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Regulation Update
November/December 2001 Issue

LEGAL ASSISTANT TODAY has compiled a listing that shows bar association, Supreme Court or legislative activity relating to paralegal identification or various forms of regulation nationwide, as of September 2001. Since it isn’t an all-inclusive list, contact your local bar association or paralegal association to obtain detailed information for your state.

The following regulation update was compiled by Rachel Ng, with the aid of the National Federation of Paralegal Associations (NFPA), NFPA’s Legislative Committee Chair Stephen P. Imondi and NFPA’s Vice President of Positions & Issues, Lesley G. Cox, RP.

Alabama Code Section 6-5-572: Although the Alabama code defines “legal service provider" as “anyone licensed to practice law by the state” or “engaged in the practice of law,” the code also expands this definition to include “legal assistants/paralegals.”

Last year, the Arizona Bar directed its Consumer Protection Committee to look into recommendations that could include a paralegal definition. The recommendation includes creating proposed rules covering issues ranging from the parameters of paralegal and mediation practice to rules and remedies for the unauthorized practice of law. Several paralegals from various associations in Arizona got together to form the Private Working Group. They contributed a paralegal definition and recommended regulation of the profession despite being split on how the latter would be implemented. The recommendations were submitted to the bar committee in May.

Senate Bill 433 redefines unauthorized practice of law (UPL) and increases penalties. It was passed in both houses and was signed into law by the governor.

On Sept. 15, 2000, Gov. Gray Davis signed Assembly Bill 1761 into law. The bill defines who a paralegal is in California. Assembly Bill, AB 1083 seeks to define paralegal, law clerk, legislative advocate, law librarian, case clerk and other persons. AB 1083 has been amended several times and was passed by both houses and sent to the governor on Sept. 4, 2001.

The Colorado Bar was one of the first to establish guidelines for the use of paralegals. The guidelines address 19 specialty areas and can be found at www.cobar.org/comms/paralegal/

The Connecticut Bar Association defines a legal assistant as a person, qualified through education, training or work experience, who is employed or retained by a lawyer, law office, governmental agency or other entity. The performance must be under the ultimate direction and supervision of an attorney. For more information on the guidelines, go to www.ctbar.org/public/committees/paralegals/

Rule amendments regulating the Florida Bar are before the state Supreme Court. These rules could punish legal professionals misusing the titles “paralegal” and “legal assistant.” Such a person must work for or under the direction/supervision of a lawyer or authorized business entity.

Revised May 20, 1983, the Georgia Advisory Opinion No. 21 defines a paralegal: For the purposes of this opinion, the terms "legal assistants," "paraprofessional" and "paralegal" are defined as any lay person not admitted to the practice of law in this state who is an employee of or an assistant to, an active member of the State Bar of Georgia or of a partnership or professional corporation … of active members of the State Bar … and who renders services relating to the law of such member, partnership or professional corporation under the direct control, supervision and compensation of a member of the State Bar of Georgia.

On Oct. 27, 2000, the Hawaii State Bar Association’s Task Force on Paralegal Certification approved two proposals that together could impose a degree of regulation on paralegal use in Hawaii and require certification of legal assistants in the state. The mandatory paralegal certification proposal failed to win the state bar association’s approval earlier this year. The decision is now before the Hawaii Supreme Court.

On July 7, 1995, the Illinois governor signed Senate Bill 995, which amended the state’s statutes to add section 1.35 defining a paralegal: "Paralegal" means a person who is qualified through education, training or work experience and is employed by a lawyer, law office, governmental agency or other entity to work under the direction of an attorney in a capacity that involves the performance of substantive legal work that usually requires a sufficient knowledge of legal concepts and would be performed by the attorney in the absence of the paralegal. A reference in an act to attorney fees includes paralegal fees, recoverable at market rates.

In 1993, an Indiana statute defined paralegals as "employed by a lawyer, law office, governmental agency or other entity" to work under an attorney’s direction, performing "substantial legal work that usually requires a sufficient knowledge of legal concepts" and that an attorney would perform in a paralegal’s absence. The Indiana Supreme Court adopted Guidelines on the Use of Legal Assistants, part of the Indiana Rules of Professional Conduct.

The Iowa Code of Professional Responsibility states a nonlawyer employed by a lawyer, law firm, agency or other employer may be referred to as a legal assistant if the majority of his or her job responsibilities include duties such as investigation, legal research, preparation or selection of legal instruments and documents. Such a legal assistant may be furnished with and use a professional card. The Iowa State Bar Association has a legal assistant committee.

