Rights of audience

[Ganymede]

Unless you're a qualified lawyer it's a crime to represent that you have rights of audience in court. Would you try and perform open heart surgery on his behalf?

 

 

 

Correct.

 

Drafting the Court documents and attending Court hearings are reserved legal activities and it it a criminal offence for someone who isn't regulated by the SRA or BSB to carry them out.

[Ganymede]

The crime is pretending to be a solicitor if you are not. The UK does not have the criminal concept of practicing law without a license. This is a United States concept which does not exist in the same form in the UK.

 

Even if this is fast or multi track, the worst case scenario is that the judge does not allow the op to speak and is restricted to acting as a MacKenzie friend. There is nothing in the op's post which suggests he intends to pretend that he is a solicitor so there is no crime that would be committed.

 

The Op simply asked if he is allowed to represent his friend. As set out in my post, the CPR states he is entitled to present his friend's case at the hearing as a lay representative if it is SCT. We don't know the amount for certain but in reality the vast majority of these claims are less than 10k.

 

It is not correct to say that this will depend on whether the judge will let you. It is not discretionary. Please refer to the CPR extract I posted above.

 

Yes, but in reality I would think this is unlikely and that if the amount is obviously less than 10k and therefore SCT any sensible judge would deal with it as such (refer to CPR PD 26, 2.4).

 

 

 

need some time on CAG to take a break from family, mince pies and mulled wine!

 

 

 

 

No the criminal offence is carrying out a reserved legal activity when you are not entitled, not "pretending to be a solicitor."

 

Reserved legal activities are things like drafting legal documents or presenting cases in Court.

 

Some people on CAG often tread a fine line in relation to this offence in my opinion.

 

 

http://www.legislation.gov.uk/ukpga/2007/29/part/3

 

 

Reserved legal activities

 

Meaning of “reserved legal activity” and “legal activity”

 

(1)In this Act “reserved legal activity” means—

 

(a)the exercise of a right of audience;

 

(b)the conduct of litigation;

 

©reserved instrument activities;

 

(d)probate activities;

 

(e)notarial activities;

 

(f)the administration of oaths.

 

(2)Schedule 2 makes provision about what constitutes each of those activities.

 

(3)In this Act “legal activity” means—

 

(a)an activity which is a reserved legal activity within the meaning of this Act as originally enacted, and

 

(b)any other activity which consists of one or both of the following—

 

(i)the provision of legal advice or assistance in connection with the application of the law or with any form of resolution of legal disputes;

 

(ii)the provision of representation in connection with any matter concerning the application of the law or any form of resolution of legal disputes.

 

(4)But “legal activity” does not include any activity of a judicial or quasi-judicial nature (including acting as a mediator).

 

(5)For the purposes of subsection (3) “legal dispute” includes a dispute as to any matter of fact the resolution of which is relevant to determining the nature of any person's legal rights or liabilities.

 

(6)Section 24 makes provision for adding legal activities to the reserved legal activities.

 

Carrying on the activities

 

 

 

Entitlement to carry on a reserved legal activity

 

(1)The question whether a person is entitled to carry on an activity which is a reserved legal activity is to be determined solely in accordance with the provisions of this Act.

 

(2)A person is entitled to carry on an activity (“the relevant activity”) which is a reserved legal activity where—

 

(a)the person is an authorised person in relation to the relevant activity, or

 

(b)the person is an exempt person in relation to that activity.

 

(3)Subsection (2) is subject to section 23 (transitional protection for non-commercial bodies).

 

(4)Nothing in this section or section 23 affects section 84 of the Immigration and Asylum Act 1999 (c. 33) (which prohibits the provision of immigration advice and immigration services except by certain persons).

 

 

Offences

 

Offence to carry on a reserved legal activity if not entitled

 

(1)It is an offence for a person to carry on an activity (“the relevant activity”) which is a reserved legal activity unless that person is entitled to carry on the relevant activity.

 

(2)In proceedings for an offence under subsection (1), it is a defence for the accused to show that the accused did not know, and could not reasonably have been expected to know, that the offence was being committed.

