Rule 20: Rights and obligations of practice
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Rule 20 of the Code of Conduct was amended on 1 July 2009 as part of a general updating of the rules to introduce firm-based regulation and legal disciplinary practices as provided for in the Legal Services Act 2007. View rule 20 with 1 July 2009 changes highlighted
Rule 20 of the Code of Conduct was amended on 31 March 2009 as part of a general updating of the rules to introduce firm-based regulation and legal disciplinary practices as provided for in the Legal Services Act 2007. View rule 20 with 31 March 2009 changes highlighted
Rule
20.01 Reserved work and immigration work
Solicitors
RELs
- (2)
As an REL, you are authorised by the Solicitors Regulation Authority:
- (a)
to undertake the following reserved work:
- (i)
the exercise of any right of audience which solicitors had immediately before 7 December 1989;
- (ii)
the exercise of any additional right of audience provided that you have a relevant higher courts advocacy qualification awarded by the SRA or another approved regulator;
- (iii)
the conduct of, and the preparation of documents in, court and immigration tribunal proceedings;
- (iv)
the preparation of instruments and the lodging of documents relating to the transfer or charge of land, provided you are a member of a profession listed under regulation 12 of the European Communities (Lawyer's Practice) Regulations 2000;
- (v)
the preparation of trust deeds disposing of capital;
- (vi)
the preparation of papers on which to found or oppose a grant of probate or a grant of letters of administration, provided you are a member of a profession listed under regulation 13 of the European Communities (Lawyer's Practice) Regulations 2000;
- (vii)
the administration of oaths and statutory declarations;
- (b)
to undertake immigration services not included under (a) above, and to provide immigration advice.
- (3)
When as an REL you exercise a right of audience before a court under (2)(a)(i) or (ii), conduct court litigation under (2)(a)(iii) or prepare court documents under (2)(a)(iii) you must act in conjunction with a solicitor or barrister authorised to do that work.
RFLs
Recognised bodies
- (5)
- (a)
A recognised body is authorised by the Solicitors Regulation Authority to undertake the following reserved work:
- (i)
advocacy before a court or immigration tribunal provided the manager or employee exercising the right of audience is authorised by the Solicitors Regulation Authority, or otherwise entitled, to do so;
- (ii)
the conduct of proceedings in a court or immigration tribunal;
- (iii)
the preparation of documents in proceedings before a court or immigration tribunal;
- (iv)
the preparation of instruments and the lodging of documents relating to the transfer or charge of land, provided the body has a manager who is an individual authorised to do that work, or a body corporate with a manager who is authorised to do that work;
- (v)
the preparation of trust deeds disposing of capital;
- (vi)
the preparation of papers on which to found or oppose a grant of probate or a grant of letters of administration, provided the body has a manager who is an individual authorised to do that work, or a body corporate with a manager who is authorised to do that work;
- (vii)
the administration of oaths and statutory declarations.
- (b)
A recognised body is authorised to undertake immigration services which are not within (a) above, and to provide immigration advice.
- (c)
A recognised body which has an individual working in the practice who is authorised by the Master of the Faculties to do the work is authorised to provide notarial services within paragraph 7 of Schedule 2 to the Legal Services Act 2007.
Recognised sole practitioners
- (6)
- (a)
A recognised sole practitioner who is a solicitor is authorised by the Solicitors Regulation Authority:
- (i)
to provide any reserved work which the solicitor is authorised to provide under (1)(a) above, and any other advocacy service to the extent that an employee of the firm exercising a right of audience is authorised by the Solicitors Regulation Authority, or otherwise entitled, to do so;
- (ii)
to undertake immigration services which are not within (i) above, and provide immigration advice; and
- (iii)
to provide notarial services within paragraph 7 of Schedule 2 to the Legal Services Act 2007, if the sole practitioner or an employee of the firm is authorised by the Master of the Faculties to do the work.
- (b)
A recognised sole practitioner who is an REL is authorised by the Solicitors Regulation Authority:
- (i)
to provide any reserved work which the REL is authorised to provide under (2)(a) above, and any other advocacy service to the extent that an employee of the firm exercising a right of audience is authorised by the Solicitors Regulation Authority, or otherwise entitled, to do so;
- (ii)
to undertake immigration services which are not within (i) above, and provide immigration advice; and
- (iii)
to provide notarial services within paragraph 7 of Schedule 2 to the Legal Services Act 2007, if the sole practitioner or an employee of the firm is authorised by the Master of the Faculties to do the work.
