In-house lawyers without a practising certificate but giving legal advice need to look closely at the new Solicitors Code of Conduct, writes Tony Guise


In-house lawyers will have welcomed the outcome of a recent House of Lords debate on whether they should hold a practising certificate (see [2007] Gazette, 15 March, 3). As the minister, Baroness Ashton, said: 'Provided no reserved activity is involved, I do not see why we should treat persons who may once have qualified as a lawyer any differently from any other person who may provide general advice to their employer.'



For once, this is a foray into the law which the government has got right. The minister's reply came in response to a Solicitors Regulation Authority (SRA) inspired attempt to insert a requirement in the Legal Services Bill that would have obliged all solicitors providing any legal services to hold a practising certificate (PC).



At present, the law and the position under the professional rules are identical: only a solicitor may undertake legal work that is assigned to solicitors (the reserved activities). That appears trite but the SRA made a spirited attempt recently to discipline two in-house lawyers for not holding a PC where neither was undertaking reserved activities. Fortunately, my firm was able to demonstrate to the adjudicator that the SRA had got the law wrong in both of those cases.



The SRA referred one client to the adjudicator because she had a job with the title 'lawyer' and claimed that she undertook work the nature of which was restricted to solicitors - that is to say, to those persons who have been admitted as solicitors, have their names on the roll, and hold a current PC. The recommended sentence was a reprimand.



The restricted activities are a closed group and none of the work our client undertook fell within it. Mr Justice Potter, in Piper Double Glazing Limited v DC Contracts (1992) Limited [1994] 1 AER 177, 186 held that 'the words "acting as a solicitor" are limited to the doing of acts which only a solicitor may perform and/or doing of acts by a person pretending or holding himself out to be a solicitor. Such acts are not to be confused with the doing of acts of a kind commonly done by solicitors, but which involve no representation that the actor is acting as such'.



Despite the recent reverse in the House of Lords, the SRA has quietly taken care to ensure the position under its new, 'transparent' Solicitors Code of Conduct is the complete opposite of the position in Piper and as explained by Baroness Ashton. From 1 July, anyone involved in legal practice must hold a PC (rule 20.01(2)). 'Involved in legal practice' includes the provision of business services such as are provided by solicitors (rule 20.01(3)). Paragraph 13(a) of the guidance to rule 20.01 makes the position clear: if you are an in-house lawyer employed as a 'lawyer', you will need a PC. There are exemptions, for example if you are a solicitor to certain public authorities or government departments, or if your title is qualified by the words 'non-practising'.



Because the professional rules have the force of statute (Swain v The Law Society [1983] AC 598), the effect is to overrule Piper. Some cynics have suggested that this is rather a neat way to increase the income from PCs, thereby funding yet more SRA regulation and consultations on regulation; I could not possibly comment on such a suggestion.



Those in-house lawyers currently without a PC but giving legal advice should urgently take advice as to whether they need one, or whether they can take advantage of the exemptions which are available under the new code.



Tony Guise, a partner at London firm GUISE, is a member of the Solicitors Assistance Scheme, a Law Society panel providing help to solicitors facing disciplinary issues