Rule 12: Framework of practice
Introduction
This rule sets out the types of business through which solicitors, RELs, RFLs and recognised bodies may practise under the regulation of the Solicitors Regulation Authority. The restrictions are necessary to ensure that members of the public receiving services from solicitors, RELs and their firms have all the client protections provided under the current statutory framework, and so that the Authority can adequately regulate the firm within its current statutory powers. The guidance signposts the reader to other rules which deal with particular types of business in more detail.
Rule
12.01 Solicitors
Practice from an office in England and Wales
- (1)
You may practise as a solicitor from an office in England and Wales in the following ways only:
- (a)
as a sole principal;
- (b)
as a partner in a partnership consisting of:
- (i)
solicitors, with or without RELs and/or recognised bodies;
- (ii)
solicitors and RFLs, with or without RELs;
- (iii)
solicitors, RELs and non-registered European lawyers, with or without RFLs; or
- (iv)
solicitors, RELs, non-registered European lawyers and recognised bodies;
- (i)
- (c)
as a director, member or shareowner of a company which is a recognised body;
- (d)
as a member of an LLP which is a recognised body;
- (e)
in the employment of any firm in which a solicitor or an REL would be permitted to participate under this rule as a sole principal, partner, director, member or shareowner, for practice from an office in England and Wales; or
- (f)
in any other employment, provided that you undertake work only for your employer, or as permitted by rule 13 (In-house practice).
- (a)
- (2)
You must not, as a solicitor:
- (a)
be a partner in a partnership which has a separate legal identity, if the partnership has an office in England and Wales; or
- (b)
be a director, member or owner of a body corporate which has an office in England and Wales and is not a recognised body, unless you do so as an in-house solicitor.
- (a)
Practice from an office outside England and Wales
- (3)
You may practise as a solicitor from an office outside England and Wales in the following ways only:
- (a)
as a sole principal;
- (b)
as a partner in a partnership consisting of:
- (i)
practising lawyers; and/or
- (ii)
bodies corporate wholly owned and directed by lawyers for the purpose of practising law; and/or
- (iii)
partnerships which have separate legal identity, whose partners are all lawyers;
- (i)
- (c)
as a partner in a partnership consisting of persons under (b) above, together with other persons, provided that:
- (i)
the partnership has no office in England and Wales;
- (ii)
a controlling majority of the partners are persons under (b) above;
- (iii)
the involvement of non-lawyers in the partnership does not put the lawyers in breach of any applicable local rules; and
- (iv)
if the partnership has an office in an Establishment Directive state, the rules applying in that jurisdiction would permit local lawyers to enter into a partnership with similar involvement of non-lawyers;
- (i)
- (d)
as a director or owner of a body corporate wholly owned and directed, for the purpose of practising law, by:
- (i)
practising lawyers; and/or
- (ii)
bodies corporate wholly owned and directed by lawyers for the purpose of practising law; and/or
- (iii)
partnerships which have separate legal identity, whose partners are all lawyers;
- (i)
- (e)
as a director or owner of a body corporate wholly owned and directed, for the purpose of practising law, by persons under (d) above, together with other persons, provided that:
- (i)
the body corporate has no office in England and Wales;
- (ii)
a controlling majority of the directors and of the owners are persons under (d) above;
- (iii)
the involvement of non-lawyers in the body corporate does not put the lawyer directors or owners in breach of any applicable local rules; and
- (iv)
if the body corporate has an office in an Establishment Directive state, the rules applying in that jurisdiction would permit local lawyers to practise through a body corporate with similar involvement of non-lawyers;
- (i)
- (f)
in the employment of any firm in which a solicitor or an REL would be permitted to participate under this rule as a sole principal, partner, director or owner, for practice as a solicitor from an office outside England and Wales or as a lawyer of an Establishment Directive state from an office in Scotland or Northern Ireland; or
- (g)
in any other employment, provided that you undertake work only as permitted by 15.13 (In-house practice overseas).
