The Estrin Report

If You License, Will They Come? Licensing issue debuts in New York

The other day, a paralegal sent me a panic email.  OMG!  Licensing of paralegals had been introduced as a bill in the state of New York.  Her reaction about the bill was pretty standard.  In a nutshell, she was saying, "What?????"

In short the bill:

    a) Requires mandatory licensing
    b) States that paralegals "practiced" (an ethical question, to be sure)
    c)  States that mandatory minimum standards for qualification into the field are required (but does not state what standards)
    d)  Establishes licensing fees not to exceed $100.00
    e)  Creates an independent board to adopt rules and regulations 
    f)  Is an amendment to the education law
    g)  Offers this justification:  "Every year more and more attorneys are allowing their paralegals to work extensively on important and complex cases: Cases that impact the life of their clients and other people involved. Some of these paralegals tend to commit errors that could lead to nightmares for the clients. This legislation would require paralegal[s] to have the qualification[s] necessary in order to provide improved and more professional services to clients of attorneys."

Taking a look at the bill, my response was:

If this particular document represents the ability of those who would a) pass such a bill and b) draft such a bill, we're all in trouble. It appears to have little thought, research or understanding of the paralegal profession. Further, it is drafted as a punitive action (or reactions) rather than progression of a 40 year old field. 

Generally, certification, licensing or mandatory education of paralegals comes about because too many misinformed and under-educated paralegals deliver markedly poor services directly to the public and consequently, steps are taken for protection. 

This document in particular references those paralegals who work under the supervision of attorneys. It sidesteps the consumer issue completely.

Licensing is not necessarily a bad thing. However, it is putting the cart before the horse. Before licensing any profession, educational standards must first be created. Not establishing mandatory education is the same as handing the keys to a brand new car to a 16 year old and saying, "Here are the keys to the car.  Please, don't take driving lessons, don't wear a seat belt, don't study the drivers rulebook and handbook and laws, don't get tested on your skills and bonus!  No one is looking as to whether you drink while you're driving." What happens? Hate to imagine.

The paralegal profession is one of the few professions where, in most states, anyone who wants to, can become a paralegal. It is to the credit of 13 states that so far, have created mandatory education, that the paralegal "job" has any chance whatsoever of rightfully being called a profession.  But mind you, that means 37 or 74% of all states say that anyone who wants to can become a professional (i.e., paralegal) without any training or educational standards whatsoever including the necessity of having a high school diploma.

In 1986 (yes - before some of you were born), I was asked to address CAPA (California Association of Paralegal Associations) on the issue of licensing paralegals. I took the same position then as I do now: There's nothing wrong with licensing as long as there is a solid foundation leading up to a sound, sensible and well-thought out program. Licensing cannot be accomplished successfully as a punitive reaction to a few complaints.

Regulation for mandatory continuing legal education originally came about in California as a result of continuous mishandling of services directly to the public by what was then called a paralegal. The resulting legislation, AB 1760 that became Business and Professions Code section 6450, took 10 years to pass. That bill sets forth regulation of education for paralegals and is not licensing. (Originally, when licensing was first proposed in California, the Consumer Board of Affairs was set to govern. That agency also governed dog grooming licenses, manicurists, even morticians. It didn't exactly appeal to too many people.)

Licensing or any other type of regulation such as certification starts with first setting down mandatory legal education. There are no other "helping occupation" professions I am aware of handling important criteria affecting the client's life that do not require mandatory education such as nursing, accounting, financial, even dental assisting.

I hope that New York paralegals step in and rally for a better situation than what appears to be careless and random actions by their state government.  Come New York!!!  Let's step up to the issue!

 

They Shoot Paralegals, Don't They?

I was reading The Empowered Paralegal blog the other day and a paralegal was discussing the superior status she thought she had over paralegals who did not have paralegal degrees. In particular, she brought up the Erin Brockovich story and the subsequent movie that was made. Ms. Brockovich, she stated, was not a "real" paralegal because she did not have a paralegal degree.  She went on to state that the duties that Ms. Brockovich performed would never be tackled by a paralegal.  At least, she had never witnessed a paralegal doing what Ms. Brockovich did.

It’s very interesting to listen to the hot debate that the Erin Brockovich role has played over the years. I have heard more paralegals than not state how much they “hate” the role portrayed in the movie. Whether or not you choose to designate Ms. Brockovich as a “real” paralegal, it is very important that today's paralegals understand the history and development of the position.

