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SRA Overseas Rules 2013
The SRA Overseas Rules dated [date of approval of the Legal Services Board] made by the
Solicitors Regulation Authority Board under sections 31, 79 and 80 of the Solicitors Act
1974, sections 9 and 9A of the Administration of Justice Act 1985 and section 83 of the Legal Services Act 2007, with the approval of the Legal Services Board under paragraph 19
of Schedule 4 to the Legal Services Act 2007 regulating the conduct of solicitors and their employees, registered European lawyers and their employees, registered foreign lawyers,
recognised bodies and their managers and employees and licensed bodies and their managers and employees.
Part 1: The Overseas Principles
Rule 1: Overseas Principles
1.1 You
(a) as a regulated individual practising overseas must ensure that you; or
(b) as a responsible authorised body must ensure that your overseas practice , and individual managers, and members and owners of your overseas practice (who are, for the purposes of these rules, „those for whom you are responsible');
comply with the Overseas Principles stated below.
1.2 Each of the Overseas Principles stated below, is supplemented by a note to assist individuals and bodies to determine how best to comply with each Principle. These notes do not form part of the Principles and are for guidance only.
1.3 Overseas Principle 1: You must uphold the rule of the law and the proper
administration of justice in England and Wales.
Guidance note
(i) Your obligations to clients, the court and third parties in England and Wales with whom you are dealing on behalf of your clients are unaffected by the location outside England and Wales from which you practise or by the location of your overseas practice.
1.4 Overseas Principle 2: You must act with integrity.
Guidance note
(i) Personal integrity is central to your role as the client‟s trusted adviser and should characterise all of your professional dealings with clients, the court, other lawyers and the public, wherever they are being conducted. You should use your judgment when considering how best to maintain your integrity at all times and
avoid any behaviour outside England and Wales which undermines your character and suitability to be an authorised person. A responsible authorised body should ensure that its overseas practices observe comparable standards.
1.5 Overseas Principle 3: You must not allow your independence or the independence
of your overseas practice to be compromised.
Guidance note
(i) "Independence" means your own independence and that of your firm and your overseas practice , and not merely your ability to give independent advice to a client. You should avoid giving control of your overseas practice to a third party beyond any local legal or regulatory ownership requirements.
1.6 Overseas Principle 4: You must act in the best interests of each client.
Guidance note
(i) You should act in good faith and do your best for each of the clients for whom you are (or your overseas practice is) acting. In particular, you should follow the local legal or regulatory requirements of the jurisdiction in which you or your overseas practice are practising in relation to confidentiality and conflicts of interest. If no such requirements exist, you should be guided by what you consider to be the best interests of each client in the circumstances.
1.7 Overseas Principle 5: You must provide a proper standard of service to your
clients/the clients of your overseas practice.
Guidance note
(i) You should provide a proper standard of client care and work. This includes exercising competence, skill and diligence and taking into account the individual needs and circumstances of each client as well as the particular requirements and circumstances of the jurisdiction in which you are working. If your client meets the definition of a complainant under Section 128(3) of the Legal Services Act 2007 or the Legal Services Act 2007 (Legal Complaints) (Parties) Order 2010, you should inform the client who is regulating the legal services you or your overseas practice is providing to the client, what client protections are in place and whether they have the benefit of professional indemnity insurance or other indemnity.
1.8 Overseas Principle 6: You must not do anything which will or will be likely to bring into disrepute the overseas practice , yourself as a regulated individual or responsible authorised body or, by association, the legal profession in and of England and Wales.
does, however, expect that SRA regulated individuals and bodies will, within whatever legal, regulatory and cultural context in which they are practising overseas , do what they reasonably can to encourage equality of opportunity and respect for diversity.
1.12 Overseas Principle 10: You must protect client money and assets.
Guidance note
(i) You and those for whom you are responsible should comply with local regulatory requirements in relation to client money, documents and assets and, in any event, you should ensure that they are protected appropriately.
