The reach of regulation

6.96     One consequence of the pre-eminence of title-based regulation, built around reserved activities, has been the complex relationship between regulated and unregulated work. This has implications for the organisation of work within the regulated sphere. A regulated entity that undertakes both reserved and unreserved activities could organise its personnel and resources differently in respect of the different regulatory risks and obligations of those activities, and for the delivery of entirely unregulated legal services. However, it is not known how far regulated entities differentiate their approach depending on the existence of such reservation of activity. This section looks at: education and training for the unregulated sector, and the regulation and training of paralegals. It is recognised that the LSA 2007 was predicated on the existence and development of a liberalised market with a presumption in favour of open competition. The regulatory objectives themselves are framed in such a way that regulation will only ‘restrict [providers] where it is consistent with the regulatory objectives and better regulation principles [to do so]’ (LSB, n.d., para. 36).

Unregulated legal services

6.97     Chapter 3 demonstrated that reserved legal activity represents the tip of the legal services iceberg. With some exceptions, there is little information about the scope and scale of legal services activity outside the regulated sector. There is potentially a wide spectrum of legal services workers with a range of qualifications that are not currently regulated including:

• LPC/BPTC/law graduates;
• those with other specific legal/paralegal qualifications (eg, will writers, IoP);
• those with cognate or partly professional qualifications (eg, CIPD);
• solicitors/barristers/CILEx without a practising certificate;
• solicitors suspended or removed from the Roll on disciplinary grounds;
• those without any formal legal qualifications.

6.98     It cannot be assumed that consumers of services provided by unregulated individuals and entities are necessarily at greater risk, but the number and complexity of titles and qualifications across the regulated and unregulated sectors does little to reduce the risks of confusion. For example, the terms ‘legal consultant’ or ‘legal consultancy’ are used across regulated and, to a lesser extent, unregulated sectors. It is commonly used by OISC regulated immigration advisers, but also by regulated solicitors’ firms[1] (including contract or locum solicitors), unregulated firms made up of BPTC/LPC graduates,[2] other paralegals,[3] and will writers.[4] The uncertain status conferred by LPC and BPTC also becomes apparent in the unregulated sector.[5]

6.99     Beyond will-writing, and the work of existing paralegal bodies (NALP, IoP), there has been little evidence of professionalisation or attempts to co-ordinate or standardise qualifications.

6.100     In conclusion, the issues raised by the unregulated sector reach far beyond education and training. There is clearly a need to identify key work products within the sector and evaluate the risks. This in itself is a substantial piece of work given the paucity of existing research and the difficulty of identifying and accessing elements of the market. It is not the function of this research to pre-empt the LSB’s review of general legal advice. Nonetheless, within the parameters of the Review, it is suggested that some reform of the paralegal sector may provide an approach that would support quality goals in the delivery of unregulated legal services.

Paralegals

6.101     Paralegals currently fall largely outside the scope of regulation and there is no formal definition of ‘paralegal’ for regulatory purposes in England and Wales. Internationally, there are two models of paralegal work, both of which exist in the UK, and which offer different core definitions, reflecting rather different functions: paralegals as subordinates to the professional lawyers, and paralegals as independent suppliers of legal services.

Paralegals as subordinate professionals

6.102     This is the dominant model of paralegal work in the USA and most common law jurisdictions. Paralegals have been subject to indirect regulation in the US since the 1970s – in some cases laid down by state legislation, though more commonly via supervision requirements in the code of conduct of the state Bar Associations (National Federation of Paralegal Associations, 2012), and some paralegal associations have set up voluntary certification schemes. In 1997 the American Bar Association published its own model definition of a paralegal or ‘legal assistant’ as one who is ‘qualified by education, training or work experience who is employed or retained by a lawyer, law office, corporation, governmental agency or other entity who performs specifically delegated substantive legal work for which a lawyer is responsible’. The reference to ‘employed or retained by’ emphasises that the condition is one of supervision but not necessarily employment. Consequently ‘independent’ paralegals and paralegal firms exist, but to provide services to attorneys rather than direct to consumers. In a number of states ‘legal document preparers’ are regulated as a sub-category of paralegal, or sometimes as a separate category, able to provide legal information in documentary form to the public (without supervision), but not to offer individual legal advice.

