This is the 2009 newsletter archive. This page contains the January/February newsletter. Please use the menu to the left to view the other editions from 2009.
The Paralegal Practitioner
The monthly e-newsletter for paralegals
Setting Standards for Paralegals
January/February 2009 edition
In this edition:
Topics with Deadlines:
1. Law Society consultation on the regulation of solicitors' firms: 9th April
2. Draft National Competency Standards feedback needed by 27th February
3. Legal Services Board draft business plan consultation: 13th March
4. Solicitors Regulation Authority consultation re conflict and confidentiality rules: 31st March
5. PAFs/paralegals practising criminal law - we need to hear from you by 27th February
Practice News:
6. Big increase in Companies House late filing fees
7. Amendments to the Civil Procedure Rules
8. Help in conducting employment law cases
9. New Company Names Tribunal
10. Keeping copies of tax returns
11. Statutory minimum leave entitlement to be 28 days from April
12. Changes to the contents of Home Information Packs
13. Legal Services Board opens for business
Paralegal Advisory Firms:
14. Receive precedents, journal articles and case reports by email: Law Society service
15. Reviewing your business plan in the current economic climate
16. Getting grants and free advice
17. Avoiding common business start up mistakes
18. Are you employing staff illegally - a quick online test
19. PAFs and professional privilege - where do you stand?
Institute News:
20. This month's combined edition
21. Revised membership fees
22. Institute and Land Registry begin work on paralegal conveyancing competency standards
Features:
23. Implications of the Legal Services Act
24. Fusty image and poor pay put women off being judges
25. Disclosing past convictions
26. Do you back-up your emails?
1. Law Society consultation on the regulation of solicitors' firms
The Law Society of England & Wales has asked Lord Hunt to review and report on the regulation of solicitors' law. The Society has now issued a "Call for Evidence" document to assist Lord Hunt to answer the two central questions of the review:
A. What new regulatory challenges and opportunities does the Legal Services Act create?
B. What are the characteristics of 'good regulation'?
For more information visit: http://www.legalregulationreview.org.uk/evidence.html
You have until 9th April 2009 to submit your response by email to legalregulationreview@beachcroft.co.uk or by hard copy to Rt Hon The Lord Hunt of Wirral MBE, c/o 100 Fetter Lane, London, EC4A 1BN.
2. Draft National Competency Standards feedback: 27th February
Feedback on the Institute's draft National Competency Standards for paralegals and legal assistants should reach us by 27th February latest. To download a copy of the respective standards, or to find out more about NCS generally, please visit www.LegalStandards.org
Feedback by e-mail should be sent to standards@InstituteofParalegals.org, by phone to 020 7887 1420 by fax to 020 7904 3750 and by post to the Institute at Berkeley Square (see 'Contact Us' elsewhere in this e-mail for details)
3. Legal Services Board draft business plan consultation: 13th March
The Legal Services Board began operations this month. They have issued a draft business plan for 2009/2010 covering what they intend to do, and how they intend to do it. Feedback is invited with 13th March deadline. For more information visit http://www.legalservicesboard.org.uk/news_publications/press_releases/2009/01_2009.htm
4. Solicitors Regulation Authority consultation re conflict and confidentiality rules: 31st March
The SRA are considering a significant relaxation on the rules relating to conflict and confidentiality in situations involving "sophisticated" clients. Your views are sought on their suggested changes, with a deadline of 31st March. Please visit www.sra.org.uk/sra/consultations/1649.article for more information.
5. PAFs and independent paralegal advisers practising criminal law - we need to hear from you by 27th February
This matter relates primarily to PAFs and independent paralegal advisers, but we are very happy to also hear from paralegals working for solicitors' firms about their experiences too.
Earlier this month we received an enquiry from a prosecutor with the Crown Prosecution Service. An individual that he was responsible for prosecuting in connection with a complex crime was using a paralegal advisory firm to represent him. The prosecutor wanted initial advice as to whether he should be liaising with the paralegal advisory firm at all and, if so, were there anything he should know or do differently because it was not a defence solicitor he was liaising with. We advised him, but now want to find out the extent to which paralegal advisory firms/independent paralegal advisers are involved in the criminal justice system.
If you are, or if you have come across such paralegal practitioner's can you let us know please. Ideally we would like you to identify yourself or the organisation/person you came across, but we are happy to accept anonymous feedback if you are more comfortable with that.