Part 2: Application
Rule 2: Application
2.1 With regard to the Overseas Principles set out in Rule 1:
(a) they apply in full to you if you are a regulated individual practising overseas , or a responsible authorised body in relation to each of its overseas practices ;
(b) you will be committing a breach if you permit another person to do anything on your behalf which, if done by you, would constitute a breach of these rules;
(c) you should ensure that you and those for whom you are responsible under these rules comply with all legal and regulatory obligations applicable in the jurisdiction outside England and Wales in which you or they are practising. You, and those for whom you are responsible under these rules, should not cause, contribute to or facilitate a failure to comply with those legal or regulatory obligations by any other person or body subject to them;
(d) where there is a conflict between compliance with the Overseas Principles set out in Rule 1 and/or the Reporting Requirements set out in Rule 3 on the one hand, and any requirements placed upon you or those for whom you are responsible under these rules by local law or regulation on the other hand, the latter shall prevail, with the exception of Overseas Principle 6, which must be observed at all times;
(e) nothing in these rules removes or modifies the requirements under the Legal Services Act 2007, for authorisation to be obtained for the delivery of reserved legal activities ;
(f) if you are a solicitor and your practice predominantly comprises the provision of legal services in England and Wales then, regardless of where you are established, the SRA will apply the full Handbook to your practice;
(g) if you are a regulated individual practising overseas , or a responsible authorised body , you must ensure that you, or those for whom you are responsible under these rules, comply with any requirements under:
(i) the SRA Property Selling Rules 2011;
(ii) the SRA Insolvency Practice Rules ;
(iii) the SRA European Cross-border Practice Rules ;
(iv) the SRA Financial Services (Scope) Rules ;
(v) the SRA Financial Services (Conduct of Business) Rules 2001; and
(vi) the SRA Quality Assurance Scheme for Advocates (Crime) Regulations [2013];
which apply to you or your overseas practice.
Part 3: Reporting requirements
Rule 3: Reporting requirements
3.1 The SRA does not expect or require the same level of detailed monitoring, reporting
and notification from those practising overseas as it would expect of authorised individuals and bodies in England and Wales. The level of reporting the SRA expects is proportionate to the level of regulatory risk posed by an overseas practice.
3.2 You, as a regulated individual practising overseas or as a responsible authorised body , must monitor any material or systemic breaches of the Overseas Principles that apply to you or to those for whom you are responsible and report them to the SRA when they occur, or as soon as reasonably practicable thereafter. In relation to an overseas practice , a material or systemic breach will relate either to the character and suitability of an individual, the financial vulnerability of an overseas practice outside of established business planning, or a pattern of behaviour within an overseas practice that infringes Overseas Principle 6. Notifications by the compliance officer of a responsible authorised body , or by another person on behalf of an overseas practice will satisfy these requirements without separate notifications from each individual or body who has knowledge of the breach. For example, you will be required to:
(a) notify the SRA , if you, or any of the partners, members, managers, solicitor employees or other professionally qualified employees in your overseas practice, are convicted by any court of a criminal offence or become subject to disciplinary action by another regulator;
(b) notify the SRA immediately if you believe that your firm or your overseas practice is in serious financial difficulty;
SRA Amendment to Regulatory Arrangements (Overseas Rules) Rules
Preamble
The SRA Overseas Rules dated [date] made by the Solicitors Regulation Authority Board under sections 31, 79 and 80 of the Solicitors Act 1974, sections 9 and 9A of the Administration of Justice Act 1985 and section 83 of the Legal Services Act 2007, with the approval of the Legal Services Board under paragraph 19 of Schedule 4 to the Legal Services Act 2007 regulating the conduct of solicitors and their employees, registered European lawyers and their employees, registered foreign lawyers, recognised bodies and their managers and employees and licensed bodies and their managers and employees.
