Stratification and specialisation: breadth or depth?

3.97     One major theme that emerges from the data described in Chapter 2 is the extent to which the stratification and commoditisation of large areas of legal work raises what might be categorised as a ‘depth or breadth’ question. This seems to have ramifications at virtually all levels of work and training – for newly qualifieds, for post-qualification specialisation, and for what might be called ‘hybrid’ and paralegal functions.

3.98     ‘Stratification’ is a term used to describe the extent to which legal service providers have become differentiated in response to the increased segmentation of the legal services market. It is not a new phenomenon, but can be seen as the product of various trends since the 1980s, including greater legal complexity, the growth of the profession, the increased gap between corporate and private client services, the commoditisation of services, and the expectations of purchasers and consumers in this increasingly competitive environment. One consequence of stratification is increased specialisation. This was seen by the majority of those commenting upon it as a defining feature of the modern legal services market:

[T]here is a trend that has been going on for some time where experienced lawyers become more specialised and more niche and more in a little box.

CILEx member

The reality is that the profession is splintering out so there will be more and more specialist firms.

Solicitor

3.99     Such changes raise fundamental questions about the role of broad ‘portmanteau’ qualifications and the stage at which specialisation should begin.

3.100     Specialisation is an issue that will be returned to in Chapter 4 as it goes to the heart of the discussion about defining and demonstrating competence within the regulated professions. The nature of specialisation also arises as an issue in the context of new roles that are emerging out of the legal services landscape, and particularly, as has been described, in the development and potential expansion of paralegal functions.

Paralegals and new roles in the regulated sector

3.101     A critical issue is how the changes in structure and process might be reflected in the roles performed by lawyers, and hence in the competencies required. Data from the LETR research point to the emergence of a variety of new ‘non-legal’, hybrid and ‘technician’ roles that are being developed within both conventional and alternative business structures. The specific implications of these roles for LSET will be discussed in Chapter 6, so the aim of this section is to discuss more broadly the developments on the ground, starting with the paralegal function.

3.102     Paralegal roles are by no means a new feature of the legal services sector, but there has been a growing interest in their development. Cowley (2004) concluded that, despite a lack of identity and co-ordination, limited training and a lack of recognised qualifications, the paralegal function in England and Australia has become integral to the delivery of legal services. This conclusion is, to a large degree, supported by the LETR research data.

3.103     When talking about paralegals, problems of definition abound. A range of job titles was mentioned when respondents talked about paralegals, with different organisations creating their own to suit their business and delivery structures,

We call ours legal assistants, the three of them we have are all law graduates, one is doing ILEX and the other is doing the LPC.

ABS

3.104     However, a broad distinction can be drawn between:

• paralegals as subordinate professionals – which is, in practice, the dominant model in the UK and the USA;
• paralegals as independent regulated legal service providers – the ‘Ontario model’;[1]
• paralegals as unregulated independent legal service providers, of which there is evidence in the UK.

3.105     Some respondents were also unclear about the boundaries between CILEx qualified lawyers and paralegals, but there was also a sense from a range of employers that CILEx is a growing and reliable brand.

CILEx, the profile is increasing and increasing, and if you were going to say to me ‘What are you going to have in place accreditation wise?’ it would be CILEx.

ABS

3.106     CILEx level 2 and 3 qualifications play an important role in training the paralegal sector, though precise numbers are difficult to assess because of the flexibility of the CILEx training system, and the fact that individuals can move in and out of training at different stages of their career. The relative complexity of the paralegal training ‘system’ was noted in Discussion Paper 02/2012. Paralegal qualifications are also offered by the National Association of Licensed Paralegals (NALP), the Institute of Paralegals’ (IoP) accreditation scheme, and by a number of universities. Of these only the CILEx qualifications are linked to authorised practice under the LSA 2007. In terms of quality assurance, both CILEx and NALP courses have Ofqual approval, though CILEx courses are, of course also primarily overseen by IPS. Those awards validated by HEIs are subject to normal QAA processes. CILEx,[2] NALP and IoP memberships all carry commitments to CPD.

3.107     As indicated earlier there is little hard information about the scale of the paralegal workforce. Respondents were, on balance, of the view that numbers of paralegals are growing, perhaps significantly. Anecdotally, there appears to be much variation in workforce strategies: some firms are increasing the number of paralegals, others are not, so that different firms may be operating quite differently, even within the same segment of the market. The emergence of more commoditised legal services was identified as a key area of recruitment for paralegals.

3.108     The permanence of any change to levels of paralegal staffing is not clear. Higher paralegal employment in the regulated sector may reflect either a permanent substitution effect, as more expensive fully qualified fee earners are replaced, or a short-term fix, to deal with specific workflow demands such as an increase in less complex, low value work. Some evidence for both explanations is apparent in the data.

3.109     Outside private practice there is some indication of increased demand for paralegals in-house as businesses seek to reduce costs and relieve the pressure on their legal departments, often as a consequence of keeping more work in-house. The glut of graduates without training contracts and pupillages has meant that in-house providers have had no shortage of individuals willing to take on short-term positions as a means of getting some work experience (see Winmark, 2012). In the public sector the picture seems bleak. This is the only part of the sector that the Warwick Institute of Employment Research (IER) data identify as having declining numbers in employment. The Crown Prosecution Service (CPS) in particular, the largest single employer of paralegals, is believed to be reducing its numbers substantially as part of its drive to meet cost-cutting targets.