6.103     This model of subordinate professionalism is also reflected in the Scottish Registered Paralegal Scheme launched by the Law Society of Scotland (LSS) in 2010.[6] A ‘Trainee Registered Paralegal or a Registered Paralegal is not entitled to work in his or her capacity as a Registered Paralegal other than in connection with work done in support of a Scottish solicitor’ (LSS, 2011a, para.1.3).

6.104     The Scottish scheme is not a full licensure model.[7] It does not provide initial training but enables applicants with appropriate qualifications (including a relevant degree, Diploma in Legal Practice, or specific paralegal qualifications) to apply to be registered as a paralegal competent to practice within a specific ‘domain’ or domains.[8] Registration is dependent on the trainee completing not less than 12 months of training under the supervision of a Scottish solicitor, being certified competent by the supervising solicitor, and receiving a satisfactory assessment of character and suitability. Registered paralegals undertake to practise only within the domains for which they are registered, and are required to obtain not less than 10 hours annual CPD.

Paralegals as independent legal services providers

6.105     This concept potentially captures two very different categories of paralegal: paralegals who are permitted under a licensure scheme to undertake work independently of other legal practitioners; and a range of persons who may or may not be legally qualified who are providing legal services outside a regulated environment.

6.106     The best known of the licensure schemes is the Ontario scheme that was established in 2007. By virtue of amendments to the (Ontario) Law Society Act, RSO 1990, paralegals in Ontario are now required to be licensed by the Law Society of Upper Canada.[9] This was the first such scheme to be introduced in North America, and is thus of some significance. Licensure is based on college training, separate assessment, fitness to practise and continuing CPD requirements. There is no substantial element of supervised practice, though the paralegal associations offer some mentoring.

6.107     The scheme exists primarily to provide advice and representation across a range of tribunals, small claims, and inferior criminal courts. A key rationale for the regulation of paralegals was that consumers were faced with a mix of both competent paralegals, and a minority of the less competent, incompetent and unethical, with little basis for telling them apart (LSUC, 2012). This was seen as harmful to vulnerable clients, contrary to the public interest, and damaging to the reputation of paralegals in general.

6.108     The scheme was reviewed in 2012 and a number of recommendations have been made to re-visit the entry criteria, competencies, standards of learning and assessment in respect of relevant substantive law and communication skills. In addition to reviewing the competency profile for sole practitioners coming out of training, the independent reviewer also suggested a move to activity-based licensing (eg, specific to small claims court, etc) on the back of the proposed more specialised and substantive training (Morris, 2012). Both the scheme and its obvious teething problems offer a useful exemplar to the Review.

The paralegal sector in England and Wales

6.109     There has been little research into the paralegal sectors in common law jurisdictions, including England and Wales and Australia, though one study in the early 2000s (Cowley, 2004), indicated that the occupation in both jurisdictions has suffered from a lack of identity and co-ordination, limited training and a lack of recognised qualifications. Nevertheless, it has still managed to become integral to the delivery of legal services, and of growing importance numerically. This conclusion is to a large degree supported by the LETR research data.

6.110     Taking ‘paralegal’ in its narrower sense of those operating in a primarily subordinate professional role, there is, as noted in Discussion Paper 02/2012, and Chapter 3, a diversity of specific paralegal qualifications and entry routes, including CILEx level 2 and 3 qualifications, a range of qualifications offered by the National Association of Licensed Paralegals, Institute of Paralegals accreditation, and qualifications validated by a number of individual HEIs. Only the CILEx qualifications offer career progression directly into a regulated occupation.

6.111     A proportion of paralegals are known to be foreign-qualified lawyers who have not wanted or sought to re-qualify via the QLTS or BTT; these individuals may lack any UK legal qualifications, but it is not clear that they constitute a particular risk thereby. In addition to the range of specific paralegal qualifications, and foreign lawyers, the evidence points, as noted in Chapter 3, to extensive use of LPC and BPTC graduates as paralegals within the regulated sector and in-house.

