Regulation Update
November/December
2001 IssueLEGAL 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
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.”
Arizona
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.
Arkansas
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.
California
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.
Colorado
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/
index.htm.
Connecticut
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/
guidelines.cfm.
Florida
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.
Georgia
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.
Hawaii
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.
Illinois
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.
Indiana
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.
Iowa
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.
Kentucky
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.
Maine
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.
Massachusetts
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.
Michigan
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.
Minnesota
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.
Missouri
The Missouri State Bar
adopted the "Guidelines for Practicing with Paralegals." Go to
www.mobar.org/pamphlet/pracpara.htm?refer for more information.
Montana
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
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.
Ohio
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.
Oklahoma
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."
Oregon
Last year, the Oregon
State Bar shot down two paralegal definitions. Paralegal associations
are now working on a joint definition for bar consideration.
Pennsylvania
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.
Tennesee
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.
Texas
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.
Utah
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.
Virginia
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.
Washington
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."
Wisconsin
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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