By Amanda Hamilton, Patron, National Association of Licensed Paralegals (NALP)
In England, Wales and Northern Ireland, solicitors and barristers are statutorily regulated professions, meaning both have membership bodies and regulatory bodies and the only people who can refer to themselves as ‘solicitors’ or ‘barristers’ are those who have been through the prescribed training process for either profession. Indeed, it is illegal to refer to oneself as a solicitor or barrister without formally being on the solicitors’ or barristers’ register.
However, even though paralegals are not on this register, they are permitted to offer legal advice and assistance as long as they do not perform reserved activities. These are activities reserved for solicitors and barristers only.
So, what are these reserved activities?
By Section 12 of The Legal Services Act 2007, there are six reserved activities that remain the monopoly of solicitors and barristers:
- The right to conduct litigation (only solicitors have the right to do this):
Issuing proceedings for a client and any associated actions in relation to this and acting as agent for any client in such proceedings unless they are exempt because a specific court grants permission in a specific case.
- The right of audience (barristers or solicitors or solicitor/advocates have this right):
The right to appear before a court and speak on behalf of a client and examine witnesses unless exempt because the specific court grants permission in a specific case.
- Reserved Instrument Activities (solicitors or licensed conveyancers have the right to do this):
Such as preparing a form of Transfer of property and being able to lodge such at The Land Registry although it excludes the right to draft such documents.
- Probate Activities (only granted to solicitors):
Such as the preparation of probate documents for the purposes of the law of England and Wales or any proceedings (e.g. contesting a grant of probate of letters of administration) but excludes the right to be able to draft Wills and Powers of Attorney etc.
- Notarial activities (Notaries only have this right):
These are quite specific and refer to activities in relation to The Public Notaries Act 1801.
- The right to administer oaths (only solicitors have this right):
Conferred on a commissioner of oaths under various statutes.
So as evidenced above, there is a broad spectrum of legal areas that a paralegal can deal with and relatively few that they cannot. For example, they can help with monetary disputes or claims, employment, housing, or welfare matters. However, this is not an exhaustive list and apart from the above restrictions, there are plenty of specialist areas that a paralegal can assist with and give advice.
So, when your business requires legal assistance, how do you make the decision whether or not to utilise the services of a paralegal, solicitor or barrister?
There are several factors to take into consideration:
The type of legal case for which you require assistance. For example, if it is a simple debt collection under £10k, then you can easily do so yourself perhaps with the guidance of a licensed paralegal. However, WRG, a Townsville law firm advise that if it is a much more complex legal case, then the services of a solicitor and possibly a barrister would be required, especially if defended.
Cost. The cost of instructing a solicitor and/or barrister may be too much of a burden on your business’s budget, as solicitors tend to charge between £250-£500 per hour and barristers charge on average £150-£600 per hour. Of course, you may decide to instruct a barrister directly, without the need to go via a solicitor first. In addition, instructing a licensed paralegal may prove less costly as most charge on average between £30-£80 per hour for their services. However, choosing to go via the direct access barrister or paralegal route may give rise to another consideration: stress.
The stress factor. Going directly to a barrister means that you have access to the skills and knowledge of an individual who has specialised knowledge of the issues and can represent you in court. However, barristers are not allowed to conduct litigation (which remains the monopoly of solicitors) and this means that they cannot accept service of communications both from the other party or the court on behalf of your business. All correspondence has to be signed by you and go via you. Similarly, a paralegal can give advice and assistance and can draft documents and letters for your business, but ultimately, all correspondence comes via you and goes to you. This can, and does, cause additional stress and pressure but may in the long run, save you costs.
So, any decision has to be well thought through before you decide to go ahead with any litigation or if you decide to defend an action. Of course, there is nothing preventing your business taking on the assistance of a licensed paralegal initially, to see if the matter can be settled without the need to go further. If it cannot, then the decision whether to instruct a barrister directly or go via a solicitor first has to be made and this is dependent on the above factors.
Make sure you choose an appropriately qualified paralegal, solicitor or barrister by checking online with the various regulatory and membership bodies before making an approach. Sometimes, a good recommendation from someone you know is the best way to go.
Finally, there is always the possibility of mediation which could help in reaching a settlement before any litigation kicks off. Professional legal mediators are very skilled in persuading both parties to reach a compromise with a view to preventing any contentious court action.
Amanda Hamilton is Patron of the National Association of Licensed Paralegals (NALP), a non-profit membership body and the only paralegal body that is recognised as an awarding organisation by Ofqual (the regulator of qualifications in England). Through its Centres around the country, accredited and recognised professional paralegal qualifications are offered for those looking for a career as a paralegal professional.
Web: http://www.nationalparalegals.co.uk
Twitter: @NALP_UK
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