6.112     A particular issue within the paralegal sector is the growing use of junior paralegals in what might be described as ‘legal technician’ roles. These roles reflect the growth of commoditised work, with legal activity in organisations being distributed across a range of actors. Entities may thus operate with a small number of authorised persons, ‘qualified’ paralegals and a large number of these ‘technicians’: individuals trained to work on very specific tasks or transactions, for which they may have received basic on-the-job training. The view was expressed that with appropriate training,

you can convert these kids into specialist case handlers – rather than lawyers or paralegals. They don’t even need a title. But they will be able to run cases, or assist a litigation team. They’ll become an integral part of that team, whether they’ve got a legal qualification or not.

Solicitor

6.113     However, as noted in Chapter 3, the quality of such ‘technicians’ may be highly variable, and there is some concern across the sector that such commoditised operations can represent a real risk to consumers if training and supervision are not adequate. There is thus at least some perceived need to provide greater quality assurance at this end of market

Reform

6.114     Direct regulation of the paralegal workforce could include a range of measures, including

• mandatory registration;
• fitness to practise checks;
• prescribed levels of training;
• supervised practice requirements;
• code of conduct;
• CPD requirements;
• disciplinary procedures.

6.115     These need not all be adopted as a package, and a number could be (and to an extent are already) achieved indirectly through regulation of the employer (eg, training standards, supervised practice requirements) without additional direct regulation.

6.116     Cogent arguments may be made both for and against greater direct regulation of the paralegal workforce. Qualitative analysis indicates that the key arguments for and against can be summarised as shown in Table 6.2. The juxtaposition in Table 6.2 highlights that there is no clear consensus one way or the other.

Table 6.2: The case for and against greater regulation of paralegals

For	Against
Employment and economic trends are leading to paralegals performing more, and more complex, legal tasks.	The solution is to enhance standards of supervision and training, not increase the regulation of those being supervised.
Regulation would increase consistency of standards of training and performance.	The diversity of and difficulty of defining paralegal functions might represent a challenge for a standardised framework.
Regulation would make employers and individual paralegals more accountable for the standard of service provided.	Further regulation could increase costs to employers and individual paralegals.
Regulation would confer proper recognition on paralegal work.	Additional regulation may reduce flexibility in this part of the workforce.
Regulation, if it included fitness to practise and registration checks, would increase consumer protection.	Little evidence that additional safeguards are required to protect consumers specifically from paralegals.

6.117     There was no majority in favour of independent regulation amongst responses to the LETR research. In other words there was a clear view that entity-based supervision of paralegals within the regulated sector would continue to suffice.

6.118     Discussion Paper 02/2012 asked whether respondents viewed the current system of qualifications as unduly complex, and whether they favoured the development of more coordinated standards of paralegal education. The majority of respondents felt that the system would benefit from greater coordination.

6.119     The case for greater coordination was based largely on three related grounds: transparency; enhancing career development and progression for an historically neglected segment of the workforce; and to spur the development of a stronger market in paralegal training and CPD:

Clearer pathways (and less of them), particularly at higher levels, would help to map career development. This growing group of the profession has historically been neglected in development terms. We don’t currently have an entry level/standard for paralegals and I’m not sure how we could – not all paralegal roles require CILEx, for example. Our paralegal group is a wide mix of secretaries who’ve made the shift to paralegal work without qualifications, Paralegals with law degrees who’ve failed to secure a training contract, and paralegals who are working towards or have the CILEx qualification. Paralegal roles are very varied… and some with very specific, narrow remits. However, it should still be possible to follow a broad career pathway with defined outcomes at particular levels.

Anon law firm

We are often confused by the myriad of training and qualifications that are presented to us. It surely makes sense to have a clear framework of standards available to all practitioners. This would make career progression and career change (training pathways, exit points and off –ramps) much …clearer as practitioners would be able to swap and change and use previous relevant training and practical work place experience as credits towards different qualifications.

We would like to think that a clearer framework would encourage a wider range of training providers to invest in the delivery of training to a wider audience of lawyers and/or deliver efficiencies – and therefore reduce training costs.

