SRA Handbook

Rights of practice

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Version 8 of the Handbook was published on 01/10/2013. For more information, please click 'History' Above

Part 2: Rights of practice

Rule 8: Reserved work and immigration work

Solicitors

8.1

As a solicitor, provided that you comply with Rule 9.1, you are authorised by the SRA:

(a)

to undertake the following reserved work:

(i)

the exercise of any right of audience which solicitors had immediately before 7 December 1989;

(ii)

the exercise of any additional right of audience if you have a relevant higher courts advocacy qualification awarded by the SRA or another approved regulator;

(iii)

the conduct of, and the preparation of documents in, court and immigration tribunal proceedings;

(iv)

the preparation of instruments and the lodging of documents relating to the transfer or charge of land;

(v)

the preparation of trust deeds disposing of capital;

(vi)

the preparation of papers on which to found or oppose a grant of probate or a grant of letters of administration;

(vii)

the administration of oaths and statutory declarations; and

(b)

to undertake immigration work not included under (a) above.

RELs

8.2

As an REL, you are authorised by the SRA:

(a)

to undertake the following reserved work:

(i)

the exercise of any right of audience which solicitors had immediately before 7 December 1989;

(ii)

the exercise of any additional right of audience provided that you have a relevant higher courts advocacy qualification awarded by the SRA or another approved regulator;

(iii)

the conduct of, and the preparation of documents in, court and immigration tribunal proceedings;

(iv)

the preparation of instruments and the lodging of documents relating to the transfer or charge of land, provided you are a member of a profession listed under regulation 12 of the European Communities (Lawyer's Practice) Regulations 2000;

(v)

the preparation of trust deeds disposing of capital;

(vi)

the preparation of papers on which to found or oppose a grant of probate or a grant of letters of administration, provided you are a member of a profession listed under regulation 13 of the European Communities (Lawyer's Practice) Regulations 2000;

(vii)

the administration of oaths and statutory declarations; and

(b)

to undertake immigration work not included under (a) above.

8.3

When as an REL you exercise a right of audience before a court under 8.2(a)(i) or (ii), conduct court litigation under 8.2(a)(iii) or prepare court documents under 8.2(a)(iii) you must act in conjunction with a solicitor or barrister authorised to do that work.

RFLs

8.4

As an RFL working within Rule 3 you are authorised by the SRA:

(a)

to undertake the following reserved work:

(i)

advocacy before immigration tribunals; and

(ii)

the conduct of, and the preparation of documents in, immigration tribunal proceedings; and

(b)

to undertake immigration services which are not reserved work and are not included under (a) above, and to provide immigration advice.

Recognised bodies

8.5

Recognised bodies

(a)

A recognised body is authorised by the SRA to undertake the following reserved work:

(i)

advocacy before a court or immigration tribunal provided the manager or employee exercising the right of audience is authorised by the SRA, or otherwise entitled, to do so;

(ii)

the conduct of proceedings in a court or immigration tribunal;

(iii)

the preparation of documents in proceedings before a court or immigration tribunal;

(iv)

the preparation of instruments and the lodging of documents relating to the transfer or charge of land, provided the body has a manager who is:

(A)

an individual who is authorised to do that work, or

(B)

a body corporate which has a manager who is authorised to do that work;

(v)

the preparation of trust deeds disposing of capital;

(vi)

the preparation of papers on which to found or oppose a grant of probate or a grant of letters of administration, provided the body has a manager who is an individual authorised to do that work, or a body corporate with a manager who is authorised to do that work; and

(vii)

the administration of oaths and statutory declarations.

(b)

A recognised body is authorised to undertake immigration services which are not within (a) above, and to provide immigration advice.

Licensed bodies

8.6

A licensed body is authorised by the SRA to undertake the reserved legal activities and immigration work specified in the authorisation granted to the body under Rule 6 of the SRA Authorisation Rules.

Sole practitioner firms

8.7

Sole practitioner firms

(a)

A recognised sole practitioner who is a solicitor is authorised by the SRA:

(i)

to provide any reserved work which the solicitor is authorised to provide under Rule 8.1 above, and any other advocacy service through an employee of the sole practitioner's firm exercising a right of audience as authorised by the SRA, or otherwise entitled, to do; and

(ii)

to undertake immigration services which are not within (i) above, and provide immigration advice.

(b)

A recognised sole practitioner who is an REL is authorised by the SRA:

(i)

to provide any reserved work which the REL is authorised to provide under Rule 8.2 above, and any other advocacy service through an employee of the sole practitioner's firm exercising a right of audience as authorised by the SRA, or otherwise entitled, to do; and

(ii)

to undertake immigration work which is not within (i) above.

