SRA Handbook

In-house practice

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Rule 4: In-house practice

4.1

If you are a solicitor, REL or RFL conducting in-house practice:

(a)

you must not act for clients other than your employer except in the circumstances in 4.4 to 4.26 (all of which are subject to 4.1(b) and 4.2) and where you are able to act without compromising the Principles or your obligations under the SRA Code of Conduct;

(b)

nothing in this rule permits any person to conduct reserved legal activities in circumstances where to do so would require authorisation under the LSA and you must satisfy yourself that any such authorisation is in place before conducting any such activity.

4.1A

If your in-house practice comprises:

(a)

employment in a body within England and Wales, rules 4.2 to 4.18 and 4.26 apply to you;

(b)

employment in a foreign law firm which is not an overseas practice, rules 4.19 to 4.21 apply to you; and

(c)

employment in a body overseas, including where you are practising overseas, rules 4.22 to 4.25 apply to you.

4.2

Indemnity

(a)

In order to act for a client other than your employer under Rule 4.10, 4.14, 4.16 and 4.19, you must have professional indemnity insurance cover.

(b)

In all other cases you must consider whether your employer has appropriate indemnity insurance or funds to meet any award made as a result of a claim in professional negligence against you, for which your employer might be vicariously liable. If not, you must inform the client in writing that you are not covered by the compulsory insurance scheme.

4.3

If you are a solicitor, REL or RFL in a licensed body or an authorised non-SRA firm, you must comply with this rule as if you were an in-house solicitor or REL when, as a manager or employee, you do work of a type which is outside the scope of the firm's authorisation in accordance with Rules 1, 2 or 3, either for the firm itself or within 4.4 to 4.6 (Work colleagues), 4.7 to 4.9 (Related bodies) or 4.10 to 4.11 (Pro bono work).

Work colleagues

4.4

Subject to Rule 4.5 below, you may act for a person who is, or was formerly:

(a)

an employee, a manager, the company secretary, a board member or a trustee of your employer;

(b)

an employee, a manager, the company secretary, a board member or a trustee of a related body of your employer; or

(c)

a contributor to a programme or periodical publication, broadcast or published by your employer or by a related body, but only where the contributor is a defendant or potential defendant in a defamation case.

4.5

You may act under Rule 4.4 above only if:

(a)

the matter relates to and arises out of the work of the employee, manager, company secretary, board member, trustee or contributor in that capacity;

(b)

the matter does not relate to a claim arising as a result of a personal injury to the employee, manager, company secretary, board member, trustee or contributor;

(c)

you are satisfied that the employee, manager, company secretary, board member, trustee or contributor does not wish to instruct some other lawyer; and

(d)

no charge is made for your work unless those costs are recoverable from another source.

4.6

Where acting in a conveyancing transaction under Rule 4.4(a) or (b) above you may also act for a joint owner or joint buyer of the property and for a mortgagee.

Related bodies

4.7

You may act for:

(a)

your employer's holding, associated or subsidiary company;

(b)

a partnership, syndicate, LLP or company by way of joint venture in which your employer and others have an interest;

(c)

a trade association of which your employer is a member; or

(d)

a club, association, pension fund or other scheme operated for the benefit of employees of your employer.

4.8

If you are employed in local government, Rule 4.7(a) and (b) above do not apply.

4.9

For the purpose of Rule 4.10 to 4.14 references to your employer include related bodies of the employer, and "employment" and "employed" must be construed accordingly.

Pro bono work

4.10

You may, in the course of your practice, conduct work on a pro bono basis for a client other than your employer provided:

(a)

the work is covered by an indemnity reasonably equivalent to that required under the SRA Indemnity Insurance Rules;

(b)

either:

(i)

no fees are charged; or

(ii)

a conditional fee agreement is used and the only fees charged are those which you receive by way of costs from your client's opponent or other third party and all of which you pay to a charity under a fee sharing agreement; and

(c)

you do not undertake any reserved legal activities, unless the provision of relevant services to the public or a section of the public (with or without a view to profit) is not part of your employer's business.

