negotiating, with a lender on behalf of a borrower, terms for the discharge of a debt due under a credit agreement.¹⁵ An example of how this might arise in a clinic setting is as follows:

This is an area to take note of for clinics that undertake negotiation with other parties on behalf of clients.

Debt collecting

Debt collecting is a regulated activity, which includes ‘taking steps to procure the payment of a debt due under a credit agreement …’¹⁷ LawWorks has provided the following example of how a clinic may be taken as undertaking such an activity:

Debt administration

Debt administration is a regulated activity. It includes performing duties under a credit agreement on behalf of a lender.¹⁹ It has been noted that undertaking debt collecting as described in the example above may also involve debt administration.²⁰

Credit broking

Credit broking is a regulated activity. It extends to a range of activities including the introduction of individuals to credit providers.²¹ An example might include:

This is an area to take note of when considering the clinic’s signposting and referral practices.²³

Credit information services

The provision of credit information services is a regulated activity. Credit information services include ‘undertaking a specified kind of activity’ or giving advice on taking steps to undertake a specified kind of activity.

The specified activities are set out at Art 89A of the Regulated Activities Order. They are:

An example of a clinic undertaking this regulated activity would arise if the clinic was:

Authorisation and the 2014 changes

In order for a clinic to undertake any of the above regulated activities either it would need to be authorised or an exemption would need to apply.

In April 2014, responsibility for regulatory oversight of consumer credit and debt advice moved from the abolished Office of Fair Trading (OFT) to the FCA. Under the OFT, a group licence had been issued to the Law Society and administered by the SRA. The licence authorised solicitors to provide advice on debt and consumer credit.

However, upon the change in regulatory oversight, the group licence issued to the Law Society was removed and solicitors providing debt advice at university clinics were no longer authorised to do so. LawWorks advised ‘all clinics not otherwise covered by FCA limited permission authorisation to stop advising in all areas of consumer credit and debt from the 1 April 2014’.²⁵

The regulations implementing these changes included grandfathering permission for certain not-for profit organisations under an existing group licence to continue offering debt adjusting, debt counselling and credit information services.²⁶ Such organisations – which include Citizens Advice, the Law Centres Network and Advice UK – do not require authorisation in order to continue to offer these services.

However, most university law clinics are not covered by these grandfathering provisions. University law clinics might consider working in partnership with the above types of organisations; this could be in areas including the development of public legal education sessions or on law reform projects.

A university law clinic might also consider applying for authorisation from the FCA. It should be cautioned that applying and maintaining authorisation would be an undertaking of significant regulatory complexity. LawWorks has described the practical considerations for pro bono clinics seeking authorisation in the following terms:

Impact of these changes

These changes came about in a context in which there had already been significant cuts to the availability of legal aid in debt matters following the enactment of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO). Table 1 below represents the decline in legal aid matter starts since LASPO was implemented in 2013.²⁸

Table 1: Decline in legal aid debt matter starts since LASPO

In 2015, LawWorks wrote about the impact of the changes to the regulation of debt advice on clinics in their network (which includes law school clinics, as well as other types of pro bono clinics):

Exemptions

University law clinics might consider whether an exemption from the general prohibition applies that would enable them to undertake a regulated activity such as debt counselling. An exemption applies to members of a profession,³⁰ undertaking professional services whereby a regulated activity is incidental to the provision of those professional services.³¹

LawWorks has reported that:

The SRA is a designated professional body. It has set out rules for firms carrying out financial services under this exemption.³³

In light of the exemption, consideration may be given as to whether in-house solicitors employed within university law clinics or pro bono solicitors volunteering for such clinics might be able to undertake an exempt activity. This appears to be excluded as the business rules highlighted above are expressed so as to apply to authorised bodies and recognised sole practitioners.

The introduction to the SRA Financial Services (Conduct of Business) Rules and SRA Financial Services (Scope) Rules which came into force on 25 November 2019 state that ‘These rules do not apply to solicitors, RELs or RFLs practising outside firms authorised by us’. This would likely exclude pro bono solicitors from carrying out these activities in pro bono sessions of a university law clinic. With regard to the situation of an alternative business structure (ABS), the SRA has stated that they would be able to operate pursuant to this exemption.³⁴ The new rules do not appear to modify this position.

The possibility of utilising the exemption also raises the question of what activities may or may not be incidental in this context. Certainly, it is no longer possible to provide a regulated consumer credit activity to a client in isolation, as was the case under the group licensing regime.³⁵ Some gloss is given on what is meant by the term incidental in s 332 of the FSMA which deals with the rules that must be set out by a DPB:

However, as a result of uncertainty as to what is and what is not ‘incidental to professional service’, LawWorks has noted that despite the FCA’s confirmation that solicitors can rely on Part 20 exemptions:

University law clinics that are not regulated by the SRA could consider under the current regulatory arrangements opportunities for student involvement and collaboration on pro bono projects with solicitors’ firms. If the advice is provided through the firm, and student involvement is controlled or managed by the firm, then the firm may be able to rely upon the exemption detailed above.

