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Auszug der gesetzlichen Regelungen für Registered Foreign Lawyers
PARTNERSHIP
Solicitors’ Practice Rules
Rule 7 (Fee sharing, partnership and corporate practice)
(6) Solicitors of the Supreme Court, registered European lawyers and recognised bodies are permitted to practise in the following types of partnership only:
(a) a partnership consisting of solicitors of the Supreme Court and/or registered European lawyers and/or recognised bodies;
(b) a partnership consisting of solicitors of the Supreme Court and/or registered European lawyers, together with registered foreign lawyers; and
(c) a partnership consisting of registered European lawyers with or without registered foreign lawyers, together with non-registered European lawyers who are based at offices in member states but outside England and Wales.
(d) In paragraph (6)(c) above:
(i) “non-registered European lawyer” means a member of a legal profession which is covered by the Establishment of Lawyers Directive 98/5/EC, but who is not:
(A) a solicitor of the Supreme Court, registered European lawyer or registered foreign lawyer,
(B) a barrister of England and Wales, Northern Ireland or the Irish Republic, or
(C) a Scottish advocate; and
(ii) “member state” means a state to which the Establishment of Lawyers Directive 98/5/EC applies.
LIMITATIONS ON PRACTICE AS AN RFL
Solicitors’ Practice Rules
Rule 18 (Application and interpretation)
(1) (Application to foreign lawyers)
(a) For the avoidance of doubt, neither registration in the register of foreign lawyers, nor anything in these rules or in any other rules made under Part II of the Solicitors Act 1974 or section 9 of the Administration of Justice Act 1985, shall entitle any registered foreign lawyer:
(i) to exercise any right of audience or any right to conduct litigation, or to supervise or assume responsibility for the exercise of any such right; unless it is a right which is not reserved by law to any category of persons but is open to any individual; or
(ii) to draw or prepare any instrument or papers, or make any application or lodge any document, whether relating to contentious proceedings, the conveyancing of land, the transfer of other property or the administration of estates, which is reserved to qualified persons by the Solicitors Act 1974, or to supervise or assume responsibility for any such work; unless he or she does the work
(A) as a director of a recognised body which is a company, at the direction and under the supervision of a director or employee of the body or
(B) as a member of a recognised body which is a limited liability partnership, at the direction and under the supervision of a member or employee of the body
in accordance with section 9(4) of the Administration of Justice Act 1985 and without breach of Rule 4(2) of these rules; or
(iii) to hold him- or herself out as a registered foreign lawyer, or as regulated by or registered with the Law Society, in connection with a sole practice as a foreign lawyer, or any other practice or business where he or she is not practising as a regulated individual.
APPLICATION OF SOLICITORS’ RULES TO RFLs AND MNPs
Solicitors’ Practice Rules
Rule A (Scope of the rules)
(1) These rules apply to all forms of practice of a solicitor of the Supreme Court.
(2) The rules also extend to all regulated individuals and all regulated practices – see Rule 18(2) (interpretation).
(3) The rules do not apply to practice from an office outside England and Wales – except for Rule 12 (investment business), the geographical scope of which is set out in the rule.
Rule 18 (Application and interpretation)
(1) (Application to foreign lawyers)
(c) All the principles and requirements of conduct affecting solicitors shall apply in all respects, mutatis mutandis:
(i) to a registered European lawyer established in the United Kingdom; and
(ii) to a registered foreign lawyer practising as a partner in a partnership permitted by Rule 7(6)(b) or (c) or as a director of a recognised body which is a company or as a member of a recognised body which is a limited liability partnership;
as they apply to a solicitor of the Supreme Court.
(2) (Interpretation)
In these rules, except where the context otherwise requires:
(fc) “regulated individual” means:
(i) a solicitor of the Supreme Court;
(ii) a registered European lawyer who is established in the United Kingdom; or
(iii) a registered foreign lawyer practising as a partner in a partnership permitted by Rule 7(6)(b) or (c) or as a director of a recognised body which is a company or as a member of a recognised body which is a limited liability partnership;
(fd) “regulated practice” means:
(i) the sole practice of a solicitor of the Supreme Court, or of a registered European lawyer who is established in the United Kingdom;
(ii) a partnership permitted by Rule 7(6);
(iii) a recognised body, whether practising alone or as a member of a partnership or as a member of a limited liability partnership; or
(iv) an in-house practice of solicitors of the Supreme Court, and/or of registered European lawyers who are established in the United Kingdom;
(g) “solicitor” includes any regulated individual and any regulated practice – except in the phrase “solicitor of the Supreme Court”, and except in Rule 6 (avoiding conflicts in conveyancing, etc.), which has its own definitions;
(ga) “solicitor of the Supreme Court” means an individual who is a solicitor of the Supreme Court of England and Wales
NAME, DESCRIPTION AND LETTERHEAD OF A FIRM
Solicitors’ Publicity Code
Section 1 – General principles
(c) Name of firm
A private practice must not use a name or description which is misleading. It would be misleading for a name or description to include the word “solicitor(s)”, if none of the principals or directors (or members in the case of a limited liability partnership) is a solicitor.
