Our regular column offers advice on ethical issues facing solicitors


Q I have recently joined a new firm. I was told the firm would deal with the renewal of my practising certificate (PC) and I therefore assumed it was all in hand. I have now discovered that it was not renewed and I have therefore practised without a PC. Surely this was my firm's responsibility, and not mine?



A No. Although bulk renewal forms are usually sent to the firm, you are personally responsible for ensuring that you have a PC if you need one. Bearing in mind that it is a disciplinary matter to practise without a PC, as well as being an offence under the Solicitors Act 1974, it is always advisable to check that your details are included on the renewal form and that the form has been returned to Law Society Regulation with the appropriate fee prior to 1 November. This is particularly important if you have recently left a practice or you have joined a new practice after a break, because your details may not be included on the bulk renewal form sent to your new firm.



Q I work in private practice but am currently on maternity leave. Since I will not be returning to work for several months, can I delay applying for a PC until then?



A It depends. If you are a principal (which includes being a director, member or shareowner of a recognised body), the rules require you to have a PC notwithstanding your absence. If you are an employee or a consultant, it would be possible to delay applying for your PC but, if you are explicitly or implicitly held out on the firm's notepaper or Web site as a solicitor, you would have to have a PC, unless your name was deleted or qualifying words such as 'non-practising' were added. The same considerations apply to a solicitor who is absent from the practice as a result of long-term illness.



Q I am not currently practising and do not have a PC. I have been asked by a local firm to provide holiday cover for one of its solicitors for two weeks. The firm is obviously not prepared to pay for a PC for such a short period. Can I do the work without a certificate if I am not referred to as a solicitor?



A If you are still on the roll, then section 1A of the Solicitors Act 1974 means that you cannot take any position in private practice (even on a temporary basis) that would involve you in the provision of legal services unless you have a PC. The effect of section 1A is that you will be held in law to be practising as a solicitor, even if you are not held out as a solicitor or you only do work that an unqualified person could do. You would be able to do the work if you came off the roll, but you would then be in the same position as an unqualified clerk and could not be referred to as a solicitor (although 'former solicitor' would be acceptable).



Q I am currently working in an in-house legal department, but I am not held out as a solicitor, nor do I do reserved activities. Am I right in assuming that in these circumstances I do not require a PC?



A Not necessarily. Whether or not you require a PC depends on a number of factors, including whether you were employed as a practising lawyer and whether you are held out, either explicitly or implicitly, as practising as a solicitor through your job title. Law Society Regulation's rules and ethics committee has issued detailed guidance to assist in determining when you must have a PC or would be advised to have a PC (see below).



Q I am employed as a solicitor in a government agency that operates under a ministerial department. Do I need a PC or am I exempt under section 88 of the Solicitors Act 1974?



A Section 88 exempts the principal solicitor (together with any solicitor who is a clerk or officer appointed to act for that solicitor) to the Treasury, the Church Commissioners, the Duchy of Cornwall and any other public department from having to have a PC. Law Society Regulation's view is that 'public department' includes any department of central government in the UK, the National Assembly of Wales, and any 'non-ministerial department', but does not include other agencies or 'non-departmental public bodies'. Assistance in determining whether a department or agency is a 'non-ministerial department' or a 'non-departmental public body' can be found at www.civilservice.gov.uk by searching for 'agencies and public bodies'.



Q I am employed in an overseas law firm where my job title is 'legal counsel'. I am not held out as a solicitor, nor do I advise on English law. A colleague has suggested that I may nevertheless need a PC. Is this right?



A There is a presumption under the Solicitors Overseas Practice Rules that you are practising as a solicitor if you are held out explicitly or implicitly as a lawyer while providing lawyer-like services, unless you are entitled to practise as a lawyer of another jurisdiction or as an English barrister. Since the title 'legal counsel' implies a professional qualification as a lawyer then, in the absence of another professional qualification that would justify its use, you must have a PC. The fact that you do not advise on English law does not in itself mean that you are not practising as a solicitor.



Q I have recently retired from practice and do not intend to renew my PC. However, I would now like to set up a non-solicitor business providing legal advice. Can I do this?



A Yes, but you must ensure that you will not be explicitly or implicitly practising as a solicitor though the business. If you were to do so, then you would need a PC and the business would need to comply with the requirements of a solicitor's practice, even if this were not your intention. This could arise, for example, because the name of the business implies that it is a solicitor's practice, or because you are described in such a way as to implicitly hold you out as practising. The rules and ethics committee has issued detailed guidance on this point.

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For more information on PC issues and to access Law Society Regulation's rules and ethics committee guidance, visit www.pc.lawsociety.org.uk, under 'Do I need a practising certificate?'



This column is compiled by the professional ethics guidance team at Law Society Regulation. Send questions for publication to Austin O'Malley, Law Society Regulation, Ipsley Court, Berrington Close, Redditch B98 0TD; DX 19114 Redditch