Guidance to rule 23 – Application of these rules

• 1.

  The rules apply in different ways to a solicitor, an REL, a recognised body incorporated in England and Wales, a recognised body incorporated outside England and Wales, and an RFL.

• 2.

  The key to the application of a rule is whether a matter relates to practice from an office in England and Wales, or to practice from an office outside England and Wales. This does not mean that different rules apply at different times during a cross-jurisdictional transaction. For example, if a client gives instructions for a transaction to your London office, then that transaction will fall into the category of practice from an office in England and Wales.

• 3.

  A solicitor's, REL's or recognised body's practice from an office in England and Wales is subject to all the rules except rule 15 (Overseas practice). However, in relation to practice from an office outside England and Wales:

  • (a)

    a solicitor is subject to the rules as applied or modified by rule 15;

  • (b)

    a recognised body incorporated in England and Wales is subject to the rules as applied or modified by rule 15;

  • (c)

    an REL is subject to the rules as applied or modified by rule 15 in relation to practice from an office in Scotland or Northern Ireland, but is not subject to any of the rules in relation to practice from an office outside the UK, except 1.06 (Public confidence); and

  • (d)

    a recognised body incorporated outside England and Wales is subject to 12.04(4) (Framework of practice), rule 14 (Incorporated practice), and to the rules as applied or modified by rule 15 (Overseas practice). Only a few of the rules apply, and only in particular circumstances.

• 4.

  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 is subject to the rules in relation to practice from an office in England and Wales. An RFL is not subject to any of the rules in relation to practice outside an MNP or a recognised body, or in relation to practice from an office outside England and Wales, except 1.06 (Public confidence).

• 5.

  Certain rules also apply in relation to other forms of practice, and outside practice:

  • (a)

    Under 1.06 (Public confidence) you must not behave in a way that is likely to diminish the trust the public places in you or the profession. Subrule 1.06 applies to your conduct both in your practice as a solicitor, REL or RFL and outside it, to the extent that:

    • (i)

      as a solicitor, you are an officer of the Supreme Court and must behave as befits a member of the solicitors' profession;

    • (ii)

      as an REL, you are to be treated under the Establishment Directive Regulations as if you were an officer of the Supreme Court; you must behave as befits a member of your own profession and as would befit a member of the solicitors' profession; and

    • (iii)

      as an RFL, you have been registered under the Courts and Legal Services Act 1990 as a lawyer suitable to be a solicitor's partner, a director of a recognised body which is a company, or a member of a recognised body which is an LLP, and must behave as befits a member of your own profession and as would befit a member of the solicitors' profession.

    A recognised body has been recognised under the Administration of Justice Act 1985 as a suitable body to provide the services of practising solicitors and other lawyers, and must conduct itself accordingly.

  • (b)

    Under 10.01 (Not taking unfair advantage) you must not take unfair advantage of your position as a solicitor, or (within the UK) as an REL.

  • (c)

    Under 10.05(1)(c) and (d), (2) and (3), and 15.10(2)(a)(ii) and (iii), (b) and (c) you must fulfil an undertaking even if it is given outside the course of your practice as a solicitor or as an REL, if you give the undertaking as a solicitor or (within the UK) as a lawyer of an Establishment Directive state.

  • (d)

    Under 12.03(2) and (3), if you are an RFL you must not be held out as an RFL, or as regulated by or registered with the Law Society or the Solicitors Regulation Authority, except in the context of practice as a partner in an MNP, director of a recognised body which is a company, or member of a recognised body which is an LLP. Note that if you are an RFL you are not required specifically to fulfil an undertaking given as an RFL but outside the course of practice as an RFL, or prohibited from taking unfair advantage of your position as an RFL - but if you did either of these things you would breach 12.03(2) or (3) and possibly 1.06 (Public confidence).