The Legal Services Board (LSB) has intervened following the Mazur judgment last month to clarify the regulatory requirements regarding who can conduct litigation within law firms and businesses.
The intervention followed the Law Society and the Chartered Institute of Legal Executives (CILEX) expressing concern as to how front-line regulators like the Solicitors Regulation Authority (SRA) should respond to the High Court judgment in the case of Mazur v Charles Russell Speechlys.
In that case, the Administrative Court argued that both the Legal Services Act 2007 and the SRA’s 2022 guidance note on supervision meant that only an “authorised person” may “conduct” litigation within a regulated entity – meaning a solicitor, rather than a legal executive.
The LSB noted that the High Court had restated the law but acknowledged that the case had prompted discussion about how the reserved legal activity of conducting litigation had been interpreted and applied.
The Law Society Gazette reported the Mazur judgment had attracted much comment from legal executives, now critical of previous guidance by CILEX, their representative body. The guidance suggested that they could conduct litigation under supervision – an assumption that subsequently proved false following the judgment, although CILEX has continued to maintain that it kept members properly informed.
On LinkedIn, Iain Miller of Kingsley Napley, known for his work in this field, said the decision had placed “more weight on the unclear question of what the conduct of litigation is in the first place”.
Meanwhile Michael Stacy, the lead solicitor for the Law Society, which intervened in Mazur, said that “the ‘seismic shift’ referenced in the legal press is in the profession’s understanding, not in the legal position, which remains as I have been advising clients for many years”.
Some CILEX members criticised the judgment on LinkedIn for diminishing the professional status they had gained over many years through CILEX’s examinations and preventing them from practising litigation.
Shirley Woolham, chief executive officer of Minster Law, wrote on LinkedIn: “Experienced colleagues are the backbone of our sector – they deserve clarity, respect and a sense of belonging as we navigate change.”
CILEX members argued that the judgment does not reflect modern litigation practice and a petition calling for the Legal Services Act to be amended to enable CILEX members to conduct litigation has attracted more than 2,000 signatures. Last week the newly-formed CILEX Support Group, representing more than 1,300 members, also wrote to the LSB asking to resolve the issue to protect the livelihoods of legal executives caught in the fallout.
The ruling also posed managerial challenges for law firms, especially smaller firms, local authorities and those specialising in bulk claims, which rely on CILEX members to support such caseloads.
The LSB said it had met with regulators and representatives to discuss how they should respond to the ruling, and stressed the need for “clear and accurate information”. While legal professionals should work within their “authorised scope of practice”, the LSB emphasised collaboration between all sides for the sake of consistency in providing such guidance and said it would review past information to ensure lessons would be learnt.
The LSB confirmed it had received an application from CILEX Regulation “to enable its regulated community to obtain standalone litigation practice rights”, adding it was prioritising the application.
Law Society of England and Wales president Mark Evans said: “It is important that there is clarity across all regulators and that consistent guidance is being provided to the professions.”
Evans, who took office last week, added: “This guidance needs to be available quickly, so our members can review their processes and adapt them as necessary.”
The controversy follows tensions between the Law Society, CILEX and SRA regarding the future regulation of legal executives. CILEX seeks to have its members regulated by the SRA instead of its own regulator, CILEX Regulation, which the Law Society opposes.
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