Signposting information for debt advice

Legal aid is still available for debt advice if a person’s home is at risk. Individuals in this situation should be signposted to Civil Legal Advice:

• <https://www.gov.uk/civil-legal-advice>

Telephone: 0345 345 4 345

In all other cases, debt assistance will be out of scope. An application to the ‘safety net’ legal aid regime for exceptional case funding (ECF) may be considered; however, note that the Lord Chancellors’ guidance on the availability of ECF in debt matters indicates that this may be somewhat limited:

For information on making an application for legal aid under the ECF scheme see <https://publiclawproject.org.uk/what-we-do/current-projects-and-activities/legal-aid/exceptional-funding-project/>.

Other national services that may be able to assist with debt advice and information include:

• Money Advice Service:

<https://www.moneyadviceservice.org.uk/en>

0800 138 7777

• National Debt Line:

<https://www.nationaldebtline.org>

0808 808 4000

• StepChange:
<https://www.stepchange.org>
0800 138 1111

Summary

In conclusion there are significant regulatory barriers to university law clinics undertaking debt advice.

However, there are avenues or workarounds that might be explored by university law clinics to help address this area of significant unmet legal need. This includes the development of:

• public legal education/Street Law projects

• law reform projects

• information-only services, which are closely supervised to ensure that inadvertent advice is not given

• student involvement in projects that are covered by the grandfathering provisions, such as projects with law centres, Citizens Advice or Advice UK organisations

• student involvement if law firms undertake pro bono projects, including debt advice, where this meets the requirement of being incidental to the professional service offered by the firm.

Part 2.17
Legal professional privilege

Vivien Cochrane and Will Hayes

One of the fundamental differences between seeking advice from a lawyer and any other type of professional adviser is the protection afforded to communications between a lawyer and a client that may reveal the advice sought or provided, or preparations for litigation. This principle is known as legal professional privilege (LPP).

LPP is essentially a special type of confidentiality; but, unlike the professional duty of confidentiality required by the Solicitors Regulation Authority (SRA) and Bar Standards Board (BSB) – which can be overridden in certain circumstances – lawyers and their clients cannot be compelled to disclose material that is covered by LPP, even during the course of a police investigation or in court proceedings.

There are two types of LPP:

• legal advice privilege

• litigation privilege.

Definitions of each type of privilege are set out in detail below.

Legal advice privilege

Legal advice privilege applies to the information provided by a client to a lawyer in order to seek legal advice, and to the advice given by a lawyer to their client.

For example, a client may seek advice after having been involved in a road traffic incident in which someone was seriously injured. If the client failed to stop at the time of the accident they may believe the police to be looking for them. The instructions that the client provides to the lawyer may be useful evidence to the police. However, the communications between the lawyer and client are privileged; the police cannot compel the lawyer or the client to disclose what was said during their meetings.

This type of LPP only covers communications between a client and their lawyer, and will not therefore apply to conversations between a lawyer and a third party, such as a friend or family member who might attend with the client at a meeting. Extra care should be taken to explain these parameters to the client.

Legal advice privilege checklist

• There must be a communication: a letter, email or text message is a communication, and a note of a conversation is evidence of a communication so would also be covered by privilege. Certain documents generated as part of the advice sought or given, or that reveal the content of the advice sought or given, may also be privileged, such as a draft contract, which may include commentary from a lawyer, or may from its amendments betray the content of the advice given.

• The communication must be confidential: this generally is a question of fact; if the conversation is between the lawyer and client only, it will almost certainly be confidential. However, a presentation to a group of young people regarding their rights if they are stopped by the police would not be confidential advice, and therefore would not be privileged.

• Between a client and a lawyer: only the communications between the client and the lawyer acting in their professional capacity are privileged, not between the client and other people, or the lawyer and a third party, even if they are about the case or the advice.

• Status of the adviser: privilege attaches to advice given by a qualified lawyer. However, advice given by advisers who are not legally qualified is privileged so long as they are properly supervised by a lawyer acting in their professional capacity. It would therefore extend to students giving advice in a law clinic under the supervision of a qualified lawyer. The advice given will be that of the firm, department or clinic, rather than that of the individual themselves.

• For the purpose of seeking or providing legal advice: the content of the communication must relate to legal advice. General social chat or discussions regarding costs or fees between lawyers and clients is unlikely to be privileged.

Litigation privilege

The main difference between litigation privilege and legal advice privilege is that litigation privilege can also cover communications between a lawyer and a third party, such as a witness, and can also cover communications between the client and a third party. As with legal advice privilege, the protection afforded to these communications is absolute and disclosure cannot be compelled.

There is an important requirement for litigation privilege, which is that the dominant purpose of the communication must be for use in connection with actual or reasonably contemplated litigation. For example, if the client is considering taking action against their employer for unfair dismissal and their lawyer takes a statement from an ex-colleague, intending to rely upon it during the proceedings that will follow, the communications between the lawyer and the witness – and potentially the client and the witness – will be covered by litigation privilege.

As with legal advice privilege, litigation privilege applies to all types of communication.

Litigation privilege checklist

• The requirements for confidentiality and the definition of communication are the same as for advice privilege above.

• Litigation must be in progress or reasonably in contemplation: criminal proceedings (post-charge) are litigation, as is any matter before a court or tribunal. Reasonable contemplation that the police may investigate at a later stage is unlikely to amount to reasonable contemplation of litigation. The proceedings must also be adversarial, not investigative or inquisitorial; a public inquiry is therefore not litigation.

