Only Time Will Tell

LAT takes a look at the future of the paralegal profession.

By John Caldwell

September/October 2002 Table of Contents

A once little-known, yet pioneering legal profession is carving out an ever-more-important role in a rapidly changing legal landscape. However, increasing numbers of paralegals are banding together through a diverse array of associations to search for definition while heading into the profession’s fourth decade.

As current events create the future foundations of expansion for a highly dynamic legal industry, those within the profession ponder and debate what the future holds for them. Will paralegals move closer to actually practicing law in some limited ways? Will regulation of the profession become more strident? And what role will technology play in the continued development of paralegal careers?

Some experts said they believe education is the only true barometer for quality and success in the profession. Where and how long a paralegal attended school is frequently measured against methods for establishing how much he or she actually learned and applied at work. Discussions about education often lead to larger debates about certification. How certification will not only govern education, but whether it will become mandatory, is seen by many as a critical issue.

Additionally, the expanding role of paralegals as the curators of information in the law firm often means technology is central to their job descriptions. Techno-savvy lawyers and legal technology consultants almost universally agree paralegals who champion technology will find themselves at the head of the pack; a pack of increasingly competitive and career-minded paralegals vigilant in their pursuit of the lead in a tumultuous legal race.

In this article, Legal Assistant Today asks some experts and seasoned professionals what the future holds for paralegals in the next five years. What can paralegals expect to be doing and what will be expected of them in 2007? And what do the changes we are currently seeing bode for that future? Almost all the experts LAT interviewed agree a brisk expansion of duties and frenzied competition currently define the profession, so attempting to predict what will happen could be daunting, but important none-the-less.

Carrying More Weight

The areas of expanding legal practices that defined the past few years have created many new areas of opportunity for legal assistants. Almost as if by inertia, paralegals have been breaking into a number of specialized areas including environmental law, technology, immigration law, national security and corporate mismanagement. This isn’t to say members of the profession have not been pushing for expanded roles, but the past few years have demonstrated a drive by corporate and law firm clients to reduce costs while maintaining quality — and that often means bringing legal assistants into the mix.

To meet the increasing legal needs of our complex modern society, many firms have been hiring more paralegals. One prediction from a number of experts that carries considerable weight is that the ratio of paralegals to lawyers will continue to increase during the next five years as law firms recognize the potential for profitability — boosting opportunities for those entering the profession. By not only expanding paralegal roles in the firm, law firms that increase the number of paralegals on staff can boost revenue by offering clients quality services at lower rates.

“I recently read an article about a law firm that had altered the paralegal/attorney ratio so that paralegals outnumbered the attorneys,” said Mary Ellen Perkins, president of the Legal Assistant Management Association. “It resulted in dramatically higher per-partner profits, and greater satisfaction among young associates who are better able to delegate discovery and drafting tasks to paralegals. We’ll be seeing more substantive work delegated to paralegals and increased specialization [in the next five years].”

As law firms become more specialized, so too do paralegals, agreed Vicki Kunz, CLAS, a risk management specialist for MDU Resources Group Inc. in Bismarck, N.D., and president of the National Association of Legal Assistants. With titles that denote their higher credentials, such as litigation manager, trademark administrator or risk management specialist, a larger percentage of paralegals will take on roles as specialists. As time passes, widening varieties of clients might become attracted to the idea of paralegals who possess special skills handling more significant legal work, albeit under the supervision of an attorney.

“Work that is administrative in nature is not billable and work that requires substantive legal knowledge is,” Kunz added.

She cautioned, however, that this doesn’t mean paralegals will ever take the place of lawyers by representing clients in the courtroom, a hotly contested issue that has recently had some judges and state lawmakers weighing in on the matter.

“There has been no indication of need for this,” she argued, “nor would it be supported by lawyers who are currently the only ones allowed to represent clients in court. I do not see this changing in the next five years.”

