Orpin: Guidance needs to be consistent
Legal regulators missed opportunities over the years to “clarify and address” the issues that came to a head in the Mazur case, the Legal Services Board (LSB) said yesterday.
However, the errors made were not of a magnitude that required the oversight regulator to take enforcement action.
Guidance that has come out since the Court of Appeal ruling from various regulators and representative bodies could still be better, it added.
Most notably, in 2022, CILEx Regulation Ltd (CRL) raised with the Solicitors Regulation Authority (SRA) its understanding that conducting litigation under supervision was permitted.
“The SRA explained its different interpretation of the Act to CRL and made this clear in its guidance, yet the differing interpretations were not escalated or resolved in a way that brought greater clarity and consistency for the profession.”
Where regulatory bodies were unable to resolve inconsistencies – including with their guidance – “they should refer the matter to the LSB for resolution”, the LSB stressed.
The findings came in the final report of the LSB’s review into guidance provided to the legal profession on the conduct of litigation.
An interim report published in January, in between the High Court and Court of Appeal rulings in Mazur, found that some of the information provided to lawyers over the years was not clear enough.
The final report detailed how at times this information “varied in consistency, clarity and the level of detail”, and may have benefited from “greater cross-regulator engagement”.
The responses from some regulators to direct queries from the profession also “evolved over time, reflecting differing interpretations or a developing understanding of the statutory framework. This risked inconsistent outcomes”.
The review found that “gaps in regulatory knowledge, including a lack of awareness of the level of supervision authorised individuals were providing to unauthorised colleagues”, meant it was hard for regulator to judge the initial impact of Mazur – this needed to improve in future.
There was now “greater co-operation” between regulators but in some instances it was still “limited”.
The LSB said: “For example, some have shared guidance after publication or shared draft guidance with one or two approved regulators or regulatory bodies rather than a wider range, with consideration of those that may be indirectly impacted by the guidance.
“At a minimum, we expect that collaboration should occur between regulators where legal professionals regulated by one regulator work in firms regulated by another.”
Though the updated guidance published so far by five regulators plus the Law Society was “considerably” more aligned than before Mazur, there were still several areas where it could be improved “to ensure maximum clarity, consistency and to provide necessary detail”.
The review noted that the SRA published a report in 2017 into the quality of legal services in the personal injury sector, which noted how some firms employed large numbers of unadmitted staff under the supervision of solicitors.
But it “did not consider whether unauthorised employees were conducting litigation in breach of the Act or its guidance”.
Furthermore, the SRA did not reconsider the findings of this report – which included specific examples of firms with unauthorised employees conducting litigation under supervision – when it responded to CRL in 2022 to clarify that it was not allowed.
“The SRA did not reconsider the issue following the High Court Mazur judgment when it decided it was unlikely that there had been a large-scale misunderstanding of elements of the Act.”
The LSB noted how CRL did not challenge the SRA’s response in 2022 and then the following year drafted its own guidance on conducting litigation, which in draft form made clear that there was no exemption enabling non-authorised individuals to conduct litigation under supervision.
However, it was not published but a different guidance it did put out the same year said: “You can assist in the conduct of litigation where you are working under [the] instruction and supervision, of a person who is authorised to conduct litigation (e.g. a CILEX Litigation Practitioner or practising solicitor), but we would expect them to have overall responsibility for the case.”
The LSB concluded that the actions of the regulators did not have “an adverse impact on the regulatory objectives” or breach the internal governance rules. “Therefore, formal enforcement action would not be a proportionate response.”
The LSB acknowledged that it too had opportunities to address some of these issues, with statutory decisions it made in 2011, 2012 and 2013 in approving rule changes including “differing approaches and terminology from the regulatory bodies on the conduct of litigation under supervision”.
The actions following on from the review include requiring each regulator to “review and strengthen its assurance processes to ensure that they are sufficient and effective in identifying, assessing and addressing regulatory risks and issues resulting from legal practices that are not consistent with the Act”.
The LSB, meanwhile, will carry out a review of guidance on the other reserved legal activities to ensure that there are no further inconsistencies.
LSB chief executive Richard Orpin said: “To ensure that consumers and the public are well protected, it is critical that guidance to legal professionals is clear, consistent, and underpinned by robust regulatory assurance.
“I am encouraged by how constructively regulators have engaged since the judgment and by the steps already taken. But there is more to do, and we will work alongside regulators to make sure the actions we’ve identified are delivered.”
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