Calls: Should non-authorised persons be main point of client contact?
Law firms should consider prohibiting non-authorised staff from being clients’ main point of contact in the wake of the Mazur ruling, a leading insurance broker has warned.
The advice from Howden comes ahead of this morning’s meeting of regulators convened by the Legal Services Board, at which a way forward will be discussed.
An article on the Howden website by Michael Blüthner Speight, a solicitor and divisional director in its legal practices group, described the ruling as “a seismic shift in how law firms in England and Wales must approach the delegation of litigation work”.
He explained: “The days of routinely permitting paralegals, trainees, and other non-qualified staff to conduct litigation – even under supervision – are over. Sheldon J’s judgment is unambiguous: mere employment by an authorised firm does not confer the right to conduct reserved legal activities, and supervision does not cure the absence of individual authorisation.
“The message is clear: act now. Conduct an urgent audit, revise policies and practices, train staff, and engage with the [Solicitors Regulation Authority] and your [professional indemnity insurer] if necessary.”
Mr Blüthner Speight’s advice included prohibiting non-authorised staff from issuing proceedings, signing statements of case or court documents, filing documents with the court, being clients’ main point of contact, instructing counsel or experts on behalf of the client, making substantive case management decisions, or exercising independent professional judgement on litigation strategy.
He said too that firms should maintain “detailed supervision records, including file notes of review meetings, approval of drafts, and sign-off on key decisions”, and ensure the supervising solicitor has “sufficient time and resources to provide meaningful oversight”.
They should even consider appointing a designated compliance officer or practice manager “to monitor adherence to the revised task allocation framework to ensure that it is implemented successfully”.
In other developments, CILEx Regulation has revised its interim guidance on the effect of Mazur after it appeared to indicate that employment tribunal work was caught by the decision.
Writing on LinkedIn, former CILEX president Matt Huggett – an employment partner in the Taunton office of Stephens Scown – said this had now been changed.
It now “specifically set out what was understood to be the case previously, namely that employment tribunals have their own rules and that any fully qualified CILEX Fellow can continue to conduct litigation in employment and in the employment tribunals without worrying about the fact that they may not be permitted or authorised to do so following the Mazur decision”.
The Professional Deputies Forum has relayed a message from the Office of the Public Guardian (OPG), which said it recognised its potential implications for legal practice and regulatory oversight.
“OPG will work with the Ministry of Justice and relevant stakeholders to assess the full impact of the ruling in due course and ensure any necessary changes to practice are proportionate, informed, and aligned with our statutory responsibilities,” it continued.
Leading costs silk Ben Williams KC of 4 New Square has expressed his puzzlement at why everyone has assumed Mazur was correct.
Writing in response to a blog by well-known solicitor Kerry Underwood, Mr Williams said: “True, it makes a highly plausible interpretation of the literal words of the statute. But statutes are interpreted non-literally all the time.
“Solicitors have been permitted to conduct litigation through their clerks for generations. Everyone knew this when the LSA [Legal Services Act 2007] was enacted. It is reflected in authorities, the rules of court, even things like guideline rates (which explicitly include legal executives in those able to be grade A fee-earners, and unadmitted staff in grades B to D).
“It is common knowledge – and was equally so in 2007 – that some sectors like PI and crime are massively reliant on unadmitted staff.”
Mr Williams said there was no indicated that the Act was intended to change this. “On the contrary, the LSA was intended to extend the right to conduct litigation.
“All the indications are that the LSA was never intended to operate as the court in Mazur has concluded. It is clear that the case was not very fully argued, and I do not think people should be assuming that it is inevitably the last word.”
Finally, Tom Amer, a senior consultant at JMC Legal Recruitment in Bristol, wrote on LinkedIn that he has had “several briefings where firms have chosen to put a temporary pause on CILEX applicants. as a direct result of the Mazur ruling”.
He added: “I understand the regulatory caution, but it feels like an overreaction that risks sidelining highly capable lawyers at a time when the profession needs them most.”
Mr Amer cited CILEX research from 2021 that found 81% of members believed the rest of the profession looked down on them and said he was concerned Mazur would exacerbate this.
“Regulators should be helping firms draw the line between supporting and conducting litigation, not leaving experienced CILEX members caught in the crossfire.
“Pausing recruitment entirely sends the wrong message and risks undoing progress on diversity and inclusion.
“CILEX has long been a vital pathway into law. If firms back away now, they do not just lose skilled lawyers, they lose the breadth of perspective and background that strengthens the profession.”
I hope my article was helpful in the absence of any meaningful guidance from the SRA to date.