The problem with paralegals

Posted by Neil Rose, Editor, Legal Futures

Check mate: who will win the battle for paralegals?

Monty Python fans will recall the scene from ‘Life of Brian’ involving the People’s Front of Judea, the Judean People’s Front and the Judean Popular People’s Front. Well, it sometimes seems that this inspired those jockeying for position in the paralegal world. We have the National Association of Licensed Paralegals, the Institute of Paralegals and the Society of Specialist Paralegals.

Now, as we reported yesterday (see story here), we have the Law Society potentially moving into their market by investigating whether there is any scope for it to develop a paralegal qualification. This is perhaps inspired by events north of the border, where the Law Society of Scotland, in association with the Scottish Paralegal Association, will next month launch a ‘registered paralegal’ scheme. (To join the association, interestingly, paralegals have to give the roll number of the solicitor who supervises them, unless they are unemployed, retired or students.)

Under the scheme, registered paralegals – who will have a certain level of experience and qualification – will work in support of a practising Scottish solicitor in delivering legal advice to clients. They will work according to competencies and adhere to a code of conduct aligned with Scottish solicitors’ code.

But while the Scots are clearly focusing on those paralegals working under solicitor supervision, the problem down here is that ‘paralegal’ is interpreted more broadly, even if it not a defined term, making it difficult to represent and/or regulate them. Each body has its own attempt at explaining the word, but perhaps the most interesting are two efforts from the Institute of Paralegals: “Someone who is not a lawyer who does legal work that would previously have been done by a solicitor or barrister”/“Someone who does legal work that a solicitor might do, and if he/she did it would charge for their time.”

This hints at one of the reasons paralegals are an increasingly important issue – even before alternative business structures are expected to develop their use, paralegals (and for these purposes I would describe them as people doing legal work without a full legal qualification) are finding themselves handling work that not that long ago was the preserve of a solicitor or legal executive (less so a barrister, I’d guess). Volume conveyancing and personal injury practices are the obvious examples.

Another reason is that, given the shortage of jobs out there in the profession right now, a lot of legal practice course students are having to take paralegal jobs (see my Guardian blog this week on the lot of law students here). A more formal recognition of their role, and perhaps making it an end in itself, may be desirable. This could be where the Law Society’s interest ultimately focuses.

The move to entity-based regulation helps control paralegals’ activities from a regulatory point of view, but if they are doing unreserved legal activities, then they have no need to be in a regulated business at all – will-writers, essentially, are paralegals from this perspective.

The fact that the term is not defined makes it impossible to estimate how many paralegals are out there, but there seem to be enough to make offering some kind of membership and qualification a financially sound proposition. It was less than two years ago that the Law Society of England and Wales wanted to establish a new membership category for non-solicitors, the motivation of which was at least partly financial, but this was voted down by the existing membership.

Interestingly, in Ontario in Canada, the government in 2007 forced the local law society to take on the regulation of paralegals. They only need a licence if appearing before a court or tribunal, but it sets an example that to date nobody has followed. Neither the Ministry of Justice nor Legal Services Board has yet really to address the issue, although events in Scotland may well make more people sit up and take notice.

But what strikes me as slightly redundant about this debate is that, in the Institute of Legal Executives (ILEX), we already have a structure largely in place to address the paralegal issue (ILEX has no Scottish equivalent, it is worth noting). I should remind readers that I edit ILEX’s journal, but I think the point stands regardless of any perceived bias on my part. ILEX already has around 14,000 paralegals/support staff in its membership, and as well as its professional qualification, it has offered paralegal and legal secretary qualifications for more than 15 years.

It offers a clear path to becoming a fully fledged lawyer whatever your background (including a fast-track qualification for LPC graduates), as well as the opportunity to become a partner and a judge. With ILEX seeking the full complement of practice rights, frankly it will soon make little practical difference whether you are a specialist solicitor or a specialist legal executive. Plus the Institute does not have to prove its credibility – after nearly 50 years in existence, ILEX and its members have plenty of that in the bank.

So paralegals appear to be a problem with a ready-made solution. Perhaps it should it be up to the Legal Services Board to bring order to what might otherwise become chaos.


