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AAPI Statement
September/October 2003 Issue

                                                                                                              June 30, 2003

VIA FASCIMILE (202-693-1432)

Tammy D. McCutchen


Wage and Hour Division

Employment Standards Administration

U.S. Department of Labor

Room S-3502

200 Constitution Avenue, NW

Washington, DC  20210

Re:       Comments on the Department of Labor’s Proposed Rule and Request for Comments on
29 CFR Part 541, Defining and Delimiting the Exemptions for Executive, Administrative,
Professional, Outside Sales and Computer Employees

Dear Ms. McCutchen:

The American Alliance of Paralegals, Inc. (the American Alliance) is a non-profit, national
paralegal organization comprised of members throughout the United States. The mission of the
American Alliance is to advance the paralegal profession by focusing on the individual paralegal.
The goals and standards it has set in order to assist the individual paralegal are to:

Establish minimum educational criteria

Adhere to ethical standards

Provide networking opportunities

Create a resource center

Associate with national and local organizations

Proposed Subpart D – Professional Employees disallows a category which has evolved into “a
bona fide
professional capacity.”  While the duties performed by paralegals were previously
described as “a use of skills rather than discretion and independent judgment” through Opinion
Letters issued by the Wage and Hour Division of the United States Department of Labor from
1994 through 1998, this no longer reflects the role of the paralegal.

Changes in the means for delivering legal services to the general public, caused by the changes
in the law firm structure due to economic necessity, have moved the paralegal profession into a
position of providing cost-efficient, effective and quality legal services. As a result, paralegal
responsibilities have become more defined to include the delivery of substantive legal services
by paralegals.

Today, the work of the paralegal is the work that was once done by junior associates or even 
senior lawyers in some cases.  In 1933, the Supreme Court of Washington found that the work of 
a non-lawyer must be such that it "loses its separate identity and becomes either the product or 
else merged in the product, of the attorney himself." [Footnote 1]

Interestingly, it is most likely that the court was not considering the paralegal profession at that
time since it had yet to emerge. However, the indistinction between the work of a lawyer and a
paralegal can be inferred from the court’s opinion.

While paralegals are not required to possess an “appropriate academic degree” to enter the
profession, in order to provide a work product that becomes indistinguishable from the attorney,
the paralegal would be required to have “substantially the same knowledge” as the attorney
thereby meeting the requirement in proposed Section 541.301(d).

As paralegals became more integrated into the legal team and the work delegated to paralegals
became more substantive in nature, attorneys began to include time for both attorney and
paralegal services in fee petitions permitted by state or federal statutes. In the early 1980s courts
began to recognize that paralegals were separate from support staff and encouraged attorneys to
provide legal services in the most efficient manner possible. Courts awarding fees for paralegal
services consistently point out that if the work had not been done by paralegals it would have
been done by attorneys and charging fees based upon attorneys’ rates would have been necessary.

As an example, when considering the recoverability of paralegal time as a portion of attorney
fees, Supreme Court Justice Brennan included the following observation in a footnote with his
opinion for the Court:

It has frequently been recognized in the lower courts that paralegals are capable of
carrying out many tasks, under the supervision of an attorney, that might otherwise be
performed by a lawyer and billed at a higher rate. Such work might include, for example,
factual investigation, including locating and interviewing witnesses, assistance with
depositions, interrogatories, and document production, compilation of statistical and
financial data; checking legal citations; and drafting correspondence. Much such work
lies in a gray area of tasks that might appropriately be performed either by an attorney or
a paralegal. [Footnote 2]

With the issue of whether paralegal time was compensable decided, the courts turned their
attention to establishing the factors on which fee awards could be made. The primary factors
became the qualifications of the person performing the work, the actual work performed, the
detail of the records submitted in support of the fee application and the market rate for paralegal

An outcome of defining the primary factors was an increased emphasis on education.  Many
employers now require a four-year degree and a paralegal certificate from an ABA approved
school.  While this is not mandatory, the industry has evolved to set minimum requirements that
meet the qualification of “knowledge that is customarily acquired through a prolonged course of
specialized intellectual instruction, but which also may be acquired by alternative means such as
an equivalent combination of intellectual instruction and work experience” of a learned
professional as proposed under Section 541.301(a).

Paralegals are well-educated and well-trained with a variety of backgrounds, experience,
education, and job responsibilities across a broad range of practice areas. Only statutory or court
authority or a supervising attorney’s determination of the paralegal’s competency limits the type
of tasks a paralegal may perform. Paralegals perform the same functions as an attorney except
those generally prohibited by unauthorized practice of law statutes, i.e., accepting clients, setting
legal fees, giving legal advice, or representing others in court. However, the delivery of legal
services by non-lawyers before many federal and state administrative agencies is a well-
established fact.

Because the law is complex and often ambiguous, paralegals must be intelligent with an
analytical and logical mind. They must be able to recognize and evaluate relevant facts and legal
concepts. Paralegals have the ability to organize, analyze, communicate, and administer.

