What is holding out and why is it important for the Paralegal sector to avoid it?
By Amanda Hamilton, Patron of the National Association of Licensed Paralegals (NALP),
If your business has a legal issue, the chances are that your first thought is to turn to a solicitor. But solicitors can be expensive, charging upwards of £200 per hour, putting them out of reach for many small businesses, especially for many smaller legal issues, where the fees simply don’t make sense. But not all legal problems need a solicitor. Some can be handled from start to finish and just as well by a paralegal – and they will cost you a lot less.
Paralegal practitioners are becoming an increasingly important part of the legal sector, but there are limits to the work they can carry out for clients (there are areas that are out of bounds to a paralegal – these are ‘reserved activities’ for solicitors and barristers and are defined by The Legal Services Act 2007), and paralegals must be careful that they never stray into what is known as Holding Out.
These are the activities that remain the monopoly of solicitors:
1. 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.
2. 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.
3. 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.
4. 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.
5. Notarial activities (Notaries only have this right):
These are quite specific and refer to activities in relation to The Public Notaries Act 1801.
6. The right to administer oaths (only solicitors have this right):
Conferred on a commissioner of oaths under various statutes.
What is ‘Holding Out’?
This is when a paralegal gives an impression either by inference or omission or expressly, that they are anything other than a paralegal. Such an impression can be made verbally or written on a business card or on a website. It is vital that they make it clear to any prospective client that they are a paralegal rather than a solicitor or barrister. The recommendation is that any ‘confirmation of instruction letter’ sent to a potential client, expressly states this and makes it clear in layman’s terms, what a paralegal can and cannot do for their client.
Not many people realise that ‘Holding Out’ to be a solicitor when you are not on the Roll of solicitors may constitute a criminal offence and that the Solicitors Regulation Authority could prosecute.
Transparency and clarity with clients
From the first contact with a potential client to the last, the professionalism that a paralegal projects is vital. Taking fees up front is not permitted. Paralegals should only invoice for work that has been done once completed and the fees have been discussed and agreed.
Managing a client’s expectations is also vital. This may sometimes be difficult, especially if a client is expecting a speedy or certain outcome which has not come to fruition. However, it is always best for paralegals to confront these difficulties head-on and endeavour to manage the client’s expectations from the start.
Membership of a professional body
To have an affiliation with a professional paralegal membership body (such as NALP) can be very reassuring for a client. Such bodies will have a code of conduct that a member must adhere to or suffer certain possible consequences. The knowledge that a paralegal has been rigorously checked before membership is granted, boosts the paralegal’s standing. It is also recommended that in order to offer legal services to a potential client, a paralegal should not only be a member of such an organisation but should also attain a ‘Licence to Practise’. This involves the member providing evidence of qualifications and/or experience in their specialised area of expertise. Professional indemnity insurance (PII) needs to be attained before such a licence is granted.
Continuing professional development (CPD)
It is common knowledge that The Law changes rapidly (in some areas more than others), and so it is a requirement of senior members and those with a Licence to Practise, to provide evidence of 12 hours CPD per year in order to renew their licence. This indicates to a potential client that there is a measure of commitment and passion about the work that a paralegal practitioner does.
There are many online CPD accredited courses but even reading up about new precedent cases can go towards the 12 hours CPD required.
Paralegals can be extremely useful to businesses, especially during these tougher times. However, it is vitally important that paralegals and their clients understand what they can and cannot do, and that paralegals are always transparent and communicate clearly with their clients. Getting the Ofqual recognised qualifications, joining a respected membership body like NALP, and, if appropriate, applying for a Licence to Practise are all ways to show that paralegals are knowledgeable and professional and will provide a great service.
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.