Guidance notes

(i)

Reserved work is work that is defined in Schedule 2 to the LSA as a "reserved legal activity". 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 - see Schedule 3 to the LSA.

(ii)

Immigration work (immigration advice and immigration services) is restricted to certain persons under the Immigration and Asylum Act 1999. Immigration services relating to courts or immigration tribunals are reserved work - advocacy, the conduct of cases, and the preparation of papers. The court work is subject to the normal restriction on court work. Immigration Tribunal work can be done by RFLs who are practising as such. Other immigration work is not reserved work, but can only be done by an authorised person such as a solicitor, a barrister, a legal executive, a member of an Establishment Directive profession, or an RFL practising as such, or under the supervision of an authorised person, or under an exemption given by the Office of the Immigration Services Commissioner.

(iii)

The Financial Services and Markets Act 2000 reserves the provision of "regulated activities" to persons authorised by the Financial Conduct Authority (FCA). Certain "regulated activities", ancillary to the provision of a professional service, are exempt from regulation by the FCA when carried out by firms authorised by the SRA - see the SRA Financial Services (Scope) Rules. For the definition of "regulated activity" see the activities specified in the Financial Services and Markets Act 2000 (Regulated Activities) Order 2001 (SI 2001/544).

(iv)

From 31 March 2012 or the date on which an order made pursuant to section 69 of the LSA relating to the status of sole practitioners comes into force, whichever is the later, a sole practitioner's firm will be regulated as a type of authorised body and will be authorised under the SRA Authorisation Rules.

(v)

The SRA does not authorise notarial activities. This does not prevent individuals, in an SRA authorised firm, providing notarial services where personally authorised to do so by the Master of the Faculties within paragraph 7 of Schedule 2 to the LSA.

(vi)

See also Rule 8.4 of the SRA Authorisation Rules which provides that an authorised body may not carry on an activity unless through a body and individual who is authorised to carry on that activity.

(vii)

In the case of solicitors and RELs who undertake criminal advocacy, see also the SRA QASA Regulations.

Rule 9: Practising certificates

9.1

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

(a)

have in force a practising certificate issued by the SRA; or

(b)

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:

(a)

your involvement in the firm or the work depends on your being a solicitor;

(b)

you are held out explicitly or implicitly as a practising solicitor;

(c)

you are employed explicitly or implicitly as a solicitor; or

(d)

you are deemed by section 1A of the SA to be acting as a solicitor.

9.3

In 9.2 above "legal practice" includes not only the provision of legal advice or assistance, or representation in connection with the application of the law or resolution of legal disputes, but also the provision of other services such as are provided by solicitors.

9.4

If you are a solicitor who was formerly an REL, and you are practising from an office in the UK as a lawyer of an Establishment Directive profession, you must have in force a practising certificate issued by the SRA, even if you are not practising as a solicitor.

Guidance notes

(i)

Rule 9 includes, in rule form, the requirements of sections 1 and 1A of the SA. The issuing of practising certificates under that Act is the responsibility of the SRA. For further guidance on the need for a practising certificate see our website.

(ii)

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 SA.

Rule 10: Sole practitioners

10.1

If you are a solicitor or REL you must not practise as a sole practitioner unless:

(a)

the SRA has first authorised you as a recognised sole practitioner by endorsing your practising certificate or certificate of registration to that effect;

(b)

your practice falls within 10.2 below and you are therefore exempt from the obligation to be a recognised sole practitioner; or

(c)

you are authorised to practise as a sole practitioner by an approved regulator other than the SRA.

10.2

For the purpose of 10.1(b) above you are exempt from the obligation to be a recognised sole practitioner if:

(a)

your practice is conducted entirely from an office or offices outside England and Wales;

(b)

your practice consists entirely of work as a temporary or permanent employee and any firm which employs you takes full responsibility for you as an employee; or

(c)

your practice consists entirely of:

(i)

providing professional services without remuneration for friends, relatives, companies wholly owned by you or your family, or registered charities; and/or

(ii)

administering oaths and statutory declarations; and/or

(iii)

activities which could constitute practice but are done in the course of discharging the functions of any of the offices or appointments listed in paragraph (i)(E) of the definition of private practice.

Guidance note

(i)

Until 31 March 2012 or the date on which an order made pursuant to section 69 of the LSA relating to the status of sole practitioners comes into force, whichever is the later, see regulation 4 of the SRA Practising Regulations. After that, see the SRA Authorisation Rules.

