One of the most difficult issues to reconcile in the legal services sector is the extensive statutory regulation for solicitors, barristers and chartered legal executives. Each of these professions has a membership body and a regulator as well as an overseeing independent regulatory body.
The knock-on effect for consumers is that the cost of such regulation filters through in respect of the fees that are charged to them for services rendered.
Paralegals, on the other hand, are not statutorily regulated but are subject to voluntary or self-regulation and that means that they can charge a consumer a reasonable cost for access to justice since they do not have to pay the extensive fees for regulation.
What’s the difference between statutory regulation and self-regulation?
Statutory regulation is where an organisation is checked by the Government under an Act of Law. It is an offence to practice a statutorily regulated profession without being listed on the relevant register for that profession.
Where a profession is not governed by an Act of Law, it is often subject to voluntary or self-regulation. Such regulation can be drawn up and enforced by any appropriate body within that professional sector but will often take the form of a ‘membership’ body for the professionals operating in that sector. It relies on its members voluntarily joining and agreeing to abide by the codes and ethical principles of that body.
The consequence of this is that anyone can describe themselves as a paralegal (whether or not they have qualifications experience or training), but it is illegal to describe or infer that they are a solicitor or barrister or chartered legal executive unless they have actually qualified through the prescribed route set by the regulatory authorities for their respective professions.
The argument against statutory regulation for paralegals is based on the false premise that all paralegals work for solicitors and are would-be solicitors and therefore come under the umbrella of the solicitor for whom they work. This is most definitely not the case. Many paralegals are offering services to consumers who cannot afford the fees that the regulated professionals charge. Many are also working in different environments (other than legal services) both in the private and public sectors.
The current trend for solicitors to dismiss the role that paralegal practitioners play in the modern legal services sector is a dangerous path down which to venture since paralegals are taking up the slack left by the virtual eradication of legal aid. The benefits for consumers are overwhelming and should not be ignored.
The most difficult issue to tackle for consumers of paralegal services is how to distinguish between them regarding their competency to do the job.
Are Paralegals competent to perform legal services?
Since there is no statute prescribing how a paralegal gains their title nor is there any fixed and regulated format for qualification, how can a consumer know that they are competent? If the paralegal has voluntarily joined the membership body for paralegals and has gained regulated paralegal qualifications, then surely this should be evidence in favour of their competency to do the job.
Even though solicitors have qualified through a prescribed route, does that give them the monopoly on good practice? Does it make them more competent than a paralegal who has agreed to abide by the code of conduct of his/her membership body and gained a nationally recognised qualification? Statistics regarding the number of annual complaints about solicitors’ conduct made to the Solicitors Regulation Authority (SRA) and about their practice to the Office of Legal Complaints (The Legal Ombudsman) speak for themselves.
Regulated or unregulated paralegal qualifications
There are four qualifications regulators in the UK – Ofqual (England), Qualifications Wales (Wales), CCEA (Northern Ireland) and SQA (Scotland) – all of whom have statutory powers under various Acts of Parliament. Because of the strength of regulation behind the qualifications that they recognise, and the reputation of these regulators, qualifications which hold any of these brands are accepted worldwide. They are the same regulators covering our GCSEs and A-Level qualifications that people use for entry into University.
Awarding bodies who have gained recognition by one or more of these regulators have to have shown that their qualifications are of a very high standard and are ‘fit for purpose’ – that the people who hold a certificate have all attained the same level of skills, knowledge and understanding for the same qualification. In other words; they can be relied upon.
Previously, professional membership bodies would offer their own qualifications, and these were generally accepted in their sectors, but over the last decade, more and more have become recognised awarding organisations because they have seen the value of having a regulator’s logo (their stamp of approval) on their certificates. Employers across the world accept it as a badge of quality; an assurance that the person holding the certificate has the level of knowledge they are looking for.
So, despite the fact that the paralegal profession is not statutorily regulated, a consumer should be looking to confirm the status of the paralegal by checking if they are a member of a recognised membership body, for example, the National Association of Licenced Paralegals, and that they have gained a regulated paralegal qualification. At the very least, a paralegal who has such a membership and qualification should be regarded as being on the same playing field as his/her statutorily regulated counterparts.
The downside? There is no requirement for a paralegal to join a membership body nor is there to gain a qualification. Persuading them to do both is the challenge, but ultimately it does make sense: it will provide them with more professional status and ultimately, will give the consumer and the paralegal confidence to offer the legal service that is so desperately needed.
Overall, we believe that regulating paralegals – both in terms of their training and the work they deliver – is absolutely essential. Keeping standards high and maintaining trust is imperative; without it no profession can survive. Consumers and employers need to be able to trust the people whose services they use or employ. They need to be sure that the person has a recognised qualification and has attained a minimum level in their training. Consumers and employers also need to know that the person has signed up to a code of ethics and will abide by them, and that if the paralegal doesn’t, then the consumer knows there is a body to whom they can complain that will take the matter seriously and act on their behalf.
Now is not the time to fight regulation or try to weaken it – now is the time for the profession to embrace the benefits that regulation can bring and step up to show just how important and how knowledgeable paralegals are within the legal profession.
By Amanda Hamilton, CEO of NALP, and Jane Robson, compliance and regulatory officer at NALP
ABOUT THE AUTHORS
Amanda Hamilton is Chief Executive, and Jane Robson is compliance and regulatory officer of the National Association of Licenced Paralegals (NALP), a non-profit Membership Body and the only Paralegal body that is recognised as an awarding organisation by Ofqual (the regulator of qualifications in England). Through its training arm, NALP Training, trading as National Paralegal College, accredited recognised professional paralegal qualifications are offered for a career as a paralegal professional.
See: http://www.nationalparalegals.co.uk and https://www.nalptraining.co.uk/