Lexcel Consultant

Don't find yourself COLPable!

2012-02-10T15:29:00.000Z

With the Advent of OFR we at Rees Page have been grappling with a number of issues relating to Conflicts Handling. Not surprisingly these have largely been centred on Conveyancing. The upshot is that we have decided to ban the pratice of acting for both Seller and Purchaser under any circumstances and the same goes for joint instructions from Donors and Donees. There have been a couple of dissenting voices!

When it comes to acting for both Borrower and Lender there is some comfort to be had from the Indicative Behaviours but this only concerns residential mortgages. It follows that Buy to Let mortgages require separate consideration. After a call to the FSA we think we have found a workable approach. Although BTL is not regulated by the FSA we are told that if the transaction is advised by a FSA regulated entity then that entity will have to adhere to FSA principles when giving advice. In such circumstances it is less likely that the Borrower will have been sold a pup and if they are then they have recourse to the FSA. On this basis a blanket ban on joint instructions appears heavy handed and we have decided that in principle we will be prepared to accept joint instructions where the mortgage sale has been advised by a FSA regulated body. An interesting example of how a risk based approach to these issues can assist in finding a way through the OFR maze?

What is becoming increasingly apparent is that the role of COLP is vital to the consideration of these issues. You need someone who is able to hold the ring when faced with objections from those who cannot see the need for change! A thick skin won’t go amiss either!

It’s also coming as a shock to many that the COLP is under a duty to report misdeeds to the SRA. Hence the exhortation “Don’t find yourself COLPable”

Level playing field? What a joke!

2011-11-24T08:13:00.003Z

The news that the Legal Service Ombudsman is to "name and shame" errant solicitors will likely be met with a degree of incredulity by some members of the Estate Agency profession. They too have an Ombudsman but he seems rather more reticent about washing the profession's dirty linen in public. Since we have an in-house Estate Agency (regulated by the SRA) we are in a pretty good position to expose some of the behaviour of other agents that goes on largely unreported. Examples include (in no particular order)

Overvaluing to secure the instruction
Buying off your own Client (the more sophisticated might use a "nominee" to cover their tracks)
Theft of rent
Theft of Tenancy Deposit
Not protecting Tenancy Deposit
Breach of the Cancellation Regs
Turning a blind eye to a Landlord's failure to obtain a mortgagees consent to let
Recommending the purchaser to use a Conveyancer that is known to be a "soft touch"
Undisclosed "kick backs" (referral fees from conveyancers - sweeteners from Trades involved in refurbs)
Requiring a Purchaser to list their property for sale with the agent who is selling the dream property they want to purchase (a great way of building up a chain of interconnected deals)
Misleading adverts - eg claiming to have an in-house solicitor to do the conveyancing
Fly-boarding
Touting another agents Clients (not in itself a breach of the Ombudsman Code but frowned upon by RICS)

The list is endless.
The problem is that, unchecked, the effect of such behaviour is to prevent a level playing field.
"No problem" you may say "instead of whingeing you should complain to the Property Ombudsman and other authorities.Their job is to secure a level playing field"

If only it was as simple as that.

Here's a couple of examples:-

Home Point Estate Agents Wolverhampton - repeatedly sent "touting" letters to our Clients omitting the obligatory "dual fee" warning. We complained to them. They ignored our complaint. We complained to the Ombudsman who found them in breach of the Code of Practice and required them to desist. They complied ..... for a while. They then started again. We complained. They ignored our complaint. We complained to the Ombudsman but before he dealt with the complaint the Code was changed......you've guessed it! The requirement to include the "dual fee" warning in a touting letter was removed. Need we say more?

Connells estate agents Wolverhampton - not long after we launched our Estate Agency with all the convenience of a "one stop" shop Connells started claiming they too had an in-house Solicitor. They didn't and we complained. They ignored our complaint. We complained to the SRA. Eventually, after months of pushing on our part the SRA got an undertaking from Connells not to do it again. Hardly worth the effort.....so much for protecting the brand "Solicitor".

I've just finished a round of seminars telling all my colleagues about OFR and Lexcel v5. What I didn't tell them was that in expecting them to comply with their professional obligations I am also requiring them to compete with one arm tied behind their backs.

