A Fine Distinction
Amanda Hamilton takes the stand in the paralegal definition debate
The term 'Paralegal' is used in most jurisdictions to describe a professional who assists qualified lawyers in their legal work. This is certainly the case in the USA. However, in England and Wales the profession has yet to agree a definition of a 'Paralegal' and thus much confusion has existed in this area for many years.
The term 'paralegal' was first introduced into the UK by the National Association of Licensed Paralegals (NALP) in 1987. It defines Paralegals as a person qualified through education and training to perform substantive legal work, who requires knowledge of the law and procedures and who is not a qualified solicitor, barrister or legal executive.
Professionals in their own right?
To add to the confusion, there are indeed several types of Paralegals who are defined more from the way they work rather than particular practice areas or levels of expertise.
NALP has, for 24 years, recognised paralegals as professionals in their own right, with many working as freelancers or sole practitioners. Other paralegal bodies appear to have concluded that Paralegals are support workers for solicitors only, which is undeniably undervaluing the status and professional work that is undertaken by these legal professionals on a daily basis.
North of the border, the Scottish Paralegal Association has embedded paralegals safely under the Scottish Law Society's wing. Paralegals in Scotland have a tier structure that defines the role of Paralegals according to their qualifications and experience. Of course, the legal system in Scotland differs in many ways to that of England and Wales, and legal executives do not exist in Scotland, which makes the situation a lot clearer.
The difficulty in defining the role of paralegals in England and Wales is two-fold. First, there is no statutory regulation and second, there is such a broad range of work that non-solicitor legal professionals can perform.
Paralegals can assist counsel in court; draft documents; interview clients; issue applications in court and also have rights of audience before District Judges in County Courts and most Tribunals.
Skills for Justice have recently announced its intention to write national occupational standards for paralegals. Just how they will manage this is beyond comprehension when no clear definition of a Paralegal exists in England and Wales. However, NALP is pleased to have been invited by Skills for Justice to join the steering committee to assist in the writing of the new occupational standards for paralegals.
Having waited for many years for national occupational standards which will lay the path open for the creation of paralegal apprenticeships, what a shame it will be if Skills for Justice rush in head-long to produce standards that are only fit for a proportion of the sector.
Thankfully, the NALP have had many discussions with Skills for Justice to show that although paralegals do work for solicitors they also work for local authorities, private companies and as freelancers.
NALP has since 2005 offered licences for those paralegals that fulfil the criteria laid down by the Association. Once attained, a licensed paralegal is able to assist and advise their own clients as sole practitioners.
If one were to be cynical, no doubt it is in the interests of solicitors to refer to paralegals as 'support workers', considering them as relatively cheap labour, so why would they want them to be recognised as professionals in their own right? This appears to be reminiscent of how legal executives were seen 10 years ago.
Of course ILEX might also have a problem of placating their members who should quite rightly feel that many of their jobs can be undertaken by suitably trained paralegals as is the case in Scotland.
The trend amongst solicitors firms now appears to be the employment of paralegals, or freelance paralegals, who can deliver on a needs-basis, and NALP will continue to promote paralegals as independent professionals to meet this demand.
The NALP will be offering Paralegal courses at levels 2, 3 and 4 in 2012 which will map the new occupational standards and provide a true career path for paralegals
So what now for the definition debate? The NALP are working with like-minded colleagues within the legal profession to try and address once and for all the question that [mostly] solicitors continue to ask: just what is a Paralegal?
Chief Executive of the National Associaton of Licensed Paralegals
This article was first published in the New Law Journal http://www.newlawjournal.co.uk/nlj/ " A fine distinction" NLJ 6 January 2012. Pg 32