Section 2 – Professional stationery
(a) The letterhead of a private practice must bear the words “regulated by the Law Society”. (Until 30 November 2001, in the case of a letterhead carrying the statement required under rule 21 of the Investment Business Rules, the words should be “regulated by the Law Society – authorised by the Society to conduct investment business”.)
(b) The letterhead of:
(i) a partnership of 20 or fewer persons, or a sole principal, must include a list of the partners or the name of the sole principal;
(ii) a partnership of more than 20 persons, or a recognised body, must include either a list of the partners (or the directors, identified as such, in the case of a company, or the members, identified as such, in the case of a limited liability partnership), or a statement that a list is open to inspection at the office.
(c) In a private practice, if the partners (or directors in the case of a company, or members in the case of a limited liability partnership) comprise both solicitors and foreign lawyers, the list referred to in (b)(i) or (ii) above must:
(i) in the case of any solicitor, identify him or her as a solicitor;
(ii) in the case of any lawyer or notary of a state (other than the UK) covered by the Establishment of Lawyers Directive 98/5/EC:
(A) identify the European jurisdiction(s) – local or national as appropriate – under whose professional title he or she is practising;
(B) give the professional title, expressed in an official language of the European state(s) concerned; and
(C) if the lawyer is a registered European lawyer, refer to his or her registration with the Law Society; and
(iii) in the case of any registered foreign lawyer not included in (c)(ii) above, indicate his or her professional qualification(s) as a lawyer and the country or jurisdiction of qualification.
Section 3 – Interpretation and repeal
(a) In this code, words have the meanings assigned to them in rule 18 of the Solicitors’ Practice Rules 1990, except that:
(i) “letterhead” includes a fax heading; and
(ii) “solicitor” means a solicitor of the Supreme Court.
This code replaces the Solicitors’ Publicity Code 1990.
SUPERVISION OF A PRACTICE AND AN OFFICE
Solicitors’ Practice Rules
Rule 13 (Supervision and management of a practice)
In this rule, words in italics are defined in the notes.
(1) The principals in a practice must ensure that their practice is supervised and managed so as to provide for:
(a) compliance with principal solicitors' duties at law and in conduct to exercise proper supervision over their admitted and unadmitted staff;
(b) adequate supervision and direction of clients' matters;
(c) compliance with the requirements of sections 22(2A) and 23(3) of the Solicitors Act 1974 and section 9(4) of the Administration of Justice Act 1985 as to the direction and supervision of unqualified persons;
(d) effective management of the practice generally.(2) Every practice must have at least one principal who is a solicitor qualified to supervise.
(3) (a) Except as provided in (b) below, every office of the practice must have at least one solicitor qualified to supervise, for whom that office is his or her normal place of work.
(b) Without prejudice to the requirements of paragraph (1) of this rule, an office which undertakes only property selling and ancillary mortgage related services as defined in rule 6 of these rules, survey and valuation services, must be managed and supervised to the following minimum standards:
(i) the day-to-day control and administration must be undertaken by a suitably qualified and experienced office manager who is a fit and proper person to undertake such work; and for whom that office is his or her normal place of work; and
(ii) the office must be supervised and managed by a solicitor qualified to supervise, who must visit the office with sufficient frequency and spend sufficient time there to allow for adequate control of and consultation with staff, and if necessary consultation with clients.
(4) This rule is to be interpreted in the light of the notes, and is subject to the transitional provisions set out in note (k).
(5) (a) This rule applies to private practice, and to solicitors employed by a law centre.
(b) The rule also applies to other employed solicitors, but only:
(i) if they advise or act for members of the public under the legal aid scheme; or
(ii) if, in acting for members of the public, they exercise any right of audience or right to conduct litigation, or supervise anyone exercising those rights.
Notes
(a) Principals' responsibility for the practice
Principals are responsible at law and in conduct for their practices, and compliance with the rule does not derogate from this responsibility. Under rule 6 of these rules, property selling or mortgage related services to one party to a conveyance, and conveyancing services for the other party, may not be supervised by the same solicitor.
(b) "Supervision" and "management"
(i) "Supervision" refers to the professional overseeing of staff and the professional overseeing of clients' matters.
