In accordance with the provisions of the Legal Services Regulation Act 2015, the Legal Services Regulatory Authority has notified the Society of its concurrence with the proposed changes to the regulations.
The Society acknowledges that this announcement may cause alarm for members who view the demands of regulatory compliance as increasingly onerous.
Members are assured that all changes to the regulations were made with due regard to the practicalities of implementing changes for all solicitors’ practices, large and small. Nevertheless, the Society encourages members with particular queries and concerns to contact the Society if assistance is required.
The Society will continue to provide guidance to members on how to navigate the regulations in advance of them coming into force on 1 July 2023, and a CPD roadshow dedicated to this topic will take place nationwide, in partnership with county bar associations. By way of introduction, however, the key changes are identified below.
Estate accounts: the definition of client moneys has been amended to include moneys received by a solicitor acting as personal representative of an estate. Estate funds are to be lodged into the client account. It is no longer a requirement to open separate bank accounts.
Balancing statements: solicitors are required to prepare balancing statements in respect of transactions on the client account every three months, instead of every six months. More frequent balancing will result in earlier detection of deficits by the solicitor.
Undue or unnecessary delays: to address the problem of an accumulation of client ledger balances, solicitors are required to review the listing of client ledger balances for undue and unnecessary delay in dealing with matters (in particular, in discharging undisbursed outlay, moneys due to clients, and moneys due to be paid for or on behalf of clients) and, where appropriate, take immediate action to deal with those matters.
Balances outstanding two years or more: solicitors are required to list client ledger balances outstanding two years or more as at the accounting date, disclosing the reason the balance is outstanding and, where appropriate, the action taken or proposed to clear each balance. The balances are to be reported to the Society as ‘Appendix 6’ to the reporting accountant’s report.
Reporting accountant’s report: the reporting accountant’s report is to be furnished to the Society within five months of the accounting date, with an extension of one month if such extension is sought, in writing, 14 days prior to the due date. Final accountants’ reports are to be filed within three months of the date of the solicitor ceasing practice or within such time as agreed with the Society.
Compliance partner: to emphasise the responsibility of solicitors for compliance with the regulations, the compliance partner/sole practitioner is required to confirm, as part of the ‘Form of Acknowledgement’, that:
- Each client and office balancing statement has been approved by the compliance partner,
- The listing of client ledger balances has been reviewed for undue or unnecessary delays in dealing with client matters, in particular in discharging undisbursed outlays, moneys due to clients, or moneys due to be paid to or on behalf of clients and, where appropriate, immediate action has been taken to deal with such matters,
- The list of client ledger balances outstanding two years or more has been approved by the compliance partner, and
- Back-ups of computerised information are performed on a timely basis and stored securely, other than on the practice-office premises.
Authorised signatory: to address instances of staff fraud, a cheque signatory – that is, a person authorised to sign client-account cheques or to
authorise electronic transfers – is to be a solicitor who is a partner or the sole practitioner in the firm with a practising certificate in force.
Where there are co-signatories/authorisers, at least one is to be a partner or sole practitioner with a practising certificate in force. In exceptional circumstances, a person other than a solicitor who is a partner or sole practitioner may act as an authorised signatory/authoriser with prior written approval of the Society.
Deficits
Deficits: if a solicitor cannot rectify a deficit of client funds within seven days of it coming to attention, the solicitor is required to notify the Society in writing, as soon as practicable.
Loans from, to, or between clients: solicitors cannot borrow from a client unless the client has been independently legally advised. Client accounts cannot be used for the purposes of loans to a solicitor from a client, or for loans by a solicitor to a client, or for loans between clients of a solicitor.
Statements of account: solicitors are to provide clients with a statement of account disclosing all moneys received, paid, or held in respect of each client matter, to the extent not already done so in a bill of costs, or otherwise.
Client moneys
Return money to clients: solicitors are to return any client moneys in a client account as soon as practicable following completion of the provision of legal service and, in any event, a solicitor must not hold those moneys in the client account for a period longer than six months after the completion of legal services.
