By Amanda Hamilton, Patron. National Association of Licensed Paralegals
Coming to Netflix this Christmas, New York Paralegals – an exciting new legal dramedy showcasing the Big Apple’s most diverse yet uniformly attractive paralegal firm. It will never happen. In the USA a paralegal is not authorised to practise law and can only assist attorneys in research and drafting documents. Not very sexy. We’ll have to wait for Channel 4 to commission something UK based (where working as an independent paralegal practitioner is permitted).
While we wait for New Malden Paralegals (diverse and uniformly quirky), actual paralegal firms in the UK are gaining popularity with the paying public as the cost-of-living bites and solicitor fees feel increasingly eyewatering. However, a paralegal practitioner in England and Wales must be aware of their restrictions and boundaries to prevent misunderstanding and possible complaints against them.
Here are some tips to create a happily sustainable business model as a paralegal practitioner.
Paralegals operating their own business offering advice and assistance to consumers must ensure that they do not hold out. This means, that they must not, either expressly or impliedly, give the impression to consumers that they are solicitors or barristers. Even if nothing is said openly, the inference that may be taken by a consumer is that the person offering them help is a solicitor.
Even being very careful about the terminology you use to describe yourself can be misunderstood. For example: referring to yourself as a ‘lawyer’ is not technically incorrect if you are a qualified paralegal, but the inference to a consumer will probably be that you are a solicitor because they may not be aware that paralegals are lawyers. So, the only way round this is to expressly describe yourself as a paralegal or ‘paralegal lawyer’ and this must be stated in all marketing and social media posts.
Reserved Legal Activities
The other factor that will help sustain your business as a paralegal practitioner is to be fully aware of what you can and cannot do and relay this information at every opportunity to your clients. Reserved activities can only be carried out by those authorised by The Legal Services Act 2007, such as solicitors, barristers and chartered legal executives. This legal work that a paralegal is not authorised to do includes (amongst others): the right of audience, the conduct of litigation, reserved instrument activities (relating to transfer of land) and probate activities, which can only be done by a solicitor of chartered legal executive or under the supervision of the same.
But what does this mean in reality?
The right of audience: means that a paralegal cannot automatically have the right to represent a client in court unless it is in a tribunal (other than appeals tribunal) or in the small claims court. If a case that the paralegal is dealing with ends up in ‘open’ court (i.e. open to the public) before a Circuit Judge or a High Court Judge, then the paralegal must instruct a barrister to represent their client. It is possible for paralegals to gain a ‘Licence to Instruct’ barristers directly (through the Bar Standards Board) if they have an identifiable area of expertise or appropriate experience.
There are occasions when a paralegal has been granted a right of audience but only if requested in advance, and this is subject to the discretion of the judge and the competency of the paralegal.
The conduct of litigation: a paralegal cannot sign letters or court documents on behalf of their client as it will infer that they are conducting litigation. However, what they can do is draft such letters and documents, but they must be signed by the client themselves. This also means that they are not allowed to be agents in order to be served with court documents or receive letters from the other party or their representatives.
This can cause difficulty with clients as they will have the burden and stress of receiving all the documentation and correspondence, which can be overwhelming, but it can’t be helped. There are occasions where a paralegal has applied to the judge in a specific case, to be allowed to receive service of such letters and documents because the client is in a delicate or nervous state (medical evidence should support this) and this has, at the discretion of the judge, been permitted.
Reserved instrument activities: paralegals are not permitted to undertake conveyancing transactions on behalf of clients unless they have a licence to do so from the Council of Licensed Conveyancers.
Probate activities: paralegals cannot apply for a grant of probate on behalf of a client executor or sign any probate forms. This is reserved only for solicitors or chartered legal executives. However, paralegals can assist a client to do it for themselves as long as all documents are signed by the client.
The above gives an indication of how important it is for a paralegal practitioner to be aware of the limitations in what they are permitted to do. It is also necessary for there to be full transparency with potential clients about such limitations, which even though seem overly restrictive, in practice, there still remains a great deal that the paralegal can do for their clients.
Fees and money: paralegals are not allowed to take monies in advance or hold client money on account. Everything that a paralegal does should be agreed with the client beforehand and the fees should also be agreed before any work is undertaken. Once completed, the paralegal can invoice the client as agreed. There should be no surprises. If a fee is required in advance for something, then the client will have to pay for it themselves.
To ensure that paralegals have a sustainable business practice, not only should they adhere to all of the above, but they should also relay all of this in a client care letter together with any complaints policy and have all the information publicly available online. Hopefully, being fully compliant with the above will effectively negate any possible complaint. However, it is always a good idea to belong to a paralegal membership body, such as NALP, which provides extra confidence for you and for any client. It also means that as a paralegal practitioner, you have somewhere to turn to for advice and have a secondary level of complaint should a client be unhappy with your services. Although, if you are fully compliant and transparent, this should never happen.
How to provide paralegal services
A hugely important decision is how you carry out your business: in your own name; in partnership with other paralegals; incorporate as a limited company and use another name?
This is entirely up to you but be aware that if you set up your business as a company, there are duties you have to comply with. For example, you need to submit company accounts each year, meaning you will need to employ an accountant and likely a bookkeeper too. As a sole practitioner, you can work under your own name and do not have such legal obligations. However, you would need to submit your annual tax return each year and be subject to income tax on your earnings. The advantage of setting your business up as a limited company is that your financial obligations may be limited if something goes terribly wrong. Before making your decision, seek professional advice and assistance on the financial aspects of setting up in business.
ABOUT THE AUTHOR
Amanda Hamilton is the 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.