The Co-op and family law

2011-11-07T07:42:00.002Z

It has been reported that the Co-op is to provide family law services in a tie up with individuals from TV Edwards the well known Legal Aid outfit. I am struggling to see how this makes sense given that inter partes costs orders are rare in both public and private family law proceedings. I don't see the Co-op viewing it as a "loss leader". I wonder if they are having behind the scenes talks with the LSC?

Parasitic or Symbiotic?

2011-10-25T11:24:00.002+01:00

A couple of weeks ago I attended the Legal Aid Practitioners Annual Conference in Birmingham to speak about Lexcel and, specifically, my Firm's experience of implementing the Lexcel Standard. Upon arrival I was immediately struck by the apparent prosperity of those in attendance. Notwithstanding my mother's stricture "Never judge a book by the cover" and my admitted lack of fashion sense I have to say that the delegates were almost without exception well turned out. This struck me as being rather strange as my own Firm's experience of "Legal Aid" had forced me to conclude years ago that it was difficult to earn enough to keep a shirt on your back let alone a "designer" offering. I began to wonder if my Firm had somehow adopted the wrong strategy when looking to diversify away from this area ! However, a quick look at the delegate list provided the answer to the apparent paradox of low pay and sharp suits. The answer being that there were hardly any Solicitors at the event! The vast majority of those attending seemed to be Non - Solicitor Consultants or Practice Managers. Presumably the Legal Aid Solicitors who used to find the time to attend the event were busy sinking under the inexorable weight of their poorly remunerated case load.......I wonder exactly who is paying for the suits?

A sign of the times?

2011-10-10T10:14:00.002+01:00

I was invited to speak to the LAPG conference last week on the topic of Lexcel versus SQM. There was a pretty clear consensus to the effect that unless you are exclusively a criminal practice or in the nfp sector then Lexcel is streets ahead of SQM as a framework for modern legal practice.

What struck me was the low turn out from Practitioners who represented only a small minority of delegates! I concluded that they must all be beavering away at the coal face earning the fees necessary to pay for the assembled Consultants of varying types, Practice Managers, out-sourcing outfits etc etc.

When a profession loses grip of who actually manages and shapes it one has to ask what future does it have?

Deja vu - the answers

2011-09-30T08:24:00.002+01:00

The answers are....

Austin Mitchell MP (Labour - Hull)

21st November 1997

Geoff Hoon (Labour Minister)

Debate about the Government's policy on withdrawing legal aid for personal injury claims and bringing in conditional fee agreements.

Another MP commented at the time:-

"At worst we will be creating a system for the bent or the brave...."

Deja vu all over again...and again....and again

2011-09-30T08:12:00.002+01:00

Who said this?

"It is right that the government should hit the ground reviewing, but if ever there was a case for a considered review and considered verdict, it is on legal services. That review has not been conducted. All that the legal services are being offered is a glowing prospect and a ritual chant against fat-cat lawyers, usually delivered by fat-cat lawyers. The Minister is usually an amiable, approachable man and I deprecate the way in which he....is stirring up hatred against fat-cat lawyers"

And for extra points....

When?
About whom?
What was it all about?

Lexcel, SQM and the new Family Tender

2011-09-19T14:26:00.002+01:00

Last week Clare Jarratt* and I gave a presentation to members of the Birmingham Law Society on the topic of Lexcel - "from initial interest to accreditation and beyond". A number of delegates were from Firms that had Family Departments who were having to submit tenders to the LSC by early October. There was a consensus that the LSC was being very inflexible in its approach to audit time frames and was effectively forcing some firms to opt for the SQM route rather than Lexcel. So much for "joined - up" thinking! It seems to me that it is inevitable that SQM will wither on the vine. I do not see the LSC having the resources necessary to maintain it as a credible Quality Standard and for the majority of Firms it is becoming irrelevant.

*Lexcel Manager at the Law Society

ABS and the demise of the High Street Firm? - exploding the myth

2011-08-31T11:32:00.004+01:00

The legal press often seems to be obsessed with the advent of ABS and portents of doom about the “High Street” (a phrase which seems to have acquired pejorative status in some quarters). Given their legal background it is surprising, therefore, that in the treatment of this topic they consistently fail to define their terms (for example, what exactly does the term “High Street” mean?) and they often show a lack of editorial rigour in checking out and drawing attention to the background of their sources many of whom have a vested interest in pushing scare stories about the impact ABS will have.

