Doctors, Nurses, Teachers, Gas Engineers, Taxi Drivers!
These professions require training, testing and some sort of regulation to be able to carry out their work. There are probably many other professions that require some level of training and regulation.
The point is ‘regulation’!
Would you say that lawyers are in that list? You would think so, wouldn’t you?
I predict the answers to both are ‘YES.’
What is ‘regulation’? What does it mean for lawyers?
For Doctors, there is the GMC. Nurses, the NMC. Teachers the TRA. For Gas Engineers there is the Gas Safe Register. For Taxi Drivers there are the local councils.
For lawyers, regulation is not simple. There are 9 ‘Statutory Regulators’ and that list is set out in law. There are other regulators which are voluntary regulators but are not on any Statutory List.
Would you use a lawyer that is not regulated by a Statutory Regulator?
The law provides a list of Statutory Regulators.
- Solicitors Regulation Authority (SRA) – regulating Solicitors
- Bar Standards Board (BSB) – regulating Barristers
- CILEX Regulation – regulating Legal Executives
- Council for Licensed Conveyancers – regulating Licensed Conveyancers
- Intellectual Property Regulation Board – regulating Patent and Trademark Attorneys
- Costs Lawyers Standards Board – regulating Costs Lawyers
- Master of Faculties – regulating Notaries
- Office of the Immigration Services – regulating Immigration advisers
The regulators above have the power to sanction their lawyers for breaches of their various codes of conduct and rules. Such lawyers who are regulated by Statutory Regulators are known as ‘Authorised persons.’
What if a lawyer is not regulated by a Statutory Regulator? Does it mean they cannot provide Legal Services?
The answer to that question is No. There are many lawyers who are not regulated by an Approved Regulator. For example, there are Will Writers, Arbitrators, Probate Researchers and Paralegals. These types of Lawyer may be voluntarily regulated (they should be, but not always).
Lawyers who are regulated by a Statutory Regulator can provide ‘reserved legal activities.’ (How about more confusion?). So, what is a ‘reserved legal activity’?
The law provides the following as reserved legal activities:
- The exercise of a right of audience – the right to appear and address a court, including the right to call and examine witness.
- The conduct of litigation – including issuing, commencing, defending and prosecution of proceedings in Court; and performing ancillary functions in relation to such proceedings
- Reserved instrument activities – preparing certain types of documents in relation to land
- Probate activities – preparing papers for the purposes of probate
- Notarial activities
- The administration of oaths
- Providing immigration advice and services
You may realise that reserved legal activities does not include:
- Giving legal advice
- Drafting legal letters and documents (save for those that may relate to land and probate)
But to add even more confusion, the law allows for ‘exempt persons’ to carry out reserved legal activities. For a person to be exempt, they must meet one of the various conditions set out in the legislation to enable them to carry out reserved legal activities.
Ultimately, with so many legal service providers now in the marketplace, getting legal advice and help has never been so easy, but it is no doubt confusing as to whether you are receiving the advice and help from someone who knows what they are doing.
I shall now discuss some examples on where things have gone wrong and then later, I shall set out what you should be looking for in a lawyer.
I must start by saying that most of these examples have arisen from Landlord & Tenant, Residential Possession cases. This I feel is because this area of the law is never going away. There are thousands of Landlords and even more tenants across the country. Tenants stop paying rent and they breach their tenancies. Landlords of course need their rent to pay their mortgages, and this results in many such cases being issued in the County Courts.
A lot of Landlords tend to use Letting Agents, especially those Landlords with multiple properties. Some of these agents have had many years’ experience and certainly know their way around a Court room and the procedure. Naturally, there are many Letting Agents who know what they are doing but some do not. But add to this the fact that Landlord & Tenant law is ever changing and there is a high risk that things could go wrong.
Some of these Letting Agents then decide to set up their own brand of legal services (to help with drafting of notices and in some cases drafting of Court documents.) Then some agents go further and arrange a qualified advocate to attend Court on behalf of their landlord client.
