As more non-lawyers provide legal services, it is only right that paralegals be offered a clear routemap for professional progress
They are the legal profession's underclass. Nobody can say exactly what they do, or exactly how many of them there are. But they are set to become ever more central to the delivery of legal services. They are paralegals.
In a first for the UK, this week the Law Society of Scotland, in association with the Scottish Paralegal Association (SPA), formally launches its "registered paralegal" scheme, introducing across-the-board competencies and adherence to a code of conduct for paralegals working with solicitors.
Collette Paterson, deputy director of education and training at the society, says more than 120 paralegals have already applied to the scheme under grandfathering provisions. It will not only help to credit the work they do, she says, but also introduce set standards and provide a defined career path, possibly linking up in time with the route to qualifying as a solicitor.
The society is undoubtedly ahead of the game on paralegals, having been working with the SPA for 10 years, but with alternative business structure (ABS) reform currently going through Holyrood, such recognition is particularly timely.
South of the border, justice minister Jonathan Djanogly last week confirmed that the cabinet's reducing regulation committee has given ABSs the green light, and so all things being equal we are now a year and eight days away from the first ABS opening its doors. An efficient business model involving a small number of qualified lawyers, overseeing a large cadre of paralegals, has already taken hold in fields such as conveyancing and personal injury, where much of the work is routine and process-driven. This trend will inevitably grow as non-lawyer providers enter the market next year – certainly, nobody thinks they will plump for the traditional high street law firm model instead.
The issue is also important in the context of the debate sparked by my previous blog on the imbalance between the number of law students and available training contracts and pupillages, as many of those unable to progress their legal training are instead taking paralegal roles.
Though in essence they are people doing legal work without a full legal qualification, a core problem is that there is no accepted definition of what a paralegal is. This is why nobody knows how many there are, but applying a broad definition there are probably an awful lot, because many roles have a legal advice element. While the Scots are focusing on paralegals employed by solicitors, perhaps of greater concern are paralegals flying solo and unregulated in areas of legal practice that are not reserved for qualified lawyers. Will-writers, for example, are in effect paralegals.
In Ontario, Canada, the government has forced the provincial 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 Finland – the most liberal jurisdiction on earth in terms of who can provide legal services – is to follow. Neither the Ministry of Justice nor the Legal Services Board has yet to really address the issue here, and there is no sign of them doing so.
Into this void have moved several associations claiming to represent paralegals, while the Law Society of England and Wales is currently investigating whether there is scope for it to develop a paralegal qualification.
But it is sometimes forgotten that in the Institute of Legal Executives (ILEX), there is already a structure in place to address the paralegal question (ILEX has no Scottish equivalent). I should declare an interest in that I edit ILEX's journal, but I think the point stands regardless of any possible bias on my part. ILEX is nearly 50 years old, already has about 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, working in association with City & Guilds.
For those who want to progress, it offers a clear path to becoming a fully fledged lawyer whatever your background (including a fast-track qualification for legal practice course graduates), as well as the opportunity to become a partner in a law firm and now a judge – the first-ever legal executive judge was appointed last month. With social mobility such a significant issue on the profession's agenda, it is worth noting that this is the only way to become a lawyer without a degree.
For the time being, however, paralegals remain in a netherworld where many legal practices could not survive without them, but their work is often undervalued and unrecognised. That will change in the post-ABS world, where the drive to reduce costs and allocate work to the right level of staff – which is often not a solicitor – means the rise of the paralegal will only continue.
Neil Rose is the editor of www.legalfutures.co.uk