- (a)
12.02 RELs
If you are an REL:
Practice from an office in England and Wales
- (1)
You may practise as a lawyer of an Establishment Directive state from an office in England and Wales in the following ways only:
- (a)
as a sole principal;
- (b)
as a partner in a partnership consisting of:
- (i)
RELs, with or without solicitors and/or recognised bodies;
- (ii)
RELs and RFLs, with or without solicitors;
- (iii)
RELs and non-registered European lawyers, with or without solicitors and/or RFLs; or
- (iv)
RELs, non-registered European lawyers and recognised bodies, with or without solicitors;
- (i)
- (c)
as a director, member or shareowner of a company which is a recognised body;
- (d)
as a member of an LLP which is a recognised body;
- (e)
in the employment of any firm in which an REL or a solicitor would be permitted to participate under this rule as a sole principal, partner, director, member or shareowner, for practice from an office in England and Wales; or
- (f)
in any other employment, provided that you undertake work only for your employer, or as permitted by rule 13 (in-house practice).
- (a)
- (2)
You must not, as a lawyer of an Establishment Directive state:
- (a)
be a partner in a partnership which has a separate legal identity, if the partnership has an office in England and Wales; or
- (b)
be a director, member or owner of a body corporate which has an office in England and Wales and is not a recognised body, unless you do so as an in-house lawyer.
- (a)
Practice from an office in Scotland or Northern Ireland
- (3)
You may practise as a lawyer of an Establishment Directive state from an office in Scotland or Northern Ireland in the following ways only:
- (a)
as a sole principal;
- (b)
as a partner in a partnership consisting of:
- (i)
practising lawyers; and/or
- (ii)
bodies corporate wholly owned and directed by lawyers for the purpose of practising law; and/or
- (iii)
partnerships which have separate legal identity, whose partners are all lawyers;
- (i)
- (c)
as a partner in a partnership consisting of persons under (b) above, together with other persons, provided that:
- (i)
the partnership has no office in England and Wales;
- (ii)
a controlling majority of the partners are persons under (b) above;
- (iii)
the involvement of non-lawyers in the partnership does not put the lawyers in breach of any applicable local rules; and
- (iv)
the rules applying in that jurisdiction would permit local lawyers to enter into a partnership with similar involvement of non-lawyers;
- (i)
- (d)
as a director or owner of a body corporate wholly owned and directed, for the purpose of practising law, by:
- (i)
practising lawyers; and/or
- (ii)
bodies corporate wholly owned and directed by lawyers for the purpose of practising law; and/or
- (iii)
partnerships which have separate legal identity, whose partners are all lawyers;
- (i)
- (e)
as a director or owner of a body corporate wholly owned and directed, for the purpose of practising law, by persons under (d) above, together with other persons, provided that:
- (i)
the body corporate has no office in England and Wales;
- (ii)
a controlling majority of the directors and of the owners are persons under (d) above;
- (iii)
the involvement of non-lawyers in the body corporate does not put the lawyer directors or owners in breach of any applicable local rules; and
- (iv)
the rules applying in that jurisdiction would permit local lawyers to practise through a body corporate with similar involvement of non-lawyers;
- (i)
- (f)
in the employment of any firm in which an REL or a solicitor would be permitted to participate under this rule as a sole principal, partner, director, or owner, for practice as a lawyer of an Establishment Directive state from an office in Scotland or Northern Ireland or as a solicitor from an office outside England and Wales; or
- (g)
in any other employment, provided that you undertake work only as permitted by 15.13 (In-house practice overseas).
- (a)
12.03 RFLs
Practice in the capacity of an RFL
- (1)
In these rules, practice as a foreign lawyer in the capacity of an RFL is confined to:
- (a)
practice as a partner in an MNP which has an office in England and Wales and which consists of:
- (i)
solicitors and/or RELs, together with RFLs; or
- (ii)
RELs, RFLs and non-registered European lawyers, with or without solicitors;
- (i)
- (b)
practice as a director of a company which is a recognised body; and
- (c)
practice as a member of an LLP which is a recognised body,
and if you practise in that capacity you will be subject to these rules and to regulation by the Solicitors Regulation Authority.
