Panacea or Pandora’s Box
Has the time come for regulation?
By Susan Howery
July/August 2001 IssueAt 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.
ABA
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.”
LAMA
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.”
NALA
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.”
NFPA
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
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. |