• The communication must have been made for the dominant purpose of conducting that litigation: a lawyer may communicate with a third party for a number of reasons. For example, they may seek a report from an expert in order to assess liability for an accident, and also to establish the cause and remediate any problems. The report will only be privileged if the dominant purpose in obtaining it was to obtain legal advice in relation to, or aid in the conduct of, the litigation.

Implications for practice

Given the definitions set out above, almost all files held by a lawyer will contain a mixture of confidential client information and privileged information. During the course of everyday practice there is no need to draw any distinction between the two, or make any special provision for privileged material. In all likelihood, the distinction will only become important if the issue of compelled disclosure to a third party arises.

If students wish to refer to cases in which they have provided advice as part of an academic assignment or reflective portfolio they should ensure that all details which could identify the client, including details that could lead to jigsaw identification, are removed.

For example, saying ‘the client was the head teacher at a large local secondary school who required advice about separating from his partner’ could lead to identification of the individual in question, so references to the client’s profession and location should also be removed.

As long as confidentiality is maintained, referring to the nature of advice provided and the circumstances should not amount to a waiver of privilege.

Compelled disclosure

If a legitimate request is made by a third party to access a client’s files, the first port of call is well established: the client’s consent to disclose the material must be requested. For example, the police may seek access to a file in the event of a criminal investigation, or a local authority could seek access to a file in the event of care proceedings relating to vulnerable children.

If the client consents to the disclosure and this consent is evidenced in writing, then the disclosure can be made, but the client should be advised as to the potential implications of waiving privilege in relation to the requesting party. Once the disclosure is made, the material may be deemed to have lost confidentiality and therefore privilege could be deemed to have been waived in its entirety. The consequences will depend on the exact nature of the material, the request and the status of the client, and it would be wise to seek legal advice before agreeing to make any disclosure of this sort, regardless of the client’s willingness to consent.

In the event that the client does not consent, but the request is in the form of a court order, or other statutory obligation, it will be necessary to notify the requesting party that the items required may contain material subject to LPP, and that disclosure can only be made in respect of the non-LPP material. There are a range of potential responses that may arise depending on the nature of this request and the party making it. It may be necessary to seek legal advice to ensure that the adviser is properly able to resist disclosure in order to protect the client’s privilege, as failure to do so could have regulatory consequences.

Loss or waiver of privilege

A more routine practical consideration is the need to advise clients of the risks of waiver of privilege. It is often the case that a client will bring a friend or family member to a consultation with a lawyer. This arises in particular for children and vulnerable adults who may be accompanied by a parent, social worker or other professional involved in their care.

Regardless of the status or qualification held by the accompanying party, conversations with third parties are not covered by LPP (unless they can fit the criteria for claiming litigation privilege as set out above) and therefore what the third party does with the information is outside of the client’s and lawyer’s control. It is extremely important that the adviser explains this to the client, and offers the client the opportunity to consult the adviser without the third party present. If a client is insistent that they wish to seek or obtain legal advice in the presence of a third party then a careful note of their wishes, and their signed authority to do so, should be obtained and retained on their file.

If a client proceeds on this basis they will have waived privilege in respect of that third party, but they will not have waived privileged entirely. However, one risk is that if the third party was to become a party to the proceedings (such as a friend who then became a co-accused in a criminal case) they could, should it assist, rely on the privileged information as part of their case. Another, more common risk is that the third party shares the information more widely; and the privileged information then falls into the hands of an opposing party who can use it to their advantage.

Similarly, written communications to clients, such as letters and emails, ought to be marked ‘confidential and subject to legal professional privilege’, ideally in their subject line, to ensure that inadvertent access or waiver is avoided as far as possible.

In reality, issues relating to the law of privilege ought not to arise on a regular basis. It is, however, important to be aware that this is a particularly complex area of the law, and that deliberate or inadvertent waiver could have potentially serious implications for both the client and the lawyer. Compelled disclosure should always raise a red flag of suspicion and, if necessary, regulatory or legal advice should be sought before disclosing any potentially privileged material to a third party.

Part 2.18
Regulation of barristers and university law clinics

Frances Ridout

University law clinics and clinical legal education (CLE) initiatives can, and regularly are, run by a multitude of individuals. Where they employ qualified practitioners, they tend to be solicitors. However, this does not mean that barristers cannot or should not work in university law clinics, either as clinicians employed by the university, or as volunteers giving pro bono legal services outside their usual working day to clients and/or voluntarily supervising students in the provision of legal services. The Bar can provide an important and valuable perspective to the oversight, education and management of CLE and should not be overlooked as a valuable resource for clinics.

The Bar Standards Board (BSB) is responsible for the regulation of barristers and publishes a Handbook that sets out the standards for barristers and regulated BSB entities.¹ The BSB Handbook is regularly updated and available online. It is highly unusual for a university law clinic to be a regulated entity by the BSB, so this section will concentrate on the regulation of the individual barristers working within university law clinics – both in an employed and voluntary capacity.

The BSB is also responsible for the education and training of barristers. This section will not address the specific routes to qualifying as a barrister or indeed the changes from 1 April 2019 in the qualification process.² It will instead look at the regulation of already qualified barristers employed and volunteering within university law clinics.

