Post Legal Services Act: a different (if not more level) playing field?
updated on 23 November 2010
It’s a great interview question, isn't it: "How do you think the legal marketplace will be affected by the Legal Services Act 2007?"Or if you aren't asked that yourself, a great question to ask at interview: "How is this firm preparing for the impact of the Legal Services Act?"
The legal services landscape, which has always been a bit rocky, is getting rockier. Most of us can cope with the idea that there are solicitors and barristers, and perhaps have some idea that there are people in existence called notaries and licensed conveyancers. But did you know that, as a result of the Courts and Legal Services Act 1990, trademark attorneys and patent attorneys can acquire rights to conduct litigation? That licensed conveyancers, who became part of the landscape after the Administration of Justice Act 1985, can also do probate work in some circumstances? That, as a result of the Tribunals, Courts and Enforcement Act 2007, the first judge was recently appointed from the ranks of legal executives rather than from the usual pool of solicitors and barristers? That the Institute of Chartered Accountants of Scotland has applied for permission for accountants to appear as advocates in certain types of probate work under the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990?
Different kinds of lawyer
So, already under existing legislation there is a plethora of different forms of lawyer in England and Wales all jostling for the legal work that is available. We can add to that other kinds of work in which you might use a law degree, such as legal journalism or legal publishing. In some areas it is possible to dual qualify; be, for example, both a solicitor and a trademark attorney. Let's examine some of these other kinds of lawyer according to their areas of expertise.
If you are interested in business and financial law, you might consider becoming a chartered secretary. These are professional 'company secretaries' involved in business law, specifically regulation and corporate governance, working in-house in organisations to support and advise the board of directors or board of governors. Those with law degrees are exempt from some of the examinations of the Institute of Chartered Secretaries and Administrators (you may find that other professions in the business field, for example, chartered accountants, will allow law graduates exemptions from some of their examinations).
If you are particularly good with figures, law costs draftsmen (and women) deal with the calculation and claiming of lawyers' costs whether as between lawyer and client, as against public funders such as the Legal Services Commission, or where one party in litigation has been ordered to pay the costs of the other. This can - through the process of 'detailed assessment' in the civil courts - involve specialist litigation and it is possible, through the Association of Law Costs Draftsmen, to become a costs lawyer with rights to appear as an advocate in specialist costs hearings.
For those interested in research or in passing on their knowledge and skills to others, law teachers can be found in higher education, further education and in schools (teaching, for example, A-level law). Some, particularly if teaching on specialist courses such as the Legal Practice Course (LPC) or Bar Professional Training Course (BPTC), will have previously qualified as solicitors or barristers. It is becoming more common for those teaching in higher education from an academic perspective (eg, degree, master's or Graduate Diploma in Law) to have PhDs. Sometimes master's and PhD students may be allowed to do some teaching of undergraduates, and solicitors and barristers in practice may do some part-time teaching on an LPC or BPTC - both are a good way of finding out if you have an aptitude for teaching.
If you are interested in practical legal work but perhaps already know that this is in a specialist field such as property, probate, crime or family, you might wish to think about investigating routes to qualification as a legal executive or licensed conveyancer. Many legal executives and licensed conveyancers do not start with a law degree but achieve all their qualifications while working (although the Institute of Legal Executives has a fast-track route and the Council for Licensed Conveyancers has a wide range of exemptions for law degree graduates). This can be a route worth investigating if you need to start earning quickly. Legal executives in particular can, after a period of experience in the workplace and achievement of qualifications, go on to complete an LPC and qualify as a solicitor without having to complete a training contract. Increasingly, legal executives are developing into a self-standing legal profession and are, in limited circumstances, already able to set up their own practices.
If you have an aptitude for languages, you might consider becoming dual qualified as a practising lawyer in another jurisdiction; or think about working as a legal interpreter, translator or notary. Notaries are almost always qualified solicitors as well. The work of a notary generally relates to the authentification and sometimes translation of legal documents for use overseas, where the concept of a 'notarised document' as an official copy is more developed. A very specialist group of scrivener notaries describe themselves as 'lawyer linguists' who need to know not only a minimum of two languages other than English but also have knowledge of at least one other legal system.
If you are scientific or interested in intellectual property, you might consider qualifying as a patent attorney or trademark attorney. Many patent attorneys in particular have prior degrees (up to and including a PhD) in a science subject before turning to law.
Paralegals and legal secretaries also work with the law in different ways. Legal secretaries clearly need to understand legal terminology and the rules and procedures affecting legal documents. 'Paralegal' is a very wide term, sometimes used to describe anyone whose role involves them knowing, interpreting or applying law (such as human resources personnel, trading standards officers and so on). Perhaps more conventionally, it describes someone working in a law firm in support of other lawyers. Paralegals can be specialists; for example, a qualified nurse employed by a firm specialising in medical negligence cases to interpret medical records and carry out witness interviews of medical staff. In other cases, their role is broader and involves carrying out similar tasks to those of a trainee solicitor or legal executive: taking notes, carrying out research, drafting documents and so on. Not all paralegals are employed in law firms; the legal department of a company, for example, might contain a number of paralegals managing contracts.