20.02 Practising certificates
- (1)
If you are practising as a solicitor you must, whether practising in a firm or in-house:
- (2)
You will be practising as a solicitor if you are involved in legal practice and:
- (a)
your involvement in the firm or the work depends on your being a solicitor;
- (b)
you are held out explicitly or implicitly as a practising solicitor;
- (c)
you are employed explicitly or implicitly as a solicitor; or
- (d)
you are deemed by section 1A of the Solicitors Act 1974 to be acting as a solicitor.
- (3)
In (2) above "legal practice" includes not only the practice of law but also the provision of other services such as are provided by solicitors.
- (4)
If you are a solicitor who was formerly an REL, and you are practising from an office in the UK as a lawyer of an Establishment Directive profession, you must have in force a practising certificate issued by the Solicitors Regulation Authority, even if you are not practising as a solicitor.
20.03 Sole practitioners
- (1)
If you are a solicitor or REL you must not practise as a sole practitioner unless:
- (a)
the Solicitors Regulation Authority has first authorised you as a recognised sole practitioner by endorsing your practising certificate or certificate of registration to that effect; or
- (b)
your practice falls within (2) below and you are therefore exempt from the obligation to be a recognised sole practitioner.
- (2)
For the purpose of (1) above and section 1B of the Solicitors Act 1974 you are deemed not to be practising as a sole practitioner if:
- (a)
your practice is conducted entirely from an office or offices outside England and Wales;
- (b)
your practice consists entirely of work as a temporary or permanent employee and any firm which employs you takes full responsibility for you as an employee; or
- (c)
your practice consists entirely of:
- (i)
providing professional services without remuneration for friends, relatives, companies wholly owned by you or your family, or registered charities;
- (ii)
administering oaths and statutory declarations; and/or
- (iii)
activities which could constitute practice but are done in the course of discharging the functions of any of the offices or appointments listed in paragraph (b) of the definition of "Private Practice" in rule 3.1 of the Solicitors' Indemnity Insurance Rules.
- (3)
- (a)
Within 28 days of the death of a recognised sole practitioner, an emergency application may be made for recognition as a recognised sole practitioner by a solicitor or an REL who is:
and if the application is granted, recognition will be deemed to run from the date of death.
- (b)
Recognition in the capacity of personal representative, practice manager or employee will not be renewed for any period after the winding up of the estate or 12 months from the date of death, whichever is the earlier.
20.04 Participation in legal practice
- (1)
If you are a solicitor, REL or RFL and you are:
- (a)
a manager, member or owner of:
- (b)
employed in England and Wales in connection with the provision of legal services by:
it must be in your capacity as a solicitor, REL or RFL. This does not prevent you practising also as an individual authorised by an approved regulator other than the Solicitors Regulation Authority or providing services as a member of a non-lawyer profession.
- (2)
Subject to (3) below, if you are a solicitor, REL or RFL and you are:
- (a)
a manager, member or owner of:
- (b)
employed in England and Wales in connection with the provision of legal services by:
it must be in your capacity as a solicitor, REL or RFL or as an individual authorised by an approved regulator other than the Solicitors Regulation Authority. This does not prevent you practising in both capacities or providing services as a member of a non-lawyer profession in addition to practising as a lawyer.
- (3)
If you are a solicitor who is employed by, or is a director of, an authorised non-SRA firm, section 1A of the Solicitors Act 1974 will require you to practise through that firm in the capacity of solicitor, even if also practising in some other capacity.
- (4)
No solicitor or REL, while a prisoner in any prison, may commence, prosecute or defend any action, suit or other contentious proceedings, or appear as an advocate in any such proceedings, unless he or she does so as a litigant in person and not as a solicitor or REL.
20.05 Duty to co-operate with the Solicitors Regulation Authority and the Legal Complaints Service
- (1)
You must deal with the Solicitors Regulation Authority and the Legal Complaints Service in an open, prompt and co-operative way.
- (2)
You must:
- (a)
provide the Solicitors Regulation Authority with information necessary in order to issue you with a practising certificate, or deal with renewal of registration or renewal of recognition, as appropriate; and
- (b)
during the period your practising certificate, registration or recognition is in force, notify the Authority of any changes to relevant information about you, or your firm or in-house practice.