Registered and practising barristers

After a Qualifying Law Degree (or post-graduate alternative) the training route for a barrister comprises of the following steps:

• the Bar Professional Training Course

• training requirements through an Inn of Court

• call to the Bar at an Inn of Court and becoming a non-practising barrister

• first six months of pupillage (non-practising)

• provisional authorisation to practise being issued

• second six months of pupillage (practising under supervision)

• full authorisation to practise at the end of the second six months of pupillage.

As set out above, barristers are officially bestowed with the title of ‘barrister’ when they are ‘called to the Bar’,³ which typically happens at the end of a postgraduate course, the Bar Professional Training Course. This ceremony must take place before a practising certificate can be awarded at the end of the first six-month period of pupillage (work-based training). A full practising certificate cannot be awarded until the 12-month pupillage is completed.

For numerous reasons (not least the limited number of pupillages available), barristers tend to fall into one of two categories: practising barristers and non-practising or unregistered barristers. Those who are practising/registered are permitted to do reserved legal activity,⁴ and are subject to safeguards such as training, insurance, stricter regulation by the BSB and potential routes of complaint by clients.

Once all the training requirements are completed (including the 12-month pupillage), a barrister must apply and pay for an annual practising certificate if they wish to continue to ‘practise’.⁵ If the certificate is awarded they will then be part of an online register of practising barristers that can be searched by the public.⁶ This is known as ‘Authorisation to Practice’ and includes a practising certificate fee based on earnings.⁷ When applying, there is an optional Bar representation fee that supports various welfare-related projects for barristers. A discount is available if someone is out of work for an extended period of time, for example due to maternity leave.

Reserved legal activity can only be conducted by practising barristers and includes the exercise of rights of audience, the conduct of litigation,⁸ reserved instrument activities, probate activities and the administration of oaths. Barristers employed full time in law clinics who either supervise students undertaking reserved legal activities⁹ or provide these services themselves will need an employed (rather than self-employed) practising certificate. It is a criminal offence for a barrister to carry out reserved legal activity without a practising certificate.¹⁰ A barrister may also face potential sanctions from the BSB (such as suspension).

There are many university law clinics that do not conduct any reserved legal activity but do undertake legal activity such as:

Where barristers employed by a clinic undertake legal activity but not reserved legal activity they are not required to hold a practising certificate, meaning they can be unregistered (see below for further information on unregistered barristers).

As part of the practising certificate renewal process a barrister will have to confirm that they have completed the required continuing professional development (CPD) (see later in this section),¹² and that they have a suitable level of insurance.¹³ Self-employed barristers must have in place an individual insurance policy and confirm this is the case during the practising certificate renewal process. Barristers employed within clinics may be able to rely on the clinic’s insurance policy, which does not need to be submitted to the BSB.

When registering a practising certificate, barristers are required to list the area of law they practise in. For many clinicians this may span a large range of work. The BSB have included a ‘General’ category which clinicians may find useful.

All barristers must inform the BSB as soon as reasonably practicable (in any event within 28 days) if anything in their practising certificate application changes.¹⁵

It is also important to note that where a clinic is reliant on ‘outsourcing of work’ to a third party (perhaps where volunteer supervisors supervise legal work done by students), the outsourcing does not alter a barrister’s obligations to their client.¹⁶ This includes when the legal advice is outsourced, or indeed any other aspect such as administration. For example, the barrister will still need to ensure that the Core Duties are being complied with, such as that the person doing the legal work is acting with honesty and integrity towards the client. If a volunteer barrister outsources a supervisory role to their pupil there is not the same obligation on the barrister, as their pupil is a registered individual who takes on their own obligations to the client.

Unregistered barristers (barristers who do not hold a practising certificate)

The term non-practising barrister is not used any more (it being thought to cause confusion with non-practising/unregistered barristers who are still working in a legal capacity, albeit not as a practising barrister).

All unregistered barristers are still considered to be part of the profession and are expected to conduct themselves in an appropriate manner. They continue to be subject to the Core Duties and Conduct Rules.¹⁷ It is very important that they do not mislead anyone about their status. It is a criminal offence for a barrister without a practising certificate to provide legal services that are reserved activities.¹⁸

There are also strict rules on not ‘holding yourself out’ to be a barrister unless you have a practising certificate.¹⁹ This is particularly so in the situation where there is the supply of legal services to the public (even if not reserved legal activities).

Therefore, if there is a member of a clinic who is an unregistered barrister they would fall foul of this rule if they were to use the term ‘barrister’ to describe themselves in an email signature or on a business card in the course of their work in the clinic.²⁰ Using the term separately to the supply of legal services would not be a problem (for example, if a member of staff just held a teaching post). The most important point is that an unregistered barrister should not ‘mislead’.²¹

Other unreserved legal services can be provided, including: sitting in a judicial (or similar) capacity; lecturing or teaching; editing law books and publications; media/press communications; giving advice free to a friend or relative; or acting as unpaid or honorary legal adviser to any charitable institution, and (if a barrister is a non-executive director of a company or a trustee) giving the benefit of experience to that organisation.

Immigration advice is not a reserved legal activity, but is regulated by the Office of the Immigration Services Commissioner (OISC). This means that unregistered barristers will need to be regulated by the OISC to provide advice in immigration. Practising barristers are exempt from such regulation. Please see the Part 2.15 for further detail on providing immigration services.