Institute of Professional Willwriters

 

We agree that the current standards for paralegal qualification are fragmented and complex. They are also poorly understood. Greater clarity and consistency would particularly help the profession with the recruitment of paralegals and would enhance their professional standing.

LawNet

6.120     Assuming, then, that entity supervision remains the primary basis for regulating paralegals within the regulated sector, it is necessary to consider what greater coordination might look like. It is suggested that there are three potential elements to consider: diffusion of effective or good practice; development of a competency framework; agreement on levels of qualification.

6.121     Diffusion of effective practice amongst employers: the research did not explore this option in any great depth, though it is an approach that has been adopted in the health and social care sectors, where there has been a higher degree of co-ordination of training and setting best practice standards.[10] Guidance might include matters such as pre-employment checks and supervision and training, though care needs to be taken to ensure that any such guidance does not result in micro-management by the regulator. The imposition of greater mandatory responsibilities would add to the costs of employment, and the risk of a disproportionate impact on smaller employers would need to be taken into account.

6.122     Development of a common competence framework: as a matter of good practice, it is hoped that employers would support staff at all levels to develop themselves, and a coherent competence and qualification framework can assist in this process by enabling employers:

• to support part-time progression into existing title-based qualifications such as those of CILEx or the CLC;
• to create their own means of internal career progression; or
• to develop an alternative qualification system by constructing their own qualifications/awards.

6.123     The range of NOS for Legal Advice, and, now, for Legal Services (in the context of level 4 apprenticeships) already provides a basis for such a framework. The research indicated some positive support amongst employers and training providers for the development and adoption of NOS as an underlying paralegal competence framework. NOS provide the benchmarks for qualifications, rather than the qualifications themselves, and thus do not overly restrict the market, while providing some baseline of consistency. They can also be used for defining roles at work, and in staff recruitment, supervision and appraisal.

6.124     Agreement on minimum or normal levels of qualification for certain categories of paralegal work is a more difficult issue, given the range and variety of work that might fall within the paralegal remit. There is little clear justification for setting an overall minimum qualification level. For some support workers purely on-the-job training may suffice, and this need not be reflected in formal qualifications. For other legal administration functions, an award at level 2 could be appropriate, whereas for more technically demanding work, higher level awards would be expected, and a substantial proportion of paralegals are in fact qualified at least to level 6.

6.125     There is a quality case for setting a standard for the certification of designated ‘technician’ roles. This exists in other parts of the sector, for example, patent and trade mark administrators, and in other sectors, including accountancy, construction and surveying, and engineering. The Association of Accounting Technicians (AAT) thus sets its awards at level 3 (intermediate) and level 4 (final), at which level an individual can perform most of the non-audit functions of a chartered accountant. The Engineering Council (n.d) also recognises a technician award (EngTech) at level 3.

6.126     Level 3 in the Qualifications and Credit Framework (QCF) implies a capacity to undertake work that involves some complexity, and the ability to perform without close supervision. Level 3 assumes and builds on prior experience of the work environment and, in some trade settings, it is used to indicate possession of basic supervisory skills. It is also the level at which advanced apprenticeships are set, and would normally correspond to about a two year work-based training programme. Within the legal services sector, the first stage of the CILEx Fellowship route already corresponds to level 3. Accordingly, taking this range of factors into account, it would seem an appropriate norm for any terminal ‘legal technician’ qualification.

Registration or accreditation schemes

6.127     The possibility of introducing a mandatory registration or accreditation scheme was also advanced in the context of Discussion Paper 02/2012. Generally there was no strong support for compulsory registration or accreditation of paralegals within the regulated sector. The costs of creating a registration scheme may be considerable, and registration by itself does not necessarily offer any added guarantee of competence, though it may help exclude those who are fundamentally unsuitable to work in the sector (De Montfort University, 2000:86-94). Any register would need to operate in ways that maintained currency, accuracy and respect for the rights of the applicant. Cost could be reduced by building a register onto one already maintained by an existing regulator, though this might create some difficulties in achieving buy-in if it were to appear to tie paralegals to a specific (regulated) profession, when they might have stronger affiliations with their own representative body or bodies. It is also not clear that the additional burden of registration is proportionate to the risks represented by paralegals.