A firm known as SD, headed up by a lawyer who was not an authorised person, had assisted their landlord client to evict a tenant. SD had prepared the statutory notices of eviction, they gave advice, corresponded with the tenant’s solicitors, drafted court documents and witness statements for the landlord; and arranged qualified advocates to attend Court.
The possession claim brought by the Landlord was defended by the tenant and their lawyers, and ultimately, the tenant attempted, and was successful in bringing SD and its Director into the claim as a party to the action.
This resulted in the landlord having to pay additional costs and instructed actual solicitors to deal with his case.
One of our panel firms were instructed (with me dealing with the case) to appeal the decision to add SD and its director to the claim and we were successful in the appeal which resulted in the tenant paying costs to SD and its director. But the overall outcome was that the landlord client had been caused to pay additional costs and wait an inordinate amount of time to ultimately get possession of his property, which he did via the solicitors’ firm.
I was instructed by a firm of solicitors to represent a landlord in a residential possession claim. The Landlord had instructed a company to assist him. This company appear to provide services for agents, landlords and tenants but they are not a firm that are regulated by any of the statutory regulators. This company say on their website that they are authorised and regulated by the FCA (Financial Conduct Authority). Having checked they carry out insurance activities (and of course the FCA is not a regulator that can authorise legal services.)
On their instructions to me, acting as an advocate, they said they were not acting on behalf of the Landlord, they were ‘assisting’ and the instructions were from the Landlord and not them. Credit to them, the instructions were signed by the Landlord, however it was an electronic signature.
The quality of the paperwork presented to me (just 24 hours before the Court hearing was due to take place) was shoddy in nature. There were documents which were inconsistent with others. They had enclosed letters apparently written by the landlord but with the landlord’s wrong address on (all electronically signed.)
The Court papers were all electronically signed and had this company’s address as the Landlord’s address (which was clearly wrong.)
Naturally things could go wrong quickly. As the landlord was in fact the client, I had to contact him directly. I pointed out the various inconsistent information and there was no proper explanation for it. He had fully relied upon the company.
The big kicker for me in this case was that he was seeking possession of his property under a section 8 notice. The client was fine with that, but he also told me that he was seeking possession under a section 21 notice (in addition to the section 8 notice.) I told him that he was not, as the Court papers made no mention of the section 21 notice. I showed him the Court papers and pointed out that they were signed in his name. The client said he had never seen the court papers and never signed them.
All these issues could have been problematic for the Landlord client. However, due to my skill and expertise, I was still able to obtain a possession order for the landlord. The outcome could have been a lot worse, as you may see below.
Example 3 – Kassam v Gill
Following on from the above example, the case of Kassam v Gill was a famous case. The Gill’s (who were Claimants and Landlords) had instructed ‘eviction specialists’ called ‘Remove a Tenant’ to help them do exactly what they said on the tin so to speak. Similar to Example 2, ‘Remove a Tenant’ were unregulated, in terms of legal services.
Admittedly, ‘Remove a Tenant’ are not solicitors. They said so on their website. They said they were not litigators and simply stated that they offered assistance in the preparation and administration of possession claims.
In addition, their documentation stated that the Claimants would be conducting the case as Litigants in Person (the term used for people who act for themselves without authorised legal representation.)
The claim for possession was issued online. According to witness evidence, the Landlords had attended the offices of ‘Remove a Tenant’ where they had seen the online Court papers, read them and authorised an employee of ‘Remove a Tenant’ to type in the Landlords’ names and submit it. However, on the Claim Form, the address of ‘Remove a Tenant’ had been stated.
In addition to pressing the button, ‘Remove a Tenant’ also paid the Court Fee, prepared further witness evidence, and instructed solicitors to attend the hearing.
At the subsequent possession hearing, the tenant and their solicitor said that the Claimants had not signed the forms and therefore suggested that the claim for possession was invalid and there was an abuse of process. The Judge made the possession order regardless, but that decision was appealed.
The Court of Appeal held that the package of work carried out by ‘Remove a Tenant’ was a breach of the Legal Services Act 2007 and thus unlawful. and ultimately, they set aside the possession order despite confirming that the Claimants themselves had done nothing wrong. It is not known how much the Claimants had lost in total for using ‘Remove a Tenant’ as they were ordered to pay the Tenant’s legal costs.
