Increasing paralegal competence may challenge solicitors’ traditional role, writes Jon Robins


There has been a tendency to regard paralegals as the legal profession’s underclass – overworked, underpaid and there to do the donkey work. But the signs are that we are entering a new classless society, post-Clementi, where non-lawyers run firms and qualifications are no longer as important as your ability to do the job.



According to be Institute of Paralegals (IoP), the non-lawyer movement has now hit critical mass, with half a million non-lawyers carrying out legal functions, and a Legal Services Bill is on its way to the statute book promising a career path from legal secretary to partner.



So is there really any point sweating your way through law college, subjecting yourself to two years on a pittance as a trainee before qualifying as a lawyer? Not really, according to John Stacey-Hibbert, general secretary of the National Association of Licensed Paralegals (NALP). ‘The word “paralegal” means that we’re on a par with admitted staff,’ he argues. His group is currently applying to the Department for Constitutional Affairs (DCA) for extended rights of audience, as well as for the right to undertake conveyancing and probate work. ‘In other words, the three areas where solicitors still have some kind of a monopoly,’ adds Mr Stacey-Hibbert.



The category ‘paralegal’ has a somewhat imprecise definition potentially covering everyone without a legal qualification from the tea-boy who occasionally takes notes to potentially the biggest earner in the practice.



According to NALP, a paralegal is ‘a person qualified through education and training to perform substantive legal work that requires knowledge of the law and procedures, and who is not a qualified solicitor or barrister’. The group puts its headcount at a more modest – but still pretty huge – 175,000. The IoP goes for the broader definition of ‘non-lawyers who do legal work’, including contract managers, health and safety officers, claims assessors and HR administrators.



‘There are more paralegals in the country than there are solicitors and barristers put together,’ Mr Stacey-Hibbert says. ‘About 75% of all legal services in this country are carried out by paralegals.’



IoP has just hosted its inaugural awards ceremony with the backing of the DCA, the Commission for Racial Equality and the Law Society (see [2007] Gazette, 4 January, 3). Its chief executive, solicitor James O’Connell, says he detects that the sector is becoming increasingly professional. ‘One of the changes we saw during 2006 is that paralegals seem to have now become accepted, in the same way that teachers have teaching assistants and police have community support officers. The government has up-skilled the work of [its own employed] solicitors and is now giving an awful lot of work to paralegal staff,’ he says. ‘It is looking to “professionalise” that part of the Civil Service and within law firms there has been a sea change since 2005, with an interest in paralegals which frankly was never there before.’



Non-lawyers have been busy working on their own standards. The IoP is currently developing an accreditation scheme for paralegals and legal secretaries, and the NALP introduced its own licensing regime in 2005 following the publication of the Clementi report. So far, some 1,000 paralegals have such licences. The aim is to provide for the regulation of paralegals and bring them in line with the rest of the legal profession. Whereas anyone can call themselves a paralegal, only those who can fulfil the criteria laid down by the association can call themselves a ‘licensed paralegal’, the association says.



The business model for many modern law firms in heavily commoditised areas such as conveyancing and personal injury is built on the use of armies of cheaper non-lawyers doing the bulk of the work. In the publicly funded arena, Lord Carter’s proposals for legal aid are predicated on ‘economies of scale’ being delivered through the increased deployment of cheaper staff – in other words, non-solicitors.



So does private practice regard its non-lawyers as the legal profession’s equivalent of shelf stackers – or are they a valued part of the team? Sheffield-based Irwin Mitchell was named as law firm employer of the year at the IoP awards. ‘The word “paralegal” is an acknowledged term of respect and status within our firm,’ insists senior partner Michael Napier. ‘It is recognition of people moving towards carrying out legal skills for which they are trained, possibly moving on from paralegal to legal executive and from legal executive to solicitor. There is a step-by-step career development.’ The firm was the first practice to have its own in-house Institute of Legal Executives programme.



Paralegal does not denote lesser status, Mr Napier says. Far from it, the firm also claims to have been the first to create a new, non-fee-earner partner-level position of associate director in 2002, and more than half of its senior management are non-qualified legal professionals. ‘A lot of the work that we do is specialist and highly skilled in the sense that you can train somebody to do it without them having to have the broad range of skills and knowledge that might be needed for a legal executive or solicitor,’ says Mr Napier. ‘It used to be said that the managing clerk knew more than the boss and, frankly, there are many unadmitted people who I’ve come across who know civil procedure better than the solicitors.’ Fewer than 5% of the firm’s staff in its insurance department are solicitors.



