The Bar Council has warned unregistered barristers acting as solicitors’ agents that they could face prison if they do not comply with a ‘narrow’ area of law.
In guidance published this week the body said anyone working as a solicitor’s agent needs to ‘consider carefully’ whether they meet requirements outlined in the Legal Services Act 2007.
The guidance, which follows a similar warning published last year, has been reiterated because ‘it is understood that there are a number of unregistered barristers currently appearing in court as solicitors’ agents’.
It also references two recent hearings McShane v Lincoln (June 2016) and Ellis v Larson (September 2016), in which solicitors’ agents were judged not to have rights of audience. In McShane the case centred on a pre-action protocol for low-value personal injury claims in road traffic accidents. Ellis was focused on a similar claim.
The council warned that the decision of District Judge Peake, an 'experienced district judge’ in McShane, that the agent did not have rights of audience is 'likely to be persuasive’ in other similar cases.
The conditions under which solcitors’ agents can be exempt under the LSA 2007 are: that the individual must assist in the conduct of litigation; must be under instruction from an authorised person (usually a solicitor) and that the hearing must be heard ‘in chambers’.
‘All individuals undertaking work as solicitors’ agents are urged to consider carefully whether they fulfil the requirements upon accepting every new instruction and when attending at court,’ the council said.
It added: ‘It is a criminal offence for a person to carry on a reserved legal activity unless he is entitled to do so, such being triable summarily or on indictment, the latter carrying a maximum penalty of two years' imprisonment.
‘The Bar Council is concerned to promote compliance with the act, since this is in the interests of the proper administration of justice, the protection of consumers and the protection of unregistered barristers who might otherwise open themselves up to potential criminal liability.
‘They should consider with care whether the nature of their work properly enables them to describe themselves as assisting in the conduct of litigation in the narrow sense explained.’