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Guidance

Important: The guidance below was written and issued before the introduction of the SRA Handbook on 6 October 2011, and may refer to regulatory material that is no longer in effect. Although it may still be relevant, this guidance has not yet been reviewed in light of the wide-ranging regulatory changes implemented on 6 October. It will be reviewed and updated (or archived) in due course.

Do I need a practising certificate?
Working in private practice in England and Wales

Professional Ethics, August 2010

1. Introduction

This guidance explains when a practising certificate is necessary (whether you are working in a firm regulated by the SRA or one of the other approved regulators, or whether you are doing a solicitor's job or a job which could be done by an unqualified person), and answers some of the questions commonly raised with the Professional Ethics Guidance Team.

This guidance is not mandatory. However, if you do not follow it, you may be required to show how you have complied with the ethical and regulatory requirements.

2. Terminology

Reference in this guidance to:

  • a rule means a rule in the Solicitor's Code of Conduct 2007 ('the Code');
  • a 'manager' means:
    • A partner in a partnership;
    • A member of an LLP; or
    • A director of a company.
  • the 'approved regulators' means those bodies listed in paragraph 1 of Schedule 4 to the Legal Services Act 2007 (see rule 12, note 2).

For a definition of other specific terms used in the rules, please see rule 24.

3. The relevant rules and law

The requirement to hold a practising certificate is governed by:

  •  Rule 20.02, which sets out the circumstances in which you will be practising as a solicitor and must, therefore, hold a practising certificate;
  •  Rule 20.04, which sets out when your participation in an SRA-regulated firm or in an authorised non-SRA firm must be in your capacity as a solicitor, thereby requiring you to hold a practising certificate;
  • Section 1A of the Solicitors Act 1974,which provides that:

"A person who has been admitted as a solicitor and whose name is on the roll shall, if he would not otherwise be taken to be acting as a solicitor, be taken for the purposes of the Act to be so acting if he is employed in connection with the provision of legal services –

  • by any person who is qualified to act as a solicitor;
  • by any partnership at least one member of which is so qualified;
  • by a body recognised under section 9 of the Administration of Justice Act 1985 (incorporated practices); or
  • by any other person who, for the purposes of the Legal Services Act 2007, is an authorised person in relation to an activity which is a reserved legal activity (within the meaning of that Act)."

The effect of section 1A is that even if you are not held out as a solicitor, or you only do work which an unqualified person could do, you will be held in law to be practising as a solicitor if you are employed in connection with the provision of legal services and you will therefore need a practising certificate.

  • Section 21 of the Solicitors Act 1974, which provides:

'Any unqualified person who wilfully pretends to be, or takes or uses any name, title, addition or description implying that his is qualified or recognised by law as qualified to act as a solicitor shall be guilty of an offence ….'

To be qualified to act as a solicitor, you must have a practising certificate (section 1 of the Solicitors Act) or be exempt from holding one. You will therefore be committing a criminal offence, as well as being in breach of the rules, if you practise as a solicitor without holding a practising certificate.

4. Working in an SRA-regulated firm

The combined effect of rules 20.02 and 20.04(1), together with section 1A, means that you must be practising in your capacity as a solicitor and hold a practising certificate if you are:

  • a recognised sole practitioner, or
  • a manager, member or owner of a recognised body (either directly or through a body corporate which is a manager of the recognised body); or
  • an employee, consultant or locum, and
    • you are on the roll, and
    • you are employed in connection with the provision of legal services.

What this means in practice

  • If you are employed:
    • as a practice manager, you will need to have a practising certificate and do the work as a solicitor if your responsibilities include any supervision of fee-earners or dealing with complaints relating to the handling of client matters.
    • to provide practicesupport, you will need a practising certificate if you do any of the following:

undertake research in connection with client matters;

draft or keep up-dated legal precedents;

select, adapt or direct fee-earners to precedents

  • as a bookkeeper in the firm's accounts department, you will need a practising certificate if your responsibilities include entering information on to the accounts system in compliance with the Solicitors' Accounts Rules.
  • to carry out conflict checks, you will need a practising certificate since this is part of the legal service provided to the clients of the firm.
    • You cannot be employed as:
  • a paralegal; you would have to undertake the work as a solicitor, although your firm can pay you at a paralegal's rate.
  • a secretary if you do work for fee earners; you would have to undertake the work in your capacity as a solicitor and hold a practising certificate, although your firm could pay you at a secretary's rate. However, you could be employed as a secretary if, for example, you only undertook work for the firm's Human Resources Department.
  • If you are dually qualified as a lawyer of another jurisdiction or as an individual authorised by one of the other approved regulators, you can choose to practice as both a solicitor and under your other qualification, but you cannot practice under your other qualification alone (rule 20.04(1)).
  • If you do not wish to practice as a solicitor, you will need to apply to us to come off the roll. For the effects of coming off the roll, see Q1 below.