Unregistered barristers are still subject to all ten of the Core Duties listed in the BSB Handbook.²² In addition, as per Part 2, rule C1.2.b:

In relation to legal services, unregistered barristers are still subject to Rules C144²³ and C145²⁴ regarding the notification of your status to clients. Part 2, D., Rule C144 of the BSB Handbook stipulates that if you are a non-registered barrister providing legal services to any inexperienced client then before doing so you must tell them a number of things. These include:

• that you are not acting as a barrister

• you are not subject to certain parts of the Code of Conduct

• the BSB will only consider complaints about you relating to the Core Duties

• you are not covered by professional indemnity insurance

• how a complaint can be made against you

• there is a risk that they will not be able to rely on legal professional privilege.

An unregistered barrister needs to obtain written confirmation from a client that this has been explained. There is a useful template provided by the BSB to notify clients of a barrister’s non-registered status (so as to comply with Rule C144).²⁵

However, if this legal advice is being provided by an unregistered barrister at a Legal Advice Centre (as described below) then Rule C144 does not apply.²⁶ Therefore, clinics who charge or operate in any type of commercial capacity need to be aware that there may be a duty to notify clients of services provided by any unregistered barrister, but other university law clinics are likely to be exempt from this requirement.

Universities/law clinics employing barristers

The majority of practising barristers are self-employed practitioners working from a set of chambers or similar organisation. However, an increasing number of barristers are now undertaking employed roles – including full-or part-time employment in universities and university law clinics. This trend is likely to continue.

A Legal Advice Centre is defined in the BSB Handbook²⁷ as:

At the time of writing, Rule 4.16 of the SRA Practice Framework Rules 2011 sets out four criteria that allow those employed by a law centre or advice service operated by charitable or similar non-commercial organisation to give advice to the public. These criteria are:

• the body is independent, without a funding agent having a majority representation in the management of the service

• any fees earned are paid to the service

• the organisation is not described as a law centre unless it is a member of the Law Centres Federation

• legal advice is covered by legal indemnity cover at the organisation reasonably equivalent to that required by the SRA.²⁸

Therefore, if clinics wish to use the services of barristers (on a voluntary or employed basis), but do not have a solicitor working in the team (on a voluntary or employed basis), they will need to consult the BSB to seek permission for the organisation to be deemed suitable for attendance by barristers.

An employed practising barrister (working in a non-authorised body, such as a university) is able to provide advice through student law clinics, subject to the following limitation outlined in the Handbook.²⁹

Legal services are defined in the Handbook as:

Volunteer barristers at university law clinics

Barristers may volunteer in the supervision of students and/or to give legal advice themselves at a university law clinic, provided the clinic meets the definition of a Legal Advice Centre as specified in the Handbook and outlined above.

There are three conditions to the rule outlined above.

• Barristers must not receive either directly or indirectly any fee or reward for the supply of any legal services to any client of the Legal Advice Centre (except where a salary is paid by the Legal Advice Centre).

• Barristers must ensure that any fees in respect of legal services supplied by them to any client of the Legal Advice Centre accrue and are paid to the Legal Advice Centre, or to the Access to Justice Foundation, or other such charity as prescribed by order made by the Lord Chancellor under s 194(8) of the LSA 2007.

• Barristers must not have any financial interest in the Legal Advice Centre.³⁴

For the most part these criteria will not be problematic for practising barristers who want to volunteer at student law clinics. They may therefore complete both reserved legal activity and other legal activity subject to the criteria above. If a clinic charges fees to the client, or does not have a solicitor conducting work at the clinic (or is exempt by the BSB from this requirement) then there may be some restrictions.

When barristers register for their practising certificates, they are asked to estimate how many days pro bono work they have completed in the last 12 months. The pop-up box defines ‘pro bono’ as:

There are no compulsory pro bono hours for barristers. That this criteria appears on the renewal form, as well as being a monitoring process, may be an indication that the BSB wants to encourage barristers to voluntarily participate in pro bono activities.

Core Duties

The Core Duties are the ten fundamental principles that underpin the framework for the regulation of barristers.³⁵ The Handbook also lists outcomes (what it aims to achieve), rules (mandatory processes to be followed) and guidance that assists in the interpretation of the rules and Core Duties. The content of the Handbook regulates all practising and non-practising barristers, and first six pupils.

The ten Core Duties are listed as follows (with Core Duty 1 overruling all others):

CD1 You must observe your duty to the court in the administration of justice.

CD2 You must act in the best interests of each client.

CD3 You must act with honesty, and with integrity.

CD4 You must maintain your independence.

CD5 You must not behave in a way which is likely to diminish the trust and confidence which the public places in you or in the profession.

CD6 You must keep the affairs of each client confidential.

CD7 You must provide a competent standard of work and service to each client.

CD8 You must not discriminate unlawfully against any person.

CD9 You must be open and co-operative with your regulators.

CD10 You must take reasonable steps to manage your practice, or carry out your role within your practice, competently and in such a way as to achieve compliance with your legal and regulatory obligations.

These echo the spirit (and in some cases the drafting) of the Principles produced by the SRA.³⁶ Most do not cause any obvious conflicts with clinical work. But there are a few points of interest.

