Regulators should act immediately to give a safe harbour and reassurance to firms who were inadvertently breaking the law before the Mazur judgment, a leading regulatory silk has said.
Gregory Treverton-Jones KC said last night it was clear that many firms had not realised they were acting unlawfully by allowing unauthorised staff to conduct litigation.
In the Mazur judgment last month, Mr Justice Sheldon stated the position as set out in the Legal Services Act that employment by an authorised law firm was not sufficient for an employee to conduct litigation themselves, even under supervision.
Treverton-Jones, speaking at a seminar hosted by 39 Essex Chambers, said firms had been supported at the time by advice and guidance from regulators and influenced by contradictory wording in the Civil Procedure Rules. He suggested the first thing the Solicitors Regulation Authority could do would be to assure firms that inadvertent breaches of the act before September 16 – the date of the Mazur ruling – would not result in prosecutions.
The SRA should then follow the lead of the Bar Standards Board in being prescriptive about what exactly constitutes conduct of litigation – and what would be permitted for unauthorised people to do. ‘I don’t think the regulators can sit on their hands and say it is not our job to do this,’ said Treverton-Jones. ‘It needs to be done more quickly and more decisively.
‘They will all tell you it is not really their job and I agree that for most cases regulators are not there to give safe harbour guidance or advice. But this is different. This is an area where the regulators have got it wrong, the Civil Justice Council has got it wrong and the judges don’t know what is meant by conduct of litigation. The regulators can step in – particularly where the SRA is a prosecuting body for breaches.’
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The KC added that the Chartered Institute of Legal Executives, which appears to have told members they could work under supervision in recent years, should ‘rapidly passport’ experienced legal executives to be allowed to conduct litigation. There have been reports since Mazur of legal executives who have worked in litigation for decades having caseloads removed from them and given to newly-qualified solicitors.
Treverton-Jones said Mazur had caused bigger ripples than any other during his 48-year career, and while legislation could be amended in time, regulators and professional bodies should act now to calm the market.
Meanwhile, CILEx Regulation met this week and has agreed to provide amnesty for legal executives who may unwittingly have breached the law.
Chair Jonathan Rees said: ‘We had a good discussion on what, if any, retrospective enforcement action should be taken and agreed that CILEX members practising in line with the prevailing guidance and their firms’ procedures in operation at the time pre-Mazur are not required to self-report to CRL.’
An application has been made to the oversight regulator to enable it to provide standalone litigation practice rights and Rees said processes are put in place to deal with the volume of applications for practice rights it expects to receive. ‘We are recruiting additional staff to handle the increased demand for practice rights authorisation and are streamlining our processes. We have also had productive discussions with ULaw on their parallel route to obtain rights, and they are setting up extra provision,’ he said.
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