 

(3)A person who is guilty of an offence under subsection (1) is liable—

 

(a)on summary conviction, to imprisonment for a term not exceeding 12 months or a fine not exceeding the statutory maximum (or both), and

 

(b)on conviction on indictment, to imprisonment for a term not exceeding 2 years or a fine (or both).

 

(4)A person who is guilty of an offence under subsection (1) by reason of an act done in the purported exercise of a right of audience, or a right to conduct litigation, in relation to any proceedings or contemplated proceedings is also guilty of contempt of the court concerned and may be punished accordingly.

 

(5)In relation to an offence under subsection (1) committed before the commencement of section 154(1) of the Criminal Justice Act 2003 (c. 44), the reference in subsection (3)(a) to 12 months is to be read as a reference to 6 months.

Edited December 26, 2013 by Ganymede

[steampowered]

No the criminal offence is carrying out a reserved legal activity when you are not entitled, not "pretending to be a solicitor."

 

Reserved legal activities are things like drafting legal documents or presenting cases in Court.

 

Some people on CAG often tread a fine line in relation to this offence in my opinion.

 

http://www.legislation.gov.uk/ukpga/2007/29/part/3

 

I have to labour the issue, but I think we are getting sidetracked and are slightly missing the point here.

 

It is very likely that this will be SCT - although we will have to wait for the Op to confirm whether the amount is less than 10k. If it is SCT and the criteria mentioned in the CPR are met, the Op has full rights of audience. This is expressly clearly stated in the CPR, which is based on The Lay Representatives (Rights of Audience) Order 1999 (http://www.legislation.gov.uk/uksi/1999/1225/article/3/made) which is self-explanatory.

 

I think it is unnecessarily frightening and inaccurate for people to suggest to the Op that he might be committing a criminal offence without any knowledge of the circumstances and facts of the case, given the existence of the crystal clear exception to the general reserved activities principle set out above. Of course the Op needs to ensure that he meets the criteria set out in the CPR in order to have his rights of audience.

 

I would also point out that the Act is not so broad as to refer to things like 'legal documents'. Only limited categories of legal documents are covered, but I do not think it is necessary to go into the detail of that here.

[mjt2013]

I would suggest it's far worse to tell the OP he can represent someone in court when that's not necessarily the case and, quite possibly, he'll be committing a crime if he does.

[steampowered]

I would suggest it's far worse to tell the OP he can represent someone in court when that's not necessarily the case and, quite possibly, he'll be committing a crime if he does.

Alright, I'm glad we have clarified that the op can't represent his friend if this is fast track or multi track but should be able to if this is small claims track (subject to meeting the conditions set out above). Merry Xmas.

[Ganymede]

I have to labour the issue, but I think we are getting sidetracked and are slightly missing the point here.

 

It is very likely that this will be SCT - although we will have to wait for the Op to confirm whether the amount is less than 10k. If it is SCT and the criteria mentioned in the CPR are met, the Op has full rights of audience. This is expressly clearly stated in the CPR, which is based on The Lay Representatives (Rights of Audience) Order 1999 (http://www.legislation.gov.uk/uksi/1999/1225/article/3/made) which is self-explanatory.

 

I think it is unnecessarily frightening and inaccurate for people to suggest to the Op that he might be committing a criminal offence without any knowledge of the circumstances and facts of the case, given the existence of the crystal clear exception to the general reserved activities principle set out above. Of course the Op needs to ensure that he meets the criteria set out in the CPR in order to have his rights of audience.

 

I would also point out that the Act is not so broad as to refer to things like 'legal documents'. Only limited categories of legal documents are covered, but I do not think it is necessary to go into the detail of that here.

 

 

 

It is a criminal offence to carry out a reserved activity if you are not entitled, the Legal Services Act is very clear.

 

Drafting Claim Forms, Particulars of Claim, Defences and Counter Claims etc etc are legal documents that would come under "conducting litigation." As you say the only exception is if the OP presents the case in the SCT if the judge allows it (the vast majority won't) but he should not being conducting the claim and drafting etc.