- (3)
As a solicitor, REL, RFL or recognised body you must act promptly to:
- (a)
investigate whether any person may have a claim for redress resulting from an act or omission of yours;
- (b)
provide the Solicitors Regulation Authority with a report on the outcome of such an investigation, identifying persons who may have such a claim;
- (c)
notify such persons that they may have a right of redress against you, providing them with information as to the nature of the possible claim, about the firm's complaints procedures and about the Legal Complaints Service;
- (d)
where you have identified a person who may have a claim for redress, ensure that the matter is dealt with under the firm's complaints procedures as if that person had made a complaint,
if required by the Solicitors Regulation Authority in relation to a matter specified by the Authority.
20.06 Reporting serious misconduct and serious financial difficulty
You must (subject, where necessary, to your client's consent) report to the Solicitors Regulation Authority if:
- (a)
you become aware of serious misconduct by a solicitor, an REL, an RFL, a recognised body, a manager of a recognised body, or an employee of a recognised body or recognised sole practitioner;
- (b)
you have reason to doubt the integrity of a solicitor, an REL or an RFL, a manager of a recognised body or an employee of a recognised body or recognised sole practitioner; or
- (c)
you have reason to believe that a solicitor, an REL, an RFL, a recognised body, a manager of a recognised body, or a firm is in serious financial difficulty which could put the public at risk.
20.07 Obstructing complaints
- (1)
You must not try to hinder or prevent a person who wishes to report your conduct to the Solicitors Regulation Authority or the Legal Complaints Service from doing so.
- (2)
You must not victimise a person for reporting your conduct to the Solicitors Regulation Authority or the Legal Complaints Service.
- (3)
You must not on your own or on your clients' behalf enter into an agreement which would attempt to preclude the Solicitors Regulation Authority or the Legal Complaints Service from investigating any actual or potential allegation of professional misconduct.
- (4)
Unless you can properly allege malice, you must not issue defamation proceedings in respect of a complaint to the Solicitors Regulation Authority or the Legal Complaints Service.
20.08 Production of documents, information and explanations
- (1)
You must promptly comply with:
- (a)
a written notice from the Solicitors Regulation Authority that you must produce for inspection by the appointee of the Solicitors Regulation Authority all documents held by you or held under your control and all information and explanations requested:
- (i)
in connection with your practice; or
- (ii)
in connection with any trust of which you are, or formerly were, a trustee;
for the purpose of ascertaining whether any person subject to these rules is complying with or has complied with any provision of these or any other rules, codes or mandatory guidance made or issued by the Solicitors Regulation Authority; and
- (b)
a notice given by the Solicitors Regulation Authority in accordance with section 44B or 44BA of the Solicitors Act 1974 for the provision of documents, information or explanations.
- (2)
You must provide any necessary permissions for information to be given so as to enable the appointee of the Solicitors Regulation Authority to:
- (a)
prepare a report on the documents produced under (1) above; and
- (b)
seek verification from clients, staff and the banks, building societies or other financial institutions used by you.
- (3)
- (4)
A notice under this rule is deemed to be duly served:
- (a)
on the date on which it is delivered to or left at your address;
- (b)
on the date on which it is sent electronically to your e-mail or fax address; or
- (c)
seven days after it has been sent by post or document exchange to your last notified practising address.
20.09 Dealing with claims
- (1)
If you are a sole practitioner or a manager of a firm and you discover an act or omission which could give rise to a claim, you must inform the client.
- (2)
If a client makes a claim against you, or notifies an intention to do so, or if you discover an act or omission which could give rise to a claim, you must:
- (a)
inform the client that independent advice should be sought (unless the client's loss, if any, is trivial and you promptly remedy that loss);
- (b)
consider whether a conflict of interests has arisen, and if so not act further for the client in the matter giving rise to the claim; and
- (c)
notify your compulsory professional indemnity insurer under the Solicitors' Indemnity Insurance Rules or 15.26 or, if appropriate, the Solicitors Indemnity Fund Ltd.
20.10 Compliance with conditions
If you are a solicitor, REL, RFL or recognised body you must comply with any condition which the Solicitors Regulation Authority (or previously the Law Society) has imposed on your practising certificate, registration or recognition.