For example, take what appears to be a prescient article on the topic of a Research Note released this August by the Legal Services Board. This focuses on the likely impact of ABS upon existing suppliers of legal services. Written by one Peter Clements and published by Lexis Nexis the article includes the following opinion:-

“The High Street firm will be most at threat, but many will survive by dint of their “local” nature and their client bases. But this is unlikely to be a sustainable position in the medium to long term.”

So there you have it – it appears that the LSB is plotting the demise of the “High Street”.

But wait a minute what does the LSB paper actually say?

Here’s a flavour:-

“ [the advent of ABS] may carry particular risks to some small firms who do not adapt to the changing market place. It should not, however, be assumed that large scale exit will occur, as Australian experience suggests that the number of small firms has actually increased in the period following liberalisation.” (Page 2)

“ILPs (the Australian equivalent of ABS) in the Australian market are generally not retailers providing legal services….In general the Australian market has not shown an immediate tendency for large scale consolidation or the emergence of national retailers offering legal services.” (Page 18)

“Retail or “High Street” firms?

High street firms are the main point of contact for people seeking “routine” legal services (e.g. wills, conveyancing, divorce etc)

The large number of such firms makes it difficult to draw conclusions about their characteristics and shared factors. It is likely that those firms who are using technology for product delivery and lower unit costs will enable them to better embrace changed market conditions. High street firms are well placed to exploit niche market opportunities and to focus on traditional strengths such as face-to-face service delivery and perceived higher quality of service” (page 37).”

Hardly a vision of Armageddon is it?

Outcomes-focused client care

2011-08-24T16:39:00.004+01:00

As a subscriber to the Law Society Risk and Compliance Service I was interested to read an article by Tracey Calvert about how the new Outcomes Focused approach to regulation will impact upon Client Care. Tracey makes the point that firms will have to adopt a much more sophisticated approach tailored to individual clients needs rather than the "one size fits all" that has proved popular for some in the past.

Tracey's comments certainly chime with our experience at Rees Page Solicitors where for many years we have allowed individual practice areas semi-autonomy when it comes to writing Client Care documentation. In the early days this rather flummoxed our Lexcel assessors who had to get their heads around the fact that whilst the core principles applied across the whole firm the detail of their implementation was "bespoke" for different areas of work. A real pain to audit but it works for us!

Embedding Lexcel values

2011-08-12T14:25:00.002+01:00

I'm looking forward to giving a presentation at Birmingham Law Society on the 15th September on the benefits that Lexcel can bring to Law firms. My co-speaker is Clare Jarratt who heads up the Lexcel office at the Law Society. We both share the view that achieving Lexcel is about more than simply getting the "badge" and that the really good firms are focused on getting the values that underpin Lexcel embedded into their culture.

Lots of firms are beginning to look at Lexcel as a way of getting up to speed with the regulatory changes that will come into place in October so we're hoping for a good turn out! To book your place email glenda@birminghamlawsociety.co.uk.

Lexcel as a foundation for diversification

2011-08-12T06:36:00.001+01:00

When I was given the task of being Partner responsible for the Estate Agency department at my law firm Rees Page I quickly realised that we needed to develop processes and procedures that chimed with the culture of the law firm. Estate Agency is a no holds barred marketing driven activity and good estate agents are a very different kind of animal to your average Solicitor. So how do you go about achieving a "One stop shop" service without compromising either the sales or the conveyancing functions and how do you get non-lawyers and lawyers to sing off the same hymn sheet?

Frankly it's not an easy task but a major tool for us has been the implementation of the Lexcel core values within the Estate Agency team. This has enabled us to write up procedures and documentation for use in the Estate Agency which compliment those in operation throughout the rest of the Firm.

What's more, we have been able to implement a risk based approach to a whole range of Estate Agency activities including, believe it or not, the decision whether or not to list a property. In principle risk assessing a litigation matter for a cfa is not fundamentally different from doing the same for a vendor/property combination on a "no sale no fee" basis. As a result we have been able to concentrate on selling a relatively small level of stock for clients who are serious about selling in the current difficult market.This means our fall through rates are extremely low and the proportion of stock sold subject to contract is high.