The legal sector is a constantly changing landscape. We all know that the sector has seen some seismic shifts since the introduction of the Legal Services Act 2007 which set out 8 regulatory objectives, all aimed at protecting both the consumer of legal services and the rule of law in England and Wales, but that was just the start of the changes the sector would face. Since the Legal Services Act 2007, the regulators of the more traditional arms of the sector – the SRA, the Bar Standards Board and even CILEx – have made a conscious effort to take more notice of consumer opinion. Between them, the 3 statutory regulators have undertaken a number of surveys to inform their approach to the regulation of the legal sector and have gone on to adjust their regulatory requirements, most of which has been aimed towards providing more transparency for consumers of legal services. The new regulations include things such as having fees information immediately and publicly available; ensuring that client contracts are clear and unambiguous; and having clear complaints procedures in place that include the details of how unresolved complaints can be escalated to the Legal Ombudsman.
So why do all of these changes matter to Paralegals who do not fall under such statutory regulation?
Paralegals form the fastest growing part of the Legal Services sector, with more professional paralegal practitioners branching out on their own, away from the traditional role of being the researcher or assistant to a solicitor or barrister. This growth has seen a particular upsurge following the virtual eradication of legal aid provision in England and Wales in 2013, which led to an increase in ‘unregulated’ legal services providers setting up shop, with professional paralegal practitioners leading the way. The majority of these paralegals are qualified and/or experienced and their presence has helped to plug the hole that has been left by the lack of legal aid, as consumers have been able to access good quality legal advice to help them through their legal worries. Without these more affordable alternatives, consumers’ access to justice at a reasonable cost would be even more limited.
The downside of this, of course, is that where there is a new market, there are always rogue traders that seek to take advantage of others – and some of the consumers looking for affordable legal services are seen as easy prey for such individuals eager to exploit them.
It follows that the best way to avoid consumers being duped in this way would be to ensure that those paralegals who are qualified and experienced and dedicated to helping their clients first and foremost, are able to set themselves apart from the pack. They can do this by ensuring they align their policies and procedures with those of a regulated legal services provider – starting by being fully transparent. Because so many professional services have become infiltrated by rogues over the years, many consumers are wary and want to know that the service they are employing is a legitimate one. A Paralegal Practitioner that has limited information on their website could be off-putting.
Let’s start with fees information; if a consumer can’t get even an idea of the sort of rates a paralegal may charge it could dissuade them from that service. Then there is the client contract that sets out the terms that a consumer is agreeing to when they engage the services of a paralegal practitioner. If it is full of jargon or legalese it could be easy to hide unfair terms or additional charges that the consumer wouldn’t be aware of, so again could put them off. And if a paralegal practitioner doesn’t clearly set out how they will protect the interests of the consumer, such as by having professional indemnity insurance, or what action they will take if something goes wrong, then the consumer is likely to go and look for an alternative provider.
Of course, the main area of transparency for paralegals is around what they can and cannot do for their clients. Many consumers will not understand the differences in the roles and why paralegals cannot undertake the reserved activities that their statutorily regulated colleagues can. Paralegals must be acutely aware that failure to be clear around the limits to the services they can offer could be construed as ‘holding out’ – inferring that they are a solicitor or barrister or other regulated legal services provider – which is a criminal offence.
If the paralegal practitioner is a member of a voluntary regulatory and membership body, such as the National Association of Licensed Paralegals (NALP), they will have agreed to abide by a set of rules – the Code of Conduct and Ethics – which sets out the basic regulations they will be held accountable to. NALP’s Code of Conduct and Ethics is aligned to the regulations of the SRA and call for its members who offer services directly to consumers to be transparent in all of their dealings and ensure that information about fees and complaints handling are easily accessible. We also encourage those members who do wish to offer services directly to clients to opt for a ‘Licence to Practise’ which means that they will be subject to further scrutiny and be required to have Professional Indemnity Insurance so that, if anything were to go really awry with a consumer, the consumer would have a point of escalation and potential redress in the absence of being able to go to the Legal Ombudsman which only covers regulated providers.
There is another reason that may make compliance important for paralegals, particularly where it covers being transparent with consumers, and that is what the legal services landscape may look like in the future.
In 2020 Professor Stephen Mayson published a report on his independent review of Legal Services Regulation. The main proposal to come from that report is that ALL legal services providers should be subject to some form of statutory regulation. Whilst we don’t know whether this proposal will be adopted in its entirety, or at all (even Professor Mayson stated that more work needed to be done to check the viability of the proposals), it would seem likely that some form of regulation is likely to come into force that will encompass the work of professional paralegal practitioners at some point in the future and so it would be best to be ahead of the game, rather than playing catch up after the fact. At the end of the day, regulation and ensuring compliance with it, is something that all legal professionals must accept and adhere to, including the ‘unregulated’ providers such as paralegals. It is what is best for the consumer and for the legal sector itself.
By Jane Robson, Director of compliance and regulation at NALP
ABOUT THE AUTHOR
Jane Robson is Director of compliance and regulation at 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 Centres around the country, accredited and recognised professional paralegal qualifications are offered for those looking for a career as a paralegal professional.