Practising Certificates

Introduction

In order for any solicitor to be able to practice, or to be held out as a solicitor, in England & Wales then he or she must be admitted as a solicitor, be on the roll of solicitors and, except in very limited circumstances, hold a current practising certificate issued by the Solicitors Regulation Authority. These are issued by the SRA following the appropriate application. Any person who does not hold a certificate may not practice, whether that be as a principal, employed solicitor, in-house solicitor, consultant in a solicitors practice or locum.

The need for a practising certificate

Section 1 of the Solicitors Act 1974 states that:

No person shall be qualified to act as a solicitor unless-

1. he has been admitted as a solicitor, and
2. his name is on the roll, and
3. he has in force a certificate issued by the Society in accordance with the provisions of this Part authorising him to practise as a solicitor (in this Act referred to as a “practising certificate”).

whilst the SRA’s own SRA Practice Framework Rules 2011 provide at rule 9 that:

9.1 If you are practising as a solicitor (including in-house), whether in England and Wales or overseas, you must:

1. have in force a practising certificate issued by the SRA; or
2. be exempt under section 88 of the SA from holding a practising certificate.

9.2 You will be practising as a solicitor if you are involved in legal practice and:

1. your involvement in the firm or the work depends on your being a solicitor;
2. you are held out explicitly or implicitly as a practising solicitor;
3. you are employed explicitly or implicitly as a solicitor; or
4. you are deemed by section 1A of the SA to be acting as a solicitor.

In particular you should note that under 9.2 the term “legal practice” is deemed to include not only the provision of the usual functions performed by a solicitor such as giving legal advice or representing someone in court, but includes the provision of other services such as are provided by solicitors.

Thus, if you practise as a solicitor, whether in a firm or in-house, without having a practising certificate, you will commit a criminal offence, as well as a breach of the rules, unless you are entitled to rely on the exemption in section 88 of the Solicitors Act 1974.

Employees and practising certificates

You may also need a practising certificate even if you are not actually practising as a solicitor but you are on the roll. The reason for this is that you will be deemed to be practising as a solicitor.

The authority for this comes from Section 1A of the Solicitors Act 1974 which states:

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 this Act to be so acting if he is employed in connection with the provision of any legal services-

1. by any person who is qualified to act as a solicitor;
2. by any partnership at least one member of which is so qualified;
3. by a body recognised under section 9 of the Administration of Justice Act 1985 (incorporated practices); or
4. 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).

This is interpreted by the SRA in Rule 11 (Participation in legal practice) of the SRA Practice Framework Rules 2011 as:

11.1 If you are a solicitor, REL or RFL and you are:

1. a manager, member or interest holder of:
   1. a recognised body; or
   2. a body corporate which is a manager of a recognised body; or
2. a manager, member or owner of:
   1. a licensed body; or
   2. a body corporate which is a manager of a licensed body;

   it must be in your capacity as a solicitor, REL or RFL (whether or not you are held out as such);

3. employed in connection with the provision of legal services in England and Wales, by:
   1. a recognised sole practitioner;
   2. an authorised body; or
   3. a body corporate which is a manager of an authorised body;

   it must be in your capacity as a solicitor, in accordance with section 1A of the SA, an REL or an RFL (whether or not you are held out as such);

4. Practising in accordance with (a), (b) or (c) above does not prevent you from practising also as an individual authorised by an approved regulator other than the SRA or providing services as a member of a non-lawyer profession.

11.2 Subject to 11.3 below, if you are a solicitor, REL or RFL and you are:

1. a manager, member or interest holder of:
   1. an authorised non-SRA firm of which all the managers and interest holders are lawyers; or
   2. a body corporate which is a manager of such an authorised non-SRA firm;
2. a manager, member or owner of:
   1. an authorised non-SRA firm which is a licensable body; or
   2. a body corporate which is a manager of such an authorised non-SRA firm; or
3. an employee who is employed in connection with the provision of legal services in England and Wales, by:
   1. an authorised non-SRA firm; or
   2. a body corporate which is a manager of an authorised non-SRA firm;

   it must be in your capacity as a solicitor, REL or RFL or as an individual authorised by an approved regulator other than the SRA (whether or not you are held out as such) but this does not prevent you from practising in both capacities or providing services as a member of a non-lawyer profession in addition to practising as a lawyer.

11.3 If you are a solicitor who is employed by, or is a director of, an authorised non-SRA firm, section 1A of the SA will require you to practise through that firm in the capacity of solicitor, even if also practising in some other capacity.

11.4 No solicitor or REL, while a prisoner in any prison, may commence, prosecute or defend any action, suit or other contentious proceedings, or appear as an advocate in any such proceedings, unless he or she does so as a litigant in person and not as a solicitor or REL.

