I’m not having an existential crisis (well, no more than usual), but this relates to the news story from today that Ian Brady’s mental health advocate has been arrested on suspicion of ‘preventing a lawful burial’ by failing to disclose where one of Brady’s victims is buried.
I’m not going to talk about the case, but there was plenty of discussion on twitter as to whether this would be a breach of legal privilege (it’s not) and whether it was wrong or inappropriate to call that individual a lawyer or legal advocate etc. It’s not – and I’ll set out briefly why (there’s a short summary of a Mental Health Advocate’s role here (and more detail here)).
‘Lawyer’ as such is not a protected term. That means that anyone can call themselves that without fear of legal repercussions (it is a criminal offence to pretend to be a Solicitor or barrister or someone otherwise qualified to conduct reserved activities) – although if you start charging money for it you may find yourself hit with a fraud charge. ‘Lawyer’ as a legal term is not defined anywhere in the Legal Services Act 2007 and therefore there are no restrictions on who can, and can’t, call themselves one.
Similarly with ‘advocate’. Although advocacy itself is a reserved activity and is therefore limited to qualified people, anyone can call themselves an advocate (and in fact, appearing as an advocate at many tribunals can be done by anybody)
Giving legal advice is not (yet) a reserved activity – therefore anybody can do it. Although this seems strange at first sight, and could potentially be misleading, I actually think that it makes sense.
One way of looking at it is by comparing it with medicine. If you come into my room coughing and spluttering, I am allowed to say ‘you’ve got (man)flu – get off to bed’ (diagnose you) and give you a lemsip (prescribe medication) – that’s not considered by Parliament to be at the level of requiring specialist skills. I’m not allowed, rightly, to give you amoxicillin or take your appendix out. As with that, there are certain things that anyone can do and some that should be reserved to people with relevant training and, importantly, are regulated by a professional body.
With legal advice, there are many people who are not solicitors/barristers/ILEX members etc who perfectly properly give legal advice (debt and financial advisors spring to mind) as part of their role. Also, for example, Lord Judge, the Lord Chief Justice is not anymore a practising barrister (I imagine), but would anyone suggest that it is wrong to call him a lawyer? Surely not. Likewise with someone who is, for example, a law lecturer.
So. Anyone is free to call themselves a lawyer. We have to rely on the consumer to recognise that, for specialist legal advice, or for certain legal activities, they need the protection of someone who is regulated and insured (and certainly if they are paying money for it they definitely should). If there is any doubt, then ask them – are they a barrister or solicitor? If they lie, then that is a criminal offence. Depending on the circumstances of course, if someone calls themselves a ‘lawyer’ rather than barrister or solicitor, this could cause alarm bells to ring.
This isn’t related to the case mentioned above – I know nothing of the facts of it and I’m not saying that anyone has done anything wrong.
But, in answer to who is a lawyer? Anyone who wants to call themselves one.