Two things a Paralegal must never do when offering their services direct to consumers
The legal services industry is opening up. This has given consumers the opportunity to attain access to justice at reasonable costs. More and more paralegals are now Licensed to Practice and are now opening up their own firms. This is great for the paralegals and for consumers, but there are two things a paralegal must never do.
To be direct, this means inferring you are a solicitor. This is illegal and can therefore have serious consequences. You have to be explicit and not be holding out.
In 2007, The Legal Services Act outlined eight main objectives. Three of the prime objectives are to improve access to justice, promote competition in the provision of services, and increase understanding of the citizen’s legal rights and duties.
Eleven years later there is still confusion on behalf of the consumer as to whom they can go to with their legal problem. Many paralegals are also confused as to what legal services they are able to offer.
With the withdrawal of legal aid for most cases (save the most urgent), many consumers are unable to pay fees charged by solicitors. This has resulted in a plethora of individuals with the slightest training or knowledge of the legal system setting themselves up as ‘paralegals’ offering legal services and a reasonable cost to consumers under the umbrella of being a ‘lawyer’. While technically calling oneself a ‘lawyer’ may be correct if an individual has studied law, the impression this gives to the average man on the street is that this individual is a solicitor.
The Paralegal Sector is not statutorily regulated and therefore, in effect, anyone can call themselves a paralegal whether or not they are qualified, trained, educated or affiliated to a professional membership body such as NALP.
The potential dangers to the general public are therefore considerable.
Understandably, someone endeavouring to start a paralegal business would want to promote it by giving the impression that they know what they are doing. However, inferring that they are anything other than a paralegal is completely wrong and illegal. It is referred to as ‘holding out’ i.e. giving the impression expressly or impliedly to the public or to a specific individual that you are a qualified and practising solicitor, barrister, chartered legal executive, licenced conveyancer or notary public. Only these individuals can carry out reserved legal activities.
There are six main reserved activities which are: the exercise of a right of audience, the conduct of litigation, reserved instrument activities, probate activities, notarial activities and the administration of oaths. These are activities that paralegals cannot perform. However, in practice, some of these reserved activities are being eroded and there are ways that a Licenced Paralegal can assist a client to get over the hurdles without utilising the services of a solicitor.
1) The exercise of a right of audience
This means the right to represent a client in court and to call and examine witnesses. While this remains a prime reserved activity, in practice this is being eroded at the discretion of the Judge in a specific case. The reason why is because consumers who cannot afford solicitors or barristers fees (there being no legal aid available as mentioned previously) are attending court and representing themselves as litigants in person (LIPs). Judges are having to delay hearings in order to ensure that the LIP is given appropriate advice. If a paralegal comes before the court and the judge is satisfied as to their competency, then that paralegal may be allowed to make presentations before the court on behalf of the LIP. Ultimately, this assists the courts in being able to maintain its timetable of cases.
2) The conduct of litigation
Again, this is a prime reserved activity. However, a paralegal is able to assist clients in completing and signing the necessary forms and documentation themselves, and to give advice on procedure and how to conduct their own case as a LIP.
3) Reserved instrument activities
Such as conducting a conveyancing transaction on behalf of a buyer or seller of land or property. This can only be carried out by solicitors or licenced conveyancers
4) Probate activities
This refers to such matters as applying for a Grant of Probate on behalf of an executor of a Will. Solicitors are able to apply and sign such applications on behalf of a client executor, but paralegals cannot do so. However, a paralegal can guide client executors through the process to enable them to make the application and sign such forms themselves.
5) Notarial activities
This involves independently witnessing and authenticating legal documents and transactions for production overseas, or to confirm the authenticity of copied or signed documents in order to confirm that they are fully compliant with the requirements of a relevant jurisdiction. Only a notary public can perform these activities.
6) Administration of oaths
The administering (swearing) an oath is solely the monopoly of solicitors. Most (if not all) solicitors are Commissioner of Oaths. An example is when an individual needs to swear an affidavit (a sworn statement) which can then be admitted as sworn testimony in court instead of a witness physically attending and giving evidence under oath in the witness box.
In such an open market, enabling many different types of legal service providers, it’s important that consumers have the necessary knowledge to choose. A consumer that is approached by an individual referring to themselves as a ‘paralegal’ should have the confidence to request evidence of that individual’s credentials with regard to their competence, as well as professional body affiliations.
On the other hand, individuals who are intending to set themselves up as paralegal practitioners should seek to become a member of a professional membership organisation such as NALP that will vet them and ensure that they are given advice regarding the ‘holding-out’ principles and reserved activities.