In 1979, the Kentucky Supreme Court adopted Rule 3.700 defining a paralegal. A decade later, the court revised the rule, which defines a paralegal as a person under the supervision and direction of a licensed lawyer. The state courts and state bar have adopted this definition. The Kentucky Paralegal Association is developing a certification program for paralegals in the state.

On June 2, 1999, the Governor signed into law a bill that clearly defines the role of paralegals and legal assistants. Legislative Document #724 restricts the use of titles "paralegal" and "legal assistant" to a person qualified by education, training or work experience who is employed by an attorney . . . or other entity and who performs specifically delegated substantive legal work for which an attorney is responsible.

The Massachusetts Rules of Professional Conduct, Rule 5.3, Responsibilities Regarding Nonlawyer Assistants, states lawyers should give nonlawyer assistants appropriate instruction and supervision concerning the ethical aspects of their employment, particularly regarding the obligation not to disclose information relating to representation of the client, and should be responsible for their work product.

The Bylaws of the State Bar of Michigan, Article 1, Sec. 6, defines "legal assistant" for the purpose of membership in the State Bar Legal Assistant Section. For membership in its State Bar Legal Assistant Section, the Michigan Bar stresses that an attorney must supervise a paralegal. For more
information on the definition, go to www.michbar.org/directory/bylaw.html.

In 1994, the Minnesota Legislature appointed a special committee to study the feasibility of the delivery of legal services by specialized legal assistants. It was requested to consider a licensure procedure. A report was issued and concluded that licensing legal assistants doesn’t fit into the analytical framework created by the Minnesota statute because the practice of law is already a regulated profession. The Minnesota State Bar Association accepts paralegals as associate members and has a paralegal committee. There have not been any recent updates on the status of paralegal definition within the state bar.

The Missouri State Bar adopted the "Guidelines for Practicing with Paralegals." Go to www.mobar.org/pamphlet/pracpara.htm?refer for more information.

The Montana State Legislature enacted Senate Bill 445, which states: "Paralegal" or "legal assistant" means a person qualified through education, training or work experience to perform substantive legal work that requires knowledge of legal concepts and that is customarily but not exclusively performed by a lawyer and who may be retained or employed by one or more lawyers, law offices, governmental agencies, or those authorized by administrative, statutory or court authority to perform this work. SB 445 was passed by both houses and the governor signed it into law on April 30, 2001.

Nevada Governor Kenny Guinn signed a bill into law on May 28, 1999 increasing the penalty for anyone found guilty of illegally practicing law. The new law also restricts services offered by paralegals and legal assistants who don’t operate under the supervision of an attorney. The new measure became effective Oct. 1, 1999. The State Bar of Nevada’s Legal Assistants Division has formed a task force to prepare a proposal for the board of governors on a certification program for the state’s legal assistants.

New Hampshire
The New Hampshire Supreme Court Administrative Rule 35, Guidelines for the Utilization by Lawyers of the Services of Legal Assistants under the New Hampshire Rules of Professional Conduct, defines a paralegal as: a person not admitted to the practice of law in New Hampshire who is an employee of, or an assistant to, an active member of the New Hampshire Bar. Go to www.nhbar.org/pdfs/PEA8-86-2.pdf for more information.

New Jersey
In 1999, the New Jersey Supreme Court killed a proposal from its own special committee calling for the mandatory licensing of paralegals. Last year, the New Jersey State Bar Association appointed an ad hoc committee to come up with a "credential system." The court appointed its members to begin preparing amendments to the state’s Rules of Professional conduct.

New Mexico
The New Mexico State Bar Association defines a legal assistant as a person, qualified through education, training or work experience, who is employed or retained by a lawyer, law office, governmental agency or other entity in a capacity or function which involves the performance, under the ultimate direction and supervision of an attorney, of a specifically delegated substantive legal work, which work, for the most part, requires a sufficient knowledge of legal concepts that, absent such assistant, the attorney would perform the task. The Legal Assistants Division of the State Bar of New Mexico was formally organized in August 1995.

New York
In 1992, the New York State Bar Association Committee on Professional Ethics issued Opinion 640 that states titles of paralegals employed by lawyers may not be false or misleading. Details of the opinion can be found at www.nysba.org/opinions/opinion640.html.

North Carolina
The North Carolina State Bar Association has defined legal assistants as qualified and educated individuals working under attorneys’ supervision. For more information on the bar’s definition, go to www.barlinc.org/public/membership/lad_req.asp.

North Dakota
Senate Bill 2126, providing that attorneys in regular practice retain complete responsibility for the work product of paralegals or legal assistants, was signed into law by the governor on March 19, 2001.