6.128     Voluntary accreditation against a quality mark, akin to the Scottish scheme, may have greater advantages, as it could provide a mechanism for cutting across the increasingly complex range of qualifications that are emerging in the market place. In the light of apparent government reluctance to extend regulation to currently unregulated services, a national quality mark might also have attractions for those seeking to establish themselves as quality providers within that sector.[11]

6.129     There are also limitations and risks in relying on voluntary schemes:[12]

• voluntary schemes are not a substitute for regulation of minimum standards, since, by definition, they do not apply to the whole (regulated) workforce;
• industry control may lead to standards being set too low, or set to benefit a particular group of entrants;
• any proliferation of voluntary schemes may increase rather than reduce information problems for employers and consumers;
• if membership becomes mandatory to access certain parts of the market, this risks market players, not the regulators, controlling entry standards, contrary to independent regulation principles;
• without independent accreditation, it is not clear that voluntary quality marks are perceived by consumers to be particularly reliable or add value.

These caveats should be borne in mind in developing any future schemes.

Apprenticeships

6.130     The recent resurgence of interest in ‘legal apprenticeships’ is also of relevance to the future development of paralegal services. Work on legal apprenticeships has moved quickly.[13] A number of organisations began offering a level 2 apprenticeship in legal administration in 2012. A higher apprenticeship in legal services (level 4) was launched in March 2013, with a level 3 advanced apprenticeship planned to follow by September 2013. There is also an established level 3 (advanced) apprenticeship in criminal prosecution, which enables apprentices to train within the CPS as Paralegal Officers or Paralegal Assistants. The possibility of developing the apprenticeship model to levels 6 (equivalent to final year undergraduate study) or 7 is also under consideration, but no date has been confirmed for this as yet. Outcomes for all of these awards are set in accordance with NOS for Legal Services which were developed in 2011.

6.131     There are no formal entry qualifications required for apprenticeships, and funded apprenticeships are restricted to those with qualifications at level 3 or below. Some exemptions may be available for those with prior qualifications (eg, exemption from functional skills requirements in English and numeracy for those with equivalent GCSEs).

6.132     Apprentices can progress from level 2 to level 4 or follow the full pathway through each level. Apprenticeships at level 4 comprise two diploma courses: a Diploma in Providing Legal Services, which constitutes the generic ‘competence-based qualification’, plus a ‘knowledge-based qualification’ in one of commercial litigation; debt recovery and insolvency, or personal injury. The competence-based qualification is assessed around performance in the workplace, while the knowledge-based qualifications are assessed by examination. The higher legal services apprenticeship has been developed by Skills for Justice, the national Sector Skills Council for the justice sector, in partnership with Pearson, CILEx (the accrediting body for the award) and Damar Training. CILEx accreditation means that the higher apprenticeship constitutes a paralegal qualification in its own right, and can be set against elements of the CILEx professional qualifications, thereby offering the potential for further progression to Chartered Legal Executive.

6.133     Apprenticeships are also of relevance in terms of progression beyond the paralegal sphere. The demise of the five-year articling route following Ormrod has meant that the only non-graduate pathway into the solicitors’ profession has been via the CILEx route. This has, in fact, generated relatively small numbers of transfers into the solicitors’ profession – 130 or 1.5% of admissions in 2010-11 (Fletcher, 2012). However, interest in non-graduate entry has increased, particularly in the wake of higher university fees in England and their potential impact on diversity and social mobility (in the context of a pattern of already declining social mobility in the professions – see Milburn, 2009, 2012a), and there is a groundswell of political and professional support for developing the apprenticeship route independently, to enable qualification as a solicitor at completion of a level 7 apprenticeship.[14] Support for a non-graduate apprenticeship route was also quite commonly offered in the LETR focus groups,[15] though concerns about creating a ‘two tier’ profession thereby were also expressed.

6.134     This initiative aligns well with the liberalising ethos of the LSA 2007 and has the potential to increase social mobility in the legal services sector. The work of CILEx in this area has provided some assurance that apprenticeships will be built on a robust qualification framework. Nonetheless, two areas of concern should be noted.

