Letters roundup: 2 February 2024

Time for an in-house charter

Over the years that I have worked as in-house counsel at various organisations, I have given thought to the independence of general counsel, the pitfalls awaiting GCs in-house, and how some of the problems might be addressed in a general way.

An example of an issue was when the Financial Conduct Authority (FCA) wanted GCs that worked at firms in the financial services sector which were regulated by the FCA to be subject to its Senior Managers and Certification Regime. In the end, the FCA did not take that suggestion forward. Had it proceeded, GCs, most of whom are either solicitors or barristers, would have been senior managers and subject to the mandatory requirements of: (a) disclosing ‘appropriately any information [about their employers or otherwise] of which the FCA or [Prudential Regulation Authority] would reasonably expect notice’ (FCA Senior Managers’ conduct rule 4); and (b) preserving their clients’ legal professional privilege (LPP) in relation to the legal advice provided by GCs to their employers.  

In my view those two things are incompatible. Any attempt by the FCA to carve out protection for LPP might have worked on paper, but in practice it would have been a nightmare. It is sometimes very difficult to determine whether – and if so when – LPP applies to input (I deliberately do not use the word advice) from GCs to their employer clients.

Last August, long before the current interest generated by Mr Bates vs the Post Office, a group of in-house counsel wrote to the Financial Reporting Council (FRC) in response to the FRC’s consultation on the UK Corporate Governance Code. The group made the case for that code, which only applies directly to a small number of UK-listed companies but which has much wider influence in the corporate sector generally, to deal with the position of in-house counsel. That met with opposition from some quarters, including the Chartered Governance Institute, but the FRC seems now to be rowing back from substantial changes to the code anyway.

I have now seen the view expressed in a number of quarters that in-house counsel’s role is in some ways similar to that of an internal auditor. I agree. For that reason, I advocate doing something different to that suggested to the FRC in August. The legal professions should get together and come up with something akin to the charter for internal auditors produced by the Chartered Institute of Internal Auditors. Such a charter for in-house counsel could address all the issues now being talked about and more. It could then be made mandatory for in-house counsel to abide by their charter where it has been adopted by any employer of in-house counsel.

Bruce Manford

Former group general counsel, London

SRA is judge, jury and executioner

I am frankly horrified by the Solicitors Regulation Authority’s apparent refusal to do anything about lawyers involved in the Post Office Horizon scandal.

I have no doubt that, as a sole practitioner faced with similar issues, the SRA would have me struck off so quickly I would not see my feet for dust.

I am currently the subject of an SRA investigation. I put my hands up – I did not fully comply with my anti-money laundering requirements. Not because I did not want to, but because I am a sole practitioner. In the most basic terms, my AML policy is between my ears; I am not going to prison for anybody.

I undergo four days of highly intrusive investigation. I am entirely open, as I have nothing to hide. I say to the investigator: ‘What do I need to do to be compliant?’. He simply does not provide any input.

During the course of the investigation, I am told – in my perception gleefully – that the SRA never has to pay costs following Baxendale-Walker. I am aware of Baxendale -Walker, which was very case-specific.

So, rather like the Post Office, the SRA is judge, jury and executioner – and relies on the fact that ultimately I will have to pay for the bullet.

I have no problem with regulation. In fact I welcome it. But I have a huge problem with the disparity between the failure of the SRA to provide any assistance and guidance to me, followed by draconian investigation, and its failure to take any steps relating to alleged misconduct on the part of the Post Office lawyers and others.

Name and address supplied

Double jeopardy?

I read about the SRA issuing its biggest ever fine for a solicitor convicted of a drink-driving offence. The solicitor agreed to pay £13,836 after his conviction for driving a car while under the influence of alcohol. The fine from the SRA was some 31 times higher than the financial penalty issued by the court.

This surely shows contempt for the court’s decision. Moreover, is it appropriate for solicitors to be in double jeopardy?

James Lingard

Tunbridge Wells

Admission accomplished

I write in praise of the SRA and the Law Society – perhaps a rarity in a reader’s letter. My twin sons were both admitted as solicitors on the same day in January (perhaps a unique occurrence?).

The SRA website and admission process worked well. All was clearly set out and the speed with which the admission and practising certificates were available to download was considerably swifter than in my day – and than when my two daughters were admitted in 2011 and 2012.

Next year I will have been admitted for 40 years. Maybe the best is yet to come.

Susan Singleton

Principal, Singletons, Pinner, Middlesex

Backed into a corner

The unpleasant phenomenon of strategic litigation against public participation, and the shameful conduct of some in our profession, is older than you might think. In 1926, celebrated English journalist G. K Chesterton wrote in The Outline of Sanity: ‘If you try to stop a man cornering milk, the first thing that happens will be a smashing libel action for calling it a corner. It is manifestly mere common sense that if the thing is not a sin, it is not a slander. As things stand, there is no punishment for the man who does it; but there is a punishment for the man who discovers it.’

Peter Bolwell

Hastings