(ii) "Management" is a wider concept, which encompasses the overall direction and development of the practice and its day-to-day control and administration. Management functions include business efficiency as well as professional competence.
(iii) Operationally, supervision and management may be delegated within an established framework for reporting and accountability. However, the responsibility under paragraph (1)(a) of the rule, and the responsibility referred to in note (a) above, remain with the principals.
(iv) “With sufficient frequency” in paragraph (3)(b)(ii) would normally mean daily; but if the office is open at weekends it may be possible to defer consultations with clients until a weekday and be available only at need to staff.
(c) Evidence of effective supervision and management
Where a question arises as to compliance with paragraph (1) of the rule, principals will be expected to be able to produce evidence of a systematic and effective approach to the supervision and management of the practice. Such evidence may include the implementation by the practice of one or more of the following:
guidance on the supervision and execution of particular types of work issued from time to time by the Law Society including guidance on solicitors' responsibilities for the supervision of clerks exercising rights of audience under section 27(2)(e) of the Courts and Legal Services Act 1990;the practice's own properly documented management standards and procedures;
(iii) practice management standards promoted from time to time by the Law Society;
accounting standards and procedures promoted from time to time by the Law Society;external quality standards such as BS EN ISO 9000 or Investors in People; andin the case of solicitors employed by a law centre, any management standards or procedures laid down by its management committee.
(d) "Qualified to supervise"
A solicitor is qualified to supervise if he or she:
(i) has held practising certificates for at least 36 months within the last ten years; and (ii) has completed the training specified from time to time by the Law Society for the purpose of the rule.
(e) "Normal place of work"
(i) A solicitor's "normal place of work" is the office from which he or she normally works, even though the day-to-day demands of practice may often take the solicitor out of the office.
(ii) If a solicitor normally works from a particular office for a part of the working week, that office is his or her "normal place of work" for that part of the week. The solicitor may have a different "normal place of work" for another part of the week. (iii) A solicitor who has a different "normal place of work" for different parts of the week could be the sole solicitor qualified to supervise at different offices at different times in the week. However, no solicitor can be the sole solicitor qualified to supervise at two different offices for the same part of the week.
(iv) For compliance with paragraph (3) of the rule, an office must, for every part of the working week, have a solicitor qualified to supervise for whom that office is his or her "normal place of work" for that part of the week. This could be a different solicitor for different parts of the week.
(v) The working week of an office includes early mornings, late evenings and weekends if work is carried on, and if so the office must have a solicitor qualified to supervise for those times. However, it is not required that the solicitor qualified to supervise normally works at those times, provided that he or she:
(A) is available for emergency consultation, and
(B) pays occasional visits to the office during such times.
(f) Working away from the office
It is particularly important that systems of supervision and management encompass the work of: (i) those persons from time to time working away from the office - e.g. at home, visiting clients, at court, at a police station, at a consulting room open only for a few hours per week, or staffing a stand at an exhibition; (ii) any person who normally works away from the office, such as a teleworker or homeworker.
(g) Absence of solicitor qualified to supervise, or office manager (i) When the solicitor qualified to supervise at an office is away on holiday, on sick leave, etc., suitable arrangements must be in place to ensure that any duties to clients and others are fully met. A similar standard applies to the absence of an office manager with responsibility for the day-to-day control and administration of a property selling office. (ii) If the solicitor qualified to supervise will be away for a month or more, the arrangements will normally need to include the provision of another solicitor qualified to supervise at that office. A similar standard applies to the absence of an office manager with responsibility for the day-to-day control and administration of a property selling office.
(h) "Right of audience" and "right to conduct litigation"
"Right of audience" and "right to conduct litigation" are to be interpreted in accordance with Part II and section 119 of the Courts and Legal Services Act 1990 – see Rule 18(2)(fe).
(i) “Principals”
(i) "Principal", in Rule 13(1) and notes (a)-(c), means:
(A) a sole practitioner;
(B) if the practice is a partnership, an individual or recognised body who or which is a partner in the practice;
(C) if the practice is a recognised body which is a company, the company and its directors;
(D) if the practice is a recognised body which is a limited liability partnership, the limited liability partnership and its members.
(ii) "Principal", in Rule 13(2) and note (j), means an individual who is:
(A) a sole practitioner;
(B) if the practice is a partnership, a partner in the practice;
(C) if the practice is a recognised body which is a company, a director of the company;
(D) if the practice is a recognised body which is a limited liability partnership:
(I) a member of the body; or
(II) a director of a company (a recognised body) which is a member of the body; or
(III) a member of a limited liability partnership (a recognised body) which is a member of the body.
