It is the statutory responsibility of every solicitor to ensure that they have a practising certificate in place before providing legal services of any kind whatsoever, either reserved or unreserved.

This applies to in-house solicitors who, as part of their work, provide legal services of any type.

• View more information on Practising Certificates

Professional misconduct and a criminal offence to practise without a practising certificate

It is professional misconduct and a criminal offence for a solicitor (other than a solicitor in the full-time service of the State, or a solicitor solely engaging in conveyancing services for a non-solicitor employer) to practise without a practising certificate. A solicitor shall be deemed to practise as a solicitor if they engage in the provision of legal services of any kind. ‘Legal services’, either reserved or unreserved, are services of a legal or financial nature provided by a solicitor arising from that solicitor’s practice as a solicitor.

It is not permissible for an employer to classify a solicitor employed by the employer as a ‘legal executive’, ‘paralegal’ or other non-solicitor title with a view to avoiding the requirement to hold a practising certificate if the solicitor is engaged in the provision of legal services, regardless of the solicitor’s job title.

Reserved legal services

Section 58 of the Solicitors 1954 Act sets out the ‘reserved areas’ in which legal services can only be provided by solicitors and, in some cases, barristers. These reserved areas deal primarily with conveyancing, litigation and probate work. It should be noted that the requirement for solicitors, including in-house solicitors, to hold a practising certificate applies whether the legal services being provided are in reserved or unreserved areas.

What type of work constitutes the provision of legal services

Each situation must be examined to decide whether a practising certificate is required. General exhaustive rules are not possible, as circumstances often vary. It is recognised that in an organisation there may be both practising and non-practising solicitors.

For example, a solicitor in a legal department providing routine legal services, commonly provided by solicitors, is a practising solicitor. The legal compliance officer who is employed to monitor and advise on whether proposed projects and actions are legally possible is usually a practising solicitor.

The solicitor in a non-legal role where no legal services of any kind, either reserved or unreserved, are provided by the solicitor is not a practising solicitor.

Categories of work which require a practising certificate

The following non-exhaustive examples may be useful when considering whether it is necessary to apply for a practising certificate:

1. The provision of routine legal services: This refers to the services commonly provided by practising solicitors and includes: advisory services, representing a client in court, at tribunals or the provision of conveyancing services.
2. Legal advice: Corporate bodies may only operate within the framework of enabling legislation, charter, single constitution or memorandum and articles of association. A practising solicitor may be employed to monitor and advise on whether proposed projects and actions are possible within that framework.
3. The execution of forms as a solicitor: There are many forms to be filed with Government and other agencies, which are acceptable only if signed by a practising solicitor. The Companies Office, Form C1 is one example. If not executed by an officer of the company, the form will only be accepted if executed by a practising solicitor. This should be distinguished from the situation where a solicitor witnesses a form as a solicitor and this is acceptable, not because of the solicitor’s expertise, but because of the solicitor’s professional standing.
4. Commercial work: The solicitor may be involved in drafting and negotiating contracts with third parties on behalf of their employer.
5. Position as advertised: When the employee was recruited for the position held, was it a requirement for the employee to be a solicitor?

The following items relate to work that are unlikely to require a practising certificate:

1. Management: The solicitor may be a member of the management team and participate in the making of decisions on behalf of the organisation.
2. Research: The solicitor may be a researcher in an academic institution or in another organisation where his research is used in the formation of policy.
3. Non-legal role: The employee may have qualified as a solicitor but may be employed in a capacity where his work is completely unrelated to law.

Professional Indemnity Insurance

A solicitor working in a non-solicitor body is exempt from Professional Indemnity Insurance (PII) requirements.

It is important for solicitors practising outside private practice to understand how professional indemnity insurance (“PII”) matters affect them. The PII regulations provide that a practising certificate may be refused to a solicitor unless the firm in which they practise provides evidence of PII to the Law Society or the solicitor is exempted from PII requirements because they provide legal services to their non-solicitor employer only.

Solicitors employed in the full-time service of the State

Solicitors employed in the full-time service of the State are exempt from the requirement to have PII cover in place. Therefore, the compulsory PII provisions do not affect them.

Solicitors employed in the corporate and public sector

Regulation 4(e) of the Solicitors Professional Indemnity Insurance Regulations 2020 (S.I. 429 of 2020) provides an exemption for practising solicitors employed in the corporate sector, as follows:

(e) Subject to Regulation 24, Regulation 4(a) shall not apply to or in respect of any solicitor or registered lawyer who provides legal services only as part of an employment within the State to provide legal services to and for his or her employer, provided that:-

(i) the solicitor’s or registered lawyer’s employer is not a solicitor or registered lawyer; and

(ii) the solicitor or registered lawyer confirms to the Law Society in a manner acceptable to it that, for the duration of a relevant indemnity period, the solicitor or registered lawyer has not and will not engage in the provision of legal services to or for any person other than his or her employer.

Solicitors with a contract for services with a non-solicitor employer (a contract for service applies in the case of an independent sub-contractor while a contract of service applies to an employee-employer relationship) can be exempt from the requirement to have PII in place provided the following criteria are met:

1. The solicitor provides legal services only to the company or group with which they have a contract for services,
2. The indemnity provided by the company forms a deed of indemnity between the solicitor and the company and is dealt with by way of private company contract law,
3. The company is aware that the solicitor does not hold any PII and is required to confirm same in writing directly to the Society, copying the solicitor,
4. The solicitor does not, and the company is aware that the solicitor cannot, provide legal services to third parties, including clients or customers of the company, and the company is required to confirm same in writing directly to the Society, copying the solicitor,

The PII waiver for in-house solicitors extends to services provided during the course of the solicitor’s employment with the employer (that is, a contract of service) to or in respect of the employer, any subsidiary or holding company, or any subsidiary of such holding company of the employer, within the meaning of sections 7 and 8 of the Companies Act 2014.

If a joint venture is entered into with another company or group of companies, where the group company is not within the employer’s group of companies, then no PII waiver shall extend to this joint venture where the employer’s group does not have a majority stake.

Personal liability

Although a solicitor may benefit from an exemption in respect of compulsory professional indemnity insurance, it is still important for corporate solicitors to ensure that there are, in fact, adequate arrangements in place to protect that solicitor’s own personal liability. There are two aspects to this: employer’s indemnities and employer’s waiver.

Resources and contacts

Regulation of Practice Committee

The Regulation of Practice Committee monitors compliance with the legislation in respect of practising certificates and has the formal statutory powers of regulation delegated to it. Applications in respect of practising certificates should be directed to the Practice Regulation Section of the Regulation Department: pc@lawsociety.ie.

Regulatory Guide for In-house Solicitors

The Law Society’s Practice Regulation Section has produced the Regulatory Guide for In-house Solicitors Employed in the Corporate and Public Sectors.

• View the Regulatory Guide for In-house Solicitors

Contact

The Practice Regulation Section of the Regulation Department of the Law Society will provide guidance on these matters and can be contacted at pc@lawsociety.ie.