The practical effect of all of this is that if you are admitted as a solicitor and are on the role, then you are likely to need a practising certificate if you do any work in which you are held out as a solicitor, it could be inferred that you are a solicitor or you do any work with a legal connection for a solicitor whilst employed by that solicitor.

Thus, as is stated in the SRA’s own guidance (currently archived as it has not been updated to reflect the new Handbook) on the matter (Do I Need a Practising Certificate) you will need practising certificate if you are on the roll and you work:

1. as a secretary doing work for fee-earners, although not if you undertook secretarial work for a non-legal department within the firm such as human resources;
2. as the firm’s practice manager and your responsibilities include any supervision of fee-earners or dealing with complaints relating to the handling of client matters;
3. providing practice support and you carry out research in connection with client matters or draft and update precedents;
4. as a bookkeeper in the firm’s accounts department and your responsibilities include entering information on to the accounts system in compliance with the Solicitors’ Accounts Rules;
5. carry out conflict checks.

A couple of additional points are worth mentioning:

• even if you are only providing temporary cover to a firm, for example as a locum, you will still need a practising certificate if you are on the roll. The only way around this would be to come off the roll, although do bear in mind that if you do so there may be limitations as to the tasks you are permitted to undertake. Thus, you would not be permitted to swear oaths or do reserved work in your own right. However, you would be able to undertake conveyancing or probate if the work was done under the supervision of a solicitor or other authorised individual authorised and 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.
• the fact that you would not be paid for the work you did, for example because you were doing voluntary work for a local law firm, would not be relevant as the SRA does not regard employment as meaning only paid employment.

Retired Solicitors or those taking a break from employment

It follows from the above that solicitors who retire from daily practice but who remain on the roll may need to retain a practising certificate, depending upon what they plan to do in their retirement.

Solicitors who want to remain as a consultant with their firm will normally need to maintain a practising certificate, even if their continuing involvement in the firm is negligible. This will especially be the case if they remain on the notepaper as “consultant”. They could avoid the need for a practising certificate if they have on the notepaper words such as “retired” or “non-practising”, however, they would be permitted to undertake absolutely no legal work whatsoever.

Retired solicitors who still want to describe themselves as “solicitor”, but who do not want to retain a practising certificate, can do so provided that it cannot be inferred that they are entitled to practice. Thus, if a solicitor wishes to do some lecturing, for example, then that would be perfectly acceptable, but if they were to work with a charity which gives legal advice to the public, then you would need to make sure that you were described as a “non-practising” solicitor, even if they are not the one giving the legal advice.

A retired solicitor can do legal work for friends and relatives without a practising certificate, but not in the capacity as a solicitor and any reference to solicitor in, for example, correspondence, must make it clear that they are not practising by adding words such as “non-practising”, “uncertificated” or “retired”. They should in addition ensure that the friends or relatives are aware that they are retired, as a result will not have the benefit of any professional indemnity insurance and are limited in the work which they can undertake.

If a retired solicitor wishes to set up a business providing services of a legal nature then, if they remain on the roll, they may need to obtain a practising certificate – even if the work they are doing is non-reserved work. Factors to be considered would be whether the name of the firm implied that it was a solicitor’s practice or whether the retired solicitor was, either expressly or impliedly, being held out as a solicitor. Words such as “legal expert”, “legal consultant” or “legal adviser” could imply that the firm in question was a solicitor’s practice, whilst use of the words “lawyer”, “attorney” and “solicitor” could lead to the inference that the retired solicitor was still in practice.

Whether a retired solicitor who is an executor or trustee is to be regarded as being in practice (and thus needing a practising certificate) will depend principally upon the capacity in which they were appointed. Thus, a retired solicitor who was appointed executor because he was a partner in the firm at the time of the appointment will be a professional executor and will thus require a practising certificate. On the other hand, if the appointment was as a friend or relative then the retired solicitor can continue as executor or trustee without needing to obtain a practising certificate.

If the appointment was in a professional capacity, then the solicitor can either renounce the appointment or, if he or she wants to continue as executor anyway without needing a practising certificate then he or she will need to ensure:

• that no charge is made for the work done after the date they retired (a charge can still be made for all work done up to the date of retirement, although the firm will need to make sure that it is clearly understood that all further work is not carried through the firm);
• he or she is not referred to as a solicitor in connection with the matter;
• all parties (i.e. co-trustees, beneficiaries, accountants, banks, building societies and stock brokers) are aware that the solicitor is no longer acting in a professional capacity and of the implications, such as professional indemnity, which results from this.