Barnetts is a cutting-edge volume conveyancing firm based in Southport with a nationwide reach. It has 300 staff but only 25 solicitors. Unsurprisingly, senior partner Richard Barnett, a Law Society Council member, disagrees that such a business model relies on drones pushing papers with zero career prospects. ‘The firm is heavily structured. It is a bit like the Civil Service,’ he says. ‘You come in as a junior, then you go to the next level by taking an internal exam. Everything is monitored

and our salary structures are published. If you jump two places, you know exactly what salary you’re going to receive.’



So non-lawyers work their way up? Mr Barnett takes great exception to the idea of ‘working their way up’. There is no ‘us and them’, he says. ‘We are all in it together.’ The whole thrust of Clementi and the Legal Services Bill is, he reckons, that ‘we are all going to be exactly the same’. He explains: ‘You don’t differentiate between lawyers and non-lawyers within an alternative business structure, but you have directors and non-directors.’



Not every firm treats their non-lawyers so well. The NALP obliges with horror stories of paralegals being exploited by firms. John Stacey-Hibbert recalls one Indian graduate who worked for a firm in north-west London and was paid £5 a week on the promise of a training contract which – surprise, surprise – never materialised. ‘We used to be flooded by calls referred to us by the Law Society, which says it does not deal with non-legally qualified people,’ he says. However, he adds that his group ‘has not had experience of that kind of complaint’ for more than 18 months.



What kind of response have paralegal professional groups had regarding their attempts to introduce accreditation? ‘There is either interest or complete apathy,’ reckons Mr O’Connell. ‘There is not much resistance from the profession because nothing is being imposed. If you’re a firm that cares and wants to train your people and get the best out of them, as well as reduce your professional indemnity risks, you will want competency standards.’ The Crown Prosecution Service in particular, has shown interest in what the IoP can offer its unadmitted caseworkers.



There are concerns about the quality of non-lawyers within law firms, especially when their services are paid for with public money. Family lawyers’ group Resolution introduced its own form of accreditation for paralegals and non-solicitors last August, known as a ‘certified family law assistant’. This initiative was in response to concerns raised by the Legal Services Commission (LSC). ‘The squeeze on legal aid means that more and more family law work is being delegated to paralegals and other non-qualified personnel,’ remarks Resolution chairman Andrew Greensmith.



Family lawyers note a tension between Lord Carter’s proposals to deliver economies of scale and the LSC’s concerns about quality. ‘Government is creating a rod for its own back,’ says Keith Kershaw, a family law solicitor at Yorkshire legal aid firm Switalski’s who worked with Resolution on the scheme. ‘To make this work pay at £50 an hour, Carter is envisaging a pyramid system of fee-earners.’



The not-for-profit sector has always held an enlightened view of paralegals, says Steve Hynes, director of the Law Centres Federation. ‘Things are very different in the law centre movement,’ he says. ‘The paralegals within centres are specialist case workers, particularly when they are qualified supervisors under LSC quality standards, where they are pretty much on a par with solicitors and other legally qualified people.’



Beyond law firms, which are regulated by the Law Society, there are concerns about freestanding non-lawyer paralegal firms setting up with no regulatory oversight. The IoP has been in talks with the government to take on the job of regulation in this sector, but detected little enthusiasm. This contrasts with Canada, where there is currently a bill before the Ontario legislature proposing to bring unregulated paralegals within the control of the Law Society of Upper Canada (see [2006] Gazette, 5 October, 8).



‘You have this huge number of people without regulation who are doing the exactly the same work as solicitors were doing ten years ago under heavy regulation,’ says Mr O’Connell. He points to well-documented scandals concerning unqualified immigration advisers that led to the creation of the government watchdog, the Office of the Immigration Services Commissioner, as well as problems with claims management companies.



‘These are areas that are growing like Topsy,’ he says. ‘I don’t want to sound like we’re power crazy and want to regulate everyone, but we think the government should look carefully to make sure consumers are protected.’



Jon Robins is a freelance journalist