Pre-Mazur advice 'not always articulated with sufficient precision', LSB concludes

Regulators and representative bodies advising lawyers have not been clear enough about what it means to conduct litigation, the oversight regulator said today. 

An interim report published today by the Legal Services Board is critical of guidance issued in the years before the Mazur ruling last year and said professional bodies should have been working together to build consensus and arrive at a shared position.

But the LSB holds back from making any findings of fact or determining whether advice given firms and individuals was lawful, with the oversight regulator opting to wait until the outcome of next month’s Court of Appeal proceedings.

The Mazur judgment, which established that under the Legal Services Act unauthorised individuals could not conduct litigation even under supervision, prompted upheaval in firms of all sizes. Legal executives – many of who had worked for years on cases under the misapprehension they were allowed to conduct litigation – have been sidelined and even let go, while authorised solicitors who may have only just qualified are left as the only fee earners who can oversee cases.

In the immediate aftermath of Mazur, much anger was directed towards representative body CILEX in particular for what appeared to be conflicting and changing guidance about the meaning of the Legal Services Act. CILEX has led the appeal against Mazur which will be heard on 24 February. The Solicitors Regulation Authority, which intervened in Mazur, had also initially informed one of the parties involved they could conduct litigation, before reversing this position in court.

The LSB decided to review the advice and guidance provided to the profession by regulators and representative bodies, leading to today’s interim report.

The report said: ‘Some past and recent regulatory language, including guidance on the supervision of colleagues undertaking reserved legal activities, was not always articulated with sufficient precision in relation to the distinction between those reserved legal activities that can be conducted by unauthorised persons under the supervision of an authorised person and those that cannot, including the conduct of litigation.’

Material provided by the regulators and professional bodies showed there were points where more engagement on draft guidance could have supported a ‘more consistent’ approach across the sector.

Responses to direct queries from lawyers ‘evolved over time, reflecting differing interpretations or developing understanding of the statutory framework, which risked inconsistent outcomes’.

Regulators adopted different approach, with some listing actions that be considered to be conducting litigation or citing specific examples from case law. There were also instances where guidance referred to supervision alongside descriptions of reserved legal activities, which ‘may have been interpreted differently across the profession’.

The report acknowledged that, following the Mazur judgment, steps have been taken by regulators to provide additional clarity and to work together. It added: ‘Regulators must ensure that further steps are taken, where necessary, to provide assurance that there are no regulatory gaps and that consumers and the public are protected.’

Following the publication of the report, a spokesperson for CILEX said: ‘The LSB report underscores the relevance of Mazur across the entire legal profession. We look forward to presenting our argument that Mazur was wrongly decided in the Court of Appeal next month. In the meantime, CILEX continues to promote the excellent work of CILEX professionals, supporting our members and encouraging them to apply for practice rights.’