Non-solicitor fee-earners aren't having an easy time of it, are they?
Law firms are scrambling to asses the impact of a bombshell ruling that determined that non-authorised employees of law firms can only support a solicitor in conducting litigation, and that they cannot conduct it themselves, even under supervision.
The decision in Julia Mazur & Others v Charles Russell Speechlys has left legal executives fearing that it may now be impossible for them to carry out their jobs, and prompted accusations that organisations including legal education providers, CILEX and the SRA misled them.
The case arose after Charles Russell Speechlys instructed Goldsmith Bowers Solicitors to recover a £54k debt from Julia Mazur when she didn’t pay its fees.
GBS’s Head of Commercial Litigation, Peter Middleton, issued the particulars of claim, but Mazur and her team objected on the basis that he was not a practising solicitor and was therefore not entitled to conduct the “reserved activity” of litigation.
Finding for Mazur on appeal last week, Mr Justice Sheldon torpedoed the notion that non-solicitors who were not ‘authorised’ by the SRA – including paralegals, legal executives and trainees – could conduct litigation so long as they were employed by a person who was authorised.
“Mere employment by a person who is authorised to conduct litigation is not sufficient for the employee to conduct litigation themselves, even under supervision”, said the judge.
GBS had argued that Middleton was permitted pursuant to the Legal Services Act 2007, which includes non-authorised persons employed by an authorised person in its definition of who is 'regulated'.
The SRA initially agreed, telling GBS it would not be investigating Middleton’s handling of the matter as the firm’s “employees are permitted to undertake reserved legal activities”.
The SRA’s conclusion was “clearly wrong”, said the judge.
Elevating blood pressure across the profession, the judge also pointed out that under the Legal Services Act 2007, “an employer, even if authorised to carry out a reserved legal activity, can commit a criminal offence if one of their employees carries on a reserved legal activity without being entitled to”. Which, it seems, is exactly what has been happening on a massive scale for years.
The SRA changed tack during the case and stated that an unauthorised person could only support a solicitor in conducting litigation, and could not conduct it themselves under the solicitor’s supervision.
The regulator is understood to be reviewing why it initially bungled its position, and whether it’s given the incorrect advice elsewhere.
The race is now on to describe everything that non-solicitors have done for the last 25 years as ‘support’, with the Law Society commenting that “the question where the boundary line is between ‘conducting’ and ‘supporting’ litigation remains a grey area”.
“Further clarity for practitioners is needed and we will be working with the SRA to achieve this so that firms can review their processes and adapt them as necessary”, it said.
Firms are livid. “It is hard to imagine that the regulator did not anticipate that this judgment would cause nationwide disruption, affecting thousands of firms. Their inbox must now be full of self-reports from across the profession”, said Stephen Lund, the CEO of Anthony Hodari Solicitors.
“Despite having weeks to prepare, there has been no guidance, no reassurance and no practical steps published to help firms navigate what is a seismic shift for litigation practices”, said Lund.
The consequences included “Millions of pounds of wasted costs for solicitors and for HMCTS”, and “Thousands of regulated individuals left worried about their jobs and careers”, he said.
This week the SRA broke its silence and stated on its website that its view was that the case “doesn't change the position in law”, and that its guidance on supervision published in 2022 reflected the judge’s findings.
“The onus is on firms to satisfy themselves that they are complying with the LSA, and only authorised individuals are conducting litigation”, it said.
Non-solicitors whose careers have been plunged into uncertainty said they were shellshocked.
“The Mazur decision has left me—like so many others—feeling exposed, uncertain, and frankly, angry” said Helen Page, a senior associate at Knights.
“I feel like my qualification and career over the last 20 years is utterly worthless”, said Laura Reed, a Contentious Probate Associate at Ellisons Solicitors.
She referred to CILEX, the Chartered Institute of Legal Executives, which unequivocally provided the wrong advice on its website for years:
Ah.
One solicitor pointed out the irony “that those who convinced a High Court Judge that all of the debt recovery industry, the SRA and lower court Judge had been getting it wrong… were themselves litigants in persons”. The judge appears to have agreed, emphasising that “Mrs Mazur, who is not a practising lawyer, made submissions on the law which were of a very high quality”.