    Readers Comments

  • Rob Ward says:

    good article about paralegals, i think the canadian model for paralegals is a more viable option and would produce the best results.

  • Hi Neil. I liked your article, which raised a number of interesting points.

    I work for the Institute of Paralegals. May I make the following observations:

    1. There being three representative bodies: that’s perhaps unfortunate, but quite common in unregulated professions (just look at accounting).

    2. The Law Society entering the market. Overall this is a good thing provided that the Society works with existing bodies to avoid further fragmentation. What we need is national consistency, not competing systems. My real concern here though is that many junior lawyers are being replaced by paralegals. That tend will quicken if the Society throws its weight behind increasing the training and professional standing of paralegals. Isn’t there a conflict of interest there?

    To add to the confuion, Skills for Justice (the skills sector council for the criminal justice sysytem is looking right now to do the same thing as the Law Society – but not necessarily in tandem.

    3. The definition of a paralegal: thanks for citing our definition. We acknowledge that it is not perfect however since “paralegal” is a default terms for any non-lawyer doing legal work: and the market is throwing up new types of paralegal faster than any useful definition can accomodate!

    4. Don’t forget that 3 out of 4 paralegals don’t actually work in the traditional legal profession. Any debate about those working for solicitors (as in Scotland) is only part of the story.

    5. As an ex-ilex employee I share your respect for that organisation. However, I don’t agree with your prescription of using ilex as the solution. That is because th whole raison d’etre of paralegals is that they are not lawyers. ilex spent decades fighting hard for recognition of its Fellows as true lawyers. Now it has finally achieved that goal I think it would be a retrograde and confusing step for it to lurch back over the line to become a reprsentative body or regulatory body for non-lawyers – their needs are different as are their goals. Also with thre being already 6,000 paralegal law firms, the regulated lawyers must look to paralegals as competition as well as the source of cheaper employees.

    This is a debate well worth having and I look forward to reading more from you in future blogs.

  • Andrew Siddle says:

    You: we have the Law Society potentially moving into their market by investigating whether there is any scope for it to develop a paralegal qualification.

    Me: The law society were removed from legal services market control, in England and Wales, completely following the Legal Services Act 2007 because of their members poor conduct and over charging of the public. The law Society in England have been completely replaced by the Solicitors Regulation Authority who are controlled by the state. The situation of State Control via a delegated responsibility to SRA will not reverse back to the Law Society at any stage in time what so ever.

    There is no intention to allow the Law Society, of England, to have their previous rights back and there is no intention, in England, to allow the Law Society to have the same powers as the Scottish Law Society at any stage in time ever.

    Best Regards

    Andy Siddle

  • Edward Woods says:

    Great Article. I’m a practicing paralegal I Ontario Canada. The Law Society of Ontario Regulates both us, as well as Lawyers. Paralegals here can retain their own clients as well as advocate in various courts and tribunals (albeit lower courts) for example in civil litigation, if someone is suing another party for $35,000 or less, the potential client can elect to hire a paralegal, from Start to finish, again, including advocacy in that court, opening statements,examination in chief, cross examination of witnesses, closing arguments and submissions to ruling. If the decision is appealed, then it goes to a higher court, then a lawyer is required. Same goes for various tribunals, such as human rights, Landlord and tenant board etc. One of the biggest areas of practice outside of the above are for Criminal Summary conviction charges (jail time with less than 6 months) (I beleive that has ben upgraded for some charges up to 18 months penalty. As well as traffic offices advocated in the provincial offence courts. The Law Society took on regulation in 2007, and a paralegal program for education and qualification was established. Anyone as of that date needed to take the Paralegla program. Prior to that, “Grandfathered” paralegals only need toke thenlicensing exam. The licensing Exam as of right now, is a 7 hour exam, with all the good character, criminal background checks included as well. If y ou u want to hang your own shingle and retian your own clients, we are required to create EO insurance just as lawyers, we must adhere to the a different “rules of conduct” byt are essentially the same as lawyers. The Law Society gave Paralegals a much needed “recognition” paralegals as advocates is a great idea as, it’s not about the lawyers or the Paraleglas, it’s about the public, and access to justice.

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