Rule 1
The Introduction to the SRA Handbook shall be amended as follows:
(a) in paragraph 3, in the first sentence of sub-paragraph (a), after "regulate and" replace "to" with "underpin";
(b) in paragraph 3, insert after sub-paragraph (f):
"(g) Overseas Rules
(i) Introduction
(ii) Overseas Rules."; and
(c) replace the existing sub-paragraphs (g) and (h) with (h) and (i) respectively.
Rule 2
The SRA Principles 2011 shall be amended as follows:
(a) in paragraph 2.3, replace paragraph (a) with:
"(a) apply to individuals and firms we regulate, whether traditional firms of solicitors or ABSs, in private practice or in-house. Where a firm or individual is practising overseas , the Overseas Principles apply;" ;
(b) replace paragraph 4.1 with: "4.1 The Principles apply to you if you are: (a) a body practising from an office outside England and Wales only if you are required to be an authorised body as a result of the nature of your practice and you have been authorised by the SRA accordingly; or (b) a manager of such a body. GUIDANCE NOTE In most circumstances, overseas offices of authorised bodies based in England and Wales, will not require authorisation with the SRA
and will be governed by the SRA Overseas Rules. However, in some circumstances, because of the work that is being carried out from the overseas office, it will need to be authorised (see Rule 2.1(e) and have regard to Rule 2.1(g) of the SRA Overseas Rules). In those circumstances, the Principles and Code of Conduct apply."; and
(c) replace paragraph 4.2 with the following:
"4.2 The Principles apply to you if you are an individual engaged in temporary practise overseas .". Rule 3
The SRA Code of Conduct 2011 shall be amended as follows:
(a) in the Introduction to the SRA Code, in the section headed "The Principles", in the second sentence of the first paragraph, after "regulate and" replace "to" with "underpin"
(b) in chapters 1 to 12, delete the paragraphs headed "Overseas Practice" and the outcomes OP1.1 to 1.3, OP2.1, and OP8.1;
(c) in Chapter 7, at the end of O(7.10) replace "." with ";" and insert: "O7. You identify, monitor and manage the compliance of your overseas practices with the SRA Overseas Rules; O.7. You identify, monitor and manage all risks to your business which may arise from your connected practices ." ;
(d) in Chapter 7, at the end of IB7.4 replace "." with ";" and insert: "IB(7.5) you maintain systems and controls for managing the risks posed by any financial inter-dependence which exists with your connected practices. IB (7.6) you take appropriate action to control the use of your brand by any body or individual outside of England and Wales which is not an overseas practice ." ;
(e) in Chapter 13, delete rules 13.3 to 13.6; and
(f) after Chapter 13, insert:
" Chapter 13A: Practice Overseas 13A.1 If you are an individual or body practising overseas , the Code does not apply to you, but you must comply with the SRA Overseas Rules.
13A.2 Subject to rule 13A.1 above, the Code is applicable to you as set out in 13A.3 to 13A.6 below if you are:
(a) a body practising from an office outside England and Wales, only if you are required to be an authorised body as a result of the nature of your practice and you have been authorised by the SRA accordingly;
O(13A.4) you do not discriminate unlawfully according to the jurisdiction in which you are practising; and
O(13A.5) publicity intended for a jurisdiction outside England and Wales must comply with any applicable law or rules regarding lawyers' publicity in the jurisdiction in which your office is based and the jurisdiction for which the publicity is intended.
13A.5 You must be aware of local laws and regulations governing your practice in an overseas jurisdiction.
13A.6 if compliance with any outcome in the Code would result in your breaching local laws or regulations you may disregard that outcome to the extent necessary to comply with that local law or regulation.".
Rule 4
The SRA Accounts Rules 2011 shall be amended as follows:
(a) Replace the words "(overseas practice)" with "(overseas)” wherever they appear.
(b) In the title to Part 7 of the accounts rules replace "Overseas practice" with "Practice from an office outside England and Wales".
(c) In Rule 47.1 replace "overseas practice" with "practice from an office outside England and Wales".
Rule 5
The Introduction to Authorisation and Practising Requirements shall be amended as follows:
(d) in paragraph 2, in the second sentence replace "apply to" with "underpin".
