By Amanda Hamilton, CEO of NALP, and Jane Robson, Director of compliance and regulation at NALP
An interesting question was raised in the office this week — are Paralegals covered by Legal Professional Privilege? Those paralegals who work for solicitors and barristers are covered under their employer’s umbrella, but what about those Paralegals who work as independent legal advisers? Where do they fall?
Under the Legal Services Act 2007, provision of legal advice is no longer a Reserved Activity — i.e. one that can only be undertaken by an ‘authorised’ person or body, such as solicitor, barrister, legal executive or actuary, etc. Couple that with the virtual removal of the availability of legal aid, there has been a massive surge of Professional Paralegals in the industry providing legal advice directly to clients. Many courts and judges are allowing paralegals who are members of a professional membership body, such as NALP, to represent their clients in court, but even this doesn’t necessarily mean that they are afforded the rights of Legal Professional Privilege.
Legal Professional Privilege is seen as a fundamental right under the law, not just in England and Wales, but in the rest of the UK and even in the USA. It has been part of Common Law in the UK for over 400 years and is even enshrined under Article 8 of the European Convention on Human Rights which, whilst protecting the right to keep all correspondence between individuals confidential, goes further to strengthen these rights when it comes to any exchange of information or correspondence between a lawyer and their client.
In a Factsheet published by the European Court of Human Rights in January 2019, it was explained that this additional protection was justified by “the fact that lawyers are assigned a fundamental role in a democratic society, that of defending litigants. Yet lawyers cannot carry out this essential task if they are unable to guarantee to those they are defending that their exchanges will remain confidential.” We must also remember that it is a right of the client, not of the lawyer, with only the client having the right to waive Legal Professional Privilege.
The term ‘lawyer’ is defined as “one who practises or studies law” so it is not restricted just to solicitors and barristers but covers the whole gambit of legal professionals, including Paralegals. So, if this privilege is a Human Right, and a Paralegal is, by definition, a lawyer, why is it not clear that Privilege extends to the relationship between a client and their lawyer if that lawyer is a Paralegal?
The Legal Services Act 2007 (section 190) states that, where a person (P) is not a solicitor or barrister but “provides advocacy services as an authorised person in relation to the exercise of rights of audience” then “Any communication, document, material or information relating to the provision of the services in question is privileged from disclosure in like manner as if P had at all material times been acting as P’s client’s solicitor.”
As Paralegals may be providing advocacy services to their clients in places such as before a District Judge in a Small Claims Court or before the Chairman of a Tribunal, where they do have a right of audience, it would then follow that a client who chooses a Paralegal to provide the legal services they require, should be able to enjoy Legal Professional Privilege, wherever it may be applicable in those scenarios.
This being the case, it should logically follow that if a Judge in a higher court, such as the County Court, has accepted an application for a Paralegal to advocate on behalf of their clients, any exchange between that Paralegal and their client should also be covered by Legal Professional Privilege.
We also need to look at the fact that there are some Paralegals who are authorised to instruct barristers directly or even those who are Police Station Accredited. Surely those attended by such Paralegals should be able to rely on being covered by Legal Professional Privilege in such circumstances?
Whilst one would like to think that most Judges would look at a circumstance on its individual merit, this is no guarantee that Legal Professional Privilege would be granted. From what we have been able to find, it would appear that the subject simply has not been raised in a situation whereby it has gained sufficient publicity for the legal sector really to take note. This may mean that courts are routinely allowing the rights of privilege, but without it being tested, we are not going to know for sure.
Something that also makes this a very grey area is the existence of some judgements that would seem to run parallel to this argument; for example, in 2013’s Supreme Court ruling over Prudential plc and Prudential (Gibraltar) v Special Commissioner of Income Tax and HM Inspector of Taxes which concluded that Chartered Accountants providing legal advice to their clients in respect of tax law were NOT covered by Legal Professional Privilege.
The legal sector has changed significantly in recent years, with the role of the Professional Paralegal Lawyer coming more and more into its own. With this in mind, perhaps it is also time that we cleared up the grey areas on such fundamental issues as the application of Legal Professional Privilege.