A leading local government lawyer has warned that there is “no time to lose” in persuading the Solicitors Regulation Authority to change practice rules which inhibit council legal teams from using the general power of competence and charging for legal services.
The comments from Geoff Wild, Director of Law & Governance at Kent County Council, came after the SRA last week launched a consultation on changes to its Practice Framework Rules (PFR).
The PFR sets out the circumstances in which in-house solicitors can act for clients other than their employer. But the Legal Services Act also requires bodies to be authorised in circumstances where, as a part of their business, they are providing reserved legal activities to the public or a section of the public.
The SRA said the proposed amendments to the PFR were designed to clarify, for employers and in-house solicitors, the relationship between the Authority's regulatory requirements on in-house solicitors and the requirements of the Act.
The consultation, which lasts for four weeks, closes on April 23. It can be viewed here.
But the consultation does not address local government lawyers’ concerns about a professional conduct rule they argue causes councils major problems.
Last summer, Maria Memoli, one of two Law Society Council members for local government, wrote to the SRA calling for the rules to be changed, in part to reflect the [then incoming] general power of competence.
The main issue relates to a provision – now section 4.15 of the Handbook – which says solicitors employed by local authorities can act “for a charity or voluntary organisation whose objects relate wholly or partly to the employer's area, provided that there is no charge to the charity or voluntary organisation in non-contentious matters, and in contentious matters the employer indemnifies the charity or voluntary organisation in relation to your costs insofar as they are not recoverable from any other source”.
Memoli’s letter said the restrictions on charging caused problems for local authorities looking to advise a range of bodies, such as academies, housing associations and further education colleges.
Kent’s Wild said the SRA’s current consultation was “of no use to local government lawyers whatsoever”.
He added: “No attempt has been made to revise the key section in 4.15. We will be submitting a response to the consultation that will propose a revised wording that actually meets the needs of modern, 21st century lawyers working in local government, in order to better reflect and accommodate both the general power of competence and the statutory ability of local government to charge for and trade in legal services.”
A spokesman for the SRA said the regulator was very aware of the concerns that had been raised by council solicitors.
He added: “We agree that the wider issue does need review. That however will hopefully take place when we carry out a wider review of in-house solicitors later in the year when the matter can be given a proper hearing. It will include a full consultation that will seek the views of all concerned over a 12-week period.”
The spokesman said the current consultation exercise was focussed on the current rules regarding Practice Framework Rules and Rule 4.
“This is because we introduced transitional provisions in September 2011 that will not come into effect until 21 June 2012, and this would mean our own rules were more restrictive than necessary under the Act,” he said. “So we want to clarify the link between our rules and the Act before this date.”
But Wild argued: “[This is] a rather strange and illogical approach to reviewing a key area, which displays a lack of knowledge and understanding of the local government legal landscape. I will be responding to this consultation, and won’t wait until ‘later in the year’ – there’s no time to lose.”