Guidance to rule 20 - Rights and obligations of practice
Scope of rule 20
1.In summary, rule 20:
- (a)
formally authorises solicitors, RELs, RFLs, recognised bodies and recognised sole practitioners to do specific types of reserved work and immigration work;
- (b)
requires practising solicitors to have a practising certificate unless they are exempt under section 88 of the Solicitors Act 1974;
- (c)
sets out the requirement that a solicitor or REL who wishes to practise as a sole practitioner must be authorised as a recognised sole practitioner;
- (d)
requires that a solicitor's, REL's or RFL's participation in a law firm must be as a practising lawyer;
- (e)
requires co-operation with regulators in providing information;
- (f)
requires reporting of serious misconduct;
- (g)
requires fair dealing with clients in relation to claims and complaints;
- (h)
requires compliance with conditions imposed by the SRA.
Reserved work and immigration work —; 20.01
Solicitors
2.Provided you hold a practising certificate or are exempt under section 88 of the Solicitors Act, rule 20.01 authorises you to conduct advocacy (but note that for advocacy in the higher courts you will need to have obtained a qualification to exercise a right of audience), litigation, reserved instrument activities, probate activities, immigration work and to administer oaths.
RELs
3.If you are an REL 20.01 authorises you to do the same work as solicitors, but note that:
- (a)
you can only exercise higher rights of audience if you have a higher courts advocacy qualification;
- (b)
if you are undertaking advocacy or litigation or drawing court documents you must act in conjunction with a solicitor and/or barrister authorised to do that work;
- (c)
only an REL from certain jurisdictions can do reserved instrument activities relating to conveyancing or probate:
- (i)
under regulation 12 of the European Communities (Lawyer's Practice) Regulations 2000 (SI 2000/1119), only 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)
under regulation 13 of those regulations, only 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.
RFLs
4.If you are an RFL you are authorised:
- (a)
to do advocacy before immigration tribunals;
- (b)
to conduct, and prepare documents in, immigration tribunal proceedings;
- (c)
to do all other immigration work which is not reserved work.
Note that RFLs are not authorised to do immigration work before the courts.
Recognised bodies
5.Recognised bodies are authorised to do the same reserved work as solicitors, but note that a recognised body can only:
- (a)
undertake higher court advocacy work if it has a manager or employee entitled to do that work;
- (b)
reserved instrument activities relating to conveyancing, or probate activities if it has a manager who is an individual entitled to do that work, or which is a body corporate with a manager who is entitled to do that work;
- (c)
notarial work if it has an individual working in the practice who is authorised to do the work.
Recognised sole practitioners
6.Recognised sole practitioners are authorised to:
- (a)
undertake the reserved work the solicitor or REL sole practitioner is authorised to do as an individual;
- (b)
exercise advocacy rights additional to those the solicitor or REL sole practitioner is authorised to exercise as an individual if an employee exercising the right is authorised by the SRA or otherwise entitled to do so;
- (c)
undertake notarial work if the sole practitioner or an employee is authorised by the Master of Faculties to do the work.
Reserved work
7.Reserved work is work that is defined in Schedule 2 to the Legal Services Act 2007 as a "reserved legal activity". Certain categories of reserved work (rights of audience in chambers, reserved instrument activities and probate activities) can be done by an unqualified person under the supervision of a manager or fellow employee qualified to do that work - see Schedule 3 to the Legal Services Act.
Immigration work
8.Immigration work (immigration advice and immigration services) is restricted to certain persons under the Immigration and Asylum Act 1999. Immigration services relating to courts or immigration tribunals are reserved work - advocacy, the conduct of cases, and the preparation of papers. The court work is subject to the normal restriction on court work. Immigration Tribunal work can be done by RFLs who are practising as such. Other immigration work is not reserved work, but can only be done by an authorised person such as a solicitor, a barrister, a legal executive, a member of an Establishment Directive profession, or an RFL practising as such, or under the supervision of an authorised person, or under an exemption given by the Office of the Immigration Services Commissioner.
Financial services
9.The Financial Services and Markets Act 2000 reserves the provision of "regulated activities" to persons authorised by the Financial Services Authority (FSA). Certain "regulated activities", ancillary to the provision of a professional service, are exempt from regulation by the FSA when carried out by solicitors' or RELs' firms - see the Solicitors' Financial Services (Scope) Rules. Note that the firm must be a recognised body or recognised sole practitioner to rely on this exemption. For the definition of "regulated activity" see 19.01(4).
Practising certificates - 20.02
10.Rule 20.02 includes, in rule form, the requirements of section 1 of the Solicitors Act 1974. The section reads:
"No person shall be qualified to act as a solicitor unless -
- (a)
he has been admitted as a solicitor, and
- (b)
his name is on the roll, and
- (c)
he has in force a certificate issued by the Society in accordance with the provisions of this Part authorising him to practise as a solicitor (in this Act referred to as a 'practising certificate')."