 

It may be fun to play at being lawyer as you've watched a few episodes of Ally McBeal but it doesn't stop it being a criminal offence.

[mjt2013]

It may be fun to play at being lawyer as you've watched a few episodes of Ally McBeal but it doesn't stop it being a criminal offence.

 

I really want this quote on a mug or t shirt

[steampowered]

I've moved us into a separate thread and given the original op a link, as we are getting a little bit off-topic.

 

 

Drafting Claim Forms, Particulars of Claim, Defences and Counter Claims etc etc are legal documents that would come under "conducting litigation." As you say the only exception is if the OP presents the case in the SCT if the judge allows it (the vast majority won't) but he should not being conducting the claim and drafting etc.

 

 

Conducting litigation is defined by Schedule 2 of the Act as follows:

(1)The “conduct of litigation” means

(a)the issuing of proceedings before any court in England and Wales,

(b)the commencement, prosecution and defence of such proceedings, and

©the performance of any ancillary functions in relation to such proceedings (such as entering appearances to actions).

 

 

With the greatest respect, it is not obvious to me that this captures the drafting of things like POC or witness statement for someone else where these are approved by and the statement of truth signed by the individual concerned. I must admit I have never got my head around precisely what 'conducting litigation' covers, although I am glad that the courts share the same confusion (as does the BSB following the O'Connor saga a few years ago).

 

 

There is not much clear authority on this but I refer you to http://www.bailii.org/ew/cases/EWCA/Civ/2005/1507.html:

 

The word "ancillary" indicates that it is not all functions in relation to proceedings that are comprised in the "right to conduct litigation". The usual meaning of "ancillary" is "subordinate". A clue to what was intended lies in the words in brackets "(such as entering appearances to actions)". These words show that it must have been intended that the ancillary functions would be formal steps required in the conduct of litigation.

 

 

It is not obvious to me that helping someone draft a POC or witness statement is a 'formal step' required for litigation. I would think the formal step is signing the statement of truth and (potentially) arranging to file the document at court.

 

 

I would also point out that the LSA has no delegation provisions in relation to the 'right to conduct litigation'. Only an 'authorised person' can do this. If you are correct then law firms which use paralegals to have a first attempt at drafting POC/witness statements are in breach of the Act. To me this is another pointer that parliament did not intend to catch drafting court documents here - it does not make sense to say that paralegals cannot assist with basic witness statement but it does make sense to say that your paralegal should not sign the statement of truth.

 

 

Again this is a bit off-topic, but given that we have drifted into talking in general terms about what people say on CAG it is worth emphasising. The restriction on 'conducting litigation' does not cover the provision of general legal advice. This is not a reserved legal activity. It is not uncommon for people to think that it is because they have watched US TV legal dramas, as many US states have a general concept of practising law without a license which is far broader than the LSA 2007 (I'm sorry I couldn't resist). Again, from Agassi:

 

 

It is to be noted that we were shown no statute or rule which prohibits an unqualified person from giving legal advice

...

Suffice it to say that we do not see how the giving of legal advice in connection with court proceedings can come within the definition

[Ganymede]

Paralegals etc are covered in the Legal Services Act. They are allowed because the firm they work for will be regulated by the SRA and have qualified solicitors supervising them.

 

15

1)This section applies for the interpretation of references in this Act to a person carrying on an activity which is a reserved legal activity.

 

(2)References to a person carrying on an activity which is a reserved legal activity include a person (“E”) who—

 

(a)is an employee of a person (“P”), and

 

(b)carries on the activity in E's capacity as such an employee.

 

(3)For the purposes of subsection (2), it is irrelevant whether P is entitled to carry on the activity.

[Ganymede]

Oh and giving legal advice is covered too I the part I quoted above...

 

"(3)In this Act “legal activity” means—

(a)an activity which is a reserved legal activity within the meaning of this Act as originally enacted, and

(b)any other activity which consists of one or both of the following—

(i)the provision of legal advice or assistance in connection with the application of the law or with any form of resolution of legal disputes;

(ii)the provision of representation in connection with any matter concerning the application of the law or any form of resolution of legal disputes."

