The Solicitors Regulation Authority has published a statement in response to the fall-out from the High Court Mazur ruling that legal executives cannot conduct litigation, even under supervision from regulated professionals.
Following claims that firms were pulling legal executives from casework – including conveyancing and wills and probate – amid concerns about the potential wider impact of the ruling, the Law Society of England and Wales said it understood the confusion amongst its members but pointed out the case did not change the law as it stands.
Stephen Ward, director of strategy and external relations for The Council for Licensed Conveyancers (CLC), was quick to reassure conveyancers and probate practitioners that the ruling had no impact on the profession. He reiterated his comments during an exclusive interview for the Today’s Conveyancer podcast this week, stressing ‘
Mazur doesn’t have any implications for the practice of conveyancing o probate’ and ‘everybody should rest assured that (these business models) aren’t going to have to change overnight as a result of this ruling’.
After staying silent on the matter for several days, the SRA has now issued a statement clarifying the impact of the ruling:
“Our view is that the judgment in the recent case of Julia Mazur & Ora v Charles Russell Speechlys LLP doesn’t change the position in law.
“Sheldon J said the Legal Services Act (LSA) makes it clear that only regulated individuals can conduct litigation as it’s a reserved legal activity. Non-authorised individuals can support litigation – as they do in other areas – but only an authorised individual, such as a solicitor, should be conducting litigation.
“This is the position that we have reflected in our existing guidance on effective supervision, published in November 2022. In that guidance, we say:
‘People who are not themselves authorised to conduct litigation can only support authorised individuals to conduct litigation, rather than conducting litigation themselves under the supervision of an authorised individual.’
“There is a distinction between conducting litigation and supporting litigation, but the boundary between the two activities will depend on the facts. Being engaged (whether as an employee or other contractor) by an authorised person who is permitted to conduct reserved activities does not automatically confer a right to conduct litigation on an employee or contractor who is not authorised. They are permitted to support litigation under appropriate supervision, not to conduct it.
“Our guidance addresses many aspects to consider when assessing appropriate supervision arrangements. The onus is on firms to satisfy themselves that they are complying with the LSA, and only authorised individuals are conducting litigation. We recommend you should be recording your decision-making around the approach you are taking (see ‘Recording supervision arrangements’ in the guidance).”
Any firms still worried about potential implications of the ruling should contact the Professional Ethics helpline for support, the SRA said.
3 responses
This isn’t helpful
Mazur was about costs.
The claimants had not paid their Solicitors’ fees and the Solicitors instructed a law firm to claim their fees
That law firm succeeded and sought its costs
The Claimants eager to avoid more costs and representing themselves successfully argued in a Judicial Review that as the person who conducted the litigation against them was not authorised by a Regulator to conduct litigation that they shouldn’t have to pay the costs.
The Court agreed.
Unfortunately the commentary on the case (which everyone concerned about this issue should read) is unhelpful as it suggests that only a Solicitor can supervise those who aren’t authorised
Any person who is authorised by a Regulator can supervise unauthorised individuals who undertake work in reserved legal activities.
If the legal activity is not a reserved legal activity then unauthorised persons can undertake the work.
So:
1 understand what legal activities are reserved and those that are not by reading the Legal Services Act;
2 understand who is authorised to undertake reserved legal activities in your firm by reading whatever certificates they have from a Regulator (admittedly this is easy for SRA regulated Solicitors as Solicitors can conduct any reserved legal activity);
3 don’t let unauthorised individuals conduct reserved legal activities but allow them to support an authorised individual in the conduct of reserved legal activities.
Mazur does NOT mean that Fellows of CILex cannot supervise unauthorised individuals in the conduct of a reserved legal activity. It all depends on how their regulator has certified their authorisation.
PS Read the Mazur judgment.
Dear Michael
If Fellows can supervise unauthorised individuals in the conduct of a reserved activity (litigation) I can’t see how they cannot actually conduct it with supervision?
I employ a very experienced fellow family Cilex qualified 30 years ago who we now understand cannot continue to manage her own files, even under the supervision already in place.
Madness.
The guidance above does not mention contentious probate. At what point does contentious probate become litigation?