Kent County Council has asked the Solicitors Regulation Authority to grant it an immediate waiver from the geographical restriction placed on local government solicitors’ ability to charge charities.
The move comes after the Legal Services Board earlier this month called on the SRA to review “quickly” whether to remove the restriction, which means local government solicitors can only charge those charities whose objects relate wholly or partly to the employer council’s area.
The LSB said the review was particularly needed because of the context of the Localism Act 2011. It added: “If the SRA decides in principle to remove the 'employer‘s area' restriction but considers that changes can only be made in the context of the wider review [of in-house practice], the LSB suggests that it makes a statement on its position and waivers this provision in the intervening period.”
As part of its red tape initiative, and despite Law Society opposition, the SRA lifted the previous bar on charging charities by amending rule 4.15 of the Practice Framework Rules. But – to the dismay of a number of local government lawyers – it included the geographical requirement.
Following the LSB’s decision notice, Geoff Wild, Director of Governance and Law at Kent CC, wrote to the SRA requesting a waiver.
He said: “The need for this change is more pressing than ever. I wholeheartedly support the reasoning and conclusions of the Legal Services Board, which confirmed that the only substantial issue it has with the recent Handbook amendments was the retention of the 'employer's area' restriction in Rule 4.15(e) of the SRA Practice Framework Rules 2011.
“The LSB reached the same inescapable conclusion that, once the principle of local authority solicitors charging for legal services to charities is accepted, there is no meaningful logical, professional or regulatory basis for drawing any distinction about for whom they may act on geographical grounds.”
Wild made a number of additional points in his letter, including that:
- The remaining restriction was anti-competitive and contrary to the principles enabling open access to the law;
- Removing the restriction would not compel any charity to engage lawyers from any particular council's legal department;
- The partial relaxation of the restriction left council legal departments facing some seemingly bizarre results. “In Kent, for example, under the current measures we may act for a charity based some 40 miles away from our offices in Broadstairs but not for a charity based 10 miles away in neighbouring Medway. The charities may require identical support, and our professional capacity to act is obviously the same for both. It is hard to see precisely what is achieved by this”;
- Charities based anywhere in the country which purchased legal services from a local authority legal department would receive exactly the same insurance protection as those based within the local authority's area.
Kent’s Wild also pointed out that the landscape for local authority legal services “has changed, and continues to change, dramatically, with moves towards more shared services and innovative collaborative ventures between public and private bodies”.
He added: “Many of these ventures had charitable status and objects relating to several local authority areas. Why should such bodies be restricted to choosing from the legal teams of the local councils with which they were previously associated? There can be no possible justification for this.”
Wild concluded: “Given the recent rejection of this restriction by the LSB and whilst the next phase of the consultation is conducted, and in view of the continuing damaging impact the current restriction is having on our ability to practice, I request an immediate waiver be granted to Kent County Council to allow us to charge for legal work carried out for charities outside our employer's area.”