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Panacea or Pandora’s Box
Has the time come for regulation?
By Susan Howery

July/August 2001 Issue

At the 2001 Arizona Paralegal Conference in Phoenix, one of the speakers raised questions about regulating the paralegal profession in a presentation called, “Regulation of the Paralegal Profession: Panacea or Pandora’s Box?”

The notion of regulating has been a quandary among those in the legal world for some time. Arguments for and against having a nation of regulated paralegals are broad, but those arguments are now more prevalent than in years past since state leaders and courts have begun to entertain the idea of regulating legal assistants.

The paralegal profession has been around for more than 30 years. The time may have come for it to define itself and set some professional standards for those who use the title “paralegal” or “legal assistant.” This is particularly true for those of us in Arizona, where there is no unauthorized practice of law (UPL) statute, and where anyone desiring to do so may use these titles freely.

As a student, you may feel removed from or disinterested in what is happening with respect to regulation nationally. You are probably trying to push through your studies, and have little time to consider the ramifications of regulation. However, you should know this might affect your ability to get a job, might limit or expand your duties and might change the entire practice of law as we know it.

For example, the State Bar of Arizona’s Consumer Protection Committee issued a “Report and Recommendations,” on how to deal with UPL issues. The report, which was approved by the bar’s board of governors, recommends establishing a definition and certification process for supervised paralegals. In a separate report by the Attorney General’s Paralegal Committee, titled “Definition of Legal Assistants and Paralegals,” there were a couple of references suggesting a need for paralegals to obtain a four-year degree.

How many of you are pursuing a four-year degree? Most paralegal programs in the United States are connected to associate degrees. If the committee takes the attorney general’s recommendation to heart, a four-year degree might soon be one of the requirements to work as a paralegal in Arizona. Therefore, it’s worth carving out some of your valuable time to keep abreast of the latest regulation news, so you can take advantage of shaping the future of the paralegal profession rather than allowing it to shape you.

Has the Time Come for Regulation?
Professionals generally self-regulate, meaning members of the profession set the ethical and professional standards of behavior.

To a large extent, attorneys engage in self-regulation, but they also are regulated by the state in order to protect the public’s interest.

Many believe the time has come for the paralegal profession to establish a regulatory scheme that state authorities would adopt and enforce in order to protect public interests.

At the Arizona convention, Robert LeClair, president-elect of the American Association for Paralegal Education (AAfPE), suggested reasons why he personally thinks members of the legal community might decide to regulate the paralegal profession:

  • To protect consumers from harm caused by unethical legal professionals
  • To promote high standards
  • To provide recognition for the profession
  • To prevent unqualified persons from claiming to be professionals or working in the profession
  • To expand the role of the paralegal professional
  • To serve as a basis for awarding statutory fees for the work of the professional.

These all seem to be valid reasons for regulation. However, the national associations don’t agree on whether to regulate the profession, so it’s worth examining each of their positions to understand where the quandary lies.

National Association Positions on Regulation
The national associations differ in their opinions about whether regulation is needed, and what type of regulation is needed. Some say there isn’t a need to regulate paralegals. Others support a voluntary regulatory scheme that certifies paralegals, or no regulation at all. Still others favor keeping the status quo, arguing the benefits of regulating will not outweigh the costs and efforts of implementing a scheme. They also argue there isn’t a documented need at this time. It’s important to note that most of these groups believe paralegals must work under the supervision of attorneys, and because attorneys are licensed, there is regulation in place already.

The following are excerpts from some of the national associations’ statements regarding regulation.

The American Bar Association has a Standing Committee on Legal Assistants (SCOLA). SCOLA’s “Position Paper on the Question of Legal Assistant Licensure or Certification” states, in part:

“Licensure of legal assistants does not have any benefits to the public, to the legal profession, or to the legal assistants. … Certification of minimal legal assistant competence does not have benefits that would justify the time, expense and effort of its implementation.”

The Legal Assistant Management Association’s (LAMA) “Position Paper on Legal Assistant Regulation” states, in part:

“LAMA is currently opposed to mandatory regulation of legal assistants. In particular, LAMA is not in favor of broad-based state or provincial licensing of legal assistants. … LAMA supports voluntary regulatory schemes that expand legal assistant responsibilities.”