(ia) Registered European lawyers
(i) A registered European lawyer may fulfil the role of a “solicitor qualified to supervise” for the purpose of paragraph (2) or (3) of the rule or note (k)(ii)(C) below, provided that he or she has:
(A) practised as a lawyer for at least 36 months within the last ten years; and
(B) completed any training specified from time to time by the Law Society under note (d)(ii) above.
(ii) A solicitor of the Supreme Court who was formerly a registered European lawyer will be a “solicitor qualified to supervise” if he or she has:
(A) practised as a lawyer for at least 36 months within the last ten years; and
(B) completed the training specified from time to time by the Law Society under note (d)(ii) above.
(j) Registered foreign lawyers
(i) A registered foreign lawyer who is a principal in the practice may fulfil the role of a "solicitor qualified to supervise" for the purpose of paragraph (2) of the rule, provided that:
(A) the practice has at least one principal who is a solicitor of the Supreme Court or registered European lawyer; and
(B) the practice does not exercise or assume responsibility for any right of audience or any right to conduct litigation; and
(C) the registered foreign lawyer has practised as a lawyer for at least 36 months within the last ten years; and
(D) he or she has completed the training specified under note (d)(ii) above.
(ii) A registered foreign lawyer who is a principal in the practice may fulfil the role of a "solicitor qualified to supervise" for the purpose of paragraph (3) of the rule or note (k)(ii)(C) below, provided that:
(A) no right of audience or right to conduct litigation is exercised or supervised from that office; and
(B) the practice has at least one principal who is a solicitor of the Supreme Court or registered European lawyer; and
(C) the registered foreign lawyer has practised as a lawyer for at least 36 months within the last ten years; and
(D) he or she has completed the training specified under note (d)(ii) above.
(ja) Conveyancing and probate
A registered foreign lawyer, or a registered European lawyer (unless qualified to do conveyancing or probate work under regulation 12 or 13 of the European Communities (Lawyer’s Practice) Regulations 2000), may not supervise conveyancing or probate work for the purposes of section 22(2A) or 23(3) of the Solicitors Act 1974 or section 9(4) of the Administration of Justice Act 1985, but may, subject to the requirements of the rule, fulfil the role of a “solicitor qualified to supervise” in a practice or at an office where such work is done.
(k) Transitional provisions
For a period of 10 years from 23rd December 1999:
(i) a solicitor of the Supreme Court, registered European lawyer or registered foreign lawyer who would not satisfy the requirements for a solicitor qualified to supervise can nevertheless fulfil that role for the purpose of paragraph (2) of the rule or note (k)(ii)(C) below, provided that:
(A) immediately before 12th December 1996 he or she was qualified to supervise an office under Practice Rule 13(1)(a) as it then stood, or any waiver of that rule; and
(B) any requirements of that rule or of any waiver continue to be met;
(ii) a person who would not satisfy the requirements for a solicitor qualified to supervise can nevertheless fulfil that role for the purpose of paragraph (3) of the rule, provided that:
(A) immediately before 12th December 1996 he or she was managing or employed to manage an office in compliance with Practice Rule 13(1)(b) as it then stood, or any waiver of that rule; and
(B) any requirements of that rule or of any waiver continue to be met; and
(C) the office is attended on a daily basis by a solicitor qualified to supervise.
SEPARATE BUSINESSES
Solicitors’ Separate Business Code
Code dated 4th February 1994 made by the Council of the Law Society with the concurrence of the Master of the Rolls under rule 5 of the Solicitors’ Practice Rules 1990, regulating the circumstances in which practising solicitors, registered European lawyers, registered foreign lawyers and recognised bodies, practising in England and Wales, may provide certain services other than through their practices.
Section 1: Explanatory provisions
(1) This code aims to ensure that members of the public know whether a service is provided by a solicitor practising as such (and thus regulated by the Law Society and affording clients certain statutory protections) or outside the scope of a solicitor's practice (and thus outside the regulation of the Law Society, and not affording any of the statutory protections extended to the clients of a solicitor).
(2) This code prohibits a practising solicitor from providing certain legal services other than as a solicitor and requires that certain safeguards be observed where there is a connection between a solicitor's practice and his or her separate business. However, neither the Practice Rules nor this code regulate solicitors' separate businesses, and such separate businesses are not underwritten by the Solicitors' Compensation Fund or covered by indemnity insurance under the Law Society’s compulsory scheme.
(3) Practice Rule 5 and this code apply to solicitors of the Supreme Court and registered European lawyers practising as such in England and Wales, whether in private practice or employed practice, to recognised bodies, and to registered foreign lawyers practising in England and Wales in partnership with solicitors of the Supreme Court or registered European lawyers or as directors of recognised bodies which are companies or as members of recognised bodies which are limited liability partnerships.