- (a)
Practice in another capacity than as an RFL
- (2)
If you provide services as a foreign lawyer in any of the following ways, you will not be practising in the capacity of an RFL:
- (a)
as a sole principal;
- (b)
as a partner in a partnership in which none of the partners is a solicitor, or an REL;
- (c)
as a director of a company, or a member of an LLP, which is not a recognised body; or
- (d)
as the employee of a business which is not the practice of a solicitor, an REL or a recognised body,
and you must not be held out or described in that context as an RFL, or as regulated by or registered with the Law Society or the Solicitors Regulation Authority.
- (a)
- (3)
You must not be held out or described as an RFL, or as regulated by or registered with the Law Society or the Solicitors Regulation Authority, in the context of:
- (a)
employment in the practice of a solicitor, an REL or a recognised body; or
- (b)
participation in any firm which operates wholly outside England and Wales.
- (a)
- (4)
If you have a practice under (1) above, and another business under (2) above, the latter is a "separate business" for the purpose of these rules and you must therefore comply with rule 21 (Separate businesses).
Scope of practice of an RFL
- (5)
Whether practising in your capacity as an RFL or not, you must not:
- (a)
undertake work which you are not qualified or entitled to undertake by the law of England and Wales; or
- (b)
appear as advocate before any court or tribunal in England and Wales in which you have no right of audience.
- (a)
12.04 Recognised bodies
Practice from an office in England and Wales
- (1)
A recognised body may practise from an office in England and Wales in the following ways only:
- (a)
as a stand-alone firm;
- (b)
as a body corporate wholly owned by, and providing services in conjunction with:
- (i)
the practice of a solicitor or an REL as a sole principal;
- (ii)
a partnership consisting of:
- (A)
solicitors and/or RELs and/or recognised bodies;
- (B)
solicitors and/or RELs together with RFLs;
- (C)
RELs and non-registered European lawyers, with or without solicitors and/or RFLs; or
- (D)
RELs, non-registered European lawyers and recognised bodies, with or without solicitors;
- (A)
- (iii)
another recognised body;
- (i)
- (c)
as a partner in a partnership consisting of
- (i)
recognised bodies, with or without solicitors and/or RELs; or
- (ii)
recognised bodies, RELs and non-registered European lawyers, with or without solicitors; or
- (i)
- (d)
as a member or shareowner of another recognised body.
- (a)
- (2)
A recognised body must not practise as:
- (a)
a partner in a partnership which has a separate legal identity, if the partnership has an office in England and Wales; or
- (b)
a director, member or owner of a body corporate which has an office in England and Wales and is not a recognised body.
- (a)
Practice from an office outside England and Wales by a recognised body incorporated in England and Wales
- (3)
A recognised body which is incorporated in England and Wales may practise from an office outside England and Wales in the following ways only:
- (a)
as a stand-alone firm;
- (b)
as a partner in a partnership consisting of:
- (i)
practising lawyers; and/or
- (ii)
bodies corporate wholly owned and directed by lawyers for the purpose of practising law; and/or
- (iii)
partnerships which have separate legal identity, whose partners are all lawyers;
- (i)
- (c)
as a partner in a partnership consisting of persons under (b) above together with other persons, provided that:
- (i)
the partnership has no office in England and Wales;
- (ii)
a controlling majority of the partners are persons under (b) above;
- (iii)
the involvement of non-lawyers in the partnership does not put the lawyers in breach of any applicable local rules; and
- (iv)
if the partnership has an office in an Establishment Directive state, the rules applying in that jurisdiction would permit local lawyers to enter into a partnership with similar involvement of non-lawyers;
- (i)
- (d)
as a member or shareowner of another recognised body;
- (e)
as a director or owner of a body corporate which is wholly owned and directed, for the purpose of practising law, by:
- (i)
practising lawyers; and/or
- (ii)
bodies corporate wholly owned and directed by lawyers for the purpose of practising law; and/or
- (iii)
partnerships which have separate legal identity, whose partners are all lawyers; or
- (i)
- (f)
as a director or owner of a body corporate wholly owned and directed, for the purpose of practising law, by persons under(e) above, together with other persons, provided that:
- (i)
the body corporate has no office in England and Wales;
- (ii)
a controlling majority of the directors and of the owners are persons under (e) above;
- (iii)
the involvement of non-lawyers in the body corporate does not put the lawyer directors or owners in breach of any applicable local rules; and
- (iv)
if the body corporate has an office in an Establishment Directive state, the rules applying in that jurisdiction would permit local lawyers to practise through a body corporate with similar involvement of non-lawyers.