Receipts for cash payments to clients: where a solicitor withdraws money from the client account by cheque or by electronic transfer for the purposes of making a payment in cash to a client or a third party in excess of €100, the solicitor is required to obtain documentary evidence of payment of such moneys – such evidence is to include the witnessed signature of the recipient of the moneys.
Fees: where moneys held are being applied in satisfaction of outstanding fees, solicitors must make that clear in writing (whether in a bill of costs or otherwise) to the client.
Withdrawals from client account not related to a specific client: to address a practice of withdrawing funds from the client account without identifying the client in respect of whom the withdrawal has been made, a solicitor must relate all withdrawals to a specific client at the time of the withdrawal.
Bills of costs: to ensure the primacy of the 2015 Legal Services Regulation Act, solicitors are required to maintain on file documentary evidence of compliance with sections 149-153 (inclusive) of that act.
No legal services provided: to address situations where solicitors hold moneys where no legal service is being provided, or after the legal service has been provided, client moneys (as defined by the regulations) do not include moneys received or held by a solicitor, other than in respect of legal services provided, or to be provided, arising from the solicitors practice as a solicitor.
Personal moneys: a solicitor cannot pass personal moneys through the client account. However, a solicitor may pay into the client account the proceeds of a loan to the solicitor from a financial institution specifically for the purchase of a property by a solicitor, provided the funds are discharged from the client account in accordance with the terms of the loan or within 14 days of receipt.
Accounting records: to ensure that an appropriate record of transactions is maintained, a copy of the document of record in respect of electronic transfers on the client account is to be retained on the client file and on a separate file dedicated to such transactions.
Back-ups of computerised information are to be performed on a timely basis and stored securely, other than on the practice-office premises. A solicitor shall retain at the office premises the minimum accounting records for at least the current financial year and the previous financial year. A register of moneys held on joint deposit and a register of undertakings are to be maintained.
Reporting accountant
Withdrawal of approval of an accountant as a reporting accountant: the Society is to provide reasons for withdrawal of approval of any accountant to act as a reporting accountant. A person who is not a member of one of the accounting bodies, per the regulations, cannot act as a reporting accountant.
Examination by the reporting accountant: reporting accountants are to test-check postings to client ledger accounts from records of receipts and payments of client moneys immediately before and after the accounting date, and at least one other balancing date, when entries to conceal deficits are most likely to occur.
To address the issue of withdrawals from the client account under the guise of fees, the reporting accountant is to test-check that transfers of moneys from the client account to the office account are supported by appropriate bills of costs, and the written agreement with, or notification to, the client of such transfers.
Notification to the Society by reporting accountant: where the reporting accountant forms an opinion or has reasonable grounds to suspect that there is a deficit of client funds that cannot be rectified within seven days, or that there are entries in the books of account to conceal the existence of a deficit, the reporting accountant may directly notify the Registrar of Solicitors.
Law Society investigations: the Society may agree or require that investigations take place other than at the solicitor’s place of business. Where a report discloses evidence of a material breach of the regulations, the Society may communicate with such persons and seek such information and documentation as the Society deems necessary in the circumstances.
Responsibility for breach of the regulations: the responsibility for a breach of regulations is to apply to solicitors who are principals, partners, and solicitors who handle client moneys.
Transitional arrangements: the Solicitors Accounts Regulations 2014 continue to apply in relation to the filing of the reporting accountant’s report where the accounting period has commenced before 1 July 2023.
Here to help
The Society is here to guide and support members with any regulatory compliance issue they have. With two months to understand and prepare for the new Solicitors Accounts Regulations, members are reminded that the Society is a resource that welcomes all queries.
If you require assistance with navigating these updates to the financial regulatory regime, please email: financialregulation@lawsociety.ie.
(This article does not form part of the regulations and is for assistance only.)
Read and print a PDF of this article here.