Lawyers, advocates and the perils of description

Those of us who follow Giles Peaker on twitter (as @nearlylegal – follow him, he’s excellent especially if you have any interest in in housing) will know of his penchant for taking unregulated legal services providers to task about the way they describe their offerings to the public.  I’m glad to say he’s written up some of these encounters in a blog post well worth a read for those of you interested in the regulation of legal services.

His basic concern is that clients will be misled by claims from these unregulated suppliers that they are ‘lawyers’ when they are not solicitors and barristers (or CILEX or… etc.). Another concern is they claim to be advocates, but do not have rights of audience.  Some also claim to be scholars of jurisprudence. Giles seems less worried about them. I will not speculate as to why.

Of course one can claim to be a lawyer if one delivers law in some form (and indeed my own work has shown such ‘non’-lawyers can – in the right circumstances – get pretty good at it).  And I suppose one can say one does advocacy if judges permit me (sometimes? regularly?) to represent my clients even if I do not have a right of audience (say as a McKenzie friend or in tribunals where I do not need such a right of audience). Voila, I am an advocate: like it or not because the term is not protected by legislation.   The ‘truth’ of such claims does not mean the clients are not misled however.  By describing myself as a lawyer clients might be misled into thinking I am similarly qualified to being a solicitor (my recollection is that LSB/LSCP  research pointed in this direction). And saying I am an advocate does not mean I can definitely represent you if I do need a judge to allow me to act as an advocate without a right of audience.  There are even greater problems if I imply I am able to conduct litigation.  As Giles points out, clients of ‘advocates’ or ‘lawyers’ outside of legal services regulation are unlikely to have the post facto protections of claiming on their lawyers insurance or making complaints to the Ombudsman if things go wrong. They are not big protections but they are not insignificant either, especially the Ombudsman.

Giles is doing a manful job in collating this kind of potentially misleading (and sometimes I think more unequivocally misleading) marketing by unregulated providers. What he is not really able to do is collect much evidence of actual harm or the even trickier job of balancing the potential harms and the potential benefits of a cheaper unregulated sector where the law demands no regulation.  (In fact, whether it is cheaper is not much evidenced, I think, outside of wills.)  Neither the LSB nor the LSCP have shown they have the resources to do this properly either (the LSCP’s McKenzie Friend research did more than scratch the surface but it is quite a long way from an adequate evidence base for policy in the area). What we essentially have is educated guesses and interesting stories about the dark recesses of what may be a sizeable part of the legal services market. It is also an important part of the market aimed at the interests of sometimes vulnerable consumers. We should do better.

 

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About Richard Moorhead

Director of the Centre for Ethics and Law and Professor of Law and Professional Ethics at the Faculty of Laws, University College London with an interest in teaching and research on the legal ethics, the professions, legal aid, access to justice and the courts.
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