Lee Davis, the immediate past president of the National Federation of Paralegal Associations, agreed. Even as the regular duties performed by paralegals continue to expand to meet the demands of rapid change, she said there is little chance that will lead to paralegals engaging in the practice of law. “We are hoping that as the profession gains more credibility through regulation and standards, paralegals will be attending default hearings, certain depositions and [helping with] the production of documents,” Davis further explained.

However, Davis noted this will not happen without a statute or other rule to guide the profession, comparing the paralegal future to that of nursing and nursing assistants.

“I don’t think paralegals are looking to be minilawyers,” Davis said. “I can see us working in a limited expanded capacity, but it’s going to take time. We need to get standards set first. I personally cannot see us going in and doing depositions and hearings in the next five years.”

Short of actually practicing law, Attorney Robert J. LeClair, president of the American Association for Paralegal Education and head of the paralegal program at Kapi’olani Community College in Hawaii, said he hopes to see the envelope pushed out a little more, giving paralegals a chance to fill a more important role in the legal system — maybe to include giving legal advice to clients.

“I’ve been a little disappointed in lawyers not willing to move in that direction,” he said. “We’ve been too reluctant to experiment with paralegals. There’s a huge need in our population for legal services.”

Definitions and Regulations

Standards, such as those that Davis alluded to, can be established with adequate regulation of the paralegal profession, she explained. Associations such as NFPA have been pushing for increased regulation for some time, and the next five years will likely mark a significant increase in various types of regulation in her opinion.

“From my readings, most paralegals are for [regulation],” Davis explained, noting that in Arizona, paralegals are pushing the state bar to make paralegal regulation a reality.

“It’s really aimed at controlling some of the unauthorized practice of law. They’re working on bringing some level of professionalism to the profession. One of the problems is we have no standards,” Davis said.

Some argue that such standards will continue to be self-regulated by the profession on a voluntary basis, rejecting the notion that government should step in and provide the type of framework currently in place for attorneys. As long as paralegals remain under the supervision of those who are licensed by the states, such as attorneys, many in the profession, and some of LAT’s interviewed experts said they believe there will be no need for additional government oversight.

On the other hand, certification through testing could — within the next five years — become a broader symbol of standards; a benchmark expected by attorneys looking for paralegals best suited to take on expanded duties. But whether certification will continue to be voluntary or become mandated by some oversight authority is still far from universally agreed upon, and because there is greater opportunity for disagreement on legislative particulars, definitions, such as the common one adopted by the American Bar Association, NALA and LAMA might be a lot more prevalent than legislation in years to come.

“For generations, professions have routinely established standards through voluntary certification procedures that are administered by their professional organizations,” Kunz said, noting she believes this will remain true of the paralegal profession.

“I predict that standards will remain the main focus. Legal assistants and their employers are insisting on established standards to differentiate paralegals from others in the legal field, and such standards also serve to recognize professional achievement.”

Davis, however, said she sees a need for something more, such as the paralegal regulations governing minimum education and experience currently in place in California. With additional court rulings and state legislation, she said, the paralegal profession can take the next step, achieving recognition that goes beyond what associations are able to provide.

“It’s not going to happen on the association level,” Davis argued, “because we already have definitions. It’s going to have to be on a government level.”

It’s also worthy of note that NFPA’s membership recently eliminated the title of legal assistant from the association’s definition of a paralegal (see July/August 2002 LAT). It was a move Davis called necessary to draw a line of distinction between secretaries and legal support staff being rewarded with the legal assistant title, and the trained paralegal.

“Law firms are really driving this,” Davis said. She added that NFPA’s move will eventually lead to the dissolution of the profession’s ability to use the titles of legal assistant and paralegal interchangeably.

However, as the various paralegal associations focus more on the pressing need to raise professional standards, Kunz said she believes legislative activity that seeks to define the paralegal profession might well decline, offering a counterpoint to Davis’ perspective. Moreover, NALA’s new president said she believes increased use of voluntary certification will likely supplant efforts to legislate the profession.

“It is only those who hold certification, and a reputation of excellence for the career field, that impart stature,” she said. “Surveys have demonstrated consistently that certification is a factor in enhancing the economic opportunities of both the paralegal and the employer. Paralegals wanting additional recognition to set them apart from others in their field will continue to seek certification and specialty certifications as the obvious path to promote their stature in the legal community.”