The Ohio State Bar Association (OSBA) Legal Assistant/Paralegal Membership is open to any person employed by an OSBA member in good standing as a paralegal/legal assistant.

In 1999, the Oklahoma Bar Association board of governors unanimously approved a definition of paralegals. The adopted definition states: "A legal assistant or paralegal is a person qualified by education, training or work experience who is employed or retained by a lawyer, law office, corporation, governmental agency or other entity, who performs specifically delegated substantive legal work for which a lawyer is responsible and, absent such assistant, the lawyer would perform the task."

Last year, the Oregon State Bar shot down two paralegal definitions. Paralegal associations are now working on a joint definition for bar consideration.

In response to "widespread concern" that persons using the terms "paralegal" or "legal assistant" as their occupational title and in ads were misleading potential clients, the Pennsylvania legislation passed 2524(a) of Title 42 of the Pennsylvania Consolidated Statutes. The statute doesn’t define paralegals but informs the public that paralegals and legal assistants can’t deliver legal services without attorney supervision. Neither can they hold themselves out as persons entitled to practice law. For more information, go to http://members.aol.com/StatutesPA/42.Cp.25.html.

Rhode Island
The Rhode Island Supreme Court Provisional Order No. 18 (revised through Oct. 31, 1990) defines a legal assistant as: one who under the supervision of a lawyer, shall apply knowledge of the law and legal procedures in rendering direct assistance to lawyers, clients and courts; design, develop and modify procedures, techniques, services and processes; prepare and interpret legal documents; detail procedures for practicing in certain fields of law; research, select, access, and compile information from the law library and other references; and analyze and handle procedural problems that involve independent decisions.

South Carolina
The South Carolina Bar Association has asked the South Carolina Alliance of Legal Assistant Associations (SCALAA) to help the bar develop guidelines for a paralegal/legal assistant division of the bar. The goal of SCALAA members is to present a proposal to the board of governors within the next year.

South Dakota
South Dakota’s Supreme Court Rule 92-5 defines paralegals or legal assistants as: a distinguishable group of persons who assist attorneys in the delivery of legal services. Through formal education, training and experience, legal assistants have knowledge and expertise regarding the legal system and substantive and procedural law which qualify them to do work of a legal nature under the direct supervision of a licensed lawyer.

Last year, the Tennessee Bar Association (TBA) filed with the Tennessee Supreme Court its petition seeking the adoption of a new set of lawyer ethics rules for Tennessee. These proposed rules are the product of the TBA Standing Committee on Ethics and Professional Responsibility. According to the proposed Rule 5.3, Responsibilities Regarding Nonlawyer Assistants, nonlawyers (including paraprofessionals) require attorney supervision. The state Supreme Court has yet to pass a decision. For more details, visit www.tba.org/Committees/Conduct/index.html.

The first state bar association to establish a division for legal assistants, the Texas State Bar Association adopted General Guidelines for the Utilization of the Services of Legal Assistants by Attorneys in 1981. These guidelines require paralegals to work under attorneys’ supervision and prohibit paralegals from giving legal advice or otherwise engage in unauthorized practice of law.

Rule 5.3 of the Rules of Professional Conduct states the responsibilities regarding nonlawyer assistants. The bar’s guidelines list a paralegal’s general duties and responsibilities and require attorney supervision. Go to www.utahbar.org/rules/html/rule_5_3.html for more details on the rule.

The Virginia State Bar Association stated nonlawyer assistants should be working under attorneys’ direct supervision in order to ensure that their conduct is compatible with the professional obligations of their lawyers.

The State Court of Appeals in Absher Construction Co. v. Kent School District, issued the definition: A legal assistant is "qualified through education, training or work experience; is employed or retained by a lawyer, law office, governmental agency or other entity in a capacity or function involving the performance, under the ultimate direction and supervision of an attorney, of specifically delegated legal work; and the work, for the most part, requires a sufficient knowledge of legal concepts that, absent assistance, the attorney would perform the task."

In June 2000, the State Bar of Wisconsin adopted the regulatory proposal presented by the Task Force, with two caveats. One involved concern about language in a few of the Rules of Professional Responsibility and Ethics, which have required some redrafting. Second, was a request to obtain an informal opinion from the Supreme Court as to whether the Court would exercise jurisdiction over the regulation of paralegals. The Court preferred not to offer an informal opinion and requested the matter be briefed and a petition to present the proposal to the Court be filed.

There are no current activities reported in the following states: Alaska, Delaware, Idaho, Kansas, Louisiana, Maryland, Mississippi, Nebraska, Vermont, West Virginia and Wyoming.

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Updated 09/30/04
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