In the '70’s and ’80’s and far reaching into the '90’s, anyone who wanted to could call themselves a paralegal. At the risk of revealing that I am definitely a member of the Boomer generation, I personally came up through the ranks starting in 1981. There were few paralegal schools at that time. Becoming a paralegal meant, for most, that you would receive training on the job. It is true that some paralegals came through the ranks of legal secretary but those were in the minority. During those times, let’s also understand that certain states, such as California, did not require someone to go to law school in order to take the bar exam. You were eligible if you worked under a mentor but law school was not required. That may still stand today, I’m not certain.

Paralegal schools were also rare in rural areas. This is one reason NALA was formed – to provide education. There was no Internet nor online courses. Even in Los Angeles, a major metro city, there were only three primary paralegal schools for a very long time – UCLA, CalState L.A. and UWLA. Some “match-book” cover type schools popped up. But what was worse? Learning on the job or plunking down good money for a school that also taught you how to be a bartender.

In 1980, I started out as a paralegal in Seattle for $1500 a month. I did have some legal secretary training. I got my first job at a prestigious small firm. I was trained on the job like anyone else. The administrator hired me because, at that time, I was in the theatre. He happened to have seen one of my shows, so he hired me. True story. Later, I moved to Los Angeles and got a job in a large, prestigious entertainment firm that handled the A list. Working with movie stars was an everyday and common experience.

In that role, I was very active becoming the firm’s first paralegal administrator. I recall that some of my assignments included meeting a cargo plane at LAX and working with customs to board the plane in search of fake ET dolls. (Really!) I was sent to the bottom of a famous L.A. hotel in search of evidence for a case. I waded through muck, spiders and ankle deep water in search of the “hot” documents. I went to Georgia to a carpet mill in the middle of nowhere in search of evidence. In Seattle, paralegals were allowed to go before the judge on certain non-contested matters. The first judge I went before put our case over when it was apparent the other side was not showing up. Apparently, the defendant’s counsel had decided to go moose hunting. The judge thought that was a perfectly good excuse not to attend court. Meanwhile, I was always taught by the best attorneys, attended seminars, read books, and learned my job as it pertained to the firms in which I was working. And that’s the key element here – education as it pertained to the firms in which the paralegal worked.

To put down those paralegals who literally blazed the trail for other paralegals while the education system was in its infancy is a travesty. Passing a paralegal course does not ensure that the paralegal will be a good paralegal. Passing the bar does not mean the lawyer will be a good lawyer. It only means that they have studied and should possess core competencies.

It is interesting that years and years later, I make my living in continuing legal eduation. I am a very strong advocate and a firm believer that paralegals should not be paralegals without first obtaining an education in paralegal studies. Good paralegals without the academic training came up the hard way - no schools available, on-the-job training, no real job descriptions.  They worked hard to make this new profession work. They took it among themselves to develop good assignments, they trained attorneys how paralegals could be used, they started paralegal associations (I was one of 8 co-founding members of the International Paralegal Management Association - IPMA); and they worked hard getting the word out about this new position. To discredit your history and those paralegals is a travesty. Remember, it took California 10 long hard years to get AB 6450 passed. That law now requires mandatory education for paralegals.  However, when it passed, it still grandfathered in those without the required education.

As for Ms. Brockovich, not once in the movie was she referred to as a paralegal. Was she rough around the edges? You bet. Was that taking literary license in the movie? For those of us who haven’t met her, we don’t know. Was she then and is she now called a paralegal? No. Was her purported $2 million bonus a “percentage” of the settlement and ethics violation as some charge? Now, we really don’t know, do we? In California in the ’80’s and decadent ’90’s, paralegals at some firms were given large bonuses. (The firm I was with in 1986 was giving out $20,000 – $30,000 bonuses – and that was 1986 dollars.) Truthfully, none of us know except Ms. Brockovich and her boss, Mr. Massry, what that bonus was based upon nor how it was calculated. We only know rumors. If there was any impropriety, I am quite certain the State Bar of California would have stepped in.

Some paralegals have made up a story about Brockovich, believed it and made it their truth. It’s not that this message is defending Erin Brockovich. It’s that those paralegals flouting their Masters, A.A.'s and B.S.’s in Paralegal Studies claiming they are better than those without have no respect for the trailblazers that came before them. It’s disrespectful and an arrogant slap in the face to the thousands and thousands of paralegals who came before them. Things have changed and improved but only very recently. Those paralegals without the schooling are the very same paralegals who pushed for more acceptance,professionalism, better training and education for all paralegals nationwide. The least we can do is honor them.

