The regulatory structure for lawyers in England and Wales is complex and governed by the Legal Services Act 2007. Its basics are as follows.
What work is regulated?
It’s not generally known but there are relatively few areas of law where you must be a regulated lawyer in order to undertake them. They are:
- acting as an advocate in court (but not a tribunal)
- conducting litigation (essentially acting on behalf of someone bringing a case to court)
- conveyancing (described as “reserved instrument transactions” in the Act)
- applying for probate
- administering oaths.
In order to undertaken this work, you have been granted the right to undertake that work by an approved regulator.
If you are not regulated by an approved regulator and you provide immigration advice and assistance, you must be registered with the Office of Immigration Services Commissioner.
If you work as a claims manager (e.g. on personal injury claims or other actions for compensation) and are not regulated by an approved regulator then you must be registered with the Claims Management Regulator.
The approved regulators are set out in the Legal Services Act. Some of these bodies have a representative role and, in those cases, they are required to ensure that their regulatory decisions are taken, so far as practicable, separately from their representational work. Most have created separate regulatory arms to undertake their regulatory work all of which have strong independent profiles. They are:
- The Law Society (for solicitors), which has delegated its regulatory work to the Solicitors Regulation Authority (SRA). The Society authorises solicitors to undertake all the areas of reserved work.
- The Bar Council (for barristers), which has delegated its regulatory work to the Bar Standards Board (BSB). The Bar Council can authorise barristers to undertake all areas of reserved work.
- The Council for Licensed Conveyancers which authorises those its regulates to undertake conveyancing, probate work and adminster oaths.
- The Chartered Institute of Legal Executives, which has delegated its regulatory work to CILEx Regulation. It can authorise legal executives to undertake all areas of reserved work, but with significant limitations on the courts before which they can appear as advocates.
- The Chartered Institute of Patent Attorneys and the Institute of Trade Mark Agents, who can both authorise their members to undertake rights of audience and to conduct litigation in patent and trade mark actions, together with reserved instrument activities and administering oaths. They have delegated their regulatory functions to the Intellectual Property Regulation Board.
- The Association of Costs Lawyers which can authorise people to appear in court, conduct litigation and administer oaths in costs matters. The regulatory functions are delegated to the Cost Lawyers Standards Board.
- The Master of Faculties of the Archbishop of Canterbury, who authorises notaries to conduct reserved instrument activities, apply for probate and administer oaths
- The Institute of Chartered Accountants in England and Wales, who can authorise accountants to do probate work.
The Association of Chartered Certified Accountants and the Institute of Chartered Accountants in Scotland have rights to authorise activities, but do not do so.
The work of the approved regulators
The approved regulators broadly undertake the following functions:
- establishing the education and training requirements to enable someone to gain authorisation or the checks on corporate entities to check that they are suitable to be authorised;
- setting the rules of conduct and ethical standards;
- supervising and monitoring compliance;
- taking action for non-compliance, including prosecution in front of disciplinary tribunals.
Their work generally covers all aspects of the authorised individuals’ practices, whether or not they are undertaking reserved work – though this does not completely apply to SRA regulated individuals if they are taking advantage of recent changes to the Separate Business Rule or are also regulated by a body such as the ICAEW.
The Legal Services Board
The Legal Services Board supervises the work of the approved regulators. Broadly, it:
- approves changes to the rules;
- recommends new bodies who wish to become approved regulators to the Lord Chancellor;
- recommends whether activities should be reserved;
- supports the work of the Legal Services Consumer Panel;
- undertakes research to support its general remit to oversee the market for legal services;
- appoints and oversees the work of the Legal Ombudsman.
The Board is appointed by the Lord Chancellor.
The Legal Ombudsman deals with complaints of poor service against people who are authorised by the approved regulators and those who are regulated by the Claims Management Regulator.
Each of the approved regulators have slightly different arrangements for prosecuting disciplinary matters against lawyers.
The SRA prosecutes solicitors before the Solicitors Disciplinary Tribunal.
The BSB prosecutes barristers in front of a Disciplinary Tribunal of the Council of the Inns of Court, administered by the Bar Tribunals and Adjudications Service.
The others have internal disciplinary committees or tribunals charged with taking action.