The retired solicitor should bear in mind, however, that he or she must still undertake their role to the same standard of conduct as a practising solicitor and that the Solicitors Disciplinary Tribunal retains jurisdiction over solicitors on the roll who are without practising certificates (and even former solicitors who have had their names removed from the roll, in relation to things done while on the roll).

There is one final point to be borne in mind. Whilst a retired solicitor can no longer administer an oath or statutory declaration, there is nothing to prevent them from witnessing a document unless that document is one which needs to be witnessed by a practising solicitor. However, for the avoidance of misunderstandings it is advisable that the retired solicitor describes himself or herself as such.

Solicitors working for non-solicitor organisations

If a solicitor works in-house – that is to say for a non-solicitor organisation (whether in or outside England and Wales) – then they will be obliged to comply with Rule 9 (Practising certificates) of the SRA Practice Framework Rules 2011 unless they are one of those solicitors exempted from the need to hold a practising certificate by virtue of section 88 of the Solicitors Act 1974.

Examples of situations where a person will be practising as a solicitor, and will therefore need a practising certificate, are given in Rule 4.26 of the SRA Practice Framework Rules 2011 and include:

• employment as a solicitor;
• being held out, on stationery or otherwise, as a solicitor for that employer;
• administering oaths;
• appearing before a court or tribunal in reliance upon a qualification as a solicitor;
• instructing counsel;
• undertaking work which is prohibited to unqualified persons under the provisions of Part 3 of the LSA, unless you are supervised by, and acting in the name of, a solicitor with a practising certificate or another qualified person;
• your the solicitor’s only qualification as a lawyer is as a solicitor, and:
  • they are employed or held out as a lawyer;
  • they undertake work in another jurisdiction which is reserved to lawyers;
  • they are registered in a state other than the UK under the Establishment Directive; or
  • they are a registered foreign legal consultant in another jurisdiction.

However, a solicitor acting only as a justices’ clerk in England and Wales is not practising as a solicitor and can instruct counsel without a practising certificate.

It should be noted that an in-house solicitor will be explicitly employed as a practising solicitor if any of the following terms appear in their job title, or if they use a title which includes terms such as solicitor, lawyer, counsel, attorney or legal practitioner. Their use cannot be negated by adding words such as ‘non-practising solicitor’. Unless, therefore, the solicitor has another legal title which would entitled him or her to describe themselves as lawyer, counsel, attorney or legal practitioner (and they are only practising in that capacity) it is essential that they have a practising certificate and if they a solicitor of another jurisdiction, and therefore entitled to describe themselves as solicitor, they must make clear the jurisdiction of their qualification.

Even if none of the those terms appear in the solicitor’s job title, they will still need to give thought as whether the nature of the job itself requires them to be a qualified lawyer, and if so, that they have a practising certificate. This would be the case, where for example they were required to undertake reserved work or to undertake the supervision of others who are unqualified in the carrying out of reserved work.

Reserved Work

It should in particular be noted that certain work may only be carried out by a solicitor holding a current practising certificate. Thus, even if a solicitor were to come off the roll they would still not be able to carry out this sort of work.

Reserved work is work that which is set out in Section 12 of the Legal Services 2007 as:

• the exercise of a right of audience;
• the conduct of litigation;
• reserved instrument activities;
• probate activities;
• notarial activities; and
• the administration of oaths.

and further defined is defined in Schedule 2 to the LSA.

Note, however, that certain categories of reserved work (rights of audience in chambers, reserved instrument activities and probate activities) can be done by an unqualified person under the supervision of a manager or fellow employee qualified to do that work.

Practising Certificate Conditions

In certain circumstances the SRA has the power to place conditions upon the practising certificate of a solicitor, registered European lawyer or registered foreign lawyer (RFL) and thus effectively regulate the way those solicitors are able to work. Some of these conditions restrict the ability to practise whilst others outline steps that must be followed.

A practising certificate condition is a step which the SRA can take in order to protect the public or the interests of the profession rather than a sanction and will usually be published on the SRA web site.

Once a condition has been imposed on a practising certificate it cannot be removed until the next renewal – at the earliest – and may be imposed for two, three or even more consecutive years – depending upon the circumstances leading to its imposition and whether the public interest is served by it remaining in place.

If a condition is imposed then the solicitor is under a duty to comply with it or face regulatory action as a consequence. Failure to do so is breach of principle 7 of the SRA Code of Conduct.