Rule 6
The SRA Practice Framework Rules 2011 shall be amended as follows:
(a) in Rule 1.2, at the end of rule 1.2(f) replace "." with ";" and insert:
"(g) as a manager , employee , member or interest holder of an overseas practice .";
(b) in Rule 2.2, at the end of rule 2.2(f) replace "." with ";" and insert:
"(g) as a manager , employee , member or interest holder of an overseas practice.";
(c) in Rule 4, after rule 4.1insert:
" 4.1A If your in-house practice comprises:
(a) employment in a body within England and Wales, rules 4.2 to 4.18 and 4.26 apply to you; (b) employment in a foreign law firm which is not an overseas practice , rules 4.19 to 4.21 apply to you; and (c) employment in a body overseas, including where you are practising overseas , rules 4.22 to 4.25 apply to you." ;
(d) in Rule 4.22, replace "to your overseas practice" with "to your in house practice where you are employed in a body outside England and Wales";
(e) in Rule 4.23, replace "to your overseas practice" with "to your in house practice where you are employed in a body outside England and Wales";
(f) in Rule 5 after Rule 5.2 insert: " 5.3 Nothing in rule 5.2 above prevents an authorised body from practising through an overseas practice for which it is the responsible authorised body ."
(g) in the Guidance notes to Rule 5, after (iii) insert: “(iv) An authorised body may practise through one or more overseas practices, which do not themselves require authorisation by the SRA. However, when considering whether authorisation is required for offices overseas, authorised bodies should consider the activities to be carried on from those offices, and note that rule 8.4 of the SRA Authorisation Rules provides that an authorised body may not carry on an activity unless through a body and individual who is authorised to carry on that activity.”;
(h) at the end of Rule 15 insert: " Guidance note: (i) See also the reporting requirements relating to the practising address and registered addresses of your overseas practices set out in:
(a) Rule 4.4 of the SRA Authorisation Rules;
(b) Rule 18.2 of the SRA Practice Framework Rules; and
(c) Rule 3.2 of the SRA Overseas Rules.";
(i) in Rule 18.2:
(i) at the end of paragraph (f) delete "or", and
(ii) at the end of paragraph (g) replace "." with "; or" and insert:
"(h) overseas practices , including any contact details and practising/registered addresses of its overseas practices ."; and
(j) Replace Rule 20 with “Rule 20: Overseas Practice - Deleted”
Rule 7
Part 1 of the SRA Training Regulations 2011 (Qualification Regulations) shall be amended as follows:
(a) in the Introduction to the Training Regulations – Part 1 Qualification Regulations, in the section headed "The Principles", in the second sentence of the first paragraph, after "regulate and" replace "to" with "underpin".
Rule 10
Part 2 of the SRA Training Regulations 2011 (Training Provider Regulations) shall be amended as follows:
(a) in the Introduction to the Training Regulations – Part 2 Training Provider Regulations, in the section headed "The Principles", in the second sentence of the first paragraph, after "regulate and" replace "to" with "underpin".
Rule 11
Part 3 of the SRA Training Regulations 2011 (CPD Regulations) shall be amended as follows:
(a) in the Introduction to the Training Regulations – Part 3 CPD Regulations, in the section headed "The Principles", in the second sentence of the first paragraph, after "regulate and" replace "to" with "underpin".
Rule 12
The SRA Admission Regulations 2011 shall be amended as follows:
(a) in the Introduction to the Admission Regulations, in the section headed "The Principles", in the second sentence of the first paragraph, after "regulate and" replace "to" with "underpin".
Rule 13
The SRA Qualified Lawyer Transfer Scheme Regulations 2011 shall be amended as follows:
(a) in the Introduction to the Qualified Lawyer Transfer Scheme Regulations, in the section headed "The Principles", in the second sentence of the first paragraph, after "regulate and" replace "to" with "underpin".
