Providing legal services when you are not qualified and licensed to do so is a criminal offence in many jurisdictions. Conducting litigation and pretending to be legally qualified is also a contempt of court for which you may be sent to prison, as the recent English case of Ravinder Balli demonstrates.
On 1 July 2011, Mr Balli was sent to prison for 6 months for such a contempt of court. On 15 July, he applied to the court to purge his contempt and be released from prison. His Honour Judge Simon Barker QC accepted that the 2 weeks that Mr Balli had spent in prison had been a shocking and chastening experience, but he considered that 2 weeks was not a long enough period of imprisonment, given the seriousness of the offence. He reduced the sentence from 6 months to 2 months, which in practice meant that only 1 month in total would be spent in prison under current sentencing rules. In other words, Mr Balli would only have to go back to prison for another 2 weeks.
The conduct described in the two court reports (links above) is of an extreme kind and a prison sentence was perhaps not surprising. In the UK, less obvious offences may committed in the context of advising on IP transactions, including:
- “Any unqualified person who wilfully pretends to be, or takes or uses any name, title, addition or description implying that he is, qualified or recognised by law as qualified to act as a solicitor shall be guilty of an offence…” (section 21, Solicitors Act 1974). Back in the late 1980s, section 278(2) of the Copyright, Designs and Patents Act 1988 clarified that a registered patent agent did not breach this provision by calling herself a patent attorney. We have seen some in-house contract managers who sail a bit close to the wind on this one, eg through ambiguous job titles. Senior executives of organisations, who determine such job titles, are sometimes unaware (or careless) of the distinction between a qualified lawyer and someone who has legal qualifications (eg a law degree).
- Carrying on “reserved legal activities” (see section 14 of the Legal Services Act 2007) when you are not an “authorised” or “exempt” (see sections 18, 19 and Schedules) is also an offence. This would include, for example, preparing a deed of assignment of a patent. See section 12 and Schedule 2 to the Legal Services Act 2007, which lists “reserved legal activities” – see in particular paragraph 5(1)(c) of Schedule 2, which refers to preparing instruments relating to personal estate (patents are personal property), and paragraph 5(3)(b) which excludes agreements that are not prepared as deeds. Similarly, by section 17 it is an offence to pretend to be entitled to carry on reserved legal activities. It is understood that both solicitors and registered patent agents will continue to be authorised to prepare deeds of assignment of patents under this legislation.
In some ways, the restriction on preparing deeds for the transfer of property is a quaint throwback to an earlier age. When this blogger, then qualified as a barrister, was employed by a London law firm in the late 1980s, pressure was put on him to requalify as a solicitor so that he could officially perform these restricted activities (under earlier versions of the same laws).
In our experience, many clients are unaware of these restrictions and the associated criminal offences. Somehow, it seems unlikely that an in-house contracts manager would be prosecuted for preparing a deed of assignment of IP for their employing organisation, but why take the risk?