There are a range of conditions which it is open to the SRA to impose, including:

• requiring a solicitor, REL or RFL to work only in employment approved by the SRA;
• requiring a solicitor, REL or RFL to work only in employment or as a partner, director, manager or member of a recognised body approved by the SRA;
• requiring that a solicitor, REL or RFL obtain SRA approval to be able to work at a particular firm;
• restricting a solicitor, REL or RFL from working as a recognised sole practitioner;
• requiring a solicitor, REL or RFL to deliver more frequent accountant’s reports;
• requiring a solicitor, REL or RFL to undertake professional training;
• restricting a solicitor, REL or RFL from being responsible for the training of trainee solicitors;
• restricting a solicitor, REL or RFL’s ability to deal with clients money;
• restricting a solicitor, REL or RFL from undertaking certain types of work.

Each of these conditions is normally predicated by a different set of circumstances. Thus, for example, a condition to work only in approved employment may arise as a result of:

• convictions,
• bankruptcy,
• other serious financial issues;
• post-intervention,
• pre-SDT hearing,
• post-SDT hearing,
• following suspension from practice,
• multiple breaches of the regulatory requirements (when a principal),
• following a prolonged absence from practice,
• serious misconduct, or
• failure to comply with other previously imposed conditions.

whereas conditions restricting a solicitor, REL or RFL from being responsible for the training of trainee solicitors may arise as a result of:

• there having been issues regarding supervision,
• there having been issues of poor service/conduct, or
• poor regulatory history.

Although the SRA will (in theory) review the conditions every time a practising certificate is renewed and consider relaxing or lifting the conditions, it is nevertheless possible for the decision to impose the conditions to be appealed to the High Court.

It is possible to invoke the SRA’s internal appeals procedure before exercising a right of appeal to the High Court. The appeal period is 21 days from the date of the decision or such other time as the decision may specify and the appeal must state clearly the reasons for the disagreement with the SRA’s decision. An appeal will normally result in the varying of the original decision but it is worth noting that the varying can both improve and worsen the outcome from the solicitor’s perspective.

Suspension of practising certificate or registration

A solicitor’s practising certificate or the registration of a registered European lawyer (REL) will be suspended automatically if:

• they are adjudged bankrupt;
• the Solicitors Disciplinary Tribunal (SDT) suspends them; or
• they have been intervened in and the reason for the intervention is:
  • a suspicion of dishonesty,
  • breaches of the accounts rules,
  • breaches of the SRA Code of Conduct or investment business rules, or
  • they have been committed to prison.

A registered foreign lawyer (RFL) will have their registration suspended in the event of:

• bankruptcy,
• striking-off in their home jurisdiction, or
• suspension from practice in their home jurisdiction.

The effect of the suspension of the practising certificate of a solicitor, or registration of a REL, is that they are prohibited from practising. Unless the SRA gives written to do so, no other recognised sole practitioner or recognised body can employ or remunerate the solicitor or REL if they have been either suspended by the SDT or their practising certificate or registration has been suspended because they are an undischarged bankrupt.

Where the suspension is as a result of bankruptcy of intervention, a solicitor or REL can apply to have the suspension lifted (see below) or they can let the SRA know in advance that they are likely to be made bankrupt, in which case the suspension can be lifted almost as soon as the bankruptcy occurs.

The effect of the suspension of the registration of a RFL is that they are prohibited from practising. If this results from bankruptcy it will terminate only if the bankruptcy is annulled. If it results from suspension or strike-off in the RFL’s home jurisdiction then it will only terminate if the right to practice is restored or an application is made and granted.

If you apply to have a suspension lifted and this is refused, you can appeal that decision – initially by invoking the SRA’s internal appeals procedure, but failing that by applying to the High Court within 28 days of receipt of the notification.

The SRA may revoke a PC or registration (see regulation 9.2 of the SRA Practising Regulations 2011) if, for example, they are satisfied that it was granted as a result of error or fraud.

Contact the Lawyers Defence Group

If you or your firm is experiencing any difficulties arising as a result of practising certificate problems, you should contact the Lawyers Defence Group who will be able to assist you in dealing with those problems.

Whether the problem is in relation to:

• practising without a certificate,
• refusal of certificate,
• practising certificate conditions,
• the need for a practising certificate,
• responsibility for obtaining a practising certificate, or
• applying for a practising certificate or the appropriate application to make,

the Lawyers Defence Group can help you.

For further information, or to contact the Lawyers Defence Group about a problem which you have:

• phone on 0333 888 4070;
• email on help [Email address: help #AT# lawyersdefencegroup.org.uk - replace #AT# with @ ];
• request a callback using the form in the right hand menu and someone will call you back at a pre-arranged time; or
• write to Lawyers Defence Group, Richard Nelson LLP, Priory Court, 1 Derby Road, Nottibgham, NG9 2TA.

(revised December 2011)