(4) A solicitor who is a partner in a firm with an office in England and Wales is practising in England and Wales and is therefore subject to Practice Rule 5 and this code, even if he or she is based at an office outside the jurisdiction.
(5) Rule 5 and this code do not apply to a solicitor solely by virtue of the fact that:
(a) the solicitor is a non-executive director of a company; or
(b) the solicitor, as the employee of a non-solicitor, does work permitted by virtue of Rule 4 of the Solicitors' Practice Rules 1990; or
(c) the solicitor operates a separate practice as a notary public in conjunction with his or her practice as a solicitor.
(6) This code applies whether a separate business is in England and Wales, or outside the jurisdiction.
Section 2: Interpretation
In this code:
(a) "separate business" means a business which:
(i) provides any service which may properly be provided by a solicitor’s practice, and
(ii) is not itself:
(A) a regulated practice (as defined in Practice Rule 18); or
(B) a practice permitted to solicitors of the Supreme Court under the Solicitors’ Overseas Practice Rules; or
(C) a practice in Scotland or Northern Ireland permitted to registered European lawyers under the Solicitors’ Overseas Practice Rules;
(b) references to a solicitor who has a separate business are references to a solicitor who (alone, or by or with others) controls, actively participates in or operates a separate business;
(c) Practice Rule 18 governs the application and interpretation of this code; and “solicitor” has the extended meaning given in that rule, and covers any regulated individual and any regulated practice;
(d) "investment business" means any “regulated activity” as defined in the Financial Services and Markets Act 2000;
(e) any reference to selling or buying property includes granting or taking a lease for value; and
(f) "overseas" means in or of a jurisdiction other than England and Wales.
Section 3: Services which may only be provided through a solicitors' practice
Subject to the exceptions in Sections 4, 5, 6 and 7, a solicitor must not have a separate business which provides any of the following services:
(a) the conduct of any matter which could proceed before any court, tribunal or inquiry, whether or not proceedings are commenced;
(b) advocacy before any court, tribunal or inquiry;
(c) instructing counsel in any part of the United Kingdom;
(d) acting as executor, trustee or nominee in England and Wales;
(e) drafting any will or trust deed;
(f) giving legal advice;
(g) any activity reserved to solicitors (whether solely or together with other persons) by the Solicitors Act 1974 or any other statute; and
(h) drafting any legal documents not already covered by (a) to (g) above.
Section 4: Safeguards and exceptions - separate businesses generally
Requirements:
(1) A solicitor who has a separate business must do nothing in the course of practice, or in the course of making and accepting referrals, connected with that separate business, which is likely to compromise or impair any of the principles set out in Practice Rule 1. The requirements of the Solicitors' Introduction and Referral Code apply to referrals generally, including referral of a client by a solicitor to his or her own separate business.
(2) A solicitor who has a separate business must ensure:
(a) that the name of any practice of the solicitor has no substantial element in common with the name of that separate business;
(b) that the words "solicitor(s)", "attorney(s)" or "lawyer(s)", or any equivalent expressions in another language, are not used in connection with the solicitor's involvement with that separate business;
(c) that paperwork and records relating to customers of the separate business are kept separately from paperwork and records relating to clients of the solicitor (whether or not those customers are also clients of the solicitor);
(d) that all clients referred by any English or Welsh practice of the solicitor to the separate business are informed in writing of the solicitor's interest in the business and that, as customers of the separate business, they do not enjoy the statutory protections attaching to clients of a solicitor (or a registered European lawyer, a recognised body, or a lawyers’ partnership regulated by the Law Society, as the case may be);
(e) that where the separate business shares premises, office accommodation or reception staff with any English or Welsh practice of the solicitor, all customers of the separate business are informed in writing that, as customers of the separate business, they do not enjoy the statutory protections attaching to the clients of a solicitor (or a registered European lawyer, a recognised body, or a lawyers’ partnership regulated by the Law Society, as the case may be); and
(f) that the solicitor does not hold on the client account of the solicitor's practice money held for customers of the separate business as such; or money held for the separate business.
Exceptions:
(3) The requirements in paragraph (2)(a)-(f) above do not apply to a separate business covered by Section 5 except to the extent specified in that section.
(4) The prohibitions in Section 3(f) and (h) (giving legal advice and drafting certain legal documents) shall not apply to prevent a solicitor from having a separate business which provides such advice and drafts such documents if:
(a) this is undertaken only as a necessary but subsidiary part of a main service or services provided by the separate business; and
(b) the main service or services provided by the separate business do not include one or more of the services set out in Section 3(a)-(h).
