A new practice note aimed at providing guidance on how firms can ensure they are compliant with the recent Mazur decision has been published by the Law Society of England and Wales. The practice note provides advice on how firms can make sure that only those authorised to do so carry on the conduct of litigation and outlines activities that unauthorised staff can carry out in their own right and/or under supervision.
The Court of Appeal ruling held that an “unauthorised person may lawfully perform any tasks which are within the scope of the conduct of litigation, for and on behalf of an authorised person, such as a solicitor or appropriately authorised CILEX member provided the authorised person retains responsibility for the tasks delegated to the unauthorised person.”
Described as “the most consequential judgment for legal services in recent history” the Court of Appeal ruling settled a question over the role of unauthorised persons in conducting legal work in relation to litigation. Critically, the decision continues to enable unauthorised persons to support litigation matters, provided the delegation of tasks by the authorised person to the unauthorised person is properly directed, managed, supervised and controlled. The detail of these measures are being pored over by regulators in the wake of the judgment.
The Law Society’s practice note sets out guidance on compliance with the Court of Appeal’s decision, referencing the role of supervision in proceedings: “In some circumstances the degree of appropriate control and supervision will be high, with approval required before things are done. In other, for example routine, circumstances, a lower level of control and supervision will be required. In such cases, it may be sufficient for the authorised individual to conduct regular meetings with the unauthorised person and to sample their work.”
The practice note goes on to advise the SRA’s guidance on effective supervision has been updated following the Court of Appeal decision. Future practice should include written details of an authorised individual responsible for each matter; and “a clear record of the delegated instructions by the authorised individual to any non-authorised member of staff covers any key decisions and formal steps in the proceedings. These instructions can be specific or general (with non-authorised staff working to policies, guides or protocols).”
Commenting on the practice note Law Society vice president, Brett Dixon, said: “This practice note sets out our understanding of how the judgment should be interpreted, pending further guidance from the Solicitors Regulation Authority (SRA), which we are working with them to develop.
“The judgment establishes a less restrictive framework in relation to the conduct of litigation than the High Court judgment, but it does not remove all limitations on what an unauthorised person employed by a regulated entity may do.”
“The Court of Appeal judgment did not alter the position that only authorised persons are entitled to carry on the conduct of litigation. However, it confirmed that an authorised person can delegate tasks within the litigation to an unauthorised person, as long as the authorised person maintains responsibility for those tasks.
“Responsibility in this context means both formal responsibility for the task itself and responsibility to adhere to the professional principles.
“We advise our members to make sure they are familiar with the SRA’s guidance on supervision, conducting litigation, and its enforcement strategy.”
Dixon concluded a webinar hosted on 14th April will provide more information about the impact of the judgment and provide the opportunity for firms to ask questions.
