Guidance

Do I need a practising certificate?
Temporary break or retirement

Professional Ethics, issued July 2008 (last updated 2 November 2015)

Purpose of this guidance

If you are a solicitor and you are taking a temporary break from practice or you have retired from practice, but you remain on the roll, then depending on what you are doing, you may still be practising as a solicitor and will require a practising certificate.

The following guidance sets out the solicitor-type activities which you may do without a practising certificate, and those for which you are likely to need a practising certificate.

Status

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

Relevant rules and legislation

  • Rule 9 of the SRA Practice Framework Rules 2011 ('PFR') sets out the circumstances in which you will be practising as a solicitor and must, therefore, hold a practising certificate.
  • Rule 11 PFR sets out the circumstances in which your participation in an SRA-regulated firm or in an authorised non-SRA firm must be in your capacity as a solicitor, thus requiring you to hold a practising certificate even if you are not held out as a solicitor
  • Section 1A of the Solicitors Act 1974 as amended - Under section 1A, you are held in law to be practising as a solicitor if you are on the roll and you are employed in private practice in connection with the provision of legal services, even if you are not held out as a solicitor. Section 1A applies to solicitors employed in both SRA-regulated firms and firms regulated by one of the other authorised regulators.
  • Section 21 of the Solicitors Act 1974 To be qualified to act as a solicitor, you must have been admitted as a solicitor, be on the roll and have a practising certificate (s1 Solicitors Act). You will therefore be committing a criminal offence under section 21, as well as being in breach of the PFR, if you use any description which implies that you are qualified to act as a solicitor and you do not have a practising certificate.
  • Solicitors who are not practising are nevertheless still required to comply with the following Principles in relation to their activities, whether in their private life or in relation to some other business:
    • Principle 1 – uphold the rule of law
    • Principle 2 – integrity
    • Principle 6 – public trust

Important Reminders

  • If you are about to cease practising or have just done so, you must notify the SRA within 7 days and supply us with a contact address. You can do this via mySRA.
  • If, in accordance with the following guidance, you decide that you need a practising certificate, then you must comply with the relevant requirements of the Handbook. In particular, you must ensure that you are practising in one of the ways permitted by rule 1 of the SRA Practice Framework Rules 2011 (‘PFR’) and, (if you are a sole practitioner), rule 10 PFR.

Bear in mind that if you are practising in accordance with rule 9 PFR and you do not have a practising certificate, then you may be committing a criminal offence under section 21 Solicitors Act, in addition to being in breach of the Handbook.

Describing yourself as a solicitor

Provided you remain on the roll, you may describe yourself as a ‘solicitor’ despite not having a practising certificate, but only in situations where there is no implication that you are practising as a solicitor.

For example, there would usually be no implication that you are practising if you are described as a solicitor in the context of giving a lecture on the law or on the jacket of a book you have written.

However, such an implication could arise if, for example, you were a director of a housing charity which, as part of its activities, gives legal advice to members of the public. In these circumstances, even if you yourself do not give legal advice, it is advisable to make your status clear by ensuring that any description of you as a solicitor is qualified by words such as ‘non-practising’.

Working in private practice, but not as a solicitor

If you are on the roll, then in accordance with section 1A of the Solicitors Act 1974 and rules 9 and 11 PFR, you will require a practising certificate if you are employed in connection with the provision of legal services by a recognised sole practitioner or an SRA-regulated firm.

Under section 1A of the Solicitors Act 1974 as amended, you are held in law to be practising as a solicitor even if:

  • you are not held out as a solicitor
  • you only do work which an unqualified person could do
  • you are not a fee earner
  • you are doing the work without payment, or
  • you are only employed on a temporary or occasional basis (e.g. as holiday cover)

Your job title is not therefore an indicator of whether you require a practising certificate. For example, you will need a practising certificate if you are employed:

  • as a practice manager if your responsibilities include any supervision of fee-earners or dealing with complaints relating to the handling of client matters.
  • to provide practice support 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, if your responsibilities include entering information on to the accounts system in compliance with the SRA Accounts Rules 2011
  • to carry out conflict checks, since this is part of the legal service provided to the clients of the firm
  • as a secretary if you do work for fee earners, but not, for example, if you only undertake work for the firm’s Human Resources Department;
  • as a paralegal

In each of the above examples, you will be employed in connection with the provision of legal services and must therefore undertake the work in your capacity as a practising solicitor, even if you are not held out (or paid) as such.

