Colp & Cofa

Originally published 31 January 2013. Updated 8 October 2026.

COLP responsibilities include helping the firm recognise when client instructions raise concerns about independence, integrity or the lawful use of legal advice. A technically accurate answer may leave important questions unresolved about what the client intends to do and the firm’s role in the transaction.

For compliance officers already managing competing demands, that can feel like another layer of responsibility. It is also a reason to provide clear escalation routes before a difficult instruction becomes an urgent problem.

The question raised in 2013

The original article discussed work by Professors David Kershaw and Richard Moorhead on lawyers’ responsibility when their advice facilitates client wrongdoing.

Their research examined whether professional regulation should impose greater responsibility on transactional lawyers for the consequences of their work, even where the advice itself was competently provided.

This was an argument for regulatory development. It should not be presented as a rule making solicitors automatically responsible for every unlawful act committed by a client.

Their paper, Consequential Responsibility for Client Wrongs: Lehman Brothers and the Regulation of the Legal Profession, provides the background to that debate.

What do the current SRA Principles require?

The SRA Principles require solicitors to act with independence, honesty and integrity, uphold the rule of law and public confidence, and act in each client’s best interests.

Where the Principles conflict, those protecting the wider public interest take precedence over an individual client’s interests. Client instructions therefore need to be considered alongside the solicitor’s other professional obligations.

That does not prevent robust advice or representation. It means the firm must recognise when the proposed course of action creates a conflict with its duties and address that conflict before proceeding.

Tax planning illustrates the distinction

The original post identified stamp duty mitigation schemes as an area where these questions could arise. The distinction between lawful tax planning, avoidance arrangements and unlawful conduct needs careful attention.

The SRA’s warning notice on tax avoidance duties addresses firms involved directly or indirectly in advising on or implementing tax arrangements.

It highlights concerns about abusive schemes, misleading conduct and inadequate explanation of risks. It also recognises that solicitors can advise on arrangements reasonably argued not to be abusive, subject to proper advice and compliance with their professional duties.

The practical lesson is to examine the arrangement and the firm’s involvement. A promoter’s assurance, a client’s enthusiasm or the existence of an opinion should not end that assessment.

Questions to ask before accepting the instruction

A useful review should establish:

• What is the client seeking to achieve?
• Does the explanation fit the proposed transaction and available evidence?
• What work is the firm being asked to perform?
• Does the team have the competence to assess the relevant issues?
• Are there concerns about misleading statements, concealment or artificial steps?
• Do commercial relationships or referral arrangements affect the firm’s independence?
• What advice, specialist input or senior review is needed before proceeding?

Record the concerns, enquiries and reasons for the decision. If facts or instructions change, revisit the assessment.

Give staff a workable escalation route

The COLP should help ensure that staff know whom to approach when instructions appear inconsistent with the firm’s obligations. The process should allow concerns to be raised even where a valuable client, senior partner or regular introducer is involved.

Supervising partners and fee-earners retain responsibility for their own work. Referring a concern to the COLP does not transfer every professional obligation to the compliance officer.

For CQS firms documenting these arrangements, Lexsure’s suggested policy wording on risk roles and responsibilities provides a starting point for defining accountability. Adapt the wording to the firm’s management structure and make clear who receives, reviews and follows up concerns.

Our article on integrating risk management and SRA compliance explains why operational decisions and compliance oversight should connect.

Keep records of decisions and follow-up

Where a concern reveals a wider weakness, record the corrective action, responsible person and review date. Consider whether other matters, training or acceptance procedures need attention.

Our guide to maintaining a living and breathing risk register explains how the register can reflect developments within the practice.

For CQS-accredited conveyancing practices, Lexsure’s Risk Management Policy template brings together operational responsibilities, regulatory risks, the risk register and compliance planning. It should be tailored to the practice and supported by procedures that staff understand and follow.

Where the issue exposes a knowledge gap, address it through suitable learning and supervision. See our article on continuing competence for solicitors and COLPs.

Review SDLT procedures where relevant

For firms undertaking conveyancing, a written SDLT policy can help organise calculation checks, supervision and escalation of unusual arrangements. The procedure should make clear when specialist advice is needed and who reviews concerns.

Check that staff understand the scope of the firm’s retainer, the information needed to assess the client’s position and the circumstances requiring further advice. Keep a record of the assessment and any escalation rather than relying solely on a completed calculation.

The concern behind the original article remains relevant: firms need to consider both the advice they give and the role they play. Clear supervision, timely escalation and reasoned decisions make that responsibility easier to manage.