In the last five years, within the current legal services sector, changes have been so radical that consumers are undoubtedly confused. It used to be that if you had a legal problem, you would automatically turn to a solicitor. Paying for the services of a solicitor was not given a second thought, especially if there was the possibility of legal funding (legal aid).
This has all been turned on its head. With the implementation of The Legal Services Act 2007, competition has increased, all under the umbrella of ‘access to justice for all, at a reasonable cost’. Furthermore, legal aid has been withdrawn for all but the most urgent legal matters.
But what is the cost to the consumer? The average person on the street, or in legal jargon, ‘the man on the Clapham omnibus’ has no idea what the changes are, why they have been implemented and who to turn to with their legal problem. Many have decided to take on the burden of litigation themselves with devastating consequences for the court system. Litigants in person (LIPs) are causing the courts huge difficulties because they do not know what to do. Consequently, the courts are stopping cases to give LIPs assistance.
The unfortunate reality is, that throughout the changes that have been made, implemented by the sector itself, no-one has considered how this has affected the end user of their services, nor have they given a valid explanation to them for the changes. There has been no transparency.
The other factors are that with the opening up of competition in the sector, how can consumers know whether what is stated on a particular website is the truth?
Apart from the statutorily regulated legal professionals such as: solicitors, barristers, chartered legal executives and licensed conveyancers, there are now numerous services offered by other individuals and organisations that are not statutorily regulated. Claims and comments made on their websites can be misleading at best, and possibly fraudulent at the other extreme. To mislead the general public is a dangerous path down which to venture. Not only can it be costly (and potentially terminal for your practice) it can also affect the reputation of legal services sector generally, which is what must be prevented at all costs in order to preserve the Rule of Law. Remember, even comments made in very broad terms can cause assumptions to be made – so care must be taken.
It is perhaps left to the individual end user to do their own research, but unless providers of legal services, or those referring to themselves as ‘regulators’ (including those claiming to be ‘Voluntary Regulators’) are totally transparent, how can a distinction be made between them?
At a recent Competitions and Markets Authority Forum (CMA) that NALP attended, the theme of the event was ‘transparency’ but it was clear that several individuals around that table did not really understand what this means. If a consumer visits a website and makes the wrong inferences from the content on that website – who is at fault? Has the website owner been transparent and clear?
In my opinion there has to be no doubt about what is being stated and how it can be interpreted. It does not matter whether the intention is to mislead or not.
For example, NALP makes it abundantly clear to all its members offering legal services, that they cannot ‘hold-out’. In other words, if claims are made on their website about being ‘lawyers’, even if this is technically true, it is likely that a consumer reading such comments will probably assume that they are solicitors or barristers. NALP’s preferred practice is to ensure clarity and transparency and to state categorically that ‘we are Paralegals’ not solicitors or barristers.
Even by omission, for example not stating anything at all about the status of the individual(s) offering legal services, for example, by saying ‘we offer legal services in the following areas…’ can be interpreted that the persons offering those services are solicitors. The intention may not be to mislead, but if it wouldn’t be unreasonable for a consumer to be misled by those statements – then they need to change.
How can we expect the legal services sector to continue offering an excellent service to the consumer if providers, and voluntary regulators, are not being transparent? Making statements on websites that are not strictly untrue, but knowingly making them in order to invoke assumptions on behalf of the reader that are obviously incorrect, is indeed misleading and possibly fraudulent. This is not transparency.
Transparency must include the status of the individual or organisation offering the service, fees that will be charged for each service offered, any potential conflicts of interest and any complaints procedure.
For example, it would be misleading to state that ‘we are a government recognised professional body’ when in fact what it is really being stated is that ‘we were incorporated by a government body – Companies House’. It’s clear how vague or disingenuous language can mislead in this real-life example.
Failing to declare an interest in another organisation is also an area where lack of transparency can mislead the consumer. For example, if an organisation were to say; ‘we are a standard setting body…as recognised by the unregulated legal services regulator’ or ‘we are the only body that is recognised by the voluntary regulator as having robust professional standards’ – and not state clearly that the in fact the voluntary regulator and the body are owned by the same individuals, that would most certainly be a failure of transparency and could easily mislead a consumer who would not know or understand that the two bodies were related.
We, as an industry, need to ensure that all statements made on websites have clarity and cannot be interpreted by making assumptions. The difficulty is how to monitor and police such statements.
If policing such websites is not going to happen, then the burden lies with those organisations of integrity to be as transparent as possible and hope that the most important individuals within the sector, the consumers, recognise this effort and make the right decisions.
I feel strongly that we need to help protect the consumer – partly because, after all, that’s what the law is all about and why many of us chose this career. But, also, because it will protect us, the legal services industry.
If we, as a sector, don’t get it right – then we can hardly blame a future government if they decide to regulate legal services even further. We have to have transparency and clarity and ensure we are doing our best to protect the consumer. Or we may find that the spectre of statutory regulation comes back to bite us.
ABOUT THE AUTHOR
Amanda Hamilton is Chief Executive of NALP, a non-profit Membership Body as well as being the only Paralegal body that is recognised as an awarding organisation by Ofqual (the regulator of qualifications in England & Wales). Through its training arm, NALP Training, accredited recognised professional paralegal qualifications are offered for a career as a paralegal professional.