To avoid the need for a practising certificate, you would need to come off the roll; you would then no longer be a solicitor and section 1A and rules 9 and 11 PFR would cease to apply to you. However:

  • you would need to ensure that you are not held out in a way which suggests that you are entitled to practise as a solicitor. This includes no longer being described as a solicitor (although you could be described as a "former solicitor" or "retired former solicitor") and avoiding terms which suggest that you are a lawyer (such as "consultant", "associate" or "assistant"), unless you make your status clear by adding words such as ‘non-lawyer’.
  • you would no longer be entitled to do reserved work in your own right, although you can do some reserved work under the supervision of a person authorised to do that work – see rule 7.1 PFR.

An application to come off the roll can be made via mySRA.

Remaining on your firm’s notepaper as consultant following your retirement

If you are completely retired but are remain on the roll, you may continue to be on your firm’s notepaper as a consultant and will not need a practising certificate provided it is made clear on the notepaper that you are not practising (eg by adding words such as ‘non-practising’ or ‘retired’ solicitor).

However, this means that you cannot undertake any legal work, so bear in mind that if you were asked to do the odd bit of work for the firm or supervise fee earners by way of holiday cover, you would be taken to be practising by virtue of section 1A and rule 9 and 11 PFR and would have to have a practising certificate or come off the roll (see Working in private practice, but not as a solicitor).

Doing legal work for friends and relatives

You may do legal work for friends and relatives without a practising certificate, but not in your capacity as a solicitor. You should therefore explain (preferably in writing) at the outset that you are not doing the work as a solicitor and that you are not covered by professional indemnity insurance. You could be at risk under Principle 2 (integrity) if you fail to make the position clear.

If you refer to your qualification as a solicitor, for example, in correspondence with a third party, you should make your status clear by describing yourself as a retired or non-practising solicitor.

As a non-practising solicitor, you will be limited as to the type of work you can do. You would not be able to do any of the reserved legal activities referred to in rule 8.1 PFR unless:

  • you were authorised to do the work in some capacity other than as a solicitor, or
  • one of the exemptions in Schedule 3 of the Legal Services Act 2007 applies (for example, in relation to reserved instrument or probate activities, if the work is not done for, or in expectation of, any fee, gain or reward)

Witnessing or certifying documents

Unless a document is one that needs to be witnessed by a practising solicitor, you do not need a practising certificate either to witness or to certify a document. If you are in any doubt, you may wish to check the position with the person who prepared the document.

However, to avoid any possibility of misleading the person signing the document or any recipient of the document, it is always advisable to make your status clear by describing yourself as a retired or non-practising solicitor.

Continuing as an executor or trustee

If you are an executor or trustee, you will normally have been appointed in your professional capacity as a solicitor. If so, you will need to decide whether to continue in a professional or private capacity.

If you continue to act as a professional executor or trustee, you will still be practising as a solicitor. As such, you will need to:

  • apply to the SRA, unless you are exempt under rule 10.2 PFR
  • hold a practising certificate
  • comply with the SRA Indemnity Insurance Rules (unless your practice is exempt)
  • comply with the SRA Accounts Rules in relation to client money and continue to obtain accountant’s reports, unless exempt under rule 32.1A of those rules.

If you decide to continue acting as an executor or trustee in a private capacity, (i.e. not as a solicitor) you should:

  • stop charging for work done
  • ensure that you no longer refer to yourself as a "solicitor" in connection with the estate or trust unless you qualify that description with words such as ‘non-practising’
  • notify all parties with whom you are dealing in connection with the estate or trust (not only co-trustees and beneficiaries, but accountants, banks, etc.) that you will no longer be undertaking the work as a solicitor
  • explain to any co-trustees and to the beneficiaries the principal effects of your ceasing to be a practising solicitor – particularly the position regarding professional indemnity, and charging as a professional trustee or executor

Bear in mind, however, that even if you are not doing the work as a solicitor, you must still comply with Principles 1 (uphold the rule of law), 2 (integrity) and 6 (maintaining public trust). The Solicitors' Disciplinary Tribunal has jurisdiction over solicitors without practising certificates (and even over former solicitors who have had their names removed from the roll, in relation to things done whilst on the roll).