It seems to us that paralegals have a right to represent clients in criminal matters by virtue of the European Convention on Human Rights which was of course incorporated into UK law under the Human Rights Act 1998. However with one or two very unique situations aside, since PAFs appear ineligible to do legal aid funded work, the Legal Services Commission has inadvertently stymied this right. We wish to take the matter up with the Commission but first wish to better gauge the situation in practice, and the interest in taking such cases.
You can contact us by e-mail at office@InstituteofParalegals.org or by phoning James O'Connell on 020 7887 1420. We need to hear from you by 27th February so we can contact the Commission in early March.
6. Big increase in Companies House late filing fees
From 1 February 2009
- All penalties to be increased to take account of inflation between 1992 and 2007
- A faster rate of increase in penalties for companies who file more than one month late
- A doubling of the penalty for any company which files late having also filed late in the previous year
The new late filing penalties for private companies and PLCs:
How late are the accounts delivered Penalty - Private Company Penalty - PLC
Up to 1 month £150 £750
Between 1 and 3 months £375 £1500
Between 3 and 6 months £750 £3000
More than 6 months £1500 £7500
Failure to comply with the filing requirements will double the penalty that is shown in the table above.
For further information, please visit the Companies House website at http://www.companieshouse.gov.uk/companiesAct/ca_lateFilingPenalties.shtml
7. Amendments to the Civil Procedure Rules
A statutory instrument, The Civil Procedure (Amendment No.3) Rules 2008, SI Number: 2008/3327 (L.29), amending several of the civil procedure rules comes into force on 6th April. See the S.I itself at http://www.opsi.gov.uk/si/si2008/uksi_20083327_en_1 and the explanatory memorandum at http://www.opsi.gov.uk/si/si2008/em/uksiem_20083327_en..pdf
8. Help with conducting employment law cases
If you conduct employment law cases you should look at the second edition of The Legal Services Commission's guide in the "Improving your Quality" series of guides for legal practitioners. The guide gives practical advice based on feedback from practitioners on how best to conduct an employment case.
To download the guide visit http://www.legalservices.gov.uk/civil/how/5563.asp#what
9. The new Company Names Tribunal
The Company Names Tribunal came into being in October 2008. Based at the UK Intellectual Property Office it handles complaints concerning company name registrations considered opportunistic (in the same way that people will buy internet domain names as a means of extracting money from a brand owner or to block registrations). The Tribunal's jurisdiction to hear objections to registrations stems from s.69 (1) of the 2006 Companies Act. See s69 at http://www.opsi.gov.uk/ACTS/acts2006/ukpga_20060046_en_6 and information on the Tribunal at http://www.ipo.gov.uk/cna.htm
10. Keeping copies of tax returns
Do your clients keep a copy of their tax returns? They ought to, because Michael Wilson, a tax payer, was 'fined' £300 for failing to provide a copy of his tax return to HMRC after they had lost the original.
Having lost it HMRC issued a notice requiring Wilson to send them a copy. He did not.
The matter went before the Special Commissioners (who determine appeals concerning HMRC decisions relating to all direct taxes) in the case of HMRC v Michael Wilson Spc 00724. The Special Commissioner said, ‘I do not consider that the fact that the Revenue received the original return which they cannot locate prevents them form requiring a copy.’
Be warned!
11. Statutory minimum leave entitlement to be 28 days from April
Until October 2007 all workers were entitled to statutory minimum annual paid leave of 4 weeks (20 days). From October 2007 this increased to 4.8 weeks (24 days). This April 2009 it will increase again to 5.6 weeks (28 days).
The new entitlement would be extended to all workers, regardless of length of service. The calculation of the holiday will be on a pro-rata basis for part-time workers. For most workers this will not produce any practical change. Before October 2007 statutory minimum leave did not include bank holidays. After October 2007 it had included some, and from April it will now include all.
12. Changes to the contents of Home Information Packs
Obligatory changes to the contents of Home Information Packs were made earlier this month. Additional content required from April onwards. For more information visit http://www.businesslink.gov.uk/bdotg/action/ruDetail?type=REGUPDATE&itemId=1081810795&topicType=5
13. Legal Services Board opens for business
The Legal Services Board, the new super-regulator established under the Legal Services Act opened for business this month. Senior staff at the Institute met with the Board's Chief Executive, Chris Kenny, last year to put the case for better recognition and support of both paralegals and paralegal advisory firms. We received an open-minded and sympathetic hearing.