The issuing of practising certificates under Part II of the Act is the responsibility of the SRA.
11.Under section 1A of the Solicitors Act, a solicitor is always deemed to be acting as a solicitor if he or she is employed, in connection with the provision of any legal services, by a solicitor with a practising certificate, any partnership with at least one member who is a solicitor with a practising certificate, a recognised body, or an individual or firm authorised by any approved regulator under the Legal Services Act 2007.
12.If you practise as a solicitor, whether in a firm or in-house, without having a practising certificate, you will commit a criminal offence, as well as a breach of the rules, unless you are entitled to rely on the exemption in section 88 of the Solicitors Act.
13.Section 88 of the Solicitors Act 1974 exempts from the requirement to hold a practising certificate the solicitor to certain public authorities, and a solicitor who is the "clerk" to such a solicitor. The section reads:
- "(1)
Nothing in this Act shall prejudice or affect any rights or privileges of the solicitor to the Treasury, any other public department, the Church Commissioners or the Duchy of Cornwall, or require any such officer or any clerk or officer appointed to act for him to be admitted or enrolled or to hold a practising certificate in any case where it would not have been necessary for him to be admitted or enrolled or to hold such a certificate if this Act had not been passed.
- (1A)
The exemption from the requirement to hold a practising certificate conferred by subsection (1) above shall not apply to solicitors who are Crown Prosecutors.
- (2)
Sections 31 and 32(1) shall not apply to, and nothing in this Act shall prejudice or affect any rights or privileges which immediately before the commencement of this Act attached to the office of the Solicitor of the City of London."
14.Although section 88 of the Solicitors Act 1974 preserves certain pre-existing rights, privileges and exemptions, it does not say what these are. They are to be found in a number of statutory provisions of some age, each conferring different rights, privileges or exemptions on different persons. Some of the older provisions do not fit easily into modern conditions and it is not possible to provide a full list of exemptions. The view of the SRA Board is as follows.
- (a)
A solicitor is exempt who holds office as the solicitor (i.e. the principal solicitor) to:
- (i)
the Treasury;
- (ii)
any other public department;
- (iii)
the Church Commissioners; and
- (iv)
the Duchy of Cornwall; or
- (v)
a solicitor who is a clerk or officer appointed to act for one of the above.
- (b)
The exemption relates to the capacity and employment of the solicitor. Thus, for instance, a solicitor who holds office as the principal solicitor to a public department, but in a different capacity or employment administers oaths, cannot rely on the section 88 exemption in respect of that other capacity or employment.
- (c)
There is no definition of "public department" in the Solicitors Act. In the absence of a definition, the SRA Board takes the view that "any other public department" would include any department of central government in the UK, the National Assembly of Wales and any "non-ministerial department", but would not include other agencies or "non-departmental public bodies".
Assistance in determining whether a department or agency is a "non-ministerial department" or a "non-departmental public body" can be found on the Civil Service website - www.civilservice.gov.uk.
- (d)
Section 88(1A) of the Solicitors Act requires a solicitor who is a Crown Prosecutor to hold a practising certificate.
Being held out as a practising solicitor - 20.02(2)(b)
15.Being described on your firm's notepaper or website as a member of the Law Society is an example of being held out "implicitly" as a solicitor.
16.There is a presumption that you are practising as a solicitor if you are held out (explicitly or implicitly) as a solicitor whilst providing lawyer-like services. The same presumption arises if you are described as a lawyer in such a context, if you have no other legal qualification to justify that description. It is possible in some circumstances to rebut the presumption by ensuring that some such words as "non-practising" are used whenever you are held out as a solicitor or lawyer. However, you cannot rebut the presumption if you rely on being a solicitor in the context of legal practice - for example in order:
- (a)
to be a partner in a firm of lawyers;
- (b)
to be employed as a solicitor or lawyer;
- (c)
to do work in England and Wales which is reserved to solicitors;
- (d)
to do work in another jurisdiction which is reserved to lawyers;
- (e)
to be a registered foreign legal consultant in another jurisdiction; or
- (f)
to be a registered lawyer in another European profession under the Establishment Directive.