Section 5: Safeguards and exceptions - particular businesses
(1) Investment business
Requirements:
A solicitor who has a separate business providing investment business services must ensure:
(a) that the requirements of Section 4(1) and (2)(a), (b), (c) and (f) are observed; and
(b) that the separate business is conducted from accommodation physically divided and clearly differentiated from that of any practice of the solicitor in England and Wales; and
(c) that there is compliance with Practice Rule 12(1)(b) and (2); and
(d) that all clients referred by any English or Welsh practice of the solicitor to the separate business are informed of the solicitor's interest in the business and that, as customers of the separate business, they do not enjoy the statutory protections attaching to clients of a solicitor (or a registered European lawyer, a recognised body, or a lawyers’ partnership regulated by the Law Society, as the case may be) by the following steps:
(i) in a personal interview or telephone call and
(ii) in writing confirming the contents of that interview or call; and
(e) that (without prejudice to (b) above) where the separate business shares premises or reception staff with any English or Welsh practice of the solicitor, all customers of the separate business are informed that, as customers of the separate business, they do not enjoy the statutory protections attaching to clients of a solicitor (or a registered European lawyer, a recognised body, or a lawyers’ partnership regulated by the Law Society, as the case may be) by the following steps:
(i) in a personal interview or telephone call and
(ii) in writing confirming the contents of that interview or call.
Exceptions:
The prohibition in Section 3(d) will not apply to prevent such a separate business providing nominee services through its nominee company in England and Wales if this is ancillary to the main purpose of the business.
(2) Estate agency
Requirements:
A solicitor who has a separate business providing estate agency
(a) must comply with Section 4(1) and (2)(a), (b), (c) and (f); and
(b) must ensure that the separate business is conducted from accommodation physically divided and clearly differentiated from that of any practice of the solicitor in England and Wales; and
(c) must ensure that all clients referred by any English or Welsh practice of the solicitor to the separate business are informed of the solicitor's interest in the business and that, as customers of the separate business, they do not enjoy the statutory protections attaching to clients of a solicitor (or a registered European lawyer, a recognised body, or a lawyers’ partnership regulated by the Law Society, as the case may be) by the following steps:
(i) in a personal interview or telephone call and
(ii) in writing confirming the contents of that interview or call; and
(d) must ensure that (without prejudice to (b) above) where the separate business shares premises or reception staff with any English or Welsh practice of the solicitor, all customers of the separate business are informed that, as customers of the separate business, they do not enjoy the statutory protections attaching to clients of a solicitor (or a registered European lawyer, a recognised body, or a lawyers’ partnership regulated by the Law Society, as the case may be) by the following steps:
(i) in a personal interview or telephone call and
(ii) in writing confirming the contents of that interview or call; and
(e) without prejudice to Practice Rule 6, must not act in the conveyance for the buyer of any property sold through the separate business, unless:
(i) the solicitor's practice shares ownership of the separate business with at least one other firm, or other business, in which the solicitor or the solicitor's practice have no financial interest; and
(ii) neither the solicitor nor anyone else working in the practice is dealing with or has dealt with the sale of the seller's property for the separate business; and
(iii) the buyer has given written consent to the solicitor acting, after the solicitor has explained his or her financial interest in the sale going through.
(3) Parliamentary agents, trade mark agents, patent agents, European patent attorneys and lawyers of jurisdictions other than England and Wales
Requirements:
(a) A solicitor who has a separate business as a parliamentary agent, trade mark agent, patent agent, European patent attorney or lawyer of an overseas jurisdiction must ensure that the requirements of Section 4(1) and (2)(d), (e) and (f) are observed.
Exceptions:
(b) The prohibitions in Section 3 shall not apply to prevent a solicitor who is appropriately qualified from having such a separate business.
Notes: RELs’ and RFLs’ separate businesses as lawyers of jurisdictions other than England and Wales
(i) The code, including Section 5(3), will apply to a registered European lawyer in relation to:
(a) his or her separate practice as a lawyer of a state which is not covered by the Establishment of Lawyers Directive 98/5/EC, without participation of solicitors of the Supreme Court as partners, or as shareowners or directors (in the case of a company), or as members (in the case of a limited liability partnership or other body corporate which is not a company);
(b) his or her separate practice as a lawyer of a state, other than the United Kingdom, covered by the Establishment of Lawyers Directive 98/5/EC, conducted entirely outside the United Kingdom, and without participation of solicitors of the Supreme Court as partners, or as shareowners or directors (in the case of a company), or as members (in the case of a body corporate which is not a company);
(c) if the registered European lawyer remains on the register after qualifying as a lawyer of Scotland or Northern Ireland, his or her separate practice as a lawyer of Scotland or Northern Ireland without participation of solicitors of the Supreme Court as partners, or as shareowners or directors (in the case of a company), or as members (in the case of a limited liability partnership).