For more information on the Board visit its website at http://www.legalservicesboard.org.uk/index.htm
14. Two new patent databases available for public inspection
The Intellectual Property Office has made two new patent databases available for public inspection. The first covers all UK patents subsisting and open for licensing. The second covers patents which have lapsed and are thus unprotected. For more information visit http://www.ipo.gov.uk/
15. Receive precedents, journal articles and case reports by email - Law Society service
The Law Society Lawdocs service is open to non-solicitors, but with a surcharge over the normal costs. For information on the service and the cost visit http://www.lawsociety.org.uk/productsandservices/libraryservices/request.law - but note the£10 per item surcharge for non-solicitors.
16. Reviewing your business plan in the current economic climate
If the current economic climate requires you to review your business plan, then a short Institute of Directors article on their website may be of assistance. Visit http://www.iod.com/is-bin/INTERSHOP.enfinity/eCS/Store/en/-/GBP/IODContentManager-Start?ChannelID=8&MenuID=332&TemplateName=information/content/strategy_and_growth/info_strategy_and_growth_hot_topic_revising_business_plan.isml
17. Getting grants and free advice
The governments' Grants and Support Directory allows you to search for potential sources of help with starting up or business development. The Directory is a searchable database with information on grants and support schemes from central and local government as well as private organisations. Some of the schemes offer financial assistance, while some offer free or subsidised services ranging from advice through to practical involvement with projects. Both local and national assistance is listed. Using the automated searching facility at http://www.businesslink.gov.uk/bdotg/action/gsd?r.li=1075226155&r.l1=1075193156&site=181&r.pp=13&r.l2=1075193173&r.s=p
18. Avoiding common business start up mistakes
Business Link has identified the main mistakes made by businesses' when starting up. Read about them and how to avoid them at http://www.businesslink.gov.uk/bdotg/action/layer?topicId=1075219484&site=181
19. Are you or your clients employing staff illegally - a quick online test?
Business Link produces a handy online test to check whether or not you or your clients are employing someone without the right to work in the UK. For more information and to use the online test visit http://www.businesslink.gov.uk/bdotg/action/layer?topicId=1079133778&r.lc=en&r.t=ONEOFFPAGE&r.i=1081357523&r.s=e
20. PAFs and professional privilege - where do you stand?
Solicitors rely on professional privilege to avoid having to disclose their communications with clients to various third parties such as the court and police. Professional privilege is by no means universal and there are exceptions to it, even for solicitors. However as paralegal advisory firms undertake evermore sensitive legal work for clients, where do they stand regarding professional privilege?
By way of background, the law recognises three 'heads' of privilege each conferring a right to withhold disclosure:
1. The privilege against self-incrimination
2. Legal professional privilege
3. Without prejudice communications
The first head, usually referred to as the right not to incriminate yourself, is, of course, widely enjoyed by the general population. It is the other two heads that are of more relevance to paralegal advisory firms. These are known as the two classes of legal professional privilege:
A. 'Legal advice privilege’ - legal professional privilege arising out of the relationship of solicitor and client
B. 'Litigation privilege' - legal professional privilege relating to communications connected with contemplated or pending litigation
It is important to note that the privilege belongs to the client not to the advisor (though solicitors are under a duty to assert it on behalf of the client).
As independent paralegal advisors/PAFs are not solicitors, 'legal advice privilege' almost certainly does apply to them and advice they give. We say "almost certainly" because the case law relates only to solicitors and not to other advisers giving legal advice. However, on the other hand, there is no case law saying that legal advice privilege does not apply to independent paralegal advisors/PAFs. It may well be that if the matter were taken to court the court might well decide that privilege or to be extended to include independent paralegal advisor/PAF by virtue of the fact that so many are now doing a solicitors' role. However that decision has not yet been taken, and as the law stands at present legal advice privilege also does not extend to independent paralegal advisors/PAFs. Accordingly we would advise you to bear this in mind when communicating with clients. It would also be sensible to draw this lack of protection to their attention so that they do not inadvertently make admissions or confessions in correspondence with you that might adversely affect them subsequently.
In relation to the second head: 'litigation privilege', the client can claim privilege in respect of confidential communications with their solicitor or a third party where the dominant purpose of the communication or document is to use it or its contents in order to obtain legal advice or to help in the conduct of litigation which was at that time pending or reasonably in prospect.
Clearly independent paralegal advisor/PAFs are, at the very least, a 'third party', and so 'litigation privilege' can apply to communications with clients and/or their lawyers depending on the dominant purpose of the communication.