Edited December 26, 2013 by Ganymede

[steampowered]

Paralegals etc are covered in the Legal Services Act. They are allowed because the firm they work for will be regulated by the SRA and have qualified solicitors supervising them.

 

 

The way I read the Act, section 15 is designed to protect paralegals who are just following instructions and therefore makes compliance the responsibility of the law firm. I don't think it actually authorises law firms to use paralegals to carry out reserved legal activities.

 

 

Section 15(3) indicates 'it is irrelevant whether P is entitled to carry on the activity'. However it does not state that E may use P to carry out reserved legal activities.

 

 

The way I read the Act the operative provisions about permissible delegation are section 19 and Schedule 3 (http://www.legislation.gov.uk/ukpga/2007/29/schedule/3). Schedule 3 sets out in some detail which persons are exempt from the general restrictions. You will note that there are express exemptions for employees acting under the direction of a solicitor in relation to things like reserved instrument activities, probate and even rights of audience ... but there are no such delegation provisions for the 'conduct of litigation' restriction. This is the primary reason why I think the words 'conduct of litigation' are intended to have a narrow meaning and does not catch the drafting of legal documents.

 

 

The other point I would make is that preparing an 'instrument relating to court proceedings in England and Wales' comes under the restriction for 'reserved instrument activities' not under the restriction for 'conduct of litigation'. This is another reason why I don't think 'conduct of litigation' catches things like drafting a witness statement.

 

 

For future reference I would also point out that 'reserved instrument activities' has an exemption as follows:'The person is exempt if the person is an individual who carries on the activity otherwise than for, or in expectation of, any fee, gain or reward.' ... which it seems to me would catch anyone helping on CAG.

[steampowered]

Oh and giving legal advice is covered too I the part I quoted above...

 

"(3)In this Act “legal activity” means—

(a)an activity which is a reserved legal activity within the meaning of this Act as originally enacted, and

(b)any other activity which consists of one or both of the following—

(i)the provision of legal advice or assistance in connection with the application of the law or with any form of resolution of legal disputes;

(ii)the provision of representation in connection with any matter concerning the application of the law or any form of resolution of legal disputes."

 

Good spot. However, this only refers to 'legal activities'. It doesn't refer to 'reserved legal activities' which are separately defined. I think it is clear that the provision of general legal advice is a 'legal activity' but it is not a 'reserved legal activity'.

 

The Act only prevents people from carrying out 'reserved legal activities'. These are the only things which are caught by the criminal offence provisions. I don't see any restrictions on carrying out 'legal activities' in the Act.

 

I've done a word search through the entire Act and it seems the only time that 'legal activities' are mentioned is in sections 24 and 25, which basically states as follows:

The Lord Chancellor may, by order, amend section 12 or Schedule 2 (reserved legal activities) so as to add any legal activity to the activities which are reserved legal activities for the purposes of this Act.

 

In other words, the government may restrict people from giving legal advice through asking the Lord Chancellor to issue secondary legislation, without needing to push new primarily legislation or an amendment to the LSA 2007 through parliament. So far as I am aware there is currently no secondary legislation covering general legal advice ... and accordingly there are no regulatory restrictions on people giving general legal advice whether or not they are legally qualified.

 

Aren't you a solicitor Steam?

Its against CAG rules for people to hold themselves out as legally qualified, as there is no way for people to check qualifications through the internet, so unfortunately I can't answer this question either way. You'll have to reach your own conclusions from my posts

[Ganymede]

"(3)In this Act “legal activity” means—

 

(a)an activity which is a reserved legal activity"

 

 

 

 

For the purposes of the Act "legal activity" means reserved legal activity.

[steampowered]

"(3)In this Act “legal activity” means—

 

(a)an activity which is a reserved legal activity"

 

 

For the purposes of the Act "legal activity" means reserved legal activity.

 

I agree that all 'reserved legal activities' are 'legal activities'.

 

But not all 'legal activities' are 'reserved legal activities' ... those that are not (e.g. giving general legal advice) are not restricted to solicitors/barristers.