Though the new Code of Conduct has been updated, it is still unclear in its wording and could lead unwary solicitors into allegations of practising while uncertificated.

In previous Gazette articles I drew attention to the problems posed for in-house and local government lawyers by the application of the Solicitors Practice Rules (SPR) and rule 20.01 of the Code of Conduct 2007. One only needed a practising certificate if held out as a solicitor or if undertaking the reserved activities (such as conducting litigation or obtaining grants of probate).

The Law Society’s enforcement philosophy, however, took a much wider view, and this led to many unfair regulatory investigations under the SPR. This philosophy was codified and expanded with the introduction of the 2007 code and the requirement to hold a practising certificate if undertaking ‘business services’.

The 2007 code drew much criticism from, among others, the Commerce & Industry (C&I) Group, which tirelessly pursued negotiations with the Solicitors Regulation Authority to bring the code into line with primary legislation. My firm was involved with those negotiations for the C&I Group, and that lobbying led to important amendments being achieved in the 2009 revisions (the 2009 code, in force from 31 March 2009).

Undefined servicesIn particular, the introduction of a new guidance note (number 55) set out the requirements of primary legislation. Unfortunately, the 2009 code (in rule 20.02) remains at odds with primary legislation. The SRA has gone further in that the phrase ‘business services’, which gave rise to so much uncertainty in the 2007 code, has been replaced by the equally enigmatic term ‘other services’ in the 2009 code. Like ‘business services’, the term ‘other services’ remains undefined in the glossary. Rule 20.02, of course, takes precedence over the helpful guidance in note 55.

When the use of the phrase ‘other services’ was first mooted with me as a possible solution on a visit to the SRA’s Redditch office in November 2008, I expressed concern that this phrase did not assist in arriving at a clear understanding of when a solicitor would, or would not, require a practising certificate. The officers explained that ‘other services’ included the kind of services that people of business affairs would provide, but this, it seems to me, only serves to confuse the issue further.

During the course of the next 12-24 months the code must be amended again to facilitate alternative business structures, and I hope the SRA takes the opportunity to sort out the mess on that occasion. The representative Law Society would perform a great service to in-house and local government lawyers by making appropriate representations to the SRA about this matter.

The problems that the present drafting create may lead many in-house and local government lawyers to become unnecessarily subject to protracted and expensive regulatory investigation. This begins when, for whatever reason, someone on the roll of solicitors but not holding a practising certificate applies for a certificate. This usually requires an explanation to be given in form RFs12 of how the solicitor has spent his or her time and whether they have been undertaking the reserved activities or have been held out. The introduction of the SRA Practising Regulations 2009 has brought a new form (REG3) to be completed. This omits the questions in section 6 of RFs12 that tended to lead to self-incrimination. In form REG3, section 6 simply asks: ‘Have you practised or been held out as a solicitor/REL since you last held a practising certificate or had registration? If "yes" please provide details on a separate sheet.’

This is an exercise that calls for great care lest an applicant leave himself or herself open to allegations of practising while uncertificated or being other than frank with the regulator, potentially a breach of the core principles in rule 1.

So despite the improvements secured by the C&I Group, there still remains much to sort out.

Tony Guise is a partner at Guise and a member of the Solicitors Assistance Scheme and the duty solicitor rota at the Solicitors Disciplinary Tribunal