4.11

Rule 4.10 above does not permit you to conduct work on a pro bono basis in conjunction with services provided by your employer under Rule 4.12 (Associations), Rule 4.13 (Insurers), Rule 4.14 (Commercial legal advice services) or Rule 4.19 to 4.21 (Foreign law firms).

Associations

4.12

If you are employed by an association you may act for a member of that association provided:

(a)

the membership of the association is limited to persons engaged or concerned in a particular trade, occupation or specialist activity or otherwise having a community of interest, such interest being a specialist interest;

(b)

the association is one formed bona fide for the benefit of its members and not formed directly or indirectly for your benefit or primarily for securing assistance in legal proceedings;

(c)

there is no charge to the member in non-contentious matters, and in contentious matters the association indemnifies the member in relation to your costs and disbursements insofar as they are not recoverable from any other source; and

(d)

you act only in matters that relate to or arise out of the particular trade, occupation or specialist activity of the association or otherwise relate to the specialist community of interest, for which the association is formed.

Insurers

4.13

If you are employed by an insurer subrogated to the rights of an insured in respect of any matter you may act on behalf of the insurer in relation to that matter in the name of the insured, and also:

(a)

act on behalf of the insured in relation to uninsured losses in respect of the matter;

(b)

act in proceedings both for the insured and for a defendant covered by another insurer where the insurers have agreed an apportionment of liability; and/or

(c)

act in the matter on behalf of the employer and another insurer in the joint prosecution of a claim.

Commercial legal advice services

4.14

If you are employed by a commercial organisation providing a telephone legal advice service you may advise persons making enquiries of that organisation, provided:

(a)

the advice comprises telephone advice only, together with a follow up letter to the enquirer when necessary;

(b)

you are satisfied that there is indemnity cover reasonably equivalent to that required under the SRA Indemnity Insurance Rules; and

(c)

you do not undertake any reserved legal activities.

Local government

4.15

If you are employed in local government you may act:

(a)

for another organisation or person to which or to whom the employer is statutorily empowered to provide legal services, subject to the conditions in (b) to (g) below;

(b)

for a member or former member of the local authority, provided that:

(i)

the matter relates to or arises out of the work of the member in that capacity;

(ii)

the matter does not relate to a claim arising as a result of a personal injury to the member;

(iii)

you are satisfied that the member does not wish to instruct some other lawyer; and

(iv)

no charge is made for your work unless those costs are recoverable from some other source;

(c)

for a company limited by shares or guarantee of which:

(i)

the employer or nominee of the employer is a shareholder or guarantor; or

(ii)

you are, or an officer of the employer is, appointed by the employer as an officer of the company,

provided the employer is acting in pursuance of its statutory powers;

(d)

for lenders in connection with new mortgages arising from the redemption of mortgages to the local authority, provided:

(i)

neither you nor any other employee acts on behalf of the borrowers; and

(ii)

the borrowers are given the opportunity to be independently advised by a qualified conveyancer of their choice;

(e)

for a charity or voluntary organisation whose objects relate wholly or partly to the employer's area;

(f)

for a patient who is the subject of a Court of Protection Order where you are acting for a work colleague (under Rule 4.4 to 4.6 above) who is appointed as deputy for the patient; or

(g)

for a child or young person subject to a Care Order in favour of the employer on an application to the Criminal Injuries Compensation Authority.

Law Centres, charities and other non-commercial advice services

4.16

If you are employed by a law centre or advice service operated by a charitable or similar non-commercial organisation you may give advice to and otherwise act for members of the public, provided:

(a)

no funding agent has majority representation on the body responsible for the management of the service, and that body remains independent of central and local government;

(b)

all fees you earn and costs you recover are paid to the organisation for furthering the provision of the organisation's services;

(c)

the organisation is not described as a law centre unless it is a member of the Law Centres Federation; and

(d)

the organisation has indemnity cover in relation to the legal activities carried out by you, reasonably equivalent to that required under the SRA Indemnity Insurance Rules.

