Regulation

The regulation and professional conduct of paralegals

Regulation

Generally speaking the paralegal profession is not regulated.  We are not a regulator, we are a representative professional body. Obviously if any of our members act in an unprofessional manner then we have the option to exclude them from membership (a right which we have exercised on occasion).  However the right to exclude from membership does not make us a regulator – otherwise your local Scout Troop, book club or weight-watchers club could also call themselvers regulators too!

There are some groups of paralegals subject to regulation:

Paralegals Working for Solicitors

These paralegals are regulated by the Solicitors Regulation Authority (SRA) by virtue of being employees of solicitors.  These paralegals are also potentially subject to punishment by the Solicitors Disciplinary Tribunal and potentially sanction by the court (because their solicitor employers are Officers of the Court).  In reality the SRA rarely pays attention to paralegals working for solicitors (either in firms or in-house) unless they are guilty of some serious misconduct. This is because they are meant to be supervised by a solicitor at all times and thus, usually, the SRA looks to the solicitor when problems occur. However, as paralegals become more senior this will change.

Paralegals Providing Immigration Advice/Assistance

With one exception, all paralegals providing such advice/assistance must be registered with the Office of the Immigration Services Commissioner. The OISC has quite an active regulatory regime.  The exception is paralegals who work for a solicitors' firm or other entity which is exempted from the need to register.

Paralegals Providing Services Regulated by the Compensation Act 2006

The Compensation Act 2006 was intended to regulate the activities of claims management companies (“CMCs”).  CMCs typically seek out potential litigants and pass on the potwential claims to solicitors in return for a referral fee.  However when the Act was being drafted government appears to have been unaware of the existence of paralegal law firms in so many of them were caught under the Act’s remit even though they do no claims management work.  Regulation is provided by the Claims Management Regulation Division of the Ministry of Justice.  The Ministry publishes a useful plain-English guide as to who must be registered under the Act and in respect of what sort of activities.

Financial Services Related Work

Giving most types of financial advice (including mortgage and insurance related advice) is governed by the regulatory/registration scheme established under the Financial Services and Markets Act 2000, and run by the Financial Services Authority.

In giving legal advice you may sometimes have to carry on such "regulated activities" in the course of other work such as conveyancing, corporate, matrimonial, probate and trust work.

If so, you need either to be regulated by the Financial Services Authority or to work for an organisation (e.g. a solicitors' firm) exempted from registration/regulation under Part XX (which makes provision for approved professional firms which do not carry on mainstream investment business but which may carry on regulated activities).

Paralegals Acting as Accredited Police Station Representatives

This is a quasi regulatory situation.

People arrested and held at police stations generally have the right to receive legal advice and assistance whilst in custody.

There are duty solicitor schemes providing this service.  They are paid for by the Legal Services Commission under the legal aid scheme.  Originally the idea was to have solicitors attend the police stations to give advice. However the rates of pay are very low and so increasingly (especially outside of office hours) solicitors' firms use accredited paralegal police station representatives instead.

To become an accredited police station representative paralegals must undergo a training and mentoring programme and receive approval from the Solicitors Regulation Authority.

We describe this as a quasi regulatory situation because a paralegal does not need to be an accredited police station representative to go and advise clients.  However if the instructing solicitors’ firm wants to be paid under the legal aid scheme for providing that service then they must use an accredited police station representative.

Professional Conduct/Ethics

We publish The Paralegal Code of Conduct which sets out the core conduct obligations that we think should be expected of paralegals. This has no regulatory backing, it is an expression of best practice.

Other than coduct requirements imposed upon paralegals in the above situations, there is no statutory or regulatory paralegal code of conduct.

Other than for paralegals employed by solicitors (who are deemed agents thereof) it does not help much to look to the professional conduct/ethical expectations imposed of solicitors as these are not automatically relevant to paralegals. The solicitor's code is derived from a long history of statute, case law and professional conduct rules underpinned by statute, most of which relate to solicitors and not legal practitioners in general.  These include such issues as very stringent client confidentiality requirements, stringent requirements to avoid conflicts of interest, rules relating to taking a client on and in what circumstances a solicitor can decide to cease acting, etc.

Paralegal professional conduct is very much a grey legal area at present. It would however appear that almost none of the rules relating to solicitors automatically apply to paralegals who are not employed by solicitors.  The question is whether just the normal rules and laws of commerce apply, or whether paralegals not working for solicitors (i.e. who are considered to be agents of that solicitor and therefore bound by the same rules as the solicitor) are treated as quasi-solicitors and therefore different levels of expectation, obligation and responsibility apply.

We are having an ongoing dialogue about this issue with legal regulators, the judiciary and government.


 

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