(ii) The code, including Section 5(3), will apply to a registered foreign lawyer practising in partnership with solicitors or registered European lawyers, or as a director of a recognised body which is a company, or as a member of a recognised body which is a limited liability partnership, in relation to:
(a) his or her separate practice as a lawyer of a jurisdiction other than England and Wales, conducted wholly or partly in the United Kingdom, and without participation of solicitors of the Supreme Court or registered European lawyers as partners, or as shareowners or directors (in the case of a company), or as members (in the case of a limited liability partnership);
(b) his or her separate practice as a lawyer of a jurisdiction other than England and Wales, conducted entirely outside the United Kingdom, and without participation of solicitors of the Supreme Court as partners, or as shareowners or directors (in the case of a company), or as members (in the case of a body corporate which is not a company).
(4) Overseas executor, trustee and nominee companies
Requirements:
A solicitor who has a separate business which is an overseas executor, trustee or nominee company (or other separate business set up overseas to act as executor, trustee or nominee) must ensure:
(a) that the requirements of Section 4(1) and (2)(a), (b), (c) and (f) are observed; and
(b) that all clients referred by any English or Welsh practice of the solicitor to the separate business are informed in writing of the solicitor's interest in the business and that, as customers of the separate business, they do not enjoy the statutory protections attaching to clients of a solicitor (or a registered European lawyer, a recognised body, or a lawyers’ partnership regulated by the Law Society, as the case may be) by the following steps:
(i) in a personal interview or telephone call and
(ii) in writing confirming the contents of that interview or call; and
(c) that where the separate business shares premises or reception staff with any English or Welsh practice of the solicitor, all customers of the separate business are informed that, as customers of the separate business, they do not enjoy the statutory protections attaching to clients of a solicitor (or a registered European lawyer, a recognised body, or a lawyers’ partnership regulated by the Law Society, as the case may be) by the following steps:
(i) in a personal interview or telephone call and
(ii) in writing confirming the contents of that interview or call.
Section 6: Overseas businesses unconnected with England and Wales
If a solicitor has a separate business outside England and Wales which:
(a) does not offer or provide any service reserved to solicitors of the Supreme Court, or any executor, trustee or nominee service, and is not a separate business of the type referred to in Section 5(3); and
(b) does not offer or provide any service in England and Wales; and
(c) does not receive any direct or indirect referral of clients from any practice of the solicitor in England and Wales;
then the solicitor must comply with Section 4(1) and (2), but Sections 3 and 5 will not apply.
Section 7: Transitional provision and commencement
(1) Until 31st December 2001 neither Practice Rule 5 nor this code shall apply to the separate business of a registered European lawyer, without participation of solicitors of the Supreme Court as partners, shareowners or directors, which was already providing services before 13th April 2000.
(2) This code will come into force on 1st June 1994.
INCORPORATED PRACTICES
Solicitors’ Practice Rules
Rule 7 (Fee sharing, partnership and corporate practice)(7) A solicitor of the Supreme Court or registered European lawyer shall not practise through any body corporate except a recognised body, or save as permitted under Rule 4 of these rules.
Solicitors’ Incorporated Practice Rules
1. Interpretation
In these rules, except where the context otherwise requires:
(1) (f) “Establishment Directive state” means a state to which the Establishment Directive 98/5/EC applies;
(g) “European corporate practice” means a lawyers’ corporate practice which:
(i) is incorporated in an Establishment Directive state other than the United Kingdom;
(ii) is wholly owned (whether directly or indirectly) and directed by registered European lawyers and/or non-registered European lawyers, or by such persons together with solicitors, registered foreign lawyers and/or barristers of England and Wales; and
(iii) does not practise from an office in England and Wales;
(l) “non-registered European lawyer” means a member of a legal profession which is covered by the Establishment of Lawyers Directive 98/5/EC, but who is not:
(i) a solicitor of the Supreme Court of England and Wales, registered European lawyer or registered foreign lawyer; or
(ii) a barrister of England and Wales, Northern Ireland or the Irish Republic, or a Scottish advocate;
and who is based at an office or offices in an Establishment Directive state but outside England and Wales;
(s) “shareowner” means a member of a company who holds a share on his or her own behalf, or a person for whom a share in the company is held by a member as nominee; and
(t) “solicitor”, except in the phrase “solicitor of the Supreme Court of England and Wales” means an individual qualified to act as a solicitor under section 1 of the Solicitors Act 1974;
3. Ownership and direction of a recognised body
A recognised body shall at all times be wholly owned (whether directly or indirectly) and directed by solicitors and/or registered European lawyers, or by such persons together with registered foreign lawyers, non-registered European lawyers and/or barristers of England and Wales.