3.110     The arrival of ABSs in the legal market was seen by respondents as providing more opportunities for paralegals, but with possible knock-on effects for existing firms and training contracts.

ABSs broaden the possibilities for paralegals with the introduction of high street companies offering legal services – they will require the services of paralegals. Also means that sole paralegal practitioners or paralegal firms could apply for ABS licences from the SRA.

Paralegal representative

… with the advent of ABSs I see that there will be fewer training contracts because they will have less of a necessity for qualified solicitors. There’ll be higher use of paralegals in that context …

Solicitor

3.111     Respondents reported a range of routes into paralegal roles, both in the regulated and unregulated legal services sectors. Three appear relatively common: graduate or post-LPC/BPTC entry; transition from a legal secretarial or administrative role, and entry as a school leaver. The perceived, significant, growth in graduate paralegals, as a consequence of oversupply from the BVC/BPTC and LPC deserves some mention here, as in some respects this has the potential to transform (indeed is already transforming) the paralegal workforce in many organisations. For the employer it provides, with limited training, a relatively high skill set at significantly below the cost of a conventional trainee. This is attractive to employers, not least because it improves the ‘gearing’ or leverage on profitability. It may be less attractive for those performing the role, and concerns about lack of training and exploitation were raised in focus groups and discussions:

A: Where I work now I’m doing a job, but there’s not necessarily formal training. If I were a trainee [solicitor], I’d be trained more specifically… Maybe the paralegal market could be regulated a bit better … The paralegal market’s not really regulated. You’re just there….

B: I work in-house …. I do more contracts than [name] some of the time. Sorry, he’s the Head of [Department]. …sometimes it’s not just about not receiving that formal training but it’s actually not even being recognised for the actual expertise that you [have].

Paralegals

3.112     There was also some suggestion in the research data that these more ephemeral groups of paralegals are also not the whole solution. They usefully provide a plentiful stock of well-qualified, relatively low-cost labour, but turnover can be high and they are not necessarily a long-term solution for particular businesses. Firms also need, as one solicitor respondent stated, ‘permanent paralegals who have no ambition’, or

[T]echnicians who are prepared to do something 100 times over and over again and are happy to be really good at that for 50 years.

Barrister

3.113     The term ‘legal technician’ may accurately describe what some of these lower level paralegal roles involve.[3] By contrast, other paralegals are clearly working at an equivalent standard to members of the regulated professions. The legal workforce is thus developing into an extended set of roles, with potentially smaller numbers of ‘full service’ professionals (barristers, CILEx members, solicitors, etc,) at one end of the scale, with specialist technicians at the other end, undertaking very specific tasks as part of a commoditised service. Additionally, as noted already, there are other individuals performing a first point of legal contact (‘triage’) role. This diversity leads to a number of general points about training for specific roles.

Training for the role

3.114     Segmentation and specialisation thus links to another critical issue for the LETR – a growing tendency for more specific and specialised training. This is particularly relevant to paralegal roles, but is also highlighted in other parts of the sector:

And there’s probably about 20 people like me there. We couldn’t afford to have 300 lawyers. So in effect, we train people to different skill sets. Some of them become licensed conveyancers; some get CILEx, so it’s just we’ve already developed the model. So from a consumer perspective they’re being ultimately supervised by a solicitor, a legal executive, licensed [conveyancer] at the top of the pyramid, but we already recognise that. In fairness, we’re not unique.

Licensed conveyancer representative

3.115     The move to more bespoke training through tailored LPC provision is seen by those commercial firms that have adopted it as part of this pattern, though it does not go far enough for some:

[W]e would rather take graduates (any degree from a decent university) without any of the (pointless and extremely poor quality) legal qualifications (GDL/LPC) and train them ourselves to meet the precise requirements of our clients.

Solicitor (online survey)

3.116     At the same time a number of respondents identified concerns with such a limited approach to training. There might be issues with the transferability of the roles and skills sets developed, and – for paralegals particularly – possibly the ‘qualifications’ achieved. Concerns about the availability or adequacy of professional oversight and quality assurance for such workers were also expressed.

3.117     In summary then, aside from questions of post-qualification specialisation, stratification has led to a growing tendency to specialisation across the range of occupations and settings, from those, like patent attorneys or licensed conveyancers, which are inherently specialist, to increasingly tailored provision on the LPC. This raises a number of contradictory pressures, in terms of training for breadth or depth, some of which were discussed in Chapter 2. The trend towards specialisation finds some support from trainees, who may see parts of the general training regime as irrelevant, employers, who do not want to invest resources in areas that are not required for the business, and consumers who expect experts, not ‘jacks of all trades’. However, respondents also perceive the dangers of too narrow a field of training, both for competence and career development.

3.118     The development of more specialist paralegal ‘technician’ roles could assist the development of a new workforce not needing the current breadth of education. The potential for offering a more accessible and cost-effective way of developing access to justice in respect of many routine matters is clear, though it also comes with risks of over- specialisation and insufficient supervision.

 

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