Setting up a business providing legal-type services

Provided you are not otherwise practising as a solicitor, you may set up a non-solicitor business which provides legal-type services. However, depending on the circumstances, there is a risk that you may be explicitly or implicitly practising as a solicitor through that business. If so, then you will need a practising certificate (see rule 9 PFR) and the business will have to comply with the requirements of a solicitor’s practice.

There are three points to consider:

1. Will your business do any reserved activities?

The reserved work which solicitors are authorised by the SRA to carry out are set out in rule 8.1 PFR.

If the business does any reserved activities, then you must have a practising certificate and the business will be deemed to be a solicitor's practice regulated by the SRA and must comply with the Handbook.

2. Does the name of the business imply that it is a solicitor’s practice?

The inclusion of any of the following words in the name of your business explicitly holds it out as a lawyer’s practice:

  • solicitor
  • attorney
  • lawyer
  • counsel
  • law practice
  • law firm

The implication that it is a lawyer’s practice cannot be negated by adding words such as ‘non practising solicitors’ on the firm’s notepaper.

Unless, therefore, you have another qualification as a lawyer which would entitle you to use these terms and you are entitled to practice under that other qualification, you will be practising as a solicitor and the business will be deemed to be a solicitor’s practice, subject to the SRA’s rules and regulation.

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

Names tending to indicate a solicitor’s practice

The inclusion of any of the following terms in the business name will tend to indicate that you are practising as a solicitor and that it is therefore a solicitor’s practice:

  • legal adviser(s)
  • legal affairs
  • legal associate(s)
  • legal consultant(s)
  • legal expert(s)
  • legal partners
  • legal service(s)
  • law office

It is inadvisable to include any of these terms in the name of your business unless it is made clear in the publicity of the business, (including the notepaper), that it is not a solicitor’s practice - for example, by adding words such as ‘non-practising solicitor(s)’, ‘retired solicitor(s)’, or 'this business is not a regulated law practice'.

Names referring to a legal service

You should avoid any name which refers to reserved work since this implicitly holds you out as practising as a solicitor through the business and the business would therefore need to comply with the Handbook.

Names which incorporate a reference to a service which normally includes both reserved and unreserved activities could suggest that the business is a solicitor’s practice. For example:

  • employment advocacy, because whilst employment advocacy before employment tribunals is not reserved work, employment advocacy before the EAT or the courts is reserved
  • probate services, because whilst the administration of an estate is not reserved work, obtaining the Grant is

You are strongly advised not to incorporate these terms into the name of the business unless it is made clear in the publicity of the business (including the notepaper) that it is not a solicitor’s practice (see the suggestions above).

Names which do not indicate a solicitor’s practice

The inclusion in the name of the business of a legal service which comprises solely unreserved work, such as will writing or employment tribunal advocacy, will not, in itself, usually indicate that it is a solicitor’s practice, nor will using the terms ‘associates’ or ‘consultants’.

3. Are you personally held out as a solicitor, either explicitly or implicitly?

If you are held out explicitly or implicitly, as a practising solicitor in connection with the business, then you are likely to be practising as a solicitor through that business. If so, the business will need to comply with the requirements of a solicitor’s practice.

Explicit holding out

If you are described as a ‘solicitor’, 'lawyer' or 'attorney' you must have a practising certificate unless:

  • you are entitled to use the term ‘solicitor’ as a practising solicitor of another jurisdiction and you make clear the jurisdiction of your qualification, or
  • in the case of ‘lawyer’ and ‘attorney’, you hold another qualification as a lawyer and you are only practising in that capacity, or
  • you make it clear that you are not practising by qualifying the description with words such as ‘non-practising’, ‘uncertificated’ or ‘retired’.

Terms tending to implicitly hold a solicitor out as practising:

  • legal adviser
  • legal associate
  • legal consultant
  • legal executive
  • legal expert
  • legal specialist

You are strongly advised not to use any of these terms unless you make it clear that you are not practising by adding words such as ‘non-practising solicitor’, ‘retired solicitor’ or ‘non-practising lawyer'.

Employing solicitors in the business

Bear in mind that any solicitor you employ in your business will be subject to the restrictions in rule 1.1(f) PFR. In most cases, this will prevent the solicitor from providing legal services to your customers

Further assistance

If you require clarification on the above guidance or the Handbook, please contact Professional Ethics.