Tiffany Cloynes 12 February 2018

Powers of local authority lawyers

Local government officers are used to ensuring their local authorities act within their powers. Local authority solicitors have the added issue of complying with the law regulating the activities of solicitors. Failure to comply with either could result in the local authority being challenged and action being taken against individual solicitors.

Guidance from the Solicitors Regulation Authority (SRA) has been interpreted by some as requiring a very restricted approach by local authority legal teams but it does leave scope for local authority lawyers to operate effectively.

Solicitors must comply with the Legal Services Act 2007, which restricts carrying out 'reserved legal activities' to persons who are authorised by an approved regulator or are exempt. Local authority solicitors are usually outside these requirements by virtue of section 15 of the Legal Services Act 2007, which allows employees to provide legal services in the course of their employment without this amounting to the employer carrying out reserved legal activities. However, this does not apply when the activity involves the provision of services to the public or a section of the public.

In 2017, the SRA published guidance on the law relating to employed solicitors. Some commentators have suggested this will significantly restrict the activities of local authority solicitors unless they act within alternative business structures but the SRA guidance and the legislation allow greater flexibility than this.

The key question is what is meant by providing services to the public. Section 15 of the Legal Services Act 2007 excludes services provided by trade unions to their members relating to their membership. It also gives the Lord Chancellor power, if the Legal Services Board recommends, to make orders specifying what constitutes a section of the public and the circumstances in which providing services to the public is part of an employer’s business. In the absence of such orders, there is scope for employers and employees and regulatory bodies such as the SRA to make their own interpretation.

The SRA, drawing on the explanatory notes to the Act, says in its guidance that the relevant question to ask is whether a person is providing the services to their employer or a person connected with their employer. Sometimes this will be obvious. For example, someone providing services to a subsidiary of their employer or to a joint venture company in which their employer has an interest would not be providing services to the public.

The SRA suggests key indicators to use to decide whether there is a clear and specific relationship between a client and a solicitor’s employer. One indicator is how the service recipient comes to the solicitor. The SRA says that if they come haphazardly or as a result of marketing, they are likely to be within the definition of the public, whereas this is not likely if services are provided to a closely defined group with a specific relationship with the employer.

The SRA mentions local authorities entering into joint ventures with neighbouring authorities to share services as a specific example of something which is likely not to be classed as providing services to the public. There could be other useful arrangements that local authority solicitors could make within the guidance and the legislation. For example, many local authorities now use frameworks to obtain legal services. The added value requirements of some of these frameworks means that the relationship between users and providers is closer than standard arrangements between solicitors and clients. If a local authority provides services to a framework, these will be provided to a closely defined group with which it has a specific relationship.

Local authority solicitors could also consider whether they are able to provide services which are not reserved legal activities. These are defined in the Act as exercise of a right of audience, conduct of litigation, reserved instrument activities, probate activities, notarial activities and administration of oaths.

Many local authority legal teams have a wide range of capability and carry out activities other than reserved legal activities, for example, training. Exploring the potential for such activities could give local authority solicitors opportunities to provide useful services and generate resources whilst staying legally compliant.

Tiffany Cloynes is partner and head of the regeneration and public services team at Geldards

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