Would you know the difference between a qualified local Solicitor and an unregulated member of the public who is able to set up a business giving legal advice to the public and charging a fee? Is the service provided by both parties the same and does it matter?
It’s a frightening thought but currently anyone is able to set up as a legal advisor on the high street or at home. They need have no formal legal training or qualifications and may sell legal advice and documents on a wide range of legal matters to the general public. At the present time there are no regulations in place to police these traders or to monitor the quality and accuracy of the advice given. This is of grave concern to Solicitors all over the country.
Solicitors spend a minimum of six years training before they are entitled to call themselves Solicitors. It does however take years of in house practice following qualification to achieve a thorough understanding of the law and a high level of competence. Solicitors are unable to establish their own legal business conducting regulated work until such time as they have worked under the supervision of a senior Solicitor, in a Solicitor’s office, for a minimum of three years. It is currently a criminal offence for someone unsuitably qualified to act as a Solicitor and mislead the public into thinking that they are acting as a qualified Solicitor whether directly or indirectly.
Up until recently Solicitors were required to undertake a minimum of 16 hours mandatory training each year after qualification. Failure to undertake this minimum training could result in a Solicitor losing their practising certificate and not being regulated to work without exception. Currently there is no training or qualification requirement for unregulated legal advisors at all. Some legal advisors may have letters after their name indicating that they have acquired a law degree or other miscellaneous legal qualifications. They have no regulatory body overseeing ongoing training nor have to provide any evidence that voluntary training is undertaken.
Solicitors are highly regulated by the Solicitors Regulation Authority which is an independent body overseeing the solicitors’ profession as a whole. It sets out a strict code of conduct, financial and legal framework within which all solicitors must operate. Solicitors have no choice about this. They are obliged to observe all rules and regulations governing the profession without question. Solicitors, without exception, must have in place professional indemnity insurance at a significant cost to their practice. This is an insurance to cover any loss to a client caused by a mistake made by the Solicitor. Failure by a Solicitor to comply with their obligations imposed by the Solicitors Regulation Authority can and does result in sanctions to their Practicing Certificate. These range from formal reprimands which are noted on a solicitor’s record to fines and ultimately being struck off in repeat cases. An unregulated legal advisor has none of these regulations imposed on them and there is no requirement for them to have in place any kind of insurance and therefore no protection in place for failures or misconduct.
To an unregulated legal advisor the rules imposed by the Solicitors Regulation Authority appear antiquated, cumbersome and restrict the speed at which the legal advice can be delivered. The regulations are there however for the benefit and protection of the public. This is what sets Solicitors apart from a legal advisor sector and justifies the general public’s confidence in the integrity of the profession.
Solicitors must also follow imposed practice rules in respect of all disciplines. One of the more sensitive areas of the law is in respect of older people and vulnerable client. Solicitors have an obligation to ensure that older people and vulnerable clients are acting of their own free will and are not being forced or coerced or misled by a third party. Solicitors, with the assistance qualified medical professionals are required to consider and assess the mental capacity of the clients to ensure that they understand the nature of the matter and are able to confidently sign any documentation. Clients are assessed on an individual basis for their own protection to ensure that they are able to make an informed choice to sign a will or grant a power of attorney or indeed to enter into any other sort of financial transaction. There is no such requirement for a legal advisor to carry out such checks. There are no competency tests or qualification requirements to prove that they have the necessary knowledge and skill to assess mental capacity.
The majority of a Solicitors workload is work that is carried out on behalf of older people or otherwise vulnerable people. For this area of law to be undertaken by a legal advisor who is unregulated is unthinkable.
There are currently some areas of legal work which can legally only be carried out by a qualified Solicitor. This includes representing clients in court, drafting land Contracts and making probate applications. By comparison therefore there remains a large area of legal work where a legal advisor can legitimately advise. An example of this is will writing and powers of attorney and many legal advisors concentrate their work load on these disciplines. Whilst advice may be given how confident can you be that the advice is correct?
Under current regulations Solicitors cannot benefit under a will which they or a colleague at the same firm has drafted except in extremely limited circumstances. This is a safeguard put in place in order to protect elderly or vulnerable Clients. This is not true of the unregulated legal advisory sector. Records show that there have been a number of convictions recently where legal advisors have been jailed for taking advantage of elderly people by benefitting under wills that they have drafted in their own favour.
Legal advisors comparably charge at a fraction of the cost or Solicitors which make them a very attractive draw. However you must remember they are not bound by such strict regulations and have no need for a professional indemnity insurance. They are therefore unable to provide a remedy legally or financially should anything go wrong. They have the ability to take costs and go to ground should they so wish. Any claim for action would have to be made through the normal court process. This would be of little comfort to a beneficiary of a will who finds that the will has been drawn incorrectly resulting in the deceased dying intestate!
Unfortunately Solicitors do not find themselves working on a level playing field compared to the unregulated legal advisory sector. We know that as an industry we are required to be and are seen as a highly qualified profession acting under a regulatory framework designed to protect the general public. Quite simply unregulated legal advisory services are not and should be approached with caution. If you choose a legal advisory service over a Solicitor at the very least you should ask them to provide evidence as to their training and more importantly what they can do practically and financially to resolve any complaints or problems which may arise following completion of the matter should anything go wrong.
Our Regulatory bodies are now looking into unregulated Will Writers and other organisations, offering class action claims for diesel emissions for example, as they are not obliged to follow the same regulatory practices as a solicitor and so the consumer may not protected.