A spokesperson for CRS said the firm was not able to comment on the outcome of the Mazur case.
Comments
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A sound decision. Every so many years the question of parity of Non Qualified’s and Qualified’s comes around. Each time CiLEx becomes more emboldened and the point of qualifying as a Solicitor appears less reserved.
Now the “and we can even” argument has a hard stop, apparently the only difference is a couple of exams, so make good on the noise and sit those exams.
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The issue here lies with all the professional bodies and regulators.
CILEx Regulation and the SRA both clearly knew that Legal Execs have been running litigated case loads for years. They had no concerns.
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Does this affect foreign-qualified lawyers who have not yet qualified in England & Wales?
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We have had to deal with undertrained incompetents on the other side of cases for years. They let their clients and the profession down. This judgement gives us an opportunity to drive out poor practice and serve the public rather than greedy EPs pep expectations.
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I have had a number of cases over the years where CILExes cropped up on the other side running the case.
Every single time they have been an unmitigated disaster, and have led to the dispute being unnecessarily prolonged and costs being far higher than they needed to be.
I also saw one instance of a trainee being left to run a very low-value claim, which ultimately resulted in service being set aside and - in consequence - the claim being timed out.
This is very clearly the right decision.
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Anonymous 03 October 25 08:16
As someone who took the CILEX practice exams several years ago specifically so I could 'conduct' litigation, I agree.
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Cilex members should just take the additional exams. Suck up the cost and get it done. It will be inconvenient but that is the life of a litigator filled with hurdles to leap over.
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Does anyone know the impact of Maxur against FCILEX individuals?
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I imagine either an appeal or some clarifying legislation is hotly on the way?
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Para legals are a helpful and cost effective part of the industry- I’ve always found my para-opponents pretty decent. If they’re not, then we can easily stomp all over any shoddy work. I wonder what this means for costs and access to justice? I’ll just get more expensive. SRA utter tosh as usual.
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As a FCILEx with 15 years PQE and over 30 years in civil litigation I find some of the comments above insulting. There are rogues and people unfit to practice in all professions, including some solicitors. Just because I have not obtained my qualification via university does not make me unfit, unqualified nor a second class lawyer.
I am proud to have worked side by side some of the best authorised and (now apparently) non authorised civil litigators and not once was my ability ever called into question. Add to that the fact that not once was I told I was not authorised to conduct litigation either by my employer, colleagues, opponents or, more importantly, CILEx or CRL, who actually positively confirmed I was authorised to conduct litigation.
What Mazur has done is set back access to justice, affordable access to legal services, discourage anyone thinking and invite unsolicited negative narrative about my ability as a lawyer.
For all those not jumping on the bandwagon, why have you not raised this issue before and objected to your incompetent, unauthorised opponent?
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Anonymous 09:38 - are FCILEX individuals solicitors?
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One thing largely overlooked here is that because of how difficult the SQE is, a lot of partners/counsel in big law firms are not admitted in England and Wales. They are probably conducting litigation based on their decisions, and the consequences for big firms could be huge. Absolute free hit if you come up against a big law firm in a case with a Partner/Counsel on the other side.
Fairly sure no one that is not qualified in England & Wales is going up to Partner in a disputes team in a big firm any time soon.
But because of the lag between this and bringing in the SQE, there seem to be a lot of Partners/Counsels in disputes teams already that would be taken to be conducting litigation and are not admitted.
Think cases on this will flow pretty quickly given how much money is at stake in some of these disputes. I’m sure the PI insurers are thrilled.
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In my last job, I was the manager of a volume unit handling low-value motor claims for a major insurer. I am a solicitor coming up 12 years qualified now. To be clear, when I was hired by that firm, I was told that I'd be a senior figure in the office on partner track, and that what I'd be doing was handling my own case load of multi-million pound complex injury claims. When I got there, it turned out that the firm didn't have any of those. It was clear within the first 3 days that there was absolutely no intention to progress my career to partnership. They had simply lied. As you can imagine, I was not happy to be there, and I had my eye on the door from the get-go. I am delighted to no longer be trapped in insurance litigation; a specialism full of interesting work and nice people that's been forced into decline by an abject failure by insurers to understand that you can't reasonably pay professional advisers rates so low that they can't achieve a decent standard of living from them.