Example 4 – Wright v Troy Lucas (A firm) & George Rusz
The usual phrase is to leave the best until last. This is by far the best example of things going wrong for those who are unqualified.
Paul Wright was a nurse and care home manager who suffered a permanent disability after 3 plastic bags were left inside him during an operation in 2004 at Basildon and Thurrock NHS Foundation Trust. The Trust admitted liability for the claim and ultimately settled the claim for £20,000 (it was worth a lot more.)
Troy Lucas (headed by George Rusz) claimed it was a litigation firm and sold its expertise as coming from qualified legal advisers. Mr Wright had engaged Troy Lucas to pursue his claim for clinical negligence and was told that the firm had extensive experience and it claimed it was “as good as, if not better, than any solicitor or barrister.”
Troy Lucas’ letterhead claimed it was authorised by the Ministry of Justice and regulated by the Solicitors Regulation Authority. The fact was, they were unregulated and did not have any qualified lawyers working for them.
During the clinical negligence claim, Troy Lucas had made various applications for disclosure and had failed to comply with Court Orders. They also failed to take advice from a barrister and had sought “fantastical” sums for compensation ranging from £1m to £3m without submitting any evidence to support those figures. As a result of the conduct of Mr Rusz and Troy Lucas, Mr Wright had to pay £75,000 towards the Trust’s legal costs and had lost his right to claim additional compensation.
The High Court decided that Troy Lucas and Mr Rusz were to be held to the same standards as competent legal advisors. The Court ruled that Mr Rusz and Troy Lucas were professionally negligent in relation to a large number of failings in their work, including advancing a claim which was heedless of the evidence, causing a serious of adverse costs orders to be made against Mr Wright, failing to make or respond to offers appropriately, and failing to secure and retain the services of the appropriate expert.
The ruling was important as it established that if individuals hold themselves out as competent legal advisers they will be held to the standards of a competent legal advisor, whether or not they are regulated.
Ultimately Troy Lucas and Mr Rusz were ordered to pay £337,000 to Mr Wright.
So, what should you be looking for in your lawyer?
All the statutory regulators require their lawyers to be insured. This is also the same for the voluntary regulators (like the Professional Paralegal Register.) The level of insurance can vary – in that the minimum we have seen is £1 million. If your lawyer does not have any insurance to cover the work they do, then we recommend that you stay away.
All statutory regulators required their lawyers to be subject to the governance of a complaint service. In most cases, this is the Legal Ombudsman.
In addition, the regulators have their own powers to sanction their lawyers. In our case, our complaint service is the Professional Paralegal Register and the Institute of Paralegals. If things go wrong for you, arising from our services, then the PPR can apply sanctions, like that of the Legal Ombudsman.
You should be able to find your lawyer online, in a directory of regulated lawyers. The SRA’s regulated lawyers can be found online on the Law Society website. The BSB and CILEx also have a list of their regulated lawyers online.
White Collar Legal
White Collar Legal and its Director, Philip Nam, is voluntarily authorised and regulated by the Professional Paralegal Register. Our company holds professional indemnity insurance of £1Million for the legal services it provides. Because of their lack of statutory regulation, the services that White Collar Legal provides are charged at a substantially lower rate than statutory regulated firms (up to 67% saving.)
White Collar Legal and Philip Nam is under the regulation of the Professional Paralegal Register, who can (if required) award sanctions in favour of clients, if a complaint is raised. White Collar Legal and Philip Nam will be bound by such sanctions as part of their regulation.
Philip Nam, in addition, also provides reserved legal services, as a consultant lawyer at 5 Solicitor firms across England and Wales. He is fully supervised by a Solicitor and therefore, falls under the term of ‘exempt person’ for a wide variety of the legal services that he can provide. Naturally, such work will not be carried out by White Collar Legal, but under the Solicitors’ firm name. Because of Philip Nam’s relationship with those firms of Solicitors, he can provide Legal Services, at discounted rates making legal services more accessible and affordable.
Any questions or support with the above please email us at: email@example.com or phone 0151 230 8931.