Dixon: Less restrictive but still some limitations
The Law Society has put the focus on the Solicitors Regulation Authority (SRA) to give the profession guidance on what amounts to supervision following the Mazur ruling.
Its updated Mazur practice note [1] said the SRA was updating its guidance on effective supervision in light of the Court of Appeal’s decision [2] last month.
The court was clear that the delegation of tasks “requires proper direction, management supervision and control” and that it was the responsibility of the authorised individual to put in place appropriate arrangements, the society said.
What is appropriate will depend on the circumstances and, pending the new guidance, the Law Society said “this will require clear oversight of the work being done”.
Issues such as how many people an individual can supervise, how much of each person’s work they will see, whether prior approval for certain tasks is required, and how and how often they will communicate will depend on risk factors, “such as the complexity and nature of the work, the experience, competence and capacity of the non-authorised individual, and the availability of alternative means of support”.
The society warned that authorised individual needed to be appropriately qualified to establish what was adequate in terms of the supervision arrangements, as well as to oversee the work.
“It is unlikely to be sufficient for the authorised individual to have limited experience or competence in the specific area of law.”
The guidance said firms should ensure there was an authorised individual responsible for each matter, as well as “a clear record of the delegated instructions by the authorised individual to any non-authorised member of staff”.
It stressed that the instructions must be given to the non-authorised individual actually carrying out the task in question; they cannot “sub-delegate”. The guidance said: “This would break the nexus with the authorised individual required for the tasks to be carried out for and on their behalf.”
Among the practical steps that firms could take towards compliance included reviewing policies and procedures “to make sure these document the steps involved in your litigation processes and who carries each of these out”, making sure an authorised person was responsible for each matter, and “making sure those key formal trigger points which amount to the conduct of litigation are the responsibility of the authorised person”.
Law Society vice-president Brett Dixon, said: “The judgment establishes a less restrictive framework in relation to the conduct of litigation than the High Court judgment, but it does not remove all limitations on what an unauthorised person employed by a regulated entity may do…
“We advise our members to make sure they are familiar with the SRA’s guidance on supervision, conducting litigation, and its enforcement strategy.”
The Law Society has yet to decide whether it will appeal the ruling.