Why Would the S.C. Bar Stifle Competency Improvement?

According to the Carolina Paralegal News, South Carolina paralegals won't be seeing voluntary certification and registration any time soon.

The South Carolina House of Delegates has tabled a proposal for paralegals to start a voluntary certification program for paralegals.  The delegates referred a proposed Certified Paralegal Program back to the Paralegal Task Force which had billed it as an effort to improve the competencies of Palmetto State paralegals.

A five-month study by a 12-member task force explored the possibility of setting up the state's first paralegal registration system.

Michael J. Howell, a delegate, said he supported the concept but said the proposal needed to include a code of ethics and a method for enforcing it.

".....in order to provide high-quality legal services, you need professionals," Howell said.  "You've got to have some sort of code of ethics in this thing, like Florida does."  The proposal would require certified paralegals to take seven hours of Bar-approved continuing legal education each year, far more than California paralegals who are required to take 4 units of substantive CLE and 4 units of ethics every two years.

The proposal called for eligibility standards based on work experience and education accomplishments.  Violation of the program's rules would mean loss of certification.

The fees would include a $50 application fee and a $20 annual renewal fee from each certified paralegal, issue certificates and maintain a paralegal registry on its website.

It was interesting to read the reaction to the rejection in this article.  One person claimed that next "we're going to have certified secretaries and then certified runners and then certified mail people".  Another feared the program would "burden" Palmetto State practitioners as those firms might not find it economically feasible to shell out "big" bucks.  (Good lord, $50.00 per person per year? Cut down on the Starbucks and give us education.) Another attorney felt that with with 5 - 7 paralegals the fees were too high for the worst economic conditions.

Four paralegal organizations had said in position papers that paralegals expected to pay their fees themselves.  Apparently, the delegates didn't read that part.

Seven states, including North Carolina have voluntary certification programs similar to So. Carolina. Two states have voluntary registration.

To have certification in the legal field without requiring ethics would not have constituted a certification exam that ensured the paralegal was aware of one of the most important components of required learning.  I'll give the delegates that.  Too many mistakes are made through assumptions of what's right and ignorance of what's wrong. If the paralegals in South Carolina try again - and I hope they do - I encourage them to include the ethics portion of the exam.  That said, rather than rejecting the proposal, the delegates could have requested a rewrite and resubmission.

Voluntary certification ensures law firms and clients of delivery of higher quality legal services.  Since many paralegals can call themselves a paralegal without any training whatsoever, an employer takes a huge malpractice risk hiring paralegals who are not well trained or trained at all.  A test is no guarantee the paralegal is an excellent employee but it does set a baseline of core competencies the paralegal is expected to know, something this field needs desperately.  

The majority of paralegals are not legal secretaries who are moved into a paralegal position as was the case 30-40 years ago. It's not your mother's paralegal field.  Things have moved so quickly in a short  span of this profession that to encourage no barriers to entry to field no longer makes sense.

"Hutchens, Senter & Britton Announces Certified Paralegals"

Well, isn't this encouraging news? Law firm sends out press release praising its paralegals!

"Fayetteville, North Carolina-based law firm Hutchens, Senter & Britton, P.A., which specializes in foreclosure and civil litigation, announced that employees Lesley Cavenaugh, Dianne Dunn, and Aileen Gibson have qualified as North Carolina state bar certified paralegals. All three support the firm's bankruptcy group.

“'We congratulate Lesley, Dianne, and Aileen on this important achievement,' said Terry Hutchens, managing partner of Hutchens, Senter & Britton. 'Individually, each one's dedication to the profession is to be commended; collectively, they bring a concentration of expertise and talent to our Bankruptcy Group, which is a significant asset for the firm.'”

Too bad the firm doesn't (yet) post paralegal profiles...

"Questions Linger Over Paralegal Certification Bid"

So, certification for Connecticut paralegals is "two to five years" away?

"The road to paralegal certification will be a long one, but Secretary of State Susan Bysiewicz pledged her support of the endeavor during a luncheon speech to the Central Connecticut Paralegal Association (CCPA) earlier this month at The Hartford Club.

"The CCPA has not yet taken an official stance on certification and continues to discuss with members their concerns over a measure that would make Connecticut one of only a few states that officially recognizes certified and licensed paralegals.