The National Association of Legal Assistants (NALA), says in its “Issues Related to Licensure and Governmental Regulation of Paralegals:”

“1.    There is no demonstrated public need to regulate paralegals.
2.    This procedure would increase the cost of paralegals to employers.
3.    This procedure would increase the cost of legal services to the public.
4.    This procedure does not allow for the growth of the paralegal profession nor does it encourage the utilization of paralegals in the delivery of legal services.”

In its “Statement on Issues Affecting the Paralegal Profession,” the National Federation of Paralegal Associations (NFPA), explains under its position on regulation that there are provisions that encourage the expansion of paralegal roles in the future. Those include the following:

  • “a preference for a two-tiered licensing plan, which constitutes mandatory regulation;
  • a recognition that another form of regulation, (e.g., certification or registration, may be appropriate in a given state);
  • an acknowledgement that standards should be set on ethics, discipline and education, and a method to assess advanced competency of paralegals should be in place;
  • a preference for establishing a disciplinary process, and defining tasks that may be performed by paralegals in numerous specialty areas of law.”

AAfPE doesn’t take an official position on regulation, but it does concede the following in its position statement on educational standards for paralegal regulation proposals:

“Certain educational components should be required in any paralegal regulatory plan. AAfPE recommends state legislatures, courts and bar associations considering paralegal regulation should adopt or include the AAfPE educational minimum standards.”

State Outlook
It’s obvious from reading the above positions that there is no agreement on whether regulation is necessary, what sort of regulation is required and whether the time has come to regulate.

Despite a lack of consensus among the major paralegal associations, several states have moved forward to consider regulatory schemes. If states are considering regulatory schemes, it might not be a decision left to the national associations, except to the extent they can lobby their positions.

New Jersey — The state Supreme Court considered and rejected a licensure proposal in May 1999. The Court concluded that paralegal oversight is best conducted by supervising attorneys who are responsible for all legal work done by a paralegal.

Arizona — Currently looking at criteria for licensing paralegals. The state bar has asked a consumer protection committee to investigate and make recommendations.

California — On Jan. 1, 2001, Assembly Bill 1761 went into effect. This bill defines the term “paralegal” and “legal assistant” and prohibits activities for paralegals, and requires continuing legal education. Paralegals are not allowed to work directly for the public. However, one can register as a Licensed Document Assistant (LDA) under Business & Professions Code 6408.

Hawaii — Certification proposal was recently killed. (See “Hawaii Kills Certification Proposal,” Page 26 of this issue.)

Oklahoma — The Oklahoma State Bar Board of Governors adopted minimum qualification standards for legal assistants and paralegals in September 2000.

Washington — In October 2000, the Washington State Bar Board of Governors unanimously approved establishing a Practice of Law Board that would have the authority to grant permission to nonlawyers to practice law in limited areas. The proposal is before the state Supreme Court.

I have heard other states are making motions toward regulation, such as redefining UPL.

Although I don’t have the entire list presented in this column, like it or not, there seems to be a movement towards regulation. If it is happening in your state, you might want to consider setting aside a little time to get involved with your local paralegal association’s work on regulation.

There generally is a task force appointed by the courts or associations that includes paralegals to flush out regulation options.

Also, there is usually a comment period set aside to gather public and legal community feedback on proposed regulatory schemes, where you can submit arguments. Whatever happens in your state directly affects your future, as well as the future of the profession. This is important, and I promise that you will feel a sense of satisfaction if you become one of the players.

Susan Howery is the paralegal program coordinator for Yavapai College in Prescott, Ariz. She held the same position at Davenport College in Kalamazoo, Mich., for several years. Howery also taught in both programs. She initiated and advised two student paralegal associations and has been active in state and local paralegal associations. Howery is on the American Association for Paralegal Education (AAfPE) Board of Directors as the representative for associate degree programs. She was the legislative chair of AAfPE and the 1998 annual conference co-host. She also hosted the 1996 regional AAfPE conference in Phoenix.

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