4.17

Rule 4.16 above does not apply to an association formed for the benefit of its members.

The Crown, non-departmental public bodies and the Legal Aid Agency

4.18

If you are employed by the Crown, a non-departmental public body or the Legal Aid Agency (or any body established or maintained by the Legal Aid Agency), you may give legal advice to, and act for, persons other than your employer if in doing so you are carrying out the lawful functions of your employer.

Foreign law firms

4.19

Unless your employer is an Exempt European Practice you may provide legal services to your employer's clients, subject to the conditions set out in Rule 4.20 below, if you are a solicitor or an REL employed by:

(a)

a practising lawyer of another jurisdiction who:

(i)

is not struck off or suspended from the register of foreign lawyers or the register of European lawyers; and

(ii)

is not practising in that context as a solicitor or as an REL; or

(b)

a business whose managers and interest holders are all practising through that business as lawyers of jurisdictions other than England and Wales, and do not include any person who:

(i)

is struck off or suspended from the register of foreign lawyers or the register of European lawyers; or

(ii)

is practising through or in the context of that business as a solicitor or as an REL.

4.20

You must meet the following conditions if acting, under Rule 4.19 above, for anyone other than your employer.

(a)

Even if you are qualified to do such work for your employer, you must not do, or supervise or assume responsibility for doing any of the following:

(i)

drawing or preparing any instrument or papers comprising reserved legal activities under section 12(1)(c) or (d) of the LSA;

(ii)

exercising any right of audience, or right to conduct litigation (including making any application or lodging any document relating to litigation), before a court or immigration tribunal; or

(iii)

providing any immigration advice or immigration services, unless the employer, or a senior fellow employee, is registered with the Immigration Services Commissioner.

(b)

You must ensure that the work you do is covered by professional indemnity insurance reasonably equivalent to that required under the SRA Indemnity Insurance Rules.

(c)

You must:

(i)

inform your client that your employer is not regulated by the SRA and that the SRA's compulsory insurance scheme does not apply, and either give or confirm this information in writing, if you are a solicitor, and you are held out to a client as a solicitor (or as an English or Welsh lawyer) in connection with work you are doing for that client; and

(ii)

ensure that if you are identified on the notepaper as a solicitor (or as an English or Welsh lawyer) the notepaper also states that your employer is not regulated by the SRA.

4.21

Rule 4.20(c) above should also be read as referring to an REL being held out or identified as a lawyer, or under the REL's title from their home state.

In-house practice overseas

4.22

Rules 4.10 and 4.11 (Pro bono work) apply to your in-house practice where you are employed in a body outside England and Wales.

4.23

The other provisions of Rule 4 (In-house practice) do not apply to your in-house practice where you are employed in a body outside England and Wales, but you must comply with Rules 4.24 and 4.25 below.

4.24

Subject to 4.25 below, you may act as an in-house lawyer, but only for:

(a)

your employer;

(b)

a company or organisation controlled by your employer or in which your employer has a substantial measure of control;

(c)

a company in the same group as your employer;

(d)

a company which controls your employer; or

(e)

an employee (including a director or a company secretary) of a company or organisation under (a) to (d) above, provided that the matter relates to or arises out of the work of that company or organisation, does not relate to a claim arising as a result of a personal injury to the employee, and no charge is made for your work unless those costs are recoverable from another source.

4.25

If you are a solicitor registered in another state under the Establishment Directive with the professional body for a local legal profession you may practise in-house to the extent that a member of that legal profession is permitted to do so.

Regulatory bodies

4.26

If you are employed by a regulatory body you may in carrying out the function of the employer give legal advice to other persons and, where those functions are statutory, may act generally for such persons.