- (i)
- (a)
Practice from an office outside England and Wales by a recognised body incorporated outside England and Wales
- (4)
- (a)
In relation to practice from an office outside England and Wales, a recognised body incorporated outside England and Wales is not subject to these rules except as specified in this paragraph.
- (b)
The recognised body is subject to:
- (i)
this paragraph;
- (ii)
- (iii)
- (iv)
rule 15 (Overseas practice), but only to the extent that rule 15 specifically applies any provision of these rules to a recognised body incorporated outside England and Wales.
- (i)
- (c)
If a provision of these rules does not apply to a recognised body incorporated outside England and Wales, 14.01(4) will not apply to a director, member or shareowner of the recognised body or a person employed to work in the practice of the recognised body, in relation to that rule.
- (a)
12.05 Definition of "lawyer" in this rule
In this rule, "lawyer" means a member, and entitled to practise as such, of:
- (a)
a legal profession covered by the Establishment Directive, including a solicitor and a barrister of England and Wales; or
- (b)
a legal profession not covered by the Establishment Directive, but excluding a lawyer whose registration under section 89 of the Courts and Legal Services Act 1990 is suspended or whose name has been struck off the register.
- (a)
Guidance to rule 12 – Framework of practice
- 1.
Rule 12 imposes restrictions on the type of business through which you may practise as a lawyer regulated by the Solicitors Regulation Authority. The main prohibitions can be summarised as follows:
- (a)
A solicitor may not practise from an office in England and Wales:
- (i)
in any partnership which has a separate legal identity;
- (ii)
through any body corporate which is not a recognised body; or
- (iii)
in partnership with any individual who is not directly regulated by the Solicitors Regulation Authority, except where there is an REL in the partnership, in which case non-registered European lawyers may also be partners.
Examples of partnerships which have separate legal identities are a general partnership formed under the law of Scotland, and a limited liability partnership formed under Californian law. Examples of partnerships which do not have separate legal identities are a general partnership formed under the law of England and Wales, and a limited liability partnership formed under the law of New York. Further guidance as to limited liability partnerships formed under the laws of various US states is available from the Professional Ethics Guidance Team.
- (i)
- (b)
A solicitor may practise with other lawyers from an office outside England and Wales in almost any kind of partnership or body corporate. Subject to strict limitations, a solicitor may also practise in partnership, or share ownership of a corporate firm with:
- (i)
an individual who is not a lawyer;
- (ii)
a body corporate which is not wholly owned and directed by lawyers; and
- (iii)
a partnership with a separate legal identity, whose partners are not all lawyers.
- (i)
- (c)
A recognised body must have one office in England and Wales, under 14.06(1). It is subject to restrictions in relation to its English and Welsh office(s) similar to those which apply to a solicitor – but, unlike a solicitor, a recognised body is not allowed to practise in England and Wales in partnership with an RFL. A recognised body which provides services direct to clients and is paid for the service provided is a "stand-alone firm" for the purpose of 12.04(1)(a). An executor, trustee or nominee company which is owned by a partnership is providing services in conjunction with a firm for the purpose of 12.04(1)(b). See notes 15 and 16 of the guidance to rule 14 (Incorporated practice).
