Guidance

For guidance on the section 88 exemption, see rule 20, guidance notes 13 and 14.

The exemption relates to the capacity and employment of the solicitor. This means that:

• if, for example, you hold office as the principal solicitor to a public department, but in a different capacity or employment you administer oaths, you cannot rely on the s.88 exemption in respect of that other capacity or employment.
• you may be described as a solicitor in relation to your s88 employment (e.g. on your in-house notepaper), but not in relation to work undertaken outside of that employment which would require you to hold a practising certificate.

Bear in mind that if you are practising as a solicitor without a practising certificate, you will be committing a criminal offence under section 21 of the Solicitors Act 1974 unless you areentitled to rely on the exemption in section 88.

You must have a practising certificate (or be exempt under section 88 of the Solicitors Act 1974) if you undertake, or may be required to undertake:

• reserved work (unless you do it at the direction and under the supervision of a fellow employee who is entitled to do the work - see rule 20, guidance note 7). For the meaning of 'reserved work' generally, see rule 24;
• supervision of staff who are not qualified to undertake reserved work (see rule 20, guidance note 7)

You will also need a practising certificate to do the following:

• to rely on the exemption to registration granted to solicitors to provide immigration services under the auspices of SRA regulation;
• to do any of the activities referred to in rule 20, note 55(c) – (e).

Note:

• You may be in employment in which you are able to exercise a right of audience or a right of litigation in reliance on your position as an employee, rather than in reliance on your qualification as a solicitor (e.g. under section 223 of the Local Government Act 1972).You will need to satisfy yourself as to whether you can rely on such provisions, but bear in mind that if you are able to do so, you will not be doing the work as a solicitor and should ensure that you are not held out as such.
• Whilst an in-house solicitor is authorised to provide immigration services if permitted to do so under rule 13 of the Code, he or she cannot supervise an unqualified person in providing such services for the purposes of the Immigration and Asylum Act 1999.

1. You will be explicitly employed as a practising solicitor if any of the following terms appear in your job title, or if you use a title which includes any of these terms:

• solicitor
• lawyer
• counsel
• attorney
• legal practitioner

Since titles such as these imply a professional qualification as a lawyer, you cannot negate this implication by adding words such as 'non-practising solicitor'. You must therefore have a practising certificate unless you are entitled to practise under another professional title which would justify your using one of the above titles and you are only practising in that capacity.

If you are entitled to use the term 'solicitor' as a solicitor of another jurisdiction, you must make clear the jurisdiction of your qualification.

2. If none of the above terms appear in your job title, you need to consider whether it is a requirement of your job that you are a qualified lawyer. This will usually be apparent from your job description or from the eligibility requirements for your job.

Where this is a requirement, and you have no other qualification as a lawyer other than that as a solicitor, there is a risk that irrespective of your job title, you may be holding yourself out as a solicitor if you are either:

• employed in a legal department to undertake the legal work of that department; or
• a substantial part of the responsibilities of your job involve activities of the kind commonly undertaken by solicitors.

In such circumstances, you are strongly advised to have a practising certificate.

Rule 20.02(2) states that you will be practising as a solicitor if you are involved in legal practice and (inter alia) you are held out explicitly or implicitly as a practising solicitor.

Whether you are being explicitly or implicitly held out as a solicitor will depend to a large extent upon your individual circumstances, but the SRA's view is as follows:

1. Descriptions which explicitly hold you out as practising but in relation to which, as a description, the holding out could be negated

• solicitor
• lawyer
• attorney

If you are described as a 'solicitor', 'lawyer' or 'attorney' (as opposed to using the word as a professional title or job title – see Q3 above), you must have a practising certificate, unless:

• (in the case of 'lawyer' and 'attorney') you hold another qualification as a lawyer and you are only practising in that capacity (f or the meaning of 'lawyer' in this context, see rule 24 of the Code). If you are entitled to use the term 'solicitor' as a solicitor of another jurisdiction, you must make clear the jurisdiction of your qualification; or
• you make it clear that you are not practising by qualifying the description with words such as 'non-practising' or 'retired'.

2. Descriptions which explicitly hold a solicitor out as practising and in relation to which the holding out cannot be negated

• 'Counsel' (or any term including that word) is usually used as a title. Even if used only as a description, it inherently means a practising lawyer, and this cannot be negated by words such as 'non-practising'.
• The term 'practitioner' inherently means someone who is practising and therefore 'legal practitioner' cannot be negated by terms such as 'non-practising'.

However, if you have another qualification as a lawyer and you are entitled to practise under that qualification, either of these descriptions can be used without necessarily meaning that you are practising as a solicitor (for the meaning of 'lawyer' in this context, see rule 24 of the Code).

3. Titles or terms which tend to implicitly hold a solicitor out as practising

• chief legal officer
• director of legal services
• head of legal affairs
• legal adviser
• legal and business affairs consultant
• legal consultant
• legal director
• legal expert
• legal and HR director
• legal specialist
• the legal officer

The above terms or titles tend to hold a solicitor out as practising. You are therefore strongly advised not to use them unless you have a practising certificate or you make it clear that you are not practising by adding words such as 'non-practising solicitor' or 'retired solicitor'.

4. Titles or terms which do not hold a solicitor out as practising

The following terms can be used alone or in combination:

• adviser (other than legal adviser)
• caseworker
• executive (but note – you cannot use the term 'legal executive' unless you are also a FILEX)
• paralegal

If the answer is yes, then irrespective of your job title, you are implicitly being held out as a practising solicitor and must have a practising certificate, unless it is made clear that you are not practising by adding words such as 'non-practising'.