Guidance notes

(i)

This rule applies to you if you are a solicitor or REL (or in limited circumstances an RFL) working in in-house practice, which is generally when you are working otherwise than through a regulated legal practice such as an authorised body or an authorised non-SRA firm. However, these provisions also apply to you if you are a solicitor, REL or RFL when working in a licensed body or an authorised non-SRA firm but are doing work, for example, for the firm itself which is outside the scope of the firm's own authorisation.

(ii)

The general principle, subject to limited exceptions, is that your employer itself will need to be authorised if, in your capacity as an employee and as part of your employer's business, you wish to provide reserved legal services to the public (see LSA, section 15(4)). The provisions of 4.4 to 4.26, regarding acting in an in-house capacity for clients other than your employer, are subject to the provisions of the LSA which may nonetheless require your employer to obtain authorisation, for example members of an association may be "the public or a section of the public" for the purposes of the LSA. Such issues should be kept under review as your position may change e.g. your employer's business may develop in such a way that it requires authorisation.

(iii)

If you are a solicitor working in-house (whether in or outside England and Wales) you must comply with Rule 9 (Practising certificates). For further guidance on the need for a practising certificate see our website. Examples of situations where you will be practising as a solicitor, and will therefore need a practising certificate, include:

(a)

you are employed as a solicitor;

(b)

you are held out, on stationery or otherwise, as a solicitor for your employer;

(c)

you administer oaths;

(d)

you appear before a court or tribunal in reliance upon your qualification as a solicitor;

(e)

you instruct counsel;

(f)

you undertake work which is prohibited to unqualified persons under the provisions of Part 3 of the LSA, unless you are supervised by, and acting in the name of, a solicitor with a practising certificate or another qualified person;

(g)

your only qualification as a lawyer is that you are a solicitor, and:

(A)

you are employed or held out as a lawyer;

(B)

you undertake work in another jurisdiction which is reserved to lawyers;

(C)

you are registered in a state other than the UK under the Establishment Directive; or

(D)

you are a registered foreign legal consultant in another jurisdiction.

(iv)

In England and Wales a number of statutory exceptions apply to qualify (ii). Certain in-house government solicitors are allowed to practise as solicitors without practising certificates. Some reserved work can be undertaken by non-solicitors working for local government, and therefore by non-practising solicitors working for local government. See also Rules 9, 10 and 11.

(v)

A solicitor acting only as a justices' clerk in England and Wales is not practising as a solicitor and can instruct counsel without a practising certificate.

(vi)

If you are an in-house solicitor the address of your employer's legal department is the place (or one of the places) where you practise and must therefore be notified to the SRA.

(vii)

If you handle client money, the SRA Accounts Rules will apply to you unless you are exempted under Rule 5 of those rules.

(viii)

If you are working in-house as the senior legal adviser of a company or a local authority you should have direct access to the board or to the council and its committees, and should try to ensure that your terms of employment provide for such access. "Direct access" does not mean that all instructions and advice must pass directly to and from the council, committee or board, but you must have direct access where necessary.

(ix)

An in-house solicitor may act for work colleagues, subject to certain safeguards, provided the matter relates to and arises out of the person's work for the employer. This will cover matters that relate directly to the fellow employee's work but would not, for example, permit reserved legal services to be offered as a benefit under an employment package. Those working in-house will need to consider whether they are allowed to act on a case by case basis and, in particular, the extent to which there is a direct relationship between the work colleague's employment and the reserved legal activity.