- (d)
In relation to the practice of a recognised body from offices outside England and Wales, rule 12 applies differently according to whether the recognised body is incorporated in, or outside, England and Wales. All recognised bodies are subject to rule 14 (Incorporated practice) as to their own internal structure. A recognised body incorporated outside England and Wales can be a partner in a partnership which does not have an office in England and Wales, or share ownership of a corporate firm which does not have an office in England and Wales, without restriction. Although the rule allows a recognised body to participate in another firm which includes non-lawyers such a firm would have to be separate from the recognised body's practice from its office(s) in England and Wales.
- (e)
An REL is subject to the same restrictions as a solicitor in relation to practice from an office in England and Wales, or in Scotland or Northern Ireland, but is not subject to rule 12 in relation to practice from an office outside the UK. Although the rule would allow an REL to practise from an office in Scotland or Northern Ireland in a firm which includes non-lawyers, the rules governing Scottish solicitors and Northern Irish solicitors do not currently allow it.
- (f)
Partnerships between solicitors and RFLs, or between RELs and RFLs, are called multi-national partnerships (MNPs). An MNP cannot have a recognised body as a partner. An information booklet on RFLs and multi-national practice is available from the Professional Ethics Guidance Team. An RFL is subject to rule 12 only in relation to practice in England and Wales in partnership with a solicitor or an REL, or as a director of a recognised body which is a company, or as a member of a recognised body which is an LLP, except that:
- (i)
subrule 12.03(2) applies to prohibit an RFL from being held out or described as an RFL or as regulated by or registered with the Law Society or the Solicitors Regulation Authority in the context of participation in a business which is not a firm; and
- (ii)
subrule 12.03(3) applies to prohibit an RFL from being held out or described as an RFL or as regulated by or registered with the Law Society or the Solicitors Regulation Authority in the context of employment in a firm, or participation in a firm with no office in England and Wales.
- (i)
- (a)
- 2.
Subrule 12.03(3)(a) does not prevent you from being described as an RFL in order to show that you are entitled to be held out as a "partner" of an LLP – see notes 34 to 37 of the guidance to rule 7 (Publicity).
- 3.
Other rules govern, or restrict, certain specific types of practice, as follows:
- (a)
Rule 13 (In-house practice) sets out the limited circumstances in which, as an in-house solicitor or in-house REL in England and Wales, you can provide services to persons other than your employer.
- (b)
Rule 14 (Incorporated practice) governs the internal structure of a recognised body. The provisions of rule 14 link with the prohibitions in rule 12 on practising from an office in England and Wales through a body corporate which is not a recognised body. The Solicitors' Recognised Bodies Regulations 2007 set out the formalities relating to applying for recognition, etc.
- (c)
Rule 15 (Overseas practice) governs practice as a solicitor from an office outside England and Wales, or an REL's practice as a lawyer of an Establishment Directive state from an office in Scotland or Northern Ireland. It also governs the overseas practice of a recognised body. Rule 15 applies or modifies other rules in relation to overseas practice. Sometimes a provision does not apply at all, or is replaced with a more flexible requirement suitable to practice in other jurisdictions.
- (d)
Rule 8 (Fee sharing) sets out the limited circumstances in which you may share fees with non-lawyers. Fee sharing with non-lawyers is not generally allowed, except with a partner permitted for overseas practice under rule 12, or for the purpose of raising capital or obtaining services for the firm. Note in particular, that:
- (i)
fee sharing with non-lawyers remains prohibited in relation to European cross-border practice (see rule 16 European cross-border practice);
- (ii)
a firm cannot share its fees even with an overseas partnership or overseas corporate firm which is permitted under rule 12, if that other firm includes non-lawyers.
- (i)
- (e)
Rule 21 (Separate businesses) prohibits you from providing some services through a business which is not regulated by the Solicitors Regulation Authority. If you practise in England and Wales you are generally required to provide legal services as a practising lawyer regulated by the Authority. If you provide other "solicitor-like"' services through a business which is not regulated by the Authority you must put in place safeguards to prevent confusion arising from your professional status. For example:
- (i)
under 21.04 you may have a separate business as an estate agent but you must comply with all the safeguards set out in 21.05.