5. Working in an authorised non-SRA firm

Subject to a limited exception (see below), the position is the same as for SRA-regulated firms. Unless, therefore, you come off the roll, your participation in the firm must be as a solicitor with a practising certificate.

This is so irrespective of whether you are actually practising in the firm, or simply have an ownership interest in the firm and do not undertake any work yourself, or are based elsewhere.

The exception applies if you are dually qualified as both a solicitor and an individual authorised by one of the other approved regulators. If so, then you can choose to participate in the firm solely under your other qualification, but this only applies if you are a manager and the firm is a partnership or a limited liability practice; the effect of section 1A(d) of the Solicitors Act means that if you are an employee or the firm is a company of which you are a director, you must have a practising certificate.

6. Frequently asked questions

Temporary employment

Q1. I am not working at the moment and do not have a current practising certificate, although I am still on the roll. I have been asked by a local firm to provide holiday cover for one of their solicitors for two weeks. The firm is obviously not prepared to pay for a practising certificate for such a short period. Can I do the work without a practising certificate?

A Yes, but not as a solicitor on the roll. Whilst you remain on the roll, the effect of rule 20.04 and section 1A means that if you are employed (albeit on a temporary basis) in connection with the provision of legal services, you must do the work as a solicitor with a practising certificate.

To avoid this, you will need to apply to come off the roll, but note:

  • you could no longer be described as a solicitor (although you could be described as a "former solicitor" or "retired former solicitor"), nor could you use any term such as "consultant", "associate" or "assistant" which, when used in private practice, is taken to indicate that the person is a practising solicitor or lawyer.
  • you would be in the same position as an unqualified clerk. As such, you could not swear oaths or do reserved work in your own right, although you could provide conveyancing or probate services provided the work was done at the direction and under the supervision of a solicitor or other individual authorised to do such work. Similarly, you would be able to appear in chambers in the county court or the high court provided you did so under instructions given by a qualified litigator.
  • before returning to practice as a solicitor, you would have to apply to go back on the roll.

Dually qualified solicitors

Q2. I am dually qualified as both a solicitor and a US attorney. I am currently employed in a solicitors' firm in England and Wales in my capacity as a US attorney. I am only held out as a US attorney and only advise on US law. Do I need a practising certificate?

A Yes. The effect of rule 20.04 and section 1A is that you must do the work as a solicitor and hold a current practising certificate, although you can practise as both a solicitor and a US attorney if you wish. The fact that you only advise on US law does not alter this. The alternative would be to come off the roll. You would no longer be a solicitor and could be employed solely as a US attorney (see Q1 above).

Working in private practice on a voluntary basis

Q3. I am a law lecturer but would like to keep my hand in by working for one month on a voluntary basis for a local law firm. Do I still need a practising certificate if I am not being paid?

A The view of the SRA is that the word 'employed' is not to be construed in the narrowest sense and that rule 20.04 and section 1A applies even if you are not being paid. You will therefore need a practising certificate unless you were to come off the roll - see Q1. above.

Taking a job as a paralegal

Q4. I recently lost my job as an assistant solicitor in private practice. I have now been offered a job as a paralegal and would like to accept. Is there any problem with this?

A. Yes; since you will be employed in connection with the provision of legal services, rule 20.04 will apply and your employment must be in your capacity as a solicitor. Whilst you can therefore be paid at a paralegal's rate, you must undertake the work and be held out as a solicitor. You will therefore need a practising certificate.

The alternative would be to come off the roll. This would allow you to be employed as a paralegal, although if you currently have a practising certificate, you will not receive any refund for the unexpired portion. See Q1 above for the implications of coming off the roll.

If you subsequently find a job as a solicitor, you will need to apply to go back on the roll  and to avoid any breach of the rules or the Solicitors Act, you would need to make a simultaneous application for a practising certificate. Bear in mind that you will need to allow at least 30 days for this.

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