• A duty to act in the best interests of clients includes consideration of whether a client would be better served by using a service outside of a university law clinic, perhaps a firm with a legal aid contract or a service that is able to deliver advice more efficiently than a student law clinic. It is advisable to be aware of other local services, firms with legal aid contracts and the current threshold and areas of law falling within the scope of legal aid, and to signpost clients to these services where appropriate.

• Barristers working at university law clinics must be independent. This means prioritising independence above other pressures from universities or educational establishments. For example, if a case is more complex than a university law clinic can undertake, pressures from the university should not encourage a barrister to accept the case. Equally, pressures to involve students in cases should not mean that a client receives a less competent standard of care than they should have. Most clinicians will be subject in some form to the UK Professional Standards Framework as managed by the Higher Education Academy, which echoes many of the traits outlined above, in particular a commitment to professional values.³⁷

• Keeping the affairs of each client confidential seems simple. Fundamentally, the role of clinical legal education requires discussion of cases among student cohorts and using the cases as educational tools. Provided you have informed your client at the outset that this is the position and have not misled their understanding of how you will use their information and personal details, this is not a problem. It does, however, feed into the wider point of how important it is for clinics to have robust client engagement letters, and confidentiality policies and practices for students. Barristers will need to be mindful of the fact that students may have differing levels of commitment to confidentiality. If clinics are working with volunteer supervising lawyers or other organisations, they will need to consider whether professional codes of conduct already bind the third party to an appropriate level of confidentiality (e.g. solicitors under the SRA) or whether a separate confidentiality agreement is necessary.

• There is a requirement to provide a competent standard of work to clients. Most clinics provide highly competent work as there are so many checks and safeguards in their processes. However, this is a timely reminder that there is a regulatory duty on barristers to ensure that clients get a competent standard of service at all times.

• Not discriminating unlawfully against any person is a Core Duty. Clinics and universities are likely to have many policies in place to promote equality and diversity, but there are some issues that are specific to clinics. For example, many clinics have set criteria outlining the grounds they use to select clients. These are often advertised on clinic websites. Clinics need to be aware of potential conflicts of interest and have proper safeguards in place to deal with these from the outset, including re-directing clients to other services in a timely manner if appropriate.³⁸ For example, clinics must be mindful of the health and safety of their students and not expose them to cases or clients that are too complex or difficult. If a potential client has a severe mental health illness, then the competencies and safety of the students may need to be considered alongside the duty not to discriminate.

‘Cab-rank’ rule

The cab-rank rule is a rule designed to stop barristers picking and choosing the cases they want to do based on inappropriate (or even unlawful) criteria, such as the type of client, individual characteristics of the client, the likelihood of success of the case, the guilt or innocence of the client, the nature of the case, etc.

The three circumstances in which barristers must accept instructions (subject to more obvious safeguards like appropriate level of experience, seniority, field of practice, etc.) are where:

• a self-employed barrister is instructed by a professional client, e.g. a solicitor or other instructing body such as a local council

• a barrister who is an authorised individual is working within a BSB-regulated entity (which most clinics will not be)

• there is a BSB-regulated entity and the body/person instructing the case seeks the services of a named authorised individual (e.g. a named barrister) working for that entity.³⁹

The majority of barristers working or volunteering at university law clinics will not fall into these categories as they are unlikely to be either self-employed or working for a BSB entity. In any event, the BSB Handbook does stipulate that the ‘cab-rank’ rule does not apply in certain situations. However, university law clinics do not seem to wholly fit within the scope of these exceptions. Exception 8 is the closest:

However, if you are advertising yourself as a free law clinic, the requirement of a proper fee for services is not applicable.

Even if the cab-rank rule does not apply to a barrister working or volunteering for your clinic, the BSB Handbook is clear that there must be no discrimination in your approach to clients⁴¹ and that you must not mislead clients in any way about the service you are offering. To uphold best practice it is advisable to ensure that the university law clinic has clear and precise guidance on the basis on which it accepts and refuses different cases.

Continuing professional development

When a registered barrister renews their practising certificate in March each year they will be asked to declare that they have completed the required continuing professional development (CPD) for the previous year (ending in the preceding December). CPD is the profession’s way of ensuring that barristers continue to meet the standards of the Professional Statement (knowledge and skills expected of a practising barrister).

From 1 January 2017, CPD changed, removing the need to undertake specified hours and accredited courses. Barristers are now required to continue to undertake CPD and keep a log, and must now create a CPD plan that includes objectives, activities and reflection on the overall process.⁴² The New Practitioner Programme outlines the rules for barristers who are in the first three years of practice.⁴³ For those who have been practising over three years, the Established Practitioner Programme applies. This programme offers a wider range of activities and more discretion to the barrister.

There are four components to CPD compliance for barristers:

• Reviewing: setting learning objectives. These could be around legal knowledge and skills, advocacy, practice management (including management of employees, working environments and mental health concerns), working with clients and others (communicating, advising, understanding procedures), ethics professionalism and judgement (GDPR, conflicts of interest, confidentiality, money laundering, etc.).

• Recording: recording the activities that meet the specified learning objective. You should keep a written record of the CPD activities that you have undertaken over the past three years. The record should include: title, date, type of CPD activity, CPD provider, learning objectives, reflection, etc.). Barristers are encouraged to keep evidence of CPD activity.