The one ray of light during this grim debacle was that one of the paralegals working with me was absolutely remarkable. I have known many solicitors over the years who were less suitable to handle that work than she was. She didn't succumb to the temptation to half-arse the work in the way that many others do when lumbered with race-to-the-bottom rates. She was meticulous. She was applied. In what is now over a decade of mentoring and supervising other solicitors and legal professionals, she was one of the absolute best. The notion that she's not able to run a court action is, simply, a nonsense. I find the idea that she might be exposed to peril of any kind as a consequence of this decision to be, frankly, cruel.
Is she the exception to a rule? I suppose that's possible. The prevailing trend to use the word "paralegal" to describe literally anyone has certainly meant I've found myself dealing with cases where I felt awful for the person on the other side because they clearly had not been properly trained by lazy solicitors in their teams. I am absolutely in agreement that litigation should be conducted by people who are suitably able. It's just difficult to accept that some bits of paper determine who is and who isn't when such an overwhelmingly large proportion of qualified solicitors are thick as mince.
On that note, the thing that's really bothering me about this is the horrid sneering from solicitors who have been dying for an excuse to gate-keep. Put your smug Cheshire Cat grins away, you foul oiks. I see many of you crowing "if they're that bothered, why don't they just do the exams?! It's not that hard!". Have a look at what firms are paying paralegals and other non-qualified legal staff and then come back and tell me how, exactly, you propose that endeavour is funded. I suspect a great deal of you have never had to think about that in your lives.
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It’s a bloody mess. The majority of firms are built on having paralegals and litigation assistants running the lower value claims as it’s not cost effective for a Fellow of Cilex or solicitor to run for a client. The SRA and CRL clearly knew that firms were running in this manner especially when audited 🤷🏻♀️
Furthermore, the whole Cilex civil litigation exam is drafting a claim form and particulars of claim, but is this deemed as conducting litigation?
The portfolio process is also evidencing you running civil lit matter from start to finish…
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Great decision - very happy to see it.
Sure it's a bloodbath for the high-volume claims factories and my heart goes out to the poor underpaid people who work in them, but fundamentally it's a good thing for the public.
No more battery-farms of paralegals / cilex juniors blindly cranking out low value claims by turning the handle on the case-management system. No more wasted time and cost dealing with crappy spam correspondence from someone who isn't going to read anything you say in reply and who is just going to send out Escalation Letter 3 like the system tells them.
A blight on the profession that had festered for far too long.
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"I am absolutely in agreement that litigation should be conducted by people who are suitably able. It's just difficult to accept that some bits of paper determine who is and who isn't"
I feel the same way about performing colonoscopies and prescribing methadone. Why should the absence of some arbitrary paper forms hold me back?
Alas the snobbish old-fashioned GMC remain stubbornly stuck in their hidebound ways.
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"The one ray of light during this grim debacle was that one of the paralegals working with me was absolutely remarkable"
I think we've probably all had the experience of falling in love with a 'remarkable' paralegal at least once in our lives. Long hours. High stress. A marriage that has become familiar. And there they are, young, diligent, keen, and attentive to your every word. Everything that your subconscious wants and sitting right next to you for ten hours a day.
It's hard not to feel the urge and you shouldn't judge yourself for it. Many men have felt It before you, and many will again in years to come.
It is your resistance in the face of temptation that is the true mark of your character. Focus on that.
But obviously don't let them run litigation alone no matter how bangable they are.
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"Just because I have not obtained my qualification via university does not make me unfit, unqualified nor a second class lawyer."
I was with you until the third point.
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Anonymous 10:07 - your outrage is a matter of utter indifference to me. The fact is that only appropriately qualified and authorised persons should be conducting litigation. I am sure that there is a place for CILExes in the legal industry, but carrying out reserved legal business without the supervision of a real lawyer ain't it.
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Yet another SRA balls-up. I wonder who, in the SRA, gave the initial (wrong) advice to Goldsmith Bowers Solicitors.
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Great decision. No matter how much the CILEX participation trophy lot try to claim they're on the same level as qualified lawyers, they are wrong. Having practised litigation for 10 years, I've worked across a number of CILEX people and the number of basic mistakes made by them would make your head spin.
