Solicitors firms and the Market Abuse Regulation

Firms of solicitors acting for a listed company should be aware that, under the Market Abuse Regulation (EU 596/2014), which came into effect on 3 July 2016, they may be asked from time to time to draw up and update a list of persons within the firm who have access to inside information (as defined under the regulation) concerning the company or its financial instruments (such as, shares, loan stock etc).

This may arise in a scenario where the firm is advised by the company that information the firm possesses concerning the company (for example, in regard to a proposed sale or purchase or a potentially significant liability) constitutes ‘inside information’.

For these purposes, ‘inside information’ is precise information about the company or its financial instruments that is not publicly available, but would be likely, if it was made public, to have a non-trivial effect on the market price of the company's financial instruments (including related derivatives).

The list to be prepared by the firm (known as an ‘insider list’) is to be kept in electronic format in accordance with one of the templates set out in annex 1 to the Commission Implementing Regulation (EU 2016/347). This list should set out all persons within the firm who have access to the particular inside information, and it must be updated from time to time to reflect changes to such personnel (for example, holiday cover, resignations, additional staff introduced to the case etc). The list must contain detailed information, such as the exact time and date that each listed person gained access to the inside information. Insider lists must be submitted to the Central Bank of Ireland (or other relevant competent authority) “as soon as possible” upon request from that authority.

Where the firm has been asked by the client to draw up an insider list, the firm must take all reasonable steps to ensure that each person placed on the insider list acknowledges in writing the legal and regulatory duties involved as a result of his/her access to the inside information and their awareness of the sanctions applicable to insider dealing and to the unlawful disclosure of inside information.

Where an insider list is prepared by the solicitors’ firm, the company will retain a right of access to that insider list. Insider lists must be maintained by the firm for a period of at least five years.

It should be noted that the firm's preparation and maintenance of an insider list does not absolve the company in any way from its own obligations under the Market Abuse Regulation.