(x)

The ability of in-house solicitors to act for clients on a pro bono basis is limited by the LSA, which requires that, in general, the provision of reserved legal services to the public is carried out through an authorised body. There is no such limitation under the LSA in respect of unreserved services, such as providing legal advice. Rule 4.10 sets out the parameters within which in-house solicitors may provide reserved services on a pro bono basis, reflecting the position under the LSA. To determine whether you can undertake reserved legal activities within 4.10, one question will be whether the activities to be undertaken can be regarded as part of the business of the employer. Relevant factors are likely to be:

(a)

relevancy of such work to the employer's business;

(b)

whether the work is required of the employee by the employer;

(c)

how often such work is carried out;

(d)

where such work is carried out;

(e)

when such work is carried out;

(f)

whether such work is explicitly carried out on the employer's behalf;

(g)

who provides the necessary professional indemnity insurance;

(h)

the extent to which the employer relies on or publicises such work;

(i)

whether the employer provides management, training or supervision in relation to such work;

(j)

whether the employer specifically rewards the employee in any way in relation to such work;

(k)

how many employees carry out the work, and the overall proportion of their time spent on such work;

(l)

the extent to which such work complements or enhances the employer's business.

All the circumstances, and the context, will be critical to your decision about whether you may act, for example the work will not necessarily be part of the employer's business merely because it is carried out in office hours, or at the employer's premises.

There will be some situations which are likely to be easier to judge. If there is a clear relationship with the employer's business, acting will not be permissible. For example, you are likely to be prevented from acting:

(A)

where the employer describes its business as including the provision of pro bono services;

(B)

where the work may boost the employer's business by providing extra business opportunities or creating contacts.

(xi)

If you are employed as a solicitor or REL by an insurer which runs a commercial legal telephone advice service, the restrictions in Rule 4.14 will not apply to prevent you acting for an insured in accordance with Rule 4.13.

(xii)

If you are employed as a solicitor or REL by a law centre or advice service operated by a charitable or similar non-commercial organisation, you can advise and act for members of the public provided you comply with Rule 4.16 and 4.17. A solicitor or REL who works as a volunteer for such an advice service must comply with the SRA Indemnity Insurance Rules unless exempted by a waiver. If your employer obtains authorisation as a licensed body you will not need to rely on the exceptions in Rule 4.

(xiii)

As the in-house employee of a foreign law firm under Rule 4.19 and 4.20 you may not do reserved work for clients or (unless your employer is separately authorised) immigration work. You must also comply with special requirements as to insurance and "health warnings". Note also, that if you are employed by a foreign law firm and a principal, interest holder or director of the firm is a solicitor, Rule 4.19 and 4.20 will not apply unless the solicitor is dually qualified and is practising only as a lawyer of another jurisdiction in the context of that business.

(xiv)

By contrast, employment overseas by a foreign law firm will not usually fall within the definition of in-house practice in the Glossary if your employer is a lawyer or a law firm.

(xv)

If you are a solicitor, REL or RFL practising as a manager, employee, member or interest holder of an authorised non-SRA firm, neither Rule 4, nor the bulk of the SRA Code of Conduct, nor the SRA Accounts Rules, will be relevant to you when you do work of a type that is within the scope of the firm's authorisation. See Chapter 13 of the SRA Code of Conduct (Application and waivers provisions).

(xvi)

If you are a solicitor, REL or RFL practising as a manager, employee, member or interest holder of an authorised non-SRA firm, you must comply with Rule 4, with the SRA Code of Conduct, and with the SRA Accounts Rules, as if you were an in-house solicitor or REL when you do work of a type which is outside the scope of the firm's authorisation - see Rule 4.3 and the definition of "in-house practice" in the Glossary.

(xvii)

Note that if you are a solicitor, REL or RFL and you are a manager, member or interest holder of an authorised non-SRA firm, or employed in such a firm in connection with the provision of any legal services, it must be:

(a)

in your capacity as a solicitor, REL or RFL, or

(b)

in the capacity of an individual authorised by an approved regulator other than the SRA, if you are so authorised, or

(c)

in both such capacities;

except that if you are a solicitor who is a director of an authorised non-SRA firm or employed in such a firm in connection with the provision of any legal services, you must be practising in your capacity as a solicitor, even if also in some other capacity. See Rule 11.2 and 11.3, as well as section 1A(d) of the SA.