Rule 14
The SRA Higher Rights of Audience Regulations 2011 shall be amended as follows:
(a) in the Introduction to the Higher Rights of Audience Regulations, in the section headed "The Principles", in the second sentence of the first paragraph, after "regulate and" replace "to" with "underpin".
Rule 15
The SRA Quality Assurance Scheme for Advocates (Crime) Notification Regulations 2012 shall be amended as follows:
(a) in the section headed "The Principles", in the second sentence of the first paragraph, after "regulate and" replace "to" with "underpin".
Rule 16
The SRA Suitability Test 2011 shall be amended as follows:
(a) in the Introduction to the Suitability Test, in the section headed "The Principles", in the second sentence of the first paragraph, after "regulate and" replace "to" with "underpin".
Rule 17
The Introduction to Client Protection shall be amended as follows:
(a) in paragraph 2, in the second sentence, replace "apply to" with "underpin".
Rule 18
The Introduction to Discipline and Cost Recovery shall be amended as follows:
(a) in paragraph 2, in the second sentence, replace "apply to" with "underpin".
Rule 19
The Introduction to Specialist Servics shall be amended as follows:
(a) in paragraph 2, in the second sentence, replace "apply to" with "underpin".
Rule 20
The Glossary to the SRA Handbook shall be amended as follows:
headquarters of that Verein or similar group structure or a significant part of it; or
(II) a joint practice, alliance or association or association with the authorised body in England and Wales connected to it which is controlled by a body providing legal services established outside of England and Wales; or
(III) a group of affiliated bodies providing legal services which is not managed or controlled by an authorised body in England and Wales.
(C) A joint enterprise means any contractual arrangements between two or more independent bodies which provide legal services, for profit and/or other defined purpose goal which apply generally between them, not just agreed on a matter by matter basis.
(D) Common branding means the use of a name, term, design, symbol, words or a combination of these that identifies two or more legal practices as distinct from other legal practices or an express statement that a legal practices is practising in association with one or more other named firms." ;
(c) after the definition of “entitled to practise”, insert:
Established
(ii) For the purpose of the definition of “overseas practice”, the status of an individual as being established outside England and Wales may be indicated by the following factors:
(A) a requirement for a work permit;
(B) the intention to reside outside of England and Wales for a period of 6 months or longer;
(C) a requirement for authorisation with local regulatory body;
(D) an overseas practising address nominated in mySRA;
(E) an employment contract with a legal practice established outside England and Wales
(iii) An individual who is temporarily seconded, assigned or transferred to work in an overseas practice, being supervised and managed for the duration of his or her
secondment, transfer or assignment, by partners in the overseas practice, will normally be treated as practising overseas.”;
(d) in the definition of "overseas practice", replace paragraph (i) with: "(i)
(A) a branch office of an authorised body ;
(B) a subsidiary company of an authorised body ;
(C) a subsidiary undertaking, within the meaning of section 1162 of the Companies Act 2006, of an authorised body ;
(D) an entity whose business, management or ownership are otherwise in fact or law controlled by an authorised body or recognised sole practitioner ;
(E) an individual acting as a representative (whether as an employee or agent) of an authorised body or recognised sole practitioner ; or
(F) a sole principal whose business, management or ownership are otherwise in fact or law controlled by an authorised body or recognised sole practitioner ,
established outside of England and Wales and providing legal services but which does not carry out reserved legal activities and whose practice does not predominantly comprise the provision of legal services to clients, or in relation to assets, located in England and Wales; and";
(e) in the definition of practice:
(i) at the end of the second sub-paragraph (i), delete "and", and
(ii) at the end of the second sub-paragraph (ii), replace "." with "; and" and insert:
"(iii) in the SRA Overseas Rules where it shall be given its natural meaning.";
(f) after the definition of "practising address" insert:
" Practising overseas
means the conduct of a practice:
(i) of an overseas practice;
These amendment rules shall come into force on [the date of approval by the Legal Services Board], with the exception of rules 6(h) and 7(a) which shall come into force on 1 October 2014.
