Title Tug O’ War
California paralegal laws still stir up
angst.
By Diana P. Wade
May/June 2001 IssueAfter years of doing business in California as independent paralegals,
some independents were set apart as a separate and distinct legal profession with the
passing of the state Senate Bill (SB) 1418.
On Jan. 1, 2000, SB 1418 went into effect, creating a new
profession for individuals providing legal services directly to the public.
The law not only laid out education, registration and
consumer protection requirements for the profession but also labeled those individuals
with the title “legal document assistants,” or “LDAs.”
However, the law was designed so some could continue
calling themselves independent paralegals, specifically those like myself who are exempt
from the LDA registration. LDA registration exemption exists for “A person who
provides services regulated by federal law.” Federal law allows nonattorneys to
represent claimants in front of the Social Security Administration.
All should have been right with the world. But
traditional paralegals, working directly under the supervision of an attorney, wanted
more: They wanted to rob independents from having any legal way to use the title
“paralegal” or “legal assistant” by pushing additional legislation
restricting the use of the terms.
As a result of the passing of Assembly Bill (AB) 1761,
many people were hurt. Many former independent paralegal businesses were impacted.
Business expenses went up because advertisements, letterhead, business cards, etc., had to
be changed to remove the titles from such documents. Some financial losses also were
incurred. This law does more harm than good.
Effective Jan. 1, independent paralegals, who provided
services directly to consumers, could no longer use the title “paralegal”
because AB 1761 was enacted to limit the use of the term (see November/December 2000 Legal Assistant Today).
The California Alliance of Paralegal Associations (CAPA) brought the bill, which defines
paralegals as those who work under the supervision of attorneys, to the California
legislators.
This is bad legislation, supported by those who want to
reserve the titles for only those who work for attorneys.
AB 1761 was thinly veiled as a consumer protection bill.
What CAPA really wanted to do was close a perceived loophole allowing LDAs to call
themselves independent paralegals. CAPA sold the bill to other paralegals in California by
making it appear LDAs were not regulated enough to protect the public. Don’t be
fooled; this law doesn’t protect the public. The LDA law, SB 1418, offered ample
protection by requiring all LDAs to register and obtain bonds in the counties where their
businesses are based.
The paralegal law, AB 1761, modifies California’s
Business and Professions Code. The law says a paralegal doesn’t include a nonlawyer
who provides legal services directly to the public or a legal document assistant or
unlawful detainer assistant as defined in Section 6400 of the business and professions
code.
The above language separates LDAs from traditional
paralegals that work for attorneys. Unless LDAs work for attorneys, they can’t call
themselves paralegals. Also LDAs can’t advertise as paralegals.
But LDAs may use the title of “paralegal” if
they contract with attorneys, provided the attorneys directly supervise the work and are
ultimately responsible for work product. The attorney, not the LDA, has the client
relationship.
The Good, The Bad
The good news is many paralegals will be identified as legal professionals
working for or contracting with licensed California attorneys. And since LDAs work with
the public, an identifiable dividing line has been drawn to distinguish LDAs from legal
assistants.
The bad news comes when interpreting the language of AB
1761. The vague language raises a number of compliance questions. For example, one
eligibility requirement states the following career and educational experience is needed:
“A baccalaureate degree or an advanced degree in any
subject, a minimum of one year of law-related experience under the supervision of an
attorney who has been an active member of the State Bar of California for at least the
preceding three years or who has practiced in the federal courts of this state for at
least the preceding three years, and a written declaration from this attorney stating that
the person is qualified to perform paralegal tasks.”
What is law-related experience? Can a file clerk use the
title? What about a legal secretary? What if one employer will not state the person is
qualified to another employer?
The law also states the supervising attorney must be
“an active member of the State Bar of California for at least the preceding three
years.”
Does this mean attorneys who have practiced less time
can’t hire or supervise paralegals until they have practiced in California for three
years? What about the person that moves to California from a different state?
Carolyn Yellis, president of CAPA and a major player in
getting AB 1761 passed, said in an article for California Legal Pro, Winter 2000, the
solution is simple. According to Yellis, out-of-state paralegals can work in California
without violating the law as long as they work for a California attorney and qualify as a
paralegal in their own state.
It doesn’t seem simple to me. Where does AB 1761 say
that? Is this Yellis’ interpretation of AB 1761 or does the law specifically lay this
all out?
What about the continuing education requirements? The
Business and Profession Code Section 6450 states all continuing legal education courses
“shall meet the requirements of Section 6070.” Section 6070 mandates legal
education activities must be approved by the state bar or offered by a state bar-approved
provider.
How will the state bar approve new programs for
paralegals? How can it develop and approve courses relevant to paralegals? Most ethics
classes offered by the bar are written for attorneys and deal with trust fund accounting.
This also would mean nationally credentialed paralegals
— those who hold a Registered Paralegal (RP) credential for taking the National
Federation of Paralegal Associations’ Paralegal Advanced Competency Exam (PACE) or
those who have a Certified Legal Assistant (CLA) for passing the National Association of
Legal Assistants’ exam — would have to obtain double education requirements for
continuing education. The designations are not state bar approved. Imagine the nightmare
for legal education providers out of state.
The Ugly
It’s implied under the paralegal definition law that disbarred
attorneys can be legal assistants. However, disbarred attorneys may not be LDAs. This
issue was hotly debated in the state Assembly hearings.
Where is the consumer protection here? Yellis told
California Legal Pro that rogue paralegals (meaning LDAs or independent paralegals)
“are giving us a bad name. It’s time we did something to elevate the
profession.”
A rogue paralegal with an American Bar
Association-approved paralegal certificate may not have broken any laws, whereas a
suspended or disbarred attorney has broken the trust of the consumer or performed some
other egregious act. This doesn’t help the profession as a whole by allowing
suspended or disbarred attorneys to continue providing legal services.
Furthermore, it doesn’t matter who supervises the
work. A bad egg is a bad egg.
If paralegals envisioned an expansion to their roles with
this new law, they have been lead down the wrong path. This doesn’t expand the
profession because consumer protection can be accomplished only by regulating qualified
nonlawyer professionals.
Also, there is a contradiction in this law. Section
6450(a) defines a paralegal as “a person who either contracts with or is employed by
an attorney. … Tasks performed by a paralegal include … representing clients
before a state or federal administrative agency if that representation is permitted by
statute, court rule, or administrative rule or regulation.”
This really means a legal assistant can represent a
client in an agency hearing provided the paralegal works for an attorney.
Federal Administrative Agency law has many areas where a
nonattorney can represent clients without attorney supervision. The Social Security
Administration states certain nonlawyers may perform such tasks if the person is otherwise
qualified by statute to perform paralegal tasks. Why not exempt them from this law?
Consider this: You are either an attorney or a nonattorney under Federal Agency Law. Do
you have more confidence in the paralegal representing you or in the social worker?
Making the Best of It
California is once again on the cutting edge of legislation recognizing
the need to validate those who prepare legal paperwork directly for the consumer by
creating a new profession (LDA).
The consumer is now empowered to hire competent legal
professionals to prepare routine paperwork. Even though AB 1761 has eliminated the
original concept of independent paralegals, the new profession of legal document
assistants is stronger and more visible than ever before.
Make no mistake; I still consider AB 1761 poorly crafted
legislation. However, it’s now law and those of us in the legal profession will try
to make the best of a bad situation. |