Instructing counsel is not restricted to any particular category of person by statute. However, barristers only accept instructions made professionally on behalf of clients from solicitors and limited categories of non-solicitors - see the Bar Standards Board's website for details - www.barstandardsboard.org.uk. If you instruct counsel as a solicitor, you will be practising as a solicitor and must have a practising certificate.
17.If you are dually qualified you may be practising as a member of both professions simultaneously, either through a single combined practice, or through two separate practices. In the latter case you would need separate notepaper, etc., to distinguish the two practices.
18.The context of a description can make a real difference as to whether you are held out as a practising solicitor or not. For example:
- (a)
if you are running a web-based or telephone advice service, and describe yourself as a solicitor (without qualifying the description with words such as "non-practising"), you will need a practising certificate; and
- (b)
if your only work is as an academic and writer, and you have written a legal textbook in which you are described as a solicitor or as a lawyer on the title page, you will not need a practising certificate. This is because there is no context of services normally provided by practising solicitors.
Retirement from practice
19.You may continue to need a practising certificate after you retire, depending on how complete your retirement is. If you have closed your firm, but will continue to hold money for clients only while you submit bills of costs and close your practice accounts, you will still be subject to the Solicitors' Accounts Rules 1998. However, if that is all you are doing you will not need a practising certificate, provided that a solicitor with a practising certificate authorises any withdrawals from your client account.
20.If you have retired but continue to do some work, you may need a practising certificate. For example:
- (a)
you must have a practising certificate if you continue to work in a firm in connection with the provision of legal services. This would include being a consultant or supervising fee earners, even if you only help out on an occasional basis or cover a professional colleague's holiday absences; or
- (b)
you must have a practising certificate if you continue to undertake any reserved work.
21.If you are completely retired from all legal work you may still need a practising certificate if, for example:
- (a)
you continue to be held out as a solicitor or lawyer by your former firm; or
- (b)
your name appears on your firm's notepaper as a "consultant", unless it is made clear on the notepaper that you are not practising.
Sole practitioners - 20.03
22.From 1 July 2009, rule 20.03 prohibits a solicitor or REL from practising as a sole practitioner in England and Wales unless authorised by the SRA as a recognised sole practitioner or exempt under the rule. Existing sole practitioners who qualify for recognition will be "passported" to recognition as of 1 July 2009. If you wish to set up in sole practice on or after that date you will need to apply to the SRA for your practising certificate (in the case of a solicitor) or your certificate of registration (in the case of an REL) to be endorsed to that effect.
23.The rule exempts solicitors and RELs from this requirement whose practice:
- (a)
is conducted entirely overseas;
- (b)
consists entirely of work for firms which employ and take full responsibility for them (e.g. consultants and locums);
- (c)
consists entirely of providing free professional services to friends, relatives, wholly owned companies or registered charities, administering oaths and statutory declarations;
- (d)
consists entirely of activities done in the course of discharging the functions of certain offices or appointments.
24.The rule allows a period of 28 days from the death of a recognised sole practitioner to make an emergency application for recognition as a recognised sole practitioner by a solicitor or REL who is:
If the application is granted, recognition is deemed to run from the date of death.
25.Recognition in the capacity of personal representative, practice manager or employee will not be renewed for any period after the winding up of the estate or 12 months from the date of death, whichever is the earlier.
Participation in legal practice — 20.04
26.Rule 20.04 provides that a solicitor, REL or RFL who is a manager, member or owner of a recognised body, or who is employed in England and Wales in connection with the provision of legal services by a recognised body, a recognised sole practitioner or an authorised non-SRA firm must participate as a solicitor, REL or RFL (even if also in some other capacity as well).
Duty to co-operate with the Solicitors Regulation Authority and the Legal Complaints Service - 20.05
27.Rule 20.05 requires you to deal with any communication from the SRA or the Legal Complaints Service properly. This means that you will need to respond promptly and substantively to communications when appropriate - for example, to a letter referring to a complaint made against you or a member of your firm.
28.The duty imposed by 20.05 may be limited by your legal obligations to your clients or others, for example your obligation to protect clients' confidentiality and privilege.
29.You should note that failure to comply with a request for an explanation of any matter in relation to your conduct may result in the imposition of conditions on a recognised body's recognition, a solicitor's practising certificate or an REL's or RFL's registration, or even refusal by the SRA to issue a practising certificate or renew a registration.