Many, but by no means all, paralegals have an LPC; however, because of the fluidity of the job title, there is no generic route to qualification. A range of institutions, including ILEX Tutorial College and the National Institute of Licensed Paralegals offer programmes; in Scotland, it is possible to undertake a paralegal qualification called a Personal Development Award. The Institute of Paralegals has a set of competency standards which employers and paralegals might use to determine the level of competence of those in this role. In England and Wales, the Law Society is currently investigating whether it should support a qualification structure for paralegals. The Solicitors Regulation Authority (SRA) is piloting a scheme to investigate whether, if they are undertaking the right level and sufficient breadth of work, paralegals might be able to satisfy the requirements of what is currently the training contract and therefore qualify as solicitors.
Other useful links are: Association of Law Teachers, Bar Council (Northern Ireland), Faculty of Advocates (Scotland), Institute of Legal Secretaries and Pas, Institute of Legal Cashiers and Administrators, Law Society of Northern Ireland, Law Society of Scotland, Notaries Society, Scottish Paralegal Association, Society of Scrivener Notaries and Society of Trust and Estate Practitioners.
What does the Legal Services Act change?
With this degree of variety and specialisation already available, it is fair to ask what the act changes and why the excitement?
Firstly, it changes the way in which different kinds of lawyers can work together in England and Wales. Since March 2009, it has been possible to have a legal disciplinary partnership. This is where the partners (or directors/shareholders) are a mixture of solicitors and/or barristers and/or the main different types of lawyers described above: licensed conveyancers, law costs draftsmen/costs lawyers, notaries, patent and trademark attorneys, and legal executive lawyers. The Institute of Legal Executives says that there are already 100 legal executive partners in law firms across the country.
Secondly, the act changes the way in which lawyers can work with other professionals. It will become possible (probably from 2012) to have alternative business structures in which, for example, a firm might carry out legal business and other business, or which might include a variety of professionals (for example in a property business, property specialist solicitors and barristers, licensed conveyancers, surveyors, accountants and architects). A different form of alternative business structure might allow, for example, other bodies such as financial advisers or even supermarkets to employ lawyers and offer legal services to the public.
Thirdly, and this is what represents a challenge to the more established professions such as solicitors and barristers, it changes (again probably from 2012) what type of work can only be done by lawyers ('reserved legal activities'). This is a function of those sections of the act which alter the way in which legal professional activity is regulated and how complaints about poor service are dealt with. When the act initially came into force, it brought with it a group of regulators who, and whose members, became authorised to conduct all or a defined number of reserved legal activities. These were the Law Society, the Bar Council, the Master of the Faculties (ecclesiastical law), the Institute of Legal Executives, the Council for Licensed Conveyancers, the Chartered Institute of Patent Attorneys, the Institute of Trademark Attorneys and the Association of Law Costs Draftsmen. The Law Society and Bar Council were subsequently required to split their regulatory function from their representative function, so the relevant regulators for solicitors and barristers are now the SRA and the Bar Standards Board. IP Reg is now the regulator for patent and trademark attorneys and ILEX Professional Standards Limited the regulator for legal executive lawyers.
The reserved legal activities are: advocacy in court, conduct of litigation, some land registration and property activities, probate activities, notarial activities and administration of oaths. The challenge to the established professions is that not only might some existing regulators seek permission to expand their repertoire of reserved legal activities, but that new regulators might emerge creating new forms of 'lawyer' entitled to carry out the reserved legal activities. So, as has already happened in Scotland, we might find accountants seeking permission to carry out probate work, or even litigation and advocacy. The existing professions will need to consider carefully what their unique selling points are and why clients should look to them rather than to emerging new forms of lawyer, regulated by different regulators, who might be able to offer the same kind of services, possibly cheaper.
What does the future hold?
After all of this, you may still be keen to qualify into one of the more well-established legal professions. Your solicitors firm could, however, become a legal disciplinary partnership, with legal executive lawyers and trademark attorneys among the partners. Or the part of the organisation in which you work and offer legal services to the public could become part of an alternative business structure where many of your colleagues are non-lawyers or new kinds of lawyer. You might decide to become one of those new kinds of lawyer yourself, as new regulators emerge and create new legal professions - perhaps specialised, perhaps not. The important thing to focus on - apart from the cost of qualifying and routes to progress further once you have qualified as a particular kind of lawyer - is the kind of work you want to do. Some of the new legal professions that emerge following the act will undoubtedly be specialists, offering opportunities to work on complex matters in great depth. Others may still wish to offer a broad range of services, affording the opportunity to work in more than one area before you decide, if you do, that you want to specialise. Almost certainly all lawyers will find themselves working in different ways, as winning limited amounts of legal work becomes ever more competitive.
Jane Ching is an academic team leader at Nottingham Law School.
