About Proposed Regulation of Paralegals
...Some in the legal profession endorse paralegal regulation that expands the role and activities of paralegals in order to improve public access to affordable legal services while protecting the public. NFPA strongly supports this view. In its Statement on Issues Affecting the Paralegal Profession, NFPA states that public protection and professional accountability are integral to any regulatory plan, but first, it is necessary to do the following:
- Identify traditional and nontraditional areas in which paralegal roles and responsibilities can be expanded;
- revise the applicable Rules of Professional Conduct or Code of Professional Responsibility to allow for expanded roles and responsibilities for paralegals, including: (1) revision to the references concerning ultimate responsibility and accountability of a lawyer for paralegal work, rather than under direct supervision and (2) revision to references concerning nonlawyer partnerships with lawyers and fee-sharing arrangements with nonlawyers;
- provide a model for revisions to court rules that would permit expanded roles and responsibilities for paralegals; and
- provide a model for expanded rules of practice in state administrative agencies for representation by paralegals and other qualified nonlawyers.
In line with this expanded role of paralegals, NFPA endorses regulations that recommend mandatory licensing and proposes a two-tier program, including standards for education, standards to measure competency, ethical rules and a disciplinary process. NFPA also believes that any licensure plan should define those tasks that may be performed by paralegals in numerous specialty areas of law. While recognizing that the regulation of nonlawyer activity is best addressed at the state level, NFPA urges the legal community to recognize its responsibility to provide the public with various levels of services at different levels of expertise and costs.
Currently, some voluntary registration programs allow for the expanded role of paralegals. In various counties in Washington, including King County, Pierce County and Spokane County, the bar associations have established voluntary registration programs that allow qualified nonlawyers to perform certain direct services. For instance, a paralegal in these counties can register with the bar or the court to present ex parte orders.
A mandatory registration is required for certain nonlawyer direct service providers in states such as California. For instance, "legal document assistants" and "unlawful detainee assistants" in California are subject to registration and bonding under Business & Professions Code Sections 6402 and 6405 respectively. To be eligible to register, the applicant must meet minimum educational or experience requirements according to Section 6402.1.
Arizona has a similar provision in its Code of Judicial Administration. Section 7-208 requires legal document preparers in Arizona to meet certain minimum education requirements, experience requirements, and pass a written examination.
The Wisconsin Supreme Court is currently considering a proposed form of paralegal licensure. Endorsed by the Wisconsin State Bar, the proposed licensure program was drafted by State Bar's Paralegal Task Force. It is intended both to establish professional standards for paralegals and to improve the use of paralegals in an effort to meet some of the legal needs that currently go unserved. If enacted, it would be unlawful for a person in Wisconsin to use the title "paralegal" unless licensed. To be eligible for a paralegal license in the proposed system, the person must meet certain post-secondary education, training requirements, and continuing education standards.
Not everyone agrees on the need for mandatory regulation of paralegals. Certain courts and paralegal organizations believe that consumers of legal services are adequately protected by the license of the lawyer for whom the paralegal works, and that regulation may hinder the growth of the profession.
In 1999, the New Jersey Supreme Court declined to adopt a paralegal licensing system and concluded that paralegal oversight is best conducted by the lawyers who supervise the paralegals and are accountable for their work. The court recommended that the New Jersey Bar Association work with the paralegal community to create a certification program as a means to recognize and identify qualified paralegals.
The Washington State Bar Association Board of Governors also turned down a paralegal licensing proposal by the Washington State Practice of Law Board, which would have established a process to license certain nonlawyers to render assistance or advice in defined areas of law.
Several paralegal organizations have published statements against licensing paralegals. NALA, with a membership composed of more than 18,000 paralegals, through individual membership and its 90 state and local affiliated associations, opposes any mandatory regulation. In its statement to the New Jersey Supreme Court, NALA argued that there is no demonstrated public need to regulate paralegals who work under the supervision of a lawyer. NALA instead supports voluntary self regulation through its national professional certification program.
Likewise, the International Paralegal Management Association (IPMA), an international association of paralegal managers, opposes any type of mandatory regulation of paralegals. In its Position Paper on Paralegal Regulation, IPMA argues that regulation will not increase the standards of the profession nor expand the role of paralegals.
It is the job of the consumer to determine the value of legal services. Clients will continue to protest fees for inadequate or overpriced legal services, and the courts will also play a role by awarding fees for substantive paralegal work and refusing to award fees for clerical work whether performed by a lawyer or a paralegal.
Like NALA, IPMA believes that mandatory regulatory programs may hinder the growth of the profession. It argues that such programs are costly to implement and may be translated into higher salaries and higher billing rates, which in turn will increase the cost of paralegal services.
Regulatory requirements, IPMA argues, may deter college graduates considering law school from first working as paralegals and may deter those in other industries from considering the paralegal field as a second career. This may deprive firms from hiring other types of otherwise qualified candidates. Regulation may also prevent firms from collecting court-approved fees for paralegals who do not meet regulatory requirements.
Whether the paralegal regulation is voluntary or mandatory, lawyers are ultimately accountable for the work done by a paralegal under their supervision. Needless to say, lawyers must verify academic credentials and prior work history when considering a paralegal and must ensure that their paralegals are informed of changing laws and ethical concerns....Source: http://apps.americanbar.org/buslaw/blt/2007-01-02/durgin.shtml