All SRA-regulated law firms should by now have nominated their compliance officers for legal practice, with the SRA approving nominations between now and their appointment on 1 January 2013. Although the sheer number of new rules can make the compliance officer role seem onerous at first, taking note of the following simple tips will help a newly appointed COLP get a grip on what is required:
1. Get to know the Handbook
Unfortunately there’s no substitute for knowing the rules. The Handbook can be downloaded in its entirety from the SRA’s website. The Code of Conduct section is the most important part and is much shorter than the average share purchase agreement, witness statement or commercial lease, so should be relatively light reading for many COLPs.
2. Get help
Lawyers are usually adaptable and able to turn their hand to many tasks, but a busy fee-earner is unlikely to be the right person to undertake laborious non-chargeable work. So, to avoid compliance being put to the back of the queue, delegation or taking outside advice is key. Make sure that this is understood by fellow partners at the outset and that an appropriate budget is provided.
3. Quality Policies
Policies are one of the core aspects of compliance with the Code of Conduct. Should disaster strike and something go wrong, the question will be asked – was it the policy or the implementation? If the policy is wrong then no amount of effort at implementation will save it. If a policy does not adequately deal with a problem, or is too onerous to be practical, the policy must change. A key part of the COLP’s role is to be pro-active in organising that change.
4. Have a timetable in mind
Rules and best practices change over time, so policies need to be refreshed on a regular basis. Give policies an ‘expiry date’ of, say, a year after they were last reviewed and assign the policy review to an appropriate individual.
5. Make the Code work For You
It is tempting to draft a policy to cover every outcome required by the Code of Conduct. But, although it is important to identify gaps in policies, it is equally important to read the Code in light of your firm’s business. Many outcomes may be wholly irrelevant to your firm’s practice areas, meaning a detailed policy covering those outcomes may be unnecessary. The key is to avoid ‘unthinking compliance’ through box-ticking.
6. Stay up to date
Not every rule change will entail a policy rewrite, but it is important to catch those that do. The best way to stay up to date will depend on the individual COLP, but the SRA and Law Society both have free email newsletters that will provide a good starting point and the SRA publishes ‘release notes’ summarising rule changes between versions of the Handbook (already at version 4). Major rule changes are (usually) flagged up well in advance and are often covered in the legal press.
7. Train the firm
Policies don’t work in a vacuum – they need people to know what they are and follow them. The first part of this is easy: promote the policies by email, the internet and in person. If you have not done so already, consider organising some general training for all staff on outcomes-focused regulation.
8. Document the firm’s compliance
At a minimum the COLP must ensure that an up-to-date risk register and policy handbook are maintained. The SRA is likely to be more forgiving of a firm where it can show in black and white that it did everything it should have done to avoid a breach of the Code. Showing that a breach of the code was the result of an individual’s mistake rather than a systemic failure requires paperwork.
9. Be Protected
If a firm’s compliance fails because of a COLP’s criminal behaviour or wilful misconduct then he or she should expect to face the consequences. That aside, a firm should stand by their COLP, financially if necessary. An indemnity from the firm for any liabilities arising from taking on the COLP role may never be called upon, but it is fair to have one nonetheless.
10. Remind others – the COLP is not responsible for compliance!
It will be worth reminding fellow partners from time to time that although the firm has a COLP, it is the partners collectively who are responsible for compliance and that the COLP’s job is to report them to the SRA when they don’t succeed!