However, voluntary certification exams can only impart limited stature to the profession, LeClair argued.

“The problem is the superstars get certified,” he scoffed. “The bad ones don’t take the voluntary tests.”

He said mandatory testing is necessary to ensure legal expertise and will likely play a role in the future of the paralegal profession, but he refrained from saying it would happen in the next five years.

“I firmly believe in the paralegal profession,” LeClair noted. “It makes me mad that anybody can come along and say that they are one.”

To that end, a number of state legislatures, bar associations and both state and regional paralegal associations are endeavoring to tackle the issue of what standards are appropriate for defining the scope of legal assistant work. Some are incorporating voluntary certification; others, as noted in LAT’s November/December 2001 issue, are adopting various efforts to regulate the profession on their own.

Growing Requirements

LeClair’s concerns about a lack of educational standards were addressed last year when AAfPE reaffirmed its strict requirements for member schools that mirrored ABA guidelines for the minimum number of credits needed to get a paralegal certificate. AAfPE also set forth its own definition of a paralegal. The impetus for which was the association’s recognition of a need to develop a heightened stature for paralegal education and to ensure that at least some schools lived up to it, LeClair noted.

Many paralegals and educators described these actions as steps in the right direction, but they still see a need for higher educational standards in the next few years. A proposed requirement of a four-year degree for paralegals seeking certification has become a hot topic in the industry recently.

Davis said she likes that idea. In addition to the advent of widespread regulation governing testing and experience, she said she hopes regulations eventually will require paralegals to obtain a four-year degree in a general subject before enrolling in a paralegal certificate program.

“I do believe it’s going to become a reality in five years,” she said. “Attorneys are looking for accountability. Especially if we’re looking to expand [paralegals’] roles, we’ve got to have some standards set.”

Davis claimed many distinguished law firms already require paralegals to have a four-year degree plus a certificate from an ABA-approved school. “It’s already happening,” she explained. “It’s pushing itself.”

But there also needs to be a grandfathering element in any official requirements that exempts those paralegals whose experience dictates their abilities, she contended.

LeClair agreed that minimum educational requirements could be enhanced over time, but stopped short of advocating that legal assistants be required to get a four-year degree.

“I don’t personally think that’s necessary,” LeClair said, arguing community colleges can do a great job of creating competent and effectively trained paralegals, but the need for ABA standards to govern them is still an overriding concern.

Five years from now, there might be industry-wide ABA regulation, he said, but getting dubious lawyers to acquiesce will be difficult. “Lawyers don’t want people telling them what to do,” he said.

Before that happens, two emergent trends will continue to plague LeClair with distress: Short-term programs that lack ABA guidelines for minimum credit hours; and distance education.

The former is a consequence of an increasing number of students looking for a faster route through the educational process.

Today’s students read less and possess shorter attention spans, LeClair said. Thus, he said he believes many are gravitating toward “short-term” paralegal programs that offer course work containing, what he termed, inadequate levels of instruction.

The latter can largely be attributed to the pursuit of profits.

“One of the biggest challenges we face is what the role is for distance education,” LeClair said. “The assumption that we’re going to be able to train people [this way] is a huge leap of faith.”

In the next five years, bigger and bigger schools will offer more distance education as they seek to capture more students, LeClair said.

“The driver has been to make money through this mode of education,” he said. “The result is going to be a flattening of the quality. I’m very worried that five years from now … there’s going to be a drop in quality [paralegal education],” he noted.

However, a number of schools, many of which receive state subsidizing for disadvantaged students, will continue to hold their own, LeClair offered. “We have a large number of schools that are committed to quality and they’re not going to change.”

A Techno Coup

With the precipitous expansion of legal technology comes additional opportunities for paralegals to solidify their positions in the next five years. As those employees of law firms who often use technology the most, legal assistants will likely become more depended on by attorneys and support staff.

