Question of ethics archive

Important: The guidance below was written and issued before the introduction of the SRA Handbook on 6 October 2011, and may refer to regulatory material that is no longer in effect. Although it may still be relevant, this guidance has not been rewritten in light of the wide-ranging regulatory changes implemented on 6 October 2011. Accordingly, it has been archived.

May 2010

Employing a solicitor as a paralegal

Q. A friend and I are both in the position of having to look for another job. I am a solicitor, whilst he is a trainee solicitor who is just about to finish his training contract. The current economic climate is such that we both think we may be forced to apply for jobs as paralegals. What do we need to consider insofar as the rules of conduct are concerned?

Solicitors

If you are employed in private practice in connection with the provision of legal services, rule 20.04 of the Solicitors' Code of Conduct 2007 states that your employment must be in your capacity as a solicitor. Whilst you can therefore be paid at a paralegal's rate, you must undertake the work and be held out as a solicitor. You will therefore need a practising certificate.

The alternative would be to come off the roll. Since you would no longer be a solicitor, you could be employed and held out as a paralegal and would be in the same position as an unqualified clerk in respect of the work which you could undertake. As a non-solicitor employee, the Code will still apply to you where relevant (see rule 23.01(1)(d)). Note that if you currently have a practising certificate, you will not receive any refund if you come off the roll.

If you subsequently found a job as a solicitor, you would need to apply to go back on the roll and make a simultaneous application for a practising certificate. Bear in mind that you will need to allow at least 30 days for this.

Trainee solicitors

Once admitted, a trainee solicitor will be in the same position as solicitors. A trainee solicitor wanting to take up employment as a paralegal will therefore need to decide whether:

  • to delay admission to the roll (but this may delay you in taking up any subsequent employment as a solicitor, because before you can be admitted, you must have a CRB check which can take up to 8 weeks); or
  • to apply to be admitted and then immediately come off the roll. If you are already working as a paralegal, to avoid any breach of rule 20.04 or section 1A of the Solicitors Act 1974 (see rule 20.11), you will need to submit both forms at the same time, and ask us to ensure that removal from the roll takes place on the date of admission.

Drafting wills which appoint you or your firm as executor(s)

Q. When drafting wills, we offer our services as executors, although the client may of course choose someone else. However, a solicitor who has recently joined the firm has questioned this practice. Is there anything improper in it?

It depends on the manner in which you do this and the information and advice you give to your clients. There is nothing improper per se in your firm being appointed as executors, but:

  • You must not exploit your client's lack of knowledge for your own advantage by leading the client to believe that appointing a solicitor is essential or the norm (see rule 10.01 of the Solicitors' Code of Conduct 2007).
  • You have a duty to act in your client's best interests (rule 1.04). It would not therefore be proper to encourage the client to appoint you or your firm unless it is clearly in the client's best interests to do so. Whilst it may be beneficial to appoint a solicitor in certain circumstances (eg where the client's affairs are complex, or there are potential disputes in the family or all the beneficiaries are minors), there may be no particular advantage where, for example, the estate is small or straightforward and a professional executor is likely to be more expensive and the client should be advised accordingly.
  • Before drafting a will which appoints you or your firm as executor(s), you should be satisfied that the client has made the decision on an informed basis. You should therefore:
    • a) explain the options available to the client (rule 2.02(1)(b));
    • b)ensure the client understands that the executor(s) do not have to be professionals; that they may be a family member or friend, whether or not that person also benefits under the will; and that lay executors can choose to instruct a solicitor to act for them and will be indemnified out of the estate for the solicitors' fees.
    • c) explain what your basis of charging would be for carrying out the administration of the estate. If this includes a time element, you should inform the client of your current hourly rate.

Particular care needs to be taken to ensure that the client has all the information necessary to make an informed decision if you are providing the will-writing service online. The information referred to above, including information about your basis of charging if you are appointed, should be presented in a way which is readily accessible and easily understood. If you are using tick-boxes, you should avoid having an automatic default which appoints you as executor.

Solicitor executor asked to renounce

Q. I drew up a will for a client two years ago which appointed the partners in the firm to act as executors. The client recently died and the residuary beneficiaries have asked that we renounce probate. Are we required to do this as a matter of conduct? 

No. You are however free to do so, but in considering the request, you should take account of your client's reasons for appointing you and consider what would be in the best interests of the estate.

If you do decide to renounce, you are entitled to charge for the work involved in doing so, but it would not be proper to make any charge for agreeing to renounce.