Rees: Ruling has caused huge distress
The Legal Services Board is convening a meeting of the frontline regulators next week to discuss the continuing fall-out from the Mazur ruling, Legal Futures can reveal.
The news comes as both the regulator and representative body for chartered legal executives issued messages.
We have been reporting extensively about the impact of Mr Justice Sheldon’s decision that non-authorised employees of law firms can support a solicitor or other authorised person (ie, those with independent practice rights) in conducting litigation – but cannot conduct litigation under their supervision.
The cross-sector impact means the LSB is using its convening ability to bring together the affected regulators.
A spokesman said: “While the judgment does not change the law, we recognise that it has raised questions about how some in the profession have interpreted and implemented the reserved legal activity ‘conduct of litigation’ under the Legal Services Act in practice.
“The LSB’s role is to oversee the regulation of legal services by frontline regulators. In turn, it is for each regulator to provide direct guidance to those they authorise – regulated lawyers and legal professionals – in accordance with their scope of authorisation.
“We are in contact with the relevant regulators and representative bodies and will be meeting shortly with the purpose of establishing what action has been taken and is planned to ensure that effective advice and guidance is in place.
“It is of paramount importance that lawyers and legal professionals who are involved in the conduct of litigation receive clear and accurate information and comply with their scope of authorisation.”
Though the ruling applies to all non-authorised persons, it has appeared to hit CILEX members the hardest, given that in many other respects they are the equals of solicitors.
CILEx Regulation has issued interim guidance and FAQs that says any individual who is not authorised to conduct litigation should ensure the formal conduct of the litigation is the responsibility of an authorised individual and that this is properly documented, that any formal steps in the litigation are taken by an authorised individual (e.g. signing a claim form), and that responsibility for decisions and documents “clearly remains” with the authorised individual.
It goes on: “This does not mean that an employee or member of a firm must restrict their activity to mechanical or administrative tasks. There will be many day to day actions which may be delegated by the authorised person responsible for conducting the litigation.
“Who takes responsibility for formal and important steps and decisions is likely to be the best indicator of which individual is actually conducting the litigation.”
In a blog, CILEx Regulation chair Jonathan Rees said it “recognised the huge distress and uncertainty the judgment had caused for many”.
Alongside the guidance, it has approved submission of an early application to the LSB to change the rules to allow those eligible to apply for standalone litigation practice rights (currently they come bundled with advocacy rights).
“We have already asked the LSB to treat this expeditiously and hope this option will be available later this year or early next,” he said, adding that the board would ensure the regulator has “sufficient capacity” to process large numbers of practice rights applications within current timelines.
“This includes streamlining our process as far as we can, consistent with our duty to maintain standards.”
In a statement to members, Sara Fowler and Jennifer Coupland, respectively president and chief executive of CILEX – the representative body for chartered legal executives – said they were “deeply concerned about the upset this is causing our members, and understand the frustration being voiced from within the CILEX community”.
They stressed that the ruling did not apply to members working in conveyancing and probate. “Schedule 3 of the Legal Services Act 2007 expressly provides exemptions that mean they can handle those reserved activities – rather than just assist with them – under the supervision and direction of authorised lawyers. However, there is no such exemption for the conduct of litigation.”
They went on: “CILEX’s interpretation of the Legal Services Act has always been aligned with that of other regulators and with guidance on the conduct of litigation. When practice rights became available to CILEX professionals in 2014, those with litigation practice rights have been authorised to conduct litigation independently and within their authorised specialism.
“Since then, we have strongly encouraged members to obtain these rights. This has been communicated repeatedly.”
On LinkedIn yesterday, Richard Miller, head of justice at the Law Society, wrote: “While this judgment relates specifically to the reserved activity of conducting litigation, the debate around it has thrown up questions as to whether the processes some firms have developed in relation to other reserved activities meet the terms of the Legal Services Act and the SRA’s 2022 guidance on supervision.
“All firms conducting reserved activities would be wise to review their processes to make sure they are compliant.”
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