30.Rules 1.02 (Integrity) and 1.06 (Public confidence) require you to act with integrity and to refrain from behaviour likely to diminish the trust the public places in you or the profession. You should therefore, unless there is good reason to the contrary, comply with binding orders or requests for information from the Legal Services Ombudsman. Similarly, it may be appropriate, subject to any overriding duties, to assist the Bar Council or other regulatory body when they are investigating the conduct of a member of their profession. If you are an individual authorised by an approved regulator other than the SRA, you must comply with that regulator's requirements.
31.Abusive communications and unreasonable attempts to delay an investigation or enquiry are inconsistent with the co-operation required by 20.05.
32.Rule 20.05(3) requires solicitors, RELs, RFLs and recognised bodies to take prompt action to comply with an SRA requirement in relation to a specified matter:
- (a)
to investigate whether anyone may have a claim for redress;
- (b)
to provide the SRA with a report identifying those who may have a claim for redress;
- (c)
notify those who may have a claim for redress, providing them with relevant information concerning the complaints process;
- (d)
deal with the matter under your firm's complaints procedures as if the person with a claim had made a complaint.
Reporting serious misconduct and serious financial difficulty - 20.06
33.The purpose of 20.06 is to protect the public and the integrity of the profession. Often, professional colleagues will be aware of serious misconduct and/or risk arising from a firm's financial problems before any complaint has been made, and if the SRA is notified it can take timely action. The SRA's Fraud and Confidential Intelligence Bureau will consider information of this nature on an anonymous basis if requested.
34.Unless you are required by law to report a matter, 20.06 does not apply to confidential and/or privileged information another lawyer discloses to you:
- (a)
as your client or the client of your firm; or
- (b)
when seeking advice from a confidential helpline, such as the Solicitors' Assistance Scheme or Lawcare.
35.You will not breach 20.06 if you take no action because you know that someone else has already reported a matter of which you are aware.
36.Whether or not "misconduct" can be considered "serious", and whether or not a firm's financial difficulties could put the public at risk, will depend on the circumstances. In general, any conduct involving dishonesty or deception or a serious criminal offence would amount to "serious misconduct". If in your judgement a firm's financial difficulties present a risk to its clients or to others, you should report the matter, and can do so on a confidential basis if you wish.
37.If reporting misconduct which has taken place within your own firm and which may give rise to a claim, you should also consider your obligations to your insurers. See also note 54 of the guidance to rule 3 (Conflict of interests).
38.If making a report about another lawyer or firm would involve disclosing confidential information, you should obtain your client's consent before proceeding.
39.You should exercise care where there may be evidence of money laundering activities (see the Proceeds of Crime Act 2002, other relevant statutes and regulations, and guidance issued by the Law Society and the SRA on this subject).
Obstructing complaints - 20.07
40.No agreement, whether with a client or a third party, can affect the rights of the SRA or the Legal Complaints Service to investigate misconduct or to consider complaints. To attempt to make such an agreement is a breach of 20.07. Examples of situations that would breach 20.07 are:
- (a)
accepting instructions to act for a client which involve any agreement preventing the SRA or the Legal Complaints Service from investigating your conduct or the conduct of a member of your firm;
- (b)
improperly demanding, offering or accepting payment in return for not reporting alleged misconduct;
- (c)
harassing or bringing improper pressure to bear on a complainant or potential complainant; and
- (d)
issuing proceedings for defamation against a client or former client in relation to material contained in a complaint to the SRA or the Legal Complaints Service, unless you are alleging malice.
41.The following, however, would not breach 20.07:
- (a)
proper attempts to persuade the client that the client's complaint is unfounded; and
- (b)
in a case of inadequate professional services, genuine attempts to propose an agreement to compensate the aggrieved client.
Production of documents, information and explanations - 20.08
42.The SRA will only exercise its powers under 20.08 in accordance with the law, in pursuit of a legitimate aim and proportionate to that aim.
43.The SRA may use or disclose any information obtained under 20.08 and the report prepared by its appointee:
- (a)
in proceedings before the Solicitors Disciplinary Tribunal;
- (b)
to the police, the Crown Prosecution Service or the Serious Fraud Office for use in investigating the matter and in any subsequent prosecution, if it appears that you or any manager, employee, member or owner of your firm may have committed a serious criminal offence;
- (c)
to your regulatory body in your home state or states if you are an REL or RFL ;
- (d)
to the regulatory body with which you are registered, if you are a solicitor registered under the Establishment Directive;
- (e)
to the regulatory body of any manager or employee of your firm; and/or
- (f)
to the professional body of which the accountant who has signed the firm's accountant's report is a member, or by which the accountant is regulated (and the information and report may also be taken into account by the SRA in relation to a possible disqualification of that person from signing an accountant's report in future).
