Regulators are being urged to resolve “as a priority” the prospect of local government and other in-house solicitors being barred from providing pro bono advice in areas of reserved legal activity.
The restriction is contained in the latest version of the Solicitors Regulation Authority’s new Handbook (rule 4.10), the key implementation date for which is 6 October 2011.
The Handbook details all the regulatory requirements for law firms and in-house lawyers as well as new entrants such as alternative business structures. It effectively says that in-house lawyers will not be able to provide pro bono reserved legal activities to the public through their employers, unless their employers are regulated by the SRA.
Richard Collins, head of standards at the SRA, said the issue had arisen purely as a result of what the Legal Services Act 2007 says, and was not something the authority had wanted.
“There isn’t a provision in the Act that says in-house lawyers may not do pro bono reserved activities but it is the effect of a combination of a number of provisions of the Act,” he said.
“Obviously in reaching that view we have discussed it with the Legal Services Board, who have to approve all our regulatory arrangements. Our interpretation of what the Act means is shared by the LSB. So in policy terms, it is not a policy outcome we were desiring.”
Collins added that the SRA was working with the LSB to try and find a solution. One potential mechanism being looked at is the Board recommending to the Lord Chancellor that he make an order under section 15(9) of the 2007 Act around the definition of who a section of the public is in relation to the provision of services. This in turn could allow the SRA to change its regulatory arrangements and allow in-house lawyers to undertake reserved activities on a pro bono basis.
But Collins admitted that it was not wholly clear whether this was possible or whether a change to the primary legislation was needed. He added that the LSB would have to decide, first, whether this was right as a matter of public policy and, secondly, whether it was an appropriate statutory approach to dealing with the issue.
“We have no guarantees or view that if it is possible to resolve this, it will be resolved in time for October,” Collins said. “So assuming the LSB approve our Handbook, these provisions will apply from 6 October.”
In a statement the LSB told Local Government Lawyer that it remained committed to the principle that in-house lawyers should be able to undertake pro bono work. “We are working hard with the SRA to find a workable and proportionate way of ensuring that this can continue to happen in the new framework,” it said.
Rebecca Hilsenrath, chief executive of pro bono charity LawWorks, said the unintended consequence of the 2007 Act was of real concern and should be addressed “as a priority”.
She stressed that it was of the greatest importance that the in-house sector should be supported in maximising their delivery of pro bono legal advice and assistance.
Hilsenrath predicted that of the list of reserved legal activities, the impact in terms of restricting pro bono services was likely to fall largely on advocacy and the conduct of litigation.
“LawWorks does not provide insurance cover for advocacy but we nevertheless recognise the contribution that in-house teams can make, where they are able to provide cover themselves,” she said.
“The restrictions in relation to litigation are more significant to us, because of a lack of clarity and understanding around the stage at which that restriction comes into play and therefore an understandable degree of caution in providing assistance at very early stages in a case where there is even a possibility of proceedings resulting.”
The LawWorks chief executive said that although there had not been any formal analysis of the extent of the in-house contribution to pro bono in England and Wales, in-house lawyers were heavily engaged “particularly in casework and also in electronic advice, clinics and other pro bono projects”.
She added: “Part of LawWorks’ focus and value is in developing pro bono partnerships between in-house teams and law firms, which improve teamwork and communication strategies generally, but in the context of the change in regulation will be particularly valuable in ensuring that pro bono work which cannot be delivered directly by in-house teams is referred to their partner law firms.”
Guy Goodman, a past chairman of Solicitors in Local Government, said: "SLG has always argued that all solicitors are the same whichever sector they work in and whosoever their clients are. Pro bono work should be no different.
“We are grateful that the SRA and the Law Society understand the importance of this and are proactively seeking to remedy the situation. It is really important that they succeed and we will provide all the support we can to them."
Earlier this year SLG warned in a submission to an SRA consultation on the new Handbook that the change to the rules was "significant" and that its rationale was not well argued.