Increasing numbers of paralegals are gaining Licences to Practise and opening up their own firms, thanks to the opening up of legal services to consumers, giving them the opportunity to attain access to justice at a reasonable cost. This is great for both consumers and the paralegal professions but there two things a Paralegal must never do.
Holding out
A paralegal can offer assistance directly to a client in many areas. Some of these areas are the same as solicitors but it is very important not to give the impression that you’re anything other than a paralegal practitioner. Holding yourself out to be a solicitor by giving an inference and by not being explicit, is illegal, and can have serious consequences.
Eleven years ago (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. But 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.
Following the withdrawal of legal aid for most cases, 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 at 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.
Because the Paralegal Sector is not statutorily regulated, 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.
Of course, 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.
Reserved Activities
The six main reserved activities 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.
Probate activities
This refers to matters such 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.
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.
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 being is that 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.
The conduct of litigation
This, again, 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.
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.
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
It’s important that consumers have the necessary knowledge to choose, in such an open market which enables many different types of legal service provider. 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.
Conversely, individuals 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.
Originally published: 26 November 2018
