The Law Society has now published a practice note on Mazur v Charles Russell Speechlys LLP.
Mazur: Law Society publishes new guidance for profession | The Law Society
In a nutshell, the guidance emphasises the requirement for an authorised person (usually a Solicitor) to have “conduct” of a case and effectively sign off on key decisions and actions in a case , albeit they can be assisted by a non authorised person.
The guidance is unsurprising in light of the Mazur judgment which reaffirms that litigation is a reserved legal activity, and that only an authorised person may “conduct litigation” under the Legal Services Act 2007. A solicitor is an authorised person. Most barristers, legal executives, paralegals and trainee solicitors/apprentices are not. Conducting litigation includes taking formal steps in the process as well as strategic decisions in the case.
The reality has been that in criminal defence practices, non authorised persons have often managed Crown Court caseloads. This is always under the supervision of a Solicitor but the legal executive/paralegal would do most of the work. Solicitors are usually found plying their trade in the Magistrates Court – albeit a healthy number also practice as solicitor advocates in the Crown Court (as an aside this might now become a very attractive proposition as that advocate will also be an authorised litigator). There are variations on this way of working and it is not universal but it has been a common and cost effective model in many firms for many years.
Many effective and efficient working relationships between legal executive and barrister have endured over many years – carrying out work on often serious and complex cases to a high standard and for the benefit of clients and the courts. There would be sufficient shared expertise within that team that there was rarely a need to engage the supervising solicitor.
Post Mazur, if every substantive step in a case must be signed off by an authorised litigator then a significant additional demand upon the firm’s resources has been created.
Legal executives may be reluctant to sign and upload documents, for example a defence statement or witness table without first running it past the solicitor – even where such documents have been approved by the client and barrister. Matters that are time critical in the Crown Court may not be able to proceed until the solicitor, perhaps busy in the Magistrates Court, is located and asked about it, for example a proposed change of plea.
For private client work firms will inevitably increase fees to absorb these additional burdens.
For Legal Aid work there must likewise be an urgent increase in fees. Standard “graduated” fees in the Crown Court were introduced in about 2008 and reflected most cases being run by Non-authorised persons. That can no longer be the case and so fees must reflect this if firms are to survive.
(This article has been written by Andrew Bishop, CLSA Vice Chair. This represents my personal view and should not be seen as “guidance”. Firms should read the Judgment and the Law Society Practice Note and take their own view of steps they need to take.)
