When is a Solicitor, not a Solicitor? When they’re a legal advisor!
Would you know the difference between a qualified local Solicitor and an unregulated member of the public, setting up a business to provide legal advice 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 could set up as a legal advisor, whether on the high street or at home. Without any formal legal training or qualifications, legal advisors can sell legal advice and documents on a wide range of legal matters to the general public. At present, regulations to control or monitor the quality and accuracy of the advice given don’t exist. This is of grave concern to Solicitors all over the country.
Training and Qualifications
Solicitors spend a minimum of six years training before they are entitled to call themselves ‘Solicitors’. Following qualification, it takes years to achieve a thorough understanding of the law with a high level of competence.
Solicitors can then establish their own legal business after working 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 they are acting as a qualified Solicitor whether directly or indirectly.
Governing Bodies and the Solicitors Regulation Authority
Currently, unregulated legal advisors do not require any training or qualification requirements. Some legal advisors may have letters after their name indicating they have acquired a law degree or other miscellaneous legal qualification. However, they do not have a regulatory body overseeing ongoing training or the need to provide any evidence that voluntary training is undertaken.
Solicitors, on the other hand, are highly regulated by the Solicitors Regulation Authority (SRA), an independent body overseeing the solicitors’ profession as a whole. The SRA sets out a strict code of conduct, together with a financial and legal framework. A base standard from which all solicitors must operate. This is not by choice, Solicitors are obliged to observe all rules and regulations governing their profession without question.
Solicitors failing to comply with obligations imposed by the Solicitors Regulation Authority will result in sanctions to their Practicing Certificate. These vary from formal reprimands (which are noted on a solicitor’s record) to fines and in repeat cases, being struck off.
Professional Indemnity Insurance
Solicitors, without exception, must also have professional indemnity insurance in place. This is an insurance policy which is provided at a significant cost to cover any potential loss caused by a mistake made by the Solicitor to a client. Solicitors failing to comply with obligations imposed by the Solicitors Regulation Authority will result in sanctions to their Practicing Certificate. These vary from formal reprimands (which are noted on a solicitor’s record) to fines and in repeat cases being struck off.
An unregulated legal advisor is free to act without any of these regulations imposed on them. They are also free to operate without insurance or protection in place for failures or misconduct. To an unregulated legal advisor, the rules imposed by the Solicitors Regulation Authority can appear antiquated, cumbersome and restrictive. However, the regulations are there for the benefit and protection of the public. Setting Solicitors apart from legal advisors whilst maintaining the general public’s confidence in the integrity of the profession.
The Elderly & Vulnerable
Solicitors must also follow imposed practice rules with respect to all disciplines. One of the more sensitive areas of the law is in respect of the elderly and vulnerable clients.
Solicitors should ensure that any elderly and vulnerable clients are acting of their own free will. With the assistance of qualified medical professionals, solicitors are required to consider and assess the mental capacity of the elderly or vulnerable clients.
For protection, assessments are made on an individual basis to ensure the client can make an informed choice. Whether signing a will, granting a power of attorney or entering into any other financial transaction, there has to be mental capacity. By ensuring these clients understand the nature of the matter they can confidently sign any documentation. This also ensures they are not being forced, coerced or misled by a third party.
Again, there is no requirement for any legal advisor to have the necessary qualifications or proof they can carry out such competency tests or checks. Considering the majority of Solicitors’ workload is carried out on behalf of elderly or otherwise vulnerable people, how could you contemplate having this area of law undertaken by an unregulated legal advisor?
Solicitors vs. Legal Advisors
There are some areas of law 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, 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. Many legal advisors concentrate their workload on these disciplines and while advice may be given, how confident can you be that the advice is correct?
Under current regulations, Solicitors cannot benefit under a Will that they or a colleague has drafted. Except in extremely limited circumstances. Again, this safeguard has been put in place to protect the elderly or vulnerable clients. Unfortunately, for the unregulated legal advisory sector, this isn’t the case. Even recent records show there have been convictions where legal advisors have been jailed for taking advantage of the elderly or the vulnerable. Benefitting under Wills that have been drafted in their favour.
Fees?
Of course, one particular attraction for taking on legal advisors compared to solicitors is fees. On face value, legal advisors charge a fraction of the cost of Solicitors, however, you must remember they are not bound by regulations. Without safeguarding in place and operating without the need for professional indemnity insurance, they are also unable to provide a remedy, whether legally or financially should anything go wrong.
With 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 when compared to the unregulated legal advisory sector. They know as an industry they are required to be and be seen as highly qualified professionals. Acting under a regulatory framework designed to protect and safeguard the general public.
Questions?
Should you choose a legal advisory service over a Solicitor, you should at the very least ask them to provide evidence of training. More importantly, what they can do practically and financially to resolve complaints or problems which may arise following the completion of the matter, in the event anything should go wrong.
Harold G Walker runs a series of FREE Legal Clinics across Broadstone, Christchurch, Ferndown, West Moors, Verwood and Wimborne. Developed to assist the local community to have your legal questions answered. Please see details of forthcoming events.