44.Note that sections 44B and 44BA of the Solicitors Act 1974 give the SRA power to require the production of documents, give information and to provide explanations for the purpose of investigation whether there has been professional misconduct or regulatory non-compliance.
Dealing with claims - 20.09
45.The aim of 20.09 is to ensure that a claim or a potential claim is dealt with fairly and efficiently. In particular, the client should be advised at the earliest possible opportunity of an act or omission which could give rise to a claim. "Claim" has the meaning given in the Solicitors' Indemnity Insurance Rules (Minimum Terms and Conditions).
46.You must consider whether a conflict of interests has arisen between your interests and your client's. It will be rare for there to be no conflict. Where there is, you must refuse to act further in the matter.
47.Under 2.05 firms must operate a complaints handling procedure. Complaints should be dealt with under that procedure, where appropriate, rather than as claims. For example, if your client makes a complaint purely relating to poor service, it would rarely be appropriate to treat that complaint as a claim.
48.In order that a claim can be dealt with efficiently, you should consult the qualifying insurer or ARP Manager in accordance with the policy terms. In some circumstances, you may need to take limited steps to preserve your client's position.
49.There is no general duty for you to keep under review work which has been concluded. However, if you discover an act or omission which could give rise to a claim relating to a former client, you should notify your compulsory professional indemnity insurer (or, if appropriate, SIF ) and seek their advice as to what further steps to take.
50.Under the Solicitors' Indemnity Insurance Rules a firm must provide details of its insurer to a person who asserts a claim against the firm. The details are the name and address of the qualifying insurer and the policy number. It is good practice for you also to provide these details to a potential claimant if you discover an act or omission which could give rise to a claim. The SRA may disclose information regarding a firm's qualifying insurer where it considers it appropriate to do so to any person asserting a claim against the firm.
51.You and your insurers should also comply with the terms of the professional negligence pre-action protocol (available from the website of the Ministry of Justice).
52.The aim of the protocol is to establish a framework in which there is an early exchange of information between the parties so that a claim can be fully investigated and, if possible, resolved without the need for litigation. This includes:
- (a)
ensuring that the parties are on an equal footing;
- (b)
saving expense;
- (c)
dealing with the dispute in ways which are proportionate:
- (i)
to the amount of money involved;
- (ii)
to the importance of the case;
- (iii)
to the complexity of the issues; and
- (iv)
to the financial position of each party; and
- (d)
ensuring that the claim is dealt with expeditiously and fairly.
53.The court can make an order for costs against a party for failure to comply with the protocol. While normally it would be a matter for the insurer to ensure that the protocol is complied with, you should be aware of it when asked to provide information to the insurer, and in the occasional circumstances where an insurer may agree to you handling the claim.
Compliance with conditions - 20.10
54.The SRA has powers to impose conditions on your practising certificate, registration as an RFL or REL, on your recognition as a recognised body, or on the practising certificate or registration of a recognised sole practitioner. You must comply with any condition.
In-house solicitors
55.If you are an in-house solicitor, you do not have to hold a practising certificate unless:
- (a)
you are held out or employed explicitly as a solicitor, or held out or employed implicitly as a solicitor by using a description or title such as "lawyer" or "counsel";
- (b)
you do reserved work (other than at the direction and under the supervision of a fellow employee as provided in the Solicitors Act 1974 or under Schedule 3 to the Legal Services Act 2007);
- (c)
you rely on your qualification as a solicitor in order to instruct counsel;
- (d)
you fulfil the role of a "person qualified to supervise" in the limited circumstances set out in 5.02(1)(c) (law centres), (d)(i) (legal aid) or (d)(ii) (litigation or advocacy for members of the public); or
- (e)
you authorise the withdrawal of money from a client account, under rule 23(1)(a) of the Solicitors' Accounts Rules 1998.
56.Solicitors employed by authorised non-SRA firms (such as a firm of licensed conveyancers or patent agents) are not treated as in-house solicitors for the purposes of the rules. They can do work, within the scope of the firm's authorisation, for clients of the firm as well as for the firm itself. They can also do a wider range of work for the firm itself, related bodies, work colleagues or pro bono. See 12.01(1)(d).
To link to this rule, please use www.sra.org.uk/rule20.
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