“Smart paralegals will advance by making themselves experts in technology,” said Ross Kodner, an attorney and president of MicrowLaw Inc., a legal technology consulting firm in Milwaukee. “There’s really no one better positioned to head the charge in this area.”

Kodner also sees a trend in which law firms looking to increase profits are hiring more paralegals, thereby bolstering the profession. “One way paralegals can push that process is to become invaluable in technology,” he said.

And one area in which paralegals could be the champions is case management systems. As document and case management software continues its steady move out of obscurity and into the law office limelight, paralegals are frequently the ones holding the reigns. They are the curators and managers of information; therefore, they can ride the wave of interest in this new mode of practicing law.

But don’t expect it to happen overnight, cautioned Andrew Z. Adkins III, an attorney and legal technology consultant in Florida. Case management systems force firms to change the way they practice law, so most are reticent about implementing them. Currently, about 27 percent of the industry uses case management software, according to a recent survey conducted by Law Office Computing.

“I don’t think you’re going to see a big growth spurt,” Adkins said. “Over the next five years, you’ll see a slow increase.”

Adkins agreed paralegals can buoy expansions in the use of technology, thus increasing their own worth. “People talk about going paperless,” Adkins said. “But then there’s more stuff in the computer that you have to go in and find. I see paralegals playing a major role. They are the ones finding stuff in the computer. They are the ones who know how stuff works.”

Adkins asserted “knowledge management” is the next big step in legal technology. Knowledge management is basically consolidated systems that incorporate documents, litigation, research, client relations and financial information. This will help paralegals handle more tasks efficiently. Additionally, Adkins explained, some new systems actually analyze data contained in documents. Using what is called “fuzzy logic,” a search for the word “automobile,” for example, could also produce “car,” “boat” or “truck,” helping the user to find other key concepts and information related to a case.

“I think we’ll also see more online collaboration, such as videoconferencing,” Adkins continued. “I think paralegals are going to be the ones actually doing the work.”

It will be gradually more incumbent upon paralegals to move stubborn lawyers and antiquated law offices onto the Web, Kodner explained, adding that legal assistants should push for more online presentation and electronic transfer of information. “As law firms exploit the Web, I think there is a significant role for paralegals in that process,” he said. “In other words, get Web-savvy quick.”

The use of trial presentation software, such as TrialDirector or Sanction, also will steadily increase over the next five years, Kodner postulated. “This is another quiet revolution that’s happening,” he pointed out. “It behooves any paralegal to become intimately involved in the process and become the in-house experts in this area.”

Both Adkins and Kodner agreed that most, if not all, legal assistants will have their own handheld Personal Digital Assistant’s or BlackBerry’s within five years, and any paralegal whose work takes him or her outside of the law firm at least 20 percent of the time will probably be equipped with a firm-supplied laptop computer.

All hardware and software will become more user friendly, but some problems that exist in legal technology today will inevitably continue. “Unfortunately, we’re still going to be seeing problems with the conversion between [Microsoft] Word and WordPerfect,” said Adkins, noting both versions will continue to permeate the industry and, from his perspective, lawyers and their paralegals will always have to know how to use both.

Prepare for Opportunity

Technology is going to be easier to use, offering opportunities for advancement. Regulation, whether voluntary or mandatory say the experts, will provide more stature, securing jobs and higher pay for paralegals in the field. And the pressure on law firms, big and small, from clients to keep fees down and service quality high will force corporate and law offices to hire more paralegals with expanded functions beyond what has been the norm lately.

“In such a dynamic situation, continuing legal education will be crucial for the career paralegal to keep up,” Kunz said, “or they will be left behind.”

And no one wants to be left behind as the paralegal profession moves forward, but it will not be a smooth ride. Despite the field’s growth in popularity, or perhaps because of it, competition for employment positions will become more intense (see March/April 2002 LAT). With national associations such as NFPA and NALA differing in their approaches to the tools or mechanisms that will allow expanded roles for legal assistants, the progress might be slow. However, debate is often the parent of invention, and paralegals have choices, both in terms of the affiliations, and the level to which they wish to advance their professional roles. How will they do so?

Only time will tell.