- (ii)
under 21.02 you may not have a separate business which provides trustee, executor or nominee services in England and Wales, so such a trustee, executor or nominee company must be a recognised body.
- (i)
- (a)
- 4.
You should note the following matters of law:
- (a)
If you are an REL you have the same rights of audience, rights to conduct litigation and rights to draft litigation documents as a solicitor, but you must act in conjunction with a solicitor and/or barrister. You may not do or supervise reserved conveyancing or probate work unless you are qualified to do that work under regulation 12 or 13 of the European Communities (Lawyer's Practice) Regulations 2000 (SI 2000 /1119). At present:
- (i)
RELs qualified in Cyprus, the Czech Republic, Denmark, Finland, Hungary, Iceland, the Irish Republic, Liechtenstein, Norway, Slovakia and Sweden are entitled to do reserved conveyancing work in England and Wales; and
- (ii)
RELs qualified in Austria, Cyprus, Denmark, Finland, Germany, Iceland, the Irish Republic, Liechtenstein, Norway, Slovakia and Sweden are entitled to do reserved probate work in England and Wales.
- (i)
- (b)
If you are an RFL you are not a "qualified person" under the Solicitors Act 1974. Becoming an RFL does not confer any right of audience, right to conduct litigation or right to do or supervise reserved conveyancing, probate, trust or litigation work. An RFL who is a partner in an MNP cannot even do certain work which an employee of the MNP could do – appearing in chambers as a solicitor's clerk, or doing reserved conveyancing, probate, trust or litigation work under the supervision of a solicitor. However, an RFL who is a director of a recognised body which is a company or a member of a recognised body which is an LLP can do reserved conveyancing, probate, trust or litigation work under the supervision of a "qualified person" in the recognised body. If the recognised body is a company that person must be a co-director and if the recognised body is an LLP that person must be a fellow member.
- (c)
RFLs and MNPs exist by virtue of the Courts and Legal Services Act 1990. Under section 89 of and Schedule 14 to that Act:
- (i)
a solicitor or barrister of England and Wales, even if not practising as such, cannot be an RFL;
- (ii)
only a person who is a member, and entitled to practise as such, of a legal profession regulated within a jurisdiction outside England and Wales can become an RFL;
- (iii)
before a lawyer can be registered as an RFL the Solicitors Regulation Authority must have approved that lawyer's profession for the purpose (the Authority's booklet on RFLs lists the professions already approved); and
- (iv)
the applicant must be of good standing, there must be no other circumstances to make registration undesirable, and the applicant's own profession must not prohibit practice in partnership with English solicitors in England and Wales (the Authority's booklet on RFLs lists the professional bodies which have already confirmed that their rules do not prohibit practice in partnership with solicitors in England and Wales).
- (i)
- (d)
Under the Immigration and Asylum Act 1999, immigration advice and immigration services may be provided by a firm, on the basis that the service is either provided by or supervised by:
- (i)
a solicitor;
- (ii)
a lawyer of an Establishment Directive state, including an REL;
- (iii)
an RFL who is a partner in an MNP, a director of a recognised body which is a company, or a member of a recognised body which is an LLP; or
- (iv)
a legal executive (FILEX) employee of the firm.
- (i)
- (e)
If you are an REL or an RFL, legal restrictions on your right to do or to supervise certain types of work do not prevent you from being the person in a firm who is "qualified to supervise" for the purpose of 5.02 (Persons who must be "qualified to supervise"). However, under 5.01(1)(a) you would have to ensure that unqualified employees do not do reserved work unless supervised by a solicitor, or by an REL who is entitled to undertake and supervise that work. See also notes 8 and 41 of the guidance to rule 5 (Business management).
- (a)
- 5.
Rule 12 governs the types of business through which you may practise, but disgraceful conduct outside your practice may put you in breach of 1.06 (Public confidence).
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