• Reflecting: a written reflection which demonstrates how learning is embedded into regular practice. This should also be kept for three years.

• Reporting: declaring CPD when renewing your practising certificate. If checked⁴⁴ the BSB will review the relevance of the CPD activities and consider your experience in relation to the CPD you undertook in the previous year. For example, does this build on your CPD from the previous year? Is the CPD at the correct standard to assist your development?

The guidance⁴⁵ usefully gives a non-exhaustive list of activities that might constitute CPD. These include: face-to-face training courses (including university ones), online courses, podcasts, conferences, reading or research, authorship or editing of published works (such as exam papers or consultations/law reform proposals, professional blogs, etc.), presenting at seminars, teaching relevant legal courses on LLBs, MMLs, GDL, LPC, BPTC, etc.

There is also a non-exhaustive list of things that do not count: updating social media or following others on social media, work or research ‘completed as part of routine practice, including pro bono or volunteer legal case work’.⁴⁶

Most clinicians will find that they can easily satisfy the CPD requirements through training and events on offer. Completing the written record might be the more onerous task. If barristers who teach in clinic are relying on teaching as part of their CPD, it is important to show how this is developing the barrister as a practitioner, rather than focusing on the effect of the teaching on the student.

Public access and litigation work

Public access is a term used to describe when a client can seek and receive the services of a barrister directly, rather than needing to go through a solicitor. To undertake public access work barristers must have a full practising certificate, have undertaken public access training and be registered as a public access practitioner.⁴⁷ Once completed, barristers may apply for an extension to their practising certificate to undertake litigation.⁴⁸ If a barrister has fewer than three years’ qualification there are additional supervisory requirements.⁴⁹

Litigation is when a lawyer instigates legal proceedings against another party and conducts the proceedings. This is different from conducting advocacy. Advocacy gives a voice to a particular client and champions their cause.⁵⁰ If a barrister wants to undertake litigation work, they must undertake additional training to apply for an extension to their practising certificate to conduct litigation.⁵¹

There are three requirements in order for an application to conduct litigation to be granted. The barrister must:

• be over three years standing (or under if they are practising in a chambers or office where a specifically qualified person⁵² is ready to guide them)

• have relevant administrative systems in place

• have procedural knowledge to enable them to conduct litigation competently.

Having a barrister who is able to undertake public access work and litigation may be an attractive option for student law clinics, especially if there are students interested in learning about the full case process, including trial strategy and advocacy. This would circumvent the need to ensure that there is a practising solicitor who is able to undertake litigation, or having to ask the client to self-represent for certain aspects of casework.

Complaints against registered and unregistered barristers

The BSB handles complaints about barristers. Unregistered barristers may still face a complaint and be investigated; barristers who do not hold practising certificates (including first six pupils) are permitted to provide free legal advice to clients of a legal advice centre, providing they do not hold themselves out as barristers and do not undertake or offer to undertake any reserved legal services.⁵³

Clinicians who are barristers (especially those who are practising) are encouraged to look at the monthly regulatory updates to ensure that they do not miss an update to how they are regulated.⁵⁴

Reporting misconduct

The BSB Handbook places a duty on barristers to report serious misconduct by others:

It is not unusual for free clinics to come into contact with dissatisfied (and often vulnerable) clients who have previously received poor legal advice. As such it is important for barristers working in clinics to remember their duty to report serious misconduct.

It is also important to note that the BSB has the power to inspect any premises that a barrister works at and/or provides legal services from.⁵⁶

Summary

• There is no requirement stipulating that a university law clinic should or should not employ a barrister.

• If there are employed barristers within university law clinics they may be registered or unregistered. This will determine the type of work they are able to undertake and the regulation that they are subject to.

• Registered or unregistered barristers are able to undertake voluntary work at university law clinics.

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1 Some of the content of this section was adapted from the following article: Linden Thomas, ‘Law clinics in England and Wales: A regulatory black hole’ (2017) The Law Teacher, early online publication <https://www.tandfonline.com/doi/full/10.1080/03069400.2017.1322858> accessed 23 July 2019.

* Thank you to Patrick Reeve of MP Reeve Ltd (www.MPReeve.com) for his helpful comments on an early draft of this section.

2 SRA, Standards and Regulations (20 March 2019) <https://www.sra.org.uk/sra/policy/future/resources.page#resources> accessed 23 July 2019.

3 The SRA Handbook was introduced in 2011 and has been subject to a number of revisions; SRA, Handbook (6 December 2018, version 21) <https://www.sra.org.uk/handbook/> accessed 23 July 2019.

4 Guidance available to date can be accessed on the SRA website: <https://www.sra.org.uk/newregs/> accessed 26 July 2019.

5 LSA, s 30.

6 SRA Standards (note 2), 1.

7 LSA, s 13.

8 For example, the Student Law Office at Northumbria University offers representation in court hearings <https://www.northumbria.ac.uk/about-us/academic-departments/northumbria-law-school/study/student-law-office/contact-us/> accessed 23 July 2019, as does the University of Kent Law Clinic <https://blogs.kent.ac.uk/kentlawclinic/2019/02/28/law-clinic-helps-elderly-client-recover-15k-from-mobile-home-park/> accessed 23 July 2019.