4. Directors of a company
(1) The directors of a recognised body which is a company may only be:
(a) solicitors, and/or
(b) registered European lawyers, and/or
(c) registered foreign lawyers, and/or
(d) non-registered European lawyers;
and at least one of the directors must be a solicitor or a registered European lawyer.
(2) Rule 13 of the Solicitors’ Practice Rules requires that, in the case of the practice of a recognised body which is a company, at least one of the directors must be a solicitor, registered European lawyer or registered foreign lawyer who is “qualified to supervise” for the purpose of that rule.
(3) A recognised body which is a company may not provide a service which includes drawing or preparing any instrument or papers, or making any application or lodging any document, relating to the conveyancing of land or the administration of estates, which is reserved to qualified persons by the Solicitors Act 1974, unless at least one of the directors is a solicitor, or a registered European lawyer qualified to provide that service under regulation 12 or 13 of the European Communities (Lawyer’s Practice) Regulations 2000.
(4) A recognised body which is a company shall not have as a director a person who is a patient as defined by section 94 of the Mental Health Act 1983 or as to whom powers have been exercised under section 98 (emergency powers) of that Act.
5. Members of a recognised body
(1) The members of a recognised body may only be:
(a) solicitors, and/or
(b) registered European lawyers, and/or
(c) registered foreign lawyers, and/or
(d) non-registered European lawyers, and/or
(e) recognised bodies, and/or
(f) European corporate practices.
(2) In the case of a recognised body which is a company with a share capital, the requirement in paragraph (1) of this rule is subject to rule 9(1)(i).
(3) In the case of a recognised body which is a company without a share capital at least one of the members must be a solicitor, registered European lawyer, non-registered European lawyer, recognised body or European corporate practice.
(4) In the case of a recognised body which is a limited liability partnership:
(i) at least one of its members, or
(ii) a director of a company (a recognised body) which is one of its members, or
(iii) a member of another limited liability partnership (a recognised body) which is one of its members,
must be a solicitor or registered European lawyer.
(5) Rule 13 of the Solicitors’ Practice Rules requires that, in the case of the practice of a recognised body which is a limited liability partnership,
(a) at least one of its members, or
(b) a director of a company (a recognised body) which is one of its members, or
(c) a member of another limited liability partnership (a recognised body) which is one of its members,
must be a solicitor, registered European lawyer or registered foreign lawyer who is “qualified to supervise” for the purpose of that rule.
(6) A recognised body which is a limited liability partnership may not provide a service which includes drawing or preparing any instrument or papers, or making any application or lodging any document, relating to the conveyancing of land or the administration of estates, which is reserved to qualified persons by the Solicitors Act 1974, unless:
(a) at least one of its members, or
(b) a director of a company (a recognised body) which is one of its members, or
(c) a member of another limited liability partnership (a recognised body) which is one of its members,
is a solicitor, or a registered European lawyer qualified to provide that service under regulation 12 or 13 of the European Communities (Lawyer’s Practice) Regulations 2000.
6. Beneficial ownership of shares
Subject to rules 8(3) and 9(1)(ii):
(1) a member of a recognised body which is a company with a share capital shall not hold any share in the recognised body for another person, except as nominee for
(a) a solicitor,
(b) a registered European lawyer,
(c) a registered foreign lawyer,
(d) a non-registered European lawyer,
(e) a recognised body,
(f) a European corporate practice, or
(g) a receiver appointed under section 99 of the Mental Health Act 1983 in respect of a solicitor, registered European lawyer, registered foreign lawyer or non-registered European lawyer; and
(2) at all times at least one shareowner in the company must be:
(a) a solicitor,
(b) a registered European lawyer,
(c) a non-registered European lawyer,
(d) a recognised body,
(e) a European corporate practice, or
(f) a receiver appointed under section 99 of the Mental Health Act 1983 in respect of a solicitor, registered European lawyer or non-registered European lawyer.
11. Prohibition on creating a charge or other third party interest
(1) Except as permitted by rule 6, a member of or shareowner in a recognised body which is a company with a share capital shall not create any charge or other third party interest over any share in the recognised body, or over his or her interest in the recognised body.
(2) A member of a recognised body which is a company without a share capital or a limited liability partnership shall not create any charge or other third party interest over his or her interest in the recognised body.
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