"'It will be a long process,' agreed CCPA President Janet Jacobson, estimating a time period of two to five years."

"I’ve decided to take PACE – now what do I do?"

Wow, excellent post on the IPA blog where you'll find lots of helpful guidance from the Indiana Paralegal Association:

"The PACE Study Manual is a necessity as it sets out a blueprint that has been followed for PACE with the five domains weighted as follows:

"Administration of Client Matters 23%
Development of Client Legal Matters 30%
Factual and Legal Research 22%
Factual and Legal Writing 20.5%
Office Administration 4.5%

"Interspersed throughout these five 'domains' are questions that also cover ethics and technology. The PACE Study Manual also contains a bibliography of materials used in preparing the manual. Some of the test questions on PACE may be found in the resources set out in the bibliography and not specifically set out in the Study Manual. Therefore, it is important to be familiar with those resources."

Read the full post to find much more advice & info about the “IPA Cares – PACE Candidate Survival Kit”!

"Paralegals' anniversary marks state recognition"

My, how time has flown for the paralegal profession in Texas!

"Paralegals have made their way out of the figurative woods and into the light of a recognized profession [PDF link] since the State Bar of Texas created its paralegal division 25 years ago, an Austin woman who was instrumental in the landmark said Wednesday.

"Debra Crosby [scroll down for bio] told 30 people at a Petroleum Club luncheon that she entered the field more than 30 years ago because her husband was in law school and she had just earned a master's degree in English and needed a job.

[snip]

Crosby said her tenures as chairman of the Bar's long-range planning task force and 1993-95 division presidency helped establish standards and certification programs at Midland College, San Antonio College, Texas State University at San Marcos and other schools.

[snip]

"Oct. 23 is Texas Paralegal Day and the 25th anniversary of the division, which has 2,000 members. Only about half of the PAPB [Paralegal Association of the Permian Basin] belongs to the state organization and Crosby encouraged them to join."

"Laying down the law"

Toronto wrestles with paralegal regulation:

"A startling event this week shocked the justice committee hearing presentations on proposed legislation that would regulate paralegals.

"Tory MPP Ted Chudleigh wondered out loud if it wasn't a conflict of interest for the committee, which is comprised of several lawyers, to be considering a bill which would hand regulation of paralegals to the Law Society of Upper Canada.

[snip]

"Critics say the bill will restrict not just the work paralegals can do, but who can be a paralegal -- and it will push up the cost of legal services for low-income Ontarians. In fact, says Chudleigh, 'If a mom gave one of her children advice and it has legal consequences, mom could be in contravention of the law, since anyone who gives legal advice has to work for a lawyer.'

[snip]

".... Even the paralegals agree there should be some regulation. What some question is why the Law Society is being given total control of their profession when, in many ways, they are competing professions.

"'They are talking about eliminating paralegals from areas with the least number of complaints and the most necessity,' says Susan Koprich of the Paralegal Society of Ontario."

"Report on Paralegal Education Programs in the US"

Very thorough survey [PDF link] of U.S. paralegal programs researched & prepared by LawCrossing:

[snip]

"In an effort to provide future paralegals with the information they need to choose a paralegal education program and to aid higher education administrators in evaluating programs, LawCrossing has compiled statistics on 36 paralegal education programs.

"The majority of paralegal students are career-oriented and outcome-focused. Because most students enrolled in these programs are studying for more practical or immediate reasons than a traditional liberal arts student would have in mind, our report emphasizes job placement [see #9] success rates. Unlike more traditionally academic subjects such as history and philosophy, paralegal studies offers a unique amount of opportunity for clinical work and internships that simulate a real-world work experience. Programs that require student involvement--such as legal workshops, pro bono work, and internships--offer students résumé-building opportunities as an enhancement to the traditional educational experience.

"Also, distance learning has emerged as one of the fastest-growing components of higher education, and many paralegal students are interested in these kinds of programs. Geographical distance from physical campuses, increased opportunities for student-professor interaction, and flexibility in time management have all contributed to make online courses an attractive option to many potential students. Still, many have concerns about how to appropriately balance convenience and quality in choosing a distance or online program."

Ohio State bar develops paralegal certification program

Another state announces [scroll down] mandatory requirements for paralegals -- YAY!

"The Ohio State Bar Association (OSBA) announced at the end of June that it was implementing a new paralegal certification program. The program will not only make it easier for attorneys to hire well-trained legal staff, but will also bring professional esteem to paralegals in the state.”

Also see this earlier post....