I asked a well-known solicitor toiling at a regional full-service firm how the Court of Appeal’s landmark decision in Mazur (read this week's In Focus) has been interpreted in the ‘boardroom’.
‘Unqualified staff can carry on as we always thought they could,’ came the response. ‘For example, in my team this “looks like” trainees naturally getting more responsibility as they approach qualification. There were all sorts of worries about who had to sign some pretty standard forms, who had to serve them and, at its most extreme, whether this meant qualified solicitors having to actually put things in the post box themselves.
‘Now we are back to genuine supervision, which is how it should be. I am sure conveyancing factories and the like are relieved too – but less sure about the level of supervision going on at those places.’
This is an important caveat. Compliance experts warn that the ruling does not merely denote a reversion to the status quo ante. ‘It is not a return to the previous era in which non-admitted persons ran their own caseload largely autonomously, because the court emphasised the importance of meaningful oversight,’ says Paul Bennett, an adviser to law firms at specialist practice Bennett Briegal.
The key paragraph came at 198 – from Lady Justice Andrews: ‘In essence, the question in any given set of circumstances will be whether the unauthorised person, in carrying out whatever tasks which fall within the scope of “conduct of litigation” have been delegated to him or her, is in truth acting on behalf of the authorised individual. If they are, the authorised individual… is conducting the litigation. But if the reality is that the litigation is not being conducted by the unauthorised person for and on behalf of the authorised individual, they will be committing an offence.’
Firms must now review and document their supervisory arrangements to ensure they are robust, adds Bennett. This advice will doubtless be echoed in a Law Society practice note expected on Monday.
Some continue to speculate that the Society will challenge the Court of Appeal ruling. ‘We would not expect to appeal unless we considered it was in the interests of the profession to do so,’ Chancery Lane told me yesterday.
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