6.135     First, there may be some uncertainty as to whether the balance between competence- and knowledge-based components will enable apprentices to build sufficient breadth and depth in the law to constitute a significant alternative to the traditional pathway into a legal as opposed to paralegal career. Much will depend on how higher levels of apprenticeship, at level 6 or above, are designed to support that transition. Those bodies engaged in developing the higher level apprenticeship should ensure that training provides the opportunity to develop both a sufficient breadth and depth of technical understanding. Without that there is a risk that the apprenticeship will become a ‘second class’ pathway to qualification.

6.136     Secondly, it is questionable how much difference the route will make in diversity terms, or whether employers will tend to use it as a mechanism for recruiting high calibre A-level students directly into paralegal roles. If this is so, then apprenticeships may do very little to interrupt the pattern of social disadvantage that is already present by the end of secondary education, and limit its continuation into the professions. It would be extremely useful for monitoring purposes if plans for gathering diversity data on the workforce could be revised to capture legal apprenticeships as a specific category.

6.137     In terms of potential benefits in delivering a flexible, tailored system of training, capable of supporting the diversity objectives of the sector and the LSA 2007, it is recommended that development work on the higher levels of apprenticeship should continue. Key challenges in developing the higher apprenticeship are likely to include:

• Ensuring that competency standards are satisfied at the appropriate level: professional skills for solicitors are ‘signed off’ at level 6 or 7 in the LPC. Through the apprenticeship route it might be possible to sign off at levels 4 or 5. Detailed work will need to be undertaken mapping outcomes against the necessary standards at each level to both assure the level and limit unnecessary duplication of assessment.

• Consistency issues may arise between traditional and apprenticeship pathways as regards level of supervised training and time served. In essence, do apprentices need to undertake an identifiable ‘training contract’ period, or is the training fully integrated? The principled approach must be to ensure that the extent and duration of any period of supervised practice are determined by whether the outcomes of training have been met, regardless of whether the trainee has qualified by the graduate, CILEx or alternative apprenticeship route. So long as the learning outcomes for the work-based component can be satisfied, there seems to be no logical educational basis for distinguishing a training contract period from any other part of the apprenticeship.

• Delivering the programme as designed will be a significant test of the sector’s ability to provide wholly integrated workplace-led training to the level of the LPC. In that regard, it will offer important lessons to the sector as a whole regarding the feasibility of providing work-based learning in law over a long duration and to a high level of achievement.

6.138     It should also be noted that the Government’s recent response to the Richard Review of Apprenticeships in England (2012) has introduced a layer of uncertainty by proposing to review the system of apprenticeships, including NOS, in England (DfE/BIS, 2013). It is recognised that there are problems that have accumulated with NOS, both as a methodology and in terms of a poor quality of standards in some industries. The Richard Review rightly challenges the current approach to apprenticeship qualifications for being too complicated, too focused on the ability to complete a set of discrete tasks, rather than the capability to do the whole job, and leading to a process that is assessment rather than training-led.

6.139     Any new system will still involve the development of standards that are industry-led and outcomes-based, so it may be questionable how much will change, but it is important that these messages are considered in preparing standards for any proposed new higher apprenticeships.[16]

Summary

6.140     There are four primary conclusions regarding paralegals and the reach of regulation:

• There is not a strong case for requiring registration or individual regulation of those who are currently subject to entity regulation.

• There are arguments for developing a voluntary recognition scheme or paralegal quality mark, akin to the Scottish scheme, which could involve passporting-in individuals with requisite qualifications, or developing a portfolio pathway for those without passport qualifications. A good scheme could create sufficient benefit for demand to carry over into the unregulated sector.

• There is support from within the regulated sector for more co-ordination of standards for paralegal training. This also links with the development of apprenticeships , and there is a view within the LETR research data that NOS or their future equivalent would provide a useful foundation for setting paralegal standards. There is also a case for recognising a minimum ‘qualified’ paralegal status equivalent to level 3 on the NQF.

• Work should continue on developing higher level apprenticeships as an alternative pathway to authorised practice.

6.141     Further research should be conducted into unregulated legal activities, particularly in the context of any further government review of the scope of legal services regulation, and as the work of paralegals develops.