Rule 11: Participation in legal practice

11.1

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

(a)

a manager, member or interest holder of:

(i)

a recognised body; or

(ii)

a body corporate which is a European corporate practice and is a manager of a recognised body; or

(b)

a manager, member or owner of:

(i)

a licensed body; or

(ii)

a body corporate which is a European corporate practice and 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);

(c)

employed in connection with the provision of legal services in England and Wales, by:

(i)

a recognised sole practitioner; or

(ii)

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);

(d)

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:

(a)

a manager, member or interest holder of:

(i)

an authorised non-SRA firm which is not licensed under Part 5 of the LSA; or

(ii)

a body corporate which is a manager of such an authorised non-SRA firm;

(b)

a manager, member or owner of an authorised non-SRA firm which is licensed under Part 5 of the LSA; or

(c)

an employee who is employed in connection with the provision of legal services in England and Wales, by 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.

Guidance note

(i)

A solicitor, REL or RFL is required to be involved in a recognised body in that capacity even if they merely have a small interest in the firm. There is greater flexibility in licensed bodies where a solicitor, REL or RFL is permitted to have a small share in a licensed body without being treated as practising merely because of that involvement. For example, a solicitor could have a small interest in a licensed body through a pension fund even though not practising.

Rule 12: Persons who must be "qualified to supervise"

12.1

The following persons must be "qualified to supervise":

(a)

a recognised sole practitioner;

(b)

one of the lawyer managers of an authorised body or of a body corporate which is a legally qualified body and which is a manager of the authorised body;

(c)

one of the solicitors or RELs employed by a law centre in England and Wales, unless the law centre is licensed under Part 5 of the LSA in which case the provisions in Rule 12.1(b) will apply; or

(d)

one in-house solicitor or in-house REL in any department in England and Wales where solicitors and/or RELs, as part of their employment:

(i)

do publicly funded work; or

(ii)

do or supervise advocacy or the conduct of proceedings for members of the public before a court or immigration tribunal.

12.2

To be "qualified to supervise" for the purpose of 12.1 a person must:

(a)

have completed the training specified from time to time by the SRA for this purpose; and

(b)

be a practising lawyer, and have been entitled to practise as a lawyer for at least 36 months within the last ten years; and

must be able to demonstrate this if asked by the SRA.

12.3

The following persons must ensure that their firm has at least one manager who is practising as a lawyer and has been entitled to practise as a lawyer for a minimum of 36 months within the last 10 years:

(a)

a solicitor manager of a firm which is not an authorised body and which is practising from an office outside England and Wales, and solicitors control the firm, either directly as partners, members or interest holders, or indirectly by their ownership of bodies corporate which are partners, members or interest holders; and

(b)

a solicitor or REL manager of a firm which is not an authorised body and which is practising from an office in Scotland or Northern Ireland, and solicitors and/or RELs control the firm, either directly as partners, members or interest holders, or indirectly by their ownership of bodies corporate which are partners, members or interest holders.

12.4

You must not set up as a solicitor sole practitioner outside England and Wales, or as an REL sole practitioner in Scotland or Northern Ireland, unless you have been entitled to practise as a lawyer for a minimum of 36 months within the last 10 years.

Guidance notes

(i)

The person "qualified to supervise" under Rule 12.2 does not have to be personally entitled by law to supervise all work undertaken by the firm. Responsibility for the overall supervision framework, including compliance with legal supervisory requirements, rests with the authorised body and its managers, or the recognised sole practitioner.

(ii)

In satisfying the requirement for 36 months entitlement to practise you can for example rely on a period as a lawyer of another jurisdiction. In calculating the 36 months, any period of entitlement to practise as a lawyer of another jurisdiction can be taken into account in addition to your time entitled to practise as a solicitor.

(iii)

Waivers may be granted in individual cases. See Rule 21.

(iv)

The training presently specified by the SRA is attendance at or participation in any course(s), or programme(s) of learning, on management skills involving attendance or participation for a minimum of 12 hours. The courses or programmes do not have to be CPD accredited in order to satisfy the requirement. It is not normally necessary to check with the SRA before undertaking a course or programme unless the course is unusual and outside the mainstream of management training. Advice may be sought from the Professional Ethics Guidance Team.

(v)

Controlling the firm in Rule 12.3 means constituting the largest (or equal largest) share of control of the firm either as individual managers or by their share in the control of bodies which are managers.