The Legal Services Board (LSB) has criticised the response of regulators to the questions raised by Mazur v Charles Russell Speechlys LLP, and the potential impact of the case on litigation work conducted by unqualified professionals.
In an interim report published this week following the LSB’s review, announced in October, the super-regulator said the response of the regulated community, including the Solicitors Regulation Authority (SRA), CILEx Regulation and the Bar Standards Board, was “varied in clarity and level of detail.”
The report has been published following the landmark High Court case, which has brought into question the interpretation of the Legal Services Act and the appropriate level to which reserved litigation services can be provided by non-solicitors.
In the report, the LSB acknowledges:
“…while the judgment did not change the law, we recognised that it had raised questions about how some in the profession have interpreted and carried out the conduct of litigation reserved legal activity under the Act.”
In an attempt to understand to understand the level of engagement and guidance provided to the sector, the review sought evidence from regulators and membership bodies including the Bar Council, the Bar Standards Board, the Association of Costs Lawyers, the Costs Lawyer Standards Board, the Chartered Institute of Legal Executives; CILEx Regulation, the Intellectual Property Regulation Board, the Chartered Institute of Trade Mark Attorneys, the Chartered Institute of Patent Attorneys, the Law Society, and the Solicitors Regulation Authority.
The result of the initial investigations suggest the guidance to date on the potential impact of Mazur would have benefited from a more joined up approach between regulators, which in turn would have contributed to “a more consistent approach of the statutory position across the legal sector.”
There was a “developing understanding” of the legal position as the regulatory language around the situation, which the review found “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.”
Engagement from the various regulatory bodies around the impact of Mazur varied, the report added, which may have contributed to differing interpretations of the law, and the understanding of those bodies of the extent to which their regulated communities were engaged in regular litigation work. As a result, approaches differed from regulator to regulator.
The interim report has been designed to support regulators to improve clarity, consistency, and collaboration across all relevant aspects of their regulatory arrangements, the LSB said.
The output of the final report will largely depend on the outcome of the Court of Appeal consideration of the Mazur judgment, initiated by CILEX.,and will take account of any relevant developments arising from that process, alongside the completion of the remaining stages of analysis.
Responding to the report, Law Society of England and Wales president Mark Evans said:
“In the wake of the ruling, the Law Society published its own Practice Note, to ensure our members understand their obligations relating to the conduct of litigation as a reserved legal activity.
“We will continue to work with the LSB and the Solicitors Regulation Authority on behalf of our members.”