Whilst it is not necessary to head up your communications with disclaimers such as 'Privileged & Confidential etc' because, as mentioned above, the privilege is the client's not the advisors' and what makes it privileged is purely the dominant purpose. Practically speaking it does not hurt to do this though and in cases where either the client or the other side has not instructed a lawyer it may be helpful in stopping any mistakes caused by their likely ignorance of the implied privilege.
However, independent paralegal advisors/PAFs should beware, because the very fact that the client has not instructed a lawyer could be used (or at least construed) as evidence that the dominant purpose of the communication is not for obtaining legal advice or in contemplation of litigation. This might not be a problem where the independent paralegal advisor/PAF is clearly a legal advisory business. However many do not have such a clear cut status, often for example providing specialist legal advice as an adjunct to some other professional service (structural engineer whatever). In those circumstances it may not be clear cut whether the independent paralegal advisor/PAF was approached for technical, non-litigious, professional advice or legal advice in contemplation of litigation. In such circumstances independent paralegal advisor/PAFs are well advised to document the dominant purpose at the outset in writing.
As ever, one of the problems is that this area of law is based upon a very traditional view of the legal profession. Independent paralegal advisors/PAFs are a new phenomenon that the case law has not yet caught up with. At some stage the law will have to take cognisance of them and there is a compelling case that professional legal advice is professional legal advice regardless of the status of the advisor. Unfortunately resolution of that point would require lengthy litigation not only as an element of winning the case at hand, but it is quite possible that solicitors and barristers might wish to interject to try and stop extension of legal advice privilege to perceived competitors. Frankly however we believe that this will inevitably change in favour of independent paralegal advisor/PAFs as the paralegal profession becomes more mainstream.
21. This month's combined edition
This month we've combined the January and February editions. We did this because Dwecember and January were very slow news months, and we'd prefer only to send you a newsletter when we have something worthwhile to tell you.
22. Membership fees revised
Annual membership fees have changed for all members whose renewal date is on or after 1st February and the cost of joining has been reduced.
This has been done to reflect the current financial situation. Some fees have increased a little, some decreased, and some have remained unchanged. In all cases we have removed the initial joining fee.
GRADE OLD FEE NEW FEE
UK Affiliate £15 £15
UK Student £15 £20
UK Associate £47 £50
UK Fellow £88 £90
UK Retired £24 £70
International Affiliate £15 £15
International Student £15 £20
International Associate £35 £40
International Fellow £65 £80
International Retired £20 £60
Corporate <100 staff £147 £100
Corporate >100 staff £323 £200
23. Institute and Land Registry begin work on paralegal conveyancing competency standards
We are proud to announce that we have begun work in conjunction with the Land Registry to create Conveyancing National Competency Standards for paralegals undertaking conveyancing work. Assisting us with this project are two conveyancing experts from the University of Westminster and a hugely experienced practitioner from Nick Peterken, Solicitors.
We hope to have the finished standards available by the autumn of 2009.
If this project is of interest to you then please contact James O'Connell on 020 7887 1420 or e-mail standards@InstituteofParalegals.org
24. Implications of the Legal Services Act
The Act is going to change the legal landscape beyond recognition. Within a decade, for example, there are likely to be more paralegal fee-earners in solicitors' firms than there are solicitors. Watch free online Law Society recordings of recent discussions about, inter alia, the future of legal services and about potential business opportunities, the Legal Services Board. Visit: http://www.lawsociety.org.uk/policy-discussion/future-regulation.page
25. Fusty image and poor pay put women off being judges
A recent article in the Times newspaper reported on women's disinclination to enter the judiciary. Read the article at http://business.timesonline.co.uk/tol/business/law/article5469789.ece?&EMC-Bltn=OLXA2A
26. Disclosing past convictions
Disclosing past convictions can be a contentious issue. An extensive plain-English explanation of the requirements of disclosure are set out on a government website: click here to view (http://www.careersadvice.direct.gov.uk/helpandadvice/exoffenders/disclosure/).
27. Do you backup your e-mails?
Don't take it for granted that any backup system you have automatically backs up the e-mails in your inbox and allows you to easily retrieve them. Although a number of software vendors will sell you programs specifically designed to backup your Outlook inbox, you can properly avoid needing to spend money on their services by viewing this website: http://www.sitedeveloper.ws/tutorials/outlook.htm
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