The legal services sector has gone through enormous changes over the last few decades. No-one in the sector can deny this. However, the most important factors that have affected these changes are arguably two-fold.
Firstly, The Legal Services Act 2007, the objectives of which were primarily to open up competition in the provision of legal services to the consumer while maintaining the Rule of Law.
Secondly, the virtual eradication of Legal Aid for consumers since 2013.
The effect of these two fundamental changes have caused chaos and confusion, not only within the court system, as a result of consumers unable to afford the fees of providers and thus representing themselves as litigants in person, but also in the mindset of the consumer.
The result of these two factors is the exponential increase in numbers of unregulated legal service operatives who are providing access to justice at a reasonable cost, be they paralegals or McKenzie friends.
Consequently, in June 2020, Professor Mayson produced his Independent Review of Legal Services Regulation in which he advocates a complete overhaul of the legal services framework by suggesting both short term and long term recommendations.
In essence, Professor Mayson overriding recommendation is that the whole of the legal services framework should be brought under one regulatory ‘roof’, ensuring that all providers of legal services, including those currently not covered by statutory regulation, should be registered and regulated to a larger or lesser extent, depending on the services they offer.
However, his review opens with some very interesting remarks as follows:
- A survey of ‘lawyers’ (which in this report appears to encompass anybody that falls within the scope of the current statutory regulation and Reserved Activities – e.g. solicitors, barristers, legal executives, etc.) indicated that only 20% of their work falls within the remit of the Reserved Activities.
- A YouGov survey of 30,000 people showed that 60% of people had a legal issue, but that only two-thirds of those actually received help and less than half of those receiving help did so from a regulated legal service.
- The current regulatory framework would appear to only be applicable to 10% of the individuals who require the help of legal services, leaving the other 90% to fend for themselves.
Within the review, Professor Mayson makes it clear that the vast majority of individuals and small businesses seek help from unregulated legal sources. Some can be family and friends, but others are the services provided by paralegals which are becoming highly sought after. However, it also leaves consumers vulnerable to unqualified, unregulated and unscrupulous people. The consequence of this is something that organisations such as NALP, as a professional body, has been seeking to address for more than 30 years via a self-regulatory approach and encouraging, through many avenues, those paralegals who have not yet taken the step to be part of a voluntary-regulatory professional membership body.
There is no aversion to paralegals being subject to additional statutory regulation, provided that this is proportionate and takes all prevailing factors into account.
In terms of the current legal services sector regulation, some changes would be welcome and even necessary. However, this writer is not convinced that Professor Mayson’s opinion that the benefit of the wholesale change he proposes would be worth the additional cost that would undoubtedly come with it. The concerns are that these costs would:
- Make the business models of some smaller providers and sole proprietors unviable, forcing them to close
- Cause in-house legal teams to be downsized due to the cost of having to have each individual authorised, or, at the very least, reduce the likelihood of expansion and the availability of career advancement and corporately funded learning
- Cause solicitors to look at their staff and decide to reduce staffing levels due to the cost of having to have all individuals authorised, potentially reducing the number of paralegals, as well as trainee and apprenticeship places
- The increased costs to professional paralegal practitioners would inevitably mean increased costs to the consumer, reducing their access to justice at a reasonable cost.
It is accepted that the primary objective of the proposed reforms is to protect and promote the public interest and would agree that this should be the main focus of any statutory regulation. There must be some awareness, however, that there are a great deal of unmet legal needs at this time, and that the main reason so many of these needs go unmet is because of the cost of legal services.
An unavoidable fact of life is that additional statutory regulation and registration brings with it additional cost. It has been made clear that Professor Mayson expects that any future regulatory environment would be funded by those requiring authorisation. He also states that this would be a two-pronged approach, with both the organisation offering legal services and the individuals within that organisation providing those services needing to be jointly and separately registered and authorised. This will increase the cost for both the currently regulated and unregulated legal services providers.
Professor Mayson has suggested a ‘bottom up’ registration so that providers offering the lowest risk services could be authorised for these, but he has also stated that some of the services offered by Paralegals would fall into the higher risk categories. It is recognised that more details would need to be known to understand exactly how this would work, but there is a very real concern that the very services that vulnerable consumers need may suddenly be outside of their financial reach. For instance, Professor Mayson accepts in his report that consumers who have had issues with incompetent will-writing were just as likely to suffer these issues with regulated as with non-regulated providers. However, how many more issues is the Probate Registry likely to have to deal with if regulation forces the making of an effective will out of the financial reach for many more consumers, who may then be inclined to write some things on the back of the proverbial beer coaster in the hope that it will suffice when the time comes? Reason would indicate that an increase in costs will result in a decrease in the ability of consumers to afford those services which will mean a lot more consumers being unable to benefit from having a valid and effective will in place.
As Professor Mayson states, the proposals put forward in his report would need a great deal more work and consultation prior to any of these recommendations being put into place. I, for one, would welcome the opportunity to be part of those consultations as it is felt that the concerns of Paralegals have not been adequately presented, or addressed by, this review. Nor, it seems, have the concerns of consumers that utilise the services of paralegals and require access to justice at a reasonable cost.
ABOUT THE AUTHOR
Amanda Hamilton is Chief Executive of the National Association of Licensed 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, accredited recognised professional paralegal qualifications are offered for a career as a paralegal professional.