Legal executives – some very senior in their firms – have begun to join forces in the outrcy following the High Court's ground-shaking ruling in Mazur.
The status of employees in law firms and their right to practise litigation continues to be the biggest talking point in the profession, with firms desperately trying to establish whether they operate within the rules.
Potentially, the ruling could mean that thousands of legal executives have unlawfully worked on litigation matters – reassured by an incorrect letter from the Solicitors Regulation Authority and guidance from their own representative body CILEX.
The court in Mazur v Charles Russell Speechlys was clear that employment by a firm authorised to conduct litigation is not sufficient for the employee to conduct litigation themselves, even under supervision.
One option now is for legal executives without authorisation to obtain the right to conduct reserved activities. But these have to be paid for either by the individual or their firm and many cannot fit the course in around work and home responsibilities.
Emma Taylor, a partner and chartered legal executive with Brighton firm Goodlaw, has set up a working group for CILEX members of all levels of seniority to lobby for change and to share working solutions for dealing with Mazur.
‘Those qualified through the CILEX route have spent years studying, pay annually for their practising certificates (which I believe cost more than solicitors), and many have years and years of post-qualifying expertise,’ she said. ‘The vast majority of people feel misled by CILEX and let down by the changing guidance and are scrabbling to ensure that they, and their firm, are not committing criminal offences.
‘Even if the group only serves to support these people and ensure they do not feel isolated and alone, then I hope it has helped.’
Taylor also highlighted that with the majority of CILEX members being female and more coming from poorer backgrounds than in the solicitors profession, anything which limits their work would have a knock-on effect on diversity in the sector.
Kevin Richardson, a director and legal executive with south of England firm Biscoes Solicitors and president of Hampshire Law Society, warned of the potential for division between CILEX lawyers and some solicitors, adding that Mazur could stop people carrying out work they have been doing for years.
‘I, like many CILEX lawyers feel misled and let down by my professional body,’ he added. ‘Their answer is to undertake a further qualification and obtain practice rights, [but] how can many do this if they cannot obtain the litigation experience as they cannot conduct litigation?
‘Should I feel worthless and feel like my 30 years’ experience stands for nothing? No. Do I? Absolutely. This judgment or the act needs to be changed quickly before irreparable damage is done not just to individual lawyers and those seeking to become lawyers but the profession as a whole.’
Michelle McCann, a senior legal operations manager at Clyde & Co, said it was disheartening to realise that the CILEX qualification she studied for was effectively meaningless. She wrote on Linkedin: ‘When I commenced my CILEX studies there was only one route – level 3, level 6 and then qualify as a fellow. It was sold as a proper alternative to becoming a solicitor.
‘To qualify as a fellow I submitted a qualifying employment form, work based learning application and portfolio of work – all of which were full of examples of where I was conducting litigation. At no point did Cilex advise that I should not be doing this.’
Other unintended consequences are emerging from the ruling. One firm’s Court of Protection department head told the Gazette she did not know whether applications in the CoP are considered ‘litigation’. Firms have also started reassessing their conveyancing and probate operations to ensure they are compliant with the Legal Services Act, although they are not directly affected by the Mazur ruling.
CILEX Regulation has said it is preparing guidance for legal executives on the conduct of litigation and supervision. It also plans to submit an application to the LSB to enable CILEX members to apply for standalone litigation rights.
Meanwhile, on Thursday afternoon the SRA issued its first public statement since the Mazur ruling, having made representations during the case.
The regulator said the judgment did not change the position in law that the Legal Services Act makes it clear that only regulated individuals can conduct litigation as it is 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 was not the message provided in a letter to a law firm last December but is in line with guidance issued in 2022.
The SRA added: '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).'
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