If you remain confused following last month’s seismic Mazur judgment, take comfort in knowing you are not alone.
Regulators, professional bodies and educators appear to have adopted erroneous positions for years about whether law firm employees are permitted to undertake reserved legal activities, and litigation in particular. The SRA gave wrong advice to a firm last December before performing an about-turn to the court in Mazur. Mr Justice Sheldon (pictured) agreed with the revised position that mere employment by an authorised firm is not sufficient for an employee to conduct litigation, even under supervision.
Until 2023, the Chartered Institute of Legal Executives told members they had authorisation to conduct litigation. This advice was quietly changed – but not before members had laboured (and paid fees) under this misunderstanding – potentially breaching the law in the process.
Even today, the University of Law’s website states that the role of a CILEX lawyer will be ‘similar to that of solicitors’ and that legal executives ‘provide legal advice, draft legal documents and represent clients in legal proceedings’.
The Civil Procedure Rules could also be said to conflict with the Legal Services Act, defining ‘legal representative’ as including ‘a solicitor’s employee… who has been instructed to act for a party in relation to proceedings’.
Perhaps the only certainty is that this confusion will lead to disputes and push costs up.
David Bailey-Vella, chair of the Association of Costs Lawyers, said firms will need to ensure proper supervision of non-admitted staff, with the likelihood of costs challenges once budgets are exchanged. ‘A bill made up of grade D (paralegal) time will now inevitably raise questions about supervision and whether the fee-earner was improperly conducting litigation,’ he added.
Could this even mean the end of Grade D fee-earners as we know them? Simon Gibbs of legal costs specialists GWS said the issue will inevitably arise about what level of supervision is required. ‘It may therefore be that once a task has been properly delegated by an authorised individual, there is then no formal requirement for such work to be supervised in the traditional sense,’ said Gibbs.
‘On the other hand, it is very easy to see that a court may be very suspicious as to who is really conducting the litigation if the work has not been properly checked by the fee-earner who supposedly has conduct of the litigation.’
Gibbs added that unauthorised fee-earners may be enabled to draft claim forms, instructions to counsel or schedules of loss – but crucially this must not be ‘their case’.
That presents a significant headache for a claims sector that has responded to the challenge of fixed or reduced costs by stripping the litigation process to the bare bones. Critics suggest that this amounts to a factory line of claims handlers doing most of the work, and Mazur has the potential to make that type of operation unlawful.
The Legal Services Act may have stated in 2007 that the person conducting litigation, even under supervision, must be authorised, but the reality of operating high-volume claims firms makes that financially prohibitive. This aspect of the profession has evolved its own ecosystem which at best challenges the terms of the act but at worst disregards them altogether.
Mr Justice Sheldon’s assertion that an employer, even if authorised to carry out a reserved legal activity, can commit a criminal offence if one of their employees carries on a reserved legal activity without being entitled to do so will have (or should have) alarmed compliance officers across the sector.
Michael Speight, divisional director of the Howden Insurance legal practices group, said Mazur ‘fundamentally disrupts’ the practice of law firms operating in debt recovery, personal injury and conveyancing. ‘The Mazur judgment represents a seismic shift in how law firms in England and Wales must approach the delegation of litigation work,’ he added. ‘The days of routinely permitting paralegals, trainees, and other non-qualified staff to conduct litigation – even under supervision – are over.’
Guidance published by the SRA this week clarified that the position in law regarding authorisation has not changed. Employees are permitted to support litigation under appropriate supervision, not to conduct it. Firms are urged to satisfy themselves that they are complying with the LSA and advised to record their decision-making.
The wider problem is that the theory of the legislation has been overtaken by the practicalities of running a law firm. Regulators, professional bodies and the courts could spend months or even years trying to resolve the pitfalls this judgment has opened up.
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