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Anonymous @ 10:39 - I love the fact that you see protecting the public and ensuring that legal work is properly conducted as "gate-keeping". Sorry, but the legal profession is not there for the purposes of giving you the right to conduct reserved legal activities.
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"On that note, the thing that's really bothering me about this is the horrid sneering from solicitors who have been dying for an excuse to gate-keep. Put your smug Cheshire Cat grins away, you foul oiks."
Just wait till you meet some doctors.
Horrible ghouls that delight in squatting on fortress, hauling up the ladder and gate-keeping promising young people out of their walled garden.
I don't need some fancy piece of paper to know who needs blasting in the ass with Mounjaro!
Who are you to keep me out of the pharmacy cupboard with your fancy pants book-learning?! Hmmm? Hmmmm!
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And it appears that the SRA is accelerating the job that Artificial Intelligence was going to do. (Not that I'd go as far as attributing any intelligence to the SRA, artificial or otherwise...)
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@11.03 - I am extremely gay so, tickled as I am by the unabashed Mills & Boonery of your response (albeit creepy old bastards using their positions of power to take sexual advantage of female juniors is a common problem in law and no laughing matter), I'm afraid you're barking up the wrong tree.
@11.27 - I explained quite clearly that I'm a solicitor, so we're not talking about giving me anything, are we?
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Anonymous @ 11:45 - "I don't need some fancy piece of paper to know who needs blasting in the ass with Mounjaro!"
MEGA HEH
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yeah cheers CRS well done was it all worth it for a few grand?
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Spotty Lizard @11:18
I didn’t say I wasn’t supervised by an authorised person. I always have been. My understanding, like many other FCILEx, was that was what enabled us to practice. The fact that CILEX, CRL & the SRA have now changed tact is gaslighting the industry.
The tone and intention of some of these comments is quite frankly appalling and demonstrates states the contempt that some have had towards FCILEx whilst working alongside them.
Your words have consequences so use them wisely.
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Anonymous 8:45 absolutely it affects “foreign qualified lawyers who have not yet qualified in England & Wales”.
However, I think the greatest risk lies with senior lawyers. If a junior lawyer comes over from say New Zealand, Canada or Australia to work in disputes, I do not think they will need to be worried about taking a bit of time to sit the SQE and get admitted in England & Wales.
But for more senior foreign qualified lawyers not admitted in England & Wales who might be taken to be making the strategic decisions in disputes and being professionally responsible for the case as per the Mazur decision, I think they are absolutely affected.
However, very little sympathy for them. At such a senior level, if they are worried about the risk, they should have passed the SQE and been admitted and absolutely should be sitting the SQE and getting admitted as a priority now.
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Does that mean, by necessity, any litigation run by an unqualified individual at a firm was conducted negligently?
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I’ve been carrying out litigation for 23 years, I’m not qualified. But one thing I do know, I’m better at my my job and more humble, than a lot of you qualified wannabe pompous idiots.
If you think this is about you, it probably is……
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Anonymous 03 October 25 10:11 - obviously not, FCILEX is "Cilex fellowship grade".
What I am unclear on, is that Cilex are still touting on their website that "FCILEX is the CILEX Fellowship Grade which offers Chartered Legal Executives Authorised Person status and access to a respected membership community with independent regulation...Extensive employee benefits are available to CILEX Fellows supporting them throughout their legal professional career, as well as further progression opportunities such as advocacy and litigation rights."
I would have assumed that this would have been updated or amended, given that I have read elsewhere that the website has been amended following the judgement. So, was wondering if this fellowship actually did anything in the current context.
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If you’re a paralegal or trainee I can understand that you just do what you are told and wouldn’t think to look at the Legal Services Act 2007.
But if you’re going to make a career out of being a legal executive, some responsibility surely falls on you to check the law and see what services you are entitled to provide and not just rely on CILEX or the SRA? Especially when you would be committing a criminal offence where you’re not entitled to provide those services.
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@12.47 - -it is not automatically negligent but it could be automatically illegal.
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@anoymous 12:21 what a weird comment. Is that supposed to be some sort of threat?
It's like hearing PCSOs complain that they're not allowed to play at being police officers. It was astonishing when CILExes started popping up conducting litigation, and I don't care whether or not you have an "F" in front of your qualification - you are not qualified to conduct litigation, should never have been allowed to do so, and are symptomatic of the deterioration in quality of the legal profession and the proliferation of claims farms and high-volume, unmeritorious claimant work.
