PI Brief Update

Why transparency is more important than ever in the Legal Services Sector, especially in PI cases, and why we’re still not getting it right - Amanda Hamilton, NALP

29/08/18. 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 been 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 Furthermore, legal aid has been withdrawn for all but the most urgent legal matters.

Of course, law firms, specialising in personal injury, have lived without legal aid for many years and are familiar with the process of working on a client’s case and only getting fees paid once the case has come to an end. Usually this will be on a ‘no win, no fee’ otherwise known as ‘conditional fee arrangement’ (CFA). Having such experience means that many PI firms are more open and transparent than others.

But consumers, who after all are the end-users of the services provided, will most likely not be aware of the changes to legal aid and how this may affect them. Some may decide 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 to legal funding, implemented by the sector itself, no-one has considered how this has affected consumers, nor have they given a valid explanation to them for the changes. There has been no transparency.

With the opening up of competition in the sector, how can consumers know whether what is stated on a particular website is valid or even the truth? Since there is now plenty of competition to provide PI services, consumers have a choice to whom they turn. This includes Paralegal firms that are opening up at a speedy rate across the country. Since Paralegals can now gain ‘Licensed Access’ from the Bar Standards Board to instruct Counsel directly, there needs to be clear and transparent information on any website as to ‘who we are’ ‘what we do’ ‘how we may assist you’ and last but not least ‘our costs’.

It is very easy to try and get one over on your competition by making false claims on your website or at least comments that may be misinterpreted by the consumer. But any such claims and comments 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 any 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 PI legal services are totally transparent, how can a distinction be made between them?

For example: stating categorically that you are an independent paralegal practitioner and member of NALP with a licence to practise and that you have Indemnity insurance, or are an experienced solicitor will give the prospective client confidence. Stating that you can offer assistance in making a claim for personal injuries and explaining the steps, processes and possible costs involved will also inspire confidence. Making this clear and unambiguous on a ‘home’ page will give no chance for any doubts in the mind of the prospective client.

If you are a firm of solicitors specialising in PI, why not state that the bulk of the work will be carried out by a paralegal? The number of calls that NALP gets from the general public about the fact that they had gone to a solicitor to assist with their PI claim, and then found out later that the person dealing with it was a paralegal and not a solicitor. Why didn’t that individual introduce themselves in the first place as a paralegal? Why not be transparent about that from the start?

In my opinion there has to be no doubt about what is being stated and how it can be interpreted. It doesn’t matter whether there is an intention is to mislead or not.

Even by omission, for example not stating anything at all about the status of the individual(s) offering PI legal services, 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 this needs to change.

How can we expect the legal services sector to continue offering an excellent service to the consumer if PI providers, both regulated and unregulated, 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.

For example, it would be misleading to state that ‘we are a government recognised professional body’ when in fact the truth 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.

Transparency must also include any potential conflicts of interest and any complaints procedure.

Failing to declare an interest in another organisation is an area where lack of transparency can mislead the consumer. For example, if an organisation were to say; ‘we are a standard setting membership 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 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 is not going to happen, then the burden lies with firms and 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.

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.

See: http://www.nationalparalegals.co.uk and http://www.nalptraining.co.uk/nalp_training

Twitter: @NALP_UK

Facebook: https://www.facebook.com/NationalAssocationsofLicensedParalegals/

LinkedIn - https://www.linkedin.com/in/amanda-hamilton-llb-hons-840a6a16/

Image: public domain