The Law Society has published practice advice for solicitors on the seismic Mazur ruling, clarifying which tasks legal business workers who are not authorised to conduct litigation are allowed to carry out. Chancery Lane also believes firms making retrospective court applications based on the allegation that the other side acted in breach of the Legal Services Act will fail, because any penalty would fall under disciplinary proceedings.
The Society also urged regulators to issue clarification in a number of 'grey areas' that remain. Most notably, where the dividing line lies between an unauthorised person supporting an authorised person to conduct litigation, and the former 'crossing the line' into conducting litigation themselves.
Another grey area concerns the boundary between conducting litigation and assisting a litigant in person with their litigation. 'This will be particularly relevant where firms are helping clients obtain a decree of divorce.' There is also a question mark over whether non-contentious work in the Court of Protection is covered.
The practice note stresses that a person must be authorised by the Solicitors Regulation Authority or other approved legal regulator to conduct litigation. An unauthorised team member cannot conduct litigation, notwithstanding that they are an employee or manager of an authorised firm and/or working under the supervision of an authorised person.
‘The definition of the conduct of litigation is narrow and limited to formal steps in proceedings. For example, the issuing, filing and serving of applications and statements of case,’ the practice note states.
Much of the work involved in litigation can still be carried out by non-authorised staff – either because it does not amount to the reserved activity of the conduct of litigation, or because it falls within their role assisting an authorised person, says the practice note.
This will include activities that take place before proceedings are initiated. It will also generally include matters such as: the giving of general legal advice; drafting pleadings, particulars of claim, applications and correspondence; proofing witnesses; drafting statements; and signing a statement of truth.
‘Solicitors and firms will wish to make sure their processes and records demonstrate that appropriately authorised persons are exercising their professional responsibility for the key formal steps and strategic decisions in connection with proceedings initiated before the courts,’ it adds. ‘”Tick-box”’ oversight from an authorised person will not be sufficient.’
Law Society president Mark Evans said: 'Acting without authorisation is a breach of a solicitor’s regulatory obligations and may result in disciplinary action. Firms and practitioners should review their processes to ensure they are compliant with the Legal Services Act 2007 and the Solicitors Regulation Authority’s guidance.
'The Society has been made aware that some firms are seeking to make applications to the court based on an allegation that the other side has acted in breach of the Legal Services Act. Previous case law has made clear that generally the penalty for any breach should be through disciplinary proceedings and should not have any impact on the case before the court.'
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