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"Your words have consequences so use them wisely."
From the City to the sea!
Make the profession paralegal free!
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Once AI actually is intelligent, all these protection mechanisms the legal industry has built in to discourage competition will evaporate. Lagal system will be so much quicker and cheaper without “qualified” individuals.
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Well, I hate to say it, but I'm having an absolute field day with applications to strike out pleadings drafted and executed by FCILEx "Lawyers" and Paralegals.
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If this is a correct interpretation, a line needs to be drawn between where assistance ends and conduct begins and provide clarity for all
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Would this also apply to non-English qualified lawyers?
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@ Anonymous 03 October 25 10:35
“One thing largely overlooked here is that because of how difficult the SQE is, a lot of partners/counsel in big law firms are not admitted in England and Wales.”
You’re telling me we have people who did the LLB/GDL, thought nah I won’t do the SQE, and are now partners of law firms directing litigation?
Huge if true
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In Baxter v Doble & Anor [2023] EWHC 486 (KB), Cavanagh J held as follows in relation to the meaning of "conduct of litigation":
"I consider that some of the actions taken by the Respondents, looked at in isolation, consisted of the conduct of litigation, in addition to the filing of the claim form and particulars of claim, accompanied by the payment of the court fee, and the service of the reply and defence to counterclaim. Specifically, I think that the giving of instructions to an advocate; drafting of witness statements; the drafting of the application notice and draft order for the strike-out application; the drafting of the reply and defence to counterclaim; and the drafting of the case management summary for the CMC each formed part of the prosecution of the claim. The drafting of the claim form and the particulars of claim was done, ex hypothesi, before the proceedings were commenced, and so did not amount to the conduct of proceedings in themselves, but they are relevant in that they enhance the impression that the total package of services provided by the Respondents, taken as a whole, amounted to the conduct of litigation."
Accordingly, actions such as the drafting of witness statements, instruction of advocates and the drafting of pleadings, application notices and orders each constitute the "conduct of litigation".
As a result of Mazur v Charles Russell Speechlys, the conduct of litigation cannot be undertaken by a non-authorised person, even if they are supervised by an authorised person. The effect of this is that foreign qualified lawyers cannot work on English law litigation, even if they are appropriately supervised. Otherwise, the firm commits a criminal offence.
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Anonymous 14:48
“You’re telling me we have people who did the LLB/GDL, thought nah I won’t do the SQE, and are now partners of law firms directing litigation?
Huge if true”
No, that’s not what was said. The point refers to foreign qualified lawyers, eg someone admitted in Canada or Australia.
Previously, it was much easier for someone admitted in say Canada or Australia to get admitted.
Now, they must pass SQE1, it is basically impossible to get an exemption for that. It requires a lot of work, far more than previous systems. So yes there are now absolutely Partners and Counsel at major law firms in disputes who are not admitted in Wngland and Wales as a result. Just go on websites of big firms and have a search. They might be admitted in Canada or Australia, but that does not authorises them to conduct the reserved activity of conducting litigation in England & Wales.
Lots of senior associates admitted overseas but not here also want to go up as Partner in disputes. That is going to be a hard sell now and clients will not be impressed!
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“Would this also apply to non-English qualified lawyers?”
Anonymous 14:37 - There’s only one thing worse than relying on CILEX to tell you when you can and can’t practice legally - and that’s relying on a Roll on Friday comments section.
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Isn't Spotty Lizard a charmer
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There’s loads of CILEX qualified partners. Many were pushed down the route when they joined the firm if they couldn’t get a TC. The idea was your earned while you learnt and gain experience that every legal role requires
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Hello CILEx, my old friend
I've had to submit that claim again
Because your drafting left me weeping
And now I am no longer sleeping
And my indemnity insurance policy...
...'s now empty
'coz you did reserved biz
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"Fools" said I, "You do not know
CILEx like a cancer grows
Hear Mazur that I might teach you
Instruct solicitors to help you"
But my words like silent raindrops fell
And echoed in the wells of CILEx
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As a qualified solicitor I hope this forces people out of the profession to future proof myself against A.I.