Not only has the need for paralegals increased, but the profession has evolved to the point that
the title "paralegal" has needed, in certain circumstances, further interpretation. Today,
paralegals provide diversified and ever-increasing substantive legal work either under the
direction/supervision of an attorney or under statutory authority, agency rule, or court authority
but without the supervision of an attorney and within the bounds of the law.  They may perform
such substantive legal work as court appointed special advocates or agency representatives in
numerous disciplines within the legal arena.

The State of California has gone one step further.  It has defined who is allowed to be called a
paralegal under Section 6450(a) of the Business and Professions Code.  It states:

"Paralegal" means a person who holds himself or herself out to be a paralegal, 
who is qualified by education, training, or work experience, who either contracts 
with or is employed by an attorney, law firm, corporation, governmental agency, 
or other entity, and who performs substantial legal work under the direction
and supervision of an active member of the State Bar of California, as defined in 
Section 6060, or an attorney practicing law in the federal courts of this state, that 
has been specifically delegated by the attorney to him or her.  Tasks performed by a 
paralegal may include, but are not limited to, case planning, development, and
management; legal research; interviewing clients; fact gathering and retrieving 
information; drafting and analyzing legal documents; collecting, compiling, and 
utilizing technical information to make an independent decision and recommendation 
to the supervising attorney; and representing clients before a state or federal 
administrative agency if that representation is permitted by statute, court rule, or
administrative rule or regulation.

Even the Chair of the American Bar Association’s Standing Committee on Legal Assistants in a Letter published in the ABA SCOLA Update, Fall 2002/Winter 2003, Volume 5, Number 1/2, said that law firms need to “change their staffing of matters to emphasize paralegals much more heavily and to reserve for attorneys those duties that truly require the education, training, and experience of a lawyer.”  He also recognized that this task can only be accomplished by providing a pool of educated and talented paralegals to fill the need. As such, formal education now plays a vital role in the development of the paralegal profession.

The American Association for Paralegal Education (AAfPE) advocates that on-the-job training remains an important element in developing successful paralegals.  However, formal education has an increasingly important role.  Formal educational opportunities for paralegals have increased significantly since the profession’s inception.

AAfPE takes the position that paralegal education is a unique academic curriculum, composed of both substantive legal knowledge and professional skills that incorporates legal theory with an understanding of practical applications. This intellectually demanding course of study is derived from the responsibilities of paralegals as legal professionals.  It is the philosophy of this organization that a person is qualified as a paralegal with (1) an associate or baccalaureate degree or equivalent course work; and (2) a credential in paralegal education completed in any of the following types of educational programs: associate degree, baccalaureate degree (major, minor or concentration), certificate, or master’s degree.

AAfPE emphasizes that a quality paralegal education program assists their students in acquiring essential related competencies, primarily in general education: (1) critical thinking skills (analysis, judgment, research, and problem-solving); (2) communication skills (oral, written, non-verbal, and interpersonal); (3) computer skills; (4) computational skills; (5) understanding of ethics; and (6) organizational skills. Graduates also possess a basic understanding of American history, business, and political systems.

Educational programs consists of two-year degree programs found within junior colleges or four-year institutions, and also four-year degree programs and post-baccalaureate certificate programs which continue to increase. Additionally, there are at least six institutions that offer a masters degree in paralegal studies.

 Finally, because there is no license or certificate issued from a governmental body or private entity needed to become a paralegal, the profession itself has taken steps to test for the competency of a paralegal.  The National Federation of Paralegal Associations has developed through a professional examination entity, the Paralegal Advanced Competency Exam and the National Association of Legal Assistants created the Certified Legal Assistant Exam.  Both exams provide the legal industry with an option to evaluate the competency level of paralegals and are responsive self-regulatory programs offering a nationwide credential for paralegals.

The American Alliance has taken a bold step to encourage the profession to require higher standards.  It is the first and only national paralegal association with mandatory educational and/or experience requirements for its voting members.   In order to become a voting member of the American Alliance, you must meet a combination of BOTH educational and work experience totaling six years.

Based on all of the information provided, the American Alliance requests that the Department of Labor consider changing the proposed rule to include paralegals as a learned profession thus allowing employers to consider paralegals as exempt based on their qualifications and level of work.

If additional information is requested, contact should be made with Debbie Repass, Director of National Relations, at 703-503-9309 or by e-mail at [email protected].


                                                                        AMERICAN ALLIANCE OF PARALEGALS, INC.

                                                                        By:  Gwen E. Minnier, President


1 Ferris v. Sniveley, 172 Wash. 167, 19 P.2d 942, 945-46 (1933).

2 Missouri v. Jenkins, 109 S. Ct. 2463, 105 L. Ed. 2d 229 (1989), Footnote 10.

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Updated 08/26/03
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