9 LSA, s 14.

10 LSA, Schedule 2

11 LSA, s 207.

12 LawWorks, Practice Guidance: In-house solicitors and pro bono: regulatory issues (15 March 2019) <https://www.lawworks.org.uk/solicitors-and-volunteers/resources/lawworks-practice-guidance-house-solicitors-and-pro-bono> accessed 23 July 2019.

13 Ibid. The LawWorks Practice Guidance offers some very helpful direction on the interpretation of ‘conduct of litigation’, citing relevant case law on this topic, including Agassi v Robinson[2006] 1 WLR 2126 and Ellis v Ministry of Justice[2018] EWCA Civ 2686.

14 Somewhat confusingly, this entitlement is not expressly set out in the new SRA Standards. Rather, the right to act in this way derives from the fact that the Standards do not contain any explicit prohibition against doing so. The Standards (note 2) place very few limitations on the way in which both reserved and non-reserved legal services can be provided, beyond those contained in statute. This is a significant move away from the previous regulatory provisions, which are set out later in this section for information. The SRA has produced a series of guidance notes for unregulated organisations providing legal services to the public, which are available at <https://www.sra.org.uk/newregs/> accessed 26 July 2019.

15 Providing legal services from an unregulated entity will be an attractive option for many organisations as they will not be subject to a regulation fee, they will not be subject to the same insurance requirements and the organisation can operate without scrutiny from the SRA.

16 Set out in the SRA Standards, SRA Code of Conduct for Solicitors, RELs and RFLs (note 2).

17 Ibid, Standard 8.11.

18 SRA Transparency Rules, Rule 4.3(a) (contained within the SRA Standards (note 2)).

19 Ibid, Rule 4.3(b).

20 Rule 4.4 of the SRA Transparency Rules states that the requirements of Rule 4.3 do not apply to non-commercial bodies, which are defined an in the Glossary to the SRA Standards as bodies that are subject to the exemption at s 23(2) of the LSA. Some universities may therefore be exempt from these requirements, but may still wish to provide clients with the information in any event.

21 SRA Standards (note 2), Standard 8.10(a).

22 SRA Standards (note 2), Standard 8.10(b).

23 SRA, ‘SRA Standards and Regulations guidance for the not for profit sector’ (23 July 2019) <https://www.sra.org.uk/newregs/> accessed 26 July 2019.

24 SRA Standards (note 2), Standard 4.3.

25 LSA, s 15(4).

26 Ibid.

27 <https://www.sra.org.uk/solicitors/code-of-conduct/guidance/guidance/Does-my-employer-need-to-be-authorised-by-an-approved-regulator-.page> accessed 25 July 2019.

28 Thomas (note 1).

29 LSA, s 23. The transitional period was introduced on 1 January 2010. It can be brought to an end by the Lord Chancellor. At the time of writing the SRA website states that it is not aware of any plans to do so <https://www.sra.org.uk/solicitors/code-of-conduct/guidance/guidance/Does-my-employer-need-to-be-authorised-by-an-approved-regulator-.page> accessed 21 July 2019.

30 LSA, s 207.

31 Most English universities are exempt charities under the Charities Act 1993 and are regulated by the Higher Education Funding Council for England (HEFCE).

32 SRA guidance for not for profits (note 23), 24.

33 LSA,s 106.

34 <https://www.sra.org.uk/solicitors/guidance/ethics-guidance/different-ways-working.page> accessed 23 July 2019.

35 ‘SRA Authorisation of Individuals Regulations’, Regulation 10.2 (contained within the SRA Standards (note 2)).

36 <https://www.sra.org.uk/solicitors/guidance/ethics-guidance/Preparing-to-become-a-sole-practitioner-or-an-SRA-regulated-independent-solicitor.page> accessed 26 July 2019.

37 Ibid.

38 SRA Authorisation of Individuals Regulations, Regulation 10.2(a) (contained within the SRA Standards (note 2)).

39 Ibid, Regulation 10.2(b).

40 Ibid.

41 SRA Standards (note 2), Regulation 10. See also SRA guidance for not for profits (note 23), 23–24.

42 The following descriptions are abridged versions of the content of the SRA guidance on Firm authorisation <https://www.sra.org.uk/solicitors/guidance/ethics-guidance/Firm-authorisation.page> accessed 26 July 2019.

43 The Glossary to the Standards (note 2) states that ‘legal services body’ is given the same meaning as that given in s 9A of the Administration of Justice Act 1985.

44 LSA, s 72 sets out what makes a body licensable.

45 LSA, s 18.

46 SRA Standards (note 2), SRA Authorisation of Firms Rules.

47 The pros and cons of arrangements of this type are explored in Thomas (note 1).

48 See SRA guidance for not for profits (note 23) 22–25.

49 SRA Standards (note 2), Standard 3.5.

50 Ibid, Standard 3.6.

51 SRA Guidance for not for profits (note 23), 19.

52 <https://www.sra.org.uk/solicitors/guidance/ethics-guidance/When-do-I-need-a-practising-certificate-.page> accessed 26 July 2019.

53 Ibid.

54 Ibid.

55 <https://www.sra.org.uk/solicitors/guidance/ethics-guidance/When-do-I-need-a-practising-certificate-.page>

56 Further details on the position prior to 25 November 2019 can be found in Thomas (note 1).