Still Thinking About Licensing Paralegals? Hogwash. Old School Thinking.

Winners.don't quitJust about every week, the question of whether to license paralegals comes up. What never comes up is the real "why". Oh sure, you'll hear ramblings on and on as to the pros and the cons. The reasoning includes how paralegals are supposed to come under the supervision of attorneys anyway (as though this relieves them somehow of major responsibility); whether it should be statutory licensing or certification; how it will help to ensure minimum qualification standards for the profession; result in paralegals gaining greater personal respect from attorneys and maybe even result in higher pay. I just read an interesting blog that quoted all of these reasons (http://bit.ly/1GWL6jO) with some good points. However, it missed the main point entirely.

Licensing may establish minimum qualifications, but that won’t necessarily help you land the job. Attorneys will still rely on your resume to identify specific skills and work experience when they’re considering you for a position.

All of this, in my opinion, is hogwash. Yes, my friends. The debate about licensing at this stage in the game is ridiculous. Why? Because it puts the cart before the horse. Before anyone can run off and start yelling, "get licensed! get certification! get registered!" a lot of work still needs to go into the movement. The one thing that is missing?  There are no standard entrance requirements to be a paralegal. And you want to license a field that lets anyone in? Let's license doctors with high-school educations who know medical terminology and somehow wangled a two-year internship in a hospital. Or better yet, let's license attorneys with high-school educations who worked in the firm's mail room, read all the pleadings, took a prep course and passed the bar. Oh, wait a minute. California used to allow that.

Before the big debate on whether to license paralegals, first things first. (Be very clear: I am NOT talking about legal technicians giving services directly to the public. I am talking about paralegals working in a law firm.) Get across-the-board mandatory requirements to enter the field and finally make the paralegal profession a genuine, definition of a profession - not a "para" profession. Just like teaching. There are no "para-teachers". Just like nursing. There are no "para-nurses."  Just like attorneys. Hmmm.....there are "para-legals....." Right now, there are no mandatory requirements for paralegals to enter the field. Every state, every city, every law firm, every attorney, has different requirements as to the responsibilities of a paralegal - meaning the duties they perform. Each one has different standards as to what educational requirements are necessary for hiring. Never mind what the definition of a paralegal is from the ABA or NALA or California. Who is quoting uniform entrance requirements to the field? How on earth can you license something without a base foundation?

So far, there are no uniform mandatory educational requirements to enter the field. On what reasoning can you license someone when anyone, and I mean anyone, who meets years of experience (or not) and on-the-job training (or not and if they do, may be sketchy at best) can get licensed? And mind you, I am at the forefront of two very-well known certification exams: the OLP eDiscovery and Litigation Support Certification Exams. However, these exams are offshoots of sub-specialties and examinations of skills resulting from a particular job, not the job itself.

To answer the question of licensing: This debate has been going on for years. Right now, frankly, this is the cart before the horse. People talk about licensing without any concept of the backlash to the job, the public and the practice of law.

I personally think that the paralegal field will surprise all of us and head towards another direction entirely. It will follow the nursing model. Licensed nurses must still be under the supervision of a doctor. In the same manner, the fact that unlicensed paralegals must be under the supervision of an attorney does not let paralegals off the hook in terms of responsibility. The doctor is ultimately responsible, just like the attorney. Here's how I think it will end up:

  • There are Nurse Practitioners and Physician Assistants who have extraordinary education and experience: Master's Degrees; certifications; entrance requirements to the field; years of experience coming up the ranks; continuing education and more. They are allowed to make a simple diagnosis and write certain prescriptions up to a particular point where they then turn the patient over to the doctor.
  • The Registered Nurse: 4 years of nursing school; a BA degree and internship. They become registered through certain exams and complete an internship.
  • The Certified Vocational Nurse: Nursing school plus a certification exam. 
  • The Licensed Vocational Nurse: Nursing school plus sits for licensing exam. 
  • Nurse's aide: training in vocational school. Each state is different and may have other positions such as Certified Nurse's Aide.

All are under the guidance of the doctor.

The paralegal field will follow similar suit: 

  • The Attorney Practitioner: BA/BS degree; graduate school; 1 or 2 years of law school; able to perform previous attorney assignments: perhaps take a deposition; assess a case; prepare certain documents; appear in front of a judge;  (in King County, Seattle, this has been done with paralegals for years on default judgments and more). 
  • The Certified Paralegal: BA/BS; paralegal certificate; required number of years in the field; plus sits for certification exam.
  • The Paralegal: BA/BS degree plus paralegal certificate.
  • The Paralegal Assistant: An AA degree plus paralegal certificate.
  • The Paralegal Clerk: Either an AA degree, no paralegal certificate or paralegal certificate and no college degree. Cannot move up unless an AA degree and paralegal certificate are reached.

The field will stratify according to entry requirements, education, years of experience and expertise which will in turn limit the types of duties a paralegal of certain ranks will be allowed to do. Right now, there is only entry-level, mid-level, senior level and paralegal manager in most firms. Paralegals are paid according to years in the field, modeled after the associate program. They are not paid for performance. Right now, a 10 year paralegal can be performing at the two-year level but paid at the 10 year market level.

 In order to move up, the paralegal will be required to attain more education, sophisticated assignments and years in the field. This is not an unusual concept and in fact, is used in hundreds of other fields resulting in vertical climbs up. Right now, there is virtually no vertical climb upwards for a paralegal. The career path, in most organizations, is horizontal.

Based upon how the field has progressed plus how the public has embraced the use of
paralegals AND the phenomenal growth of Do It Yourself Law, i.e., LegalZoom, the field is headed in an entirely different direction than originally thought.  Plain old licensing is old school thinking in this new norm. No one accounted for huge client push back on outrageous fees nor how LegalZoom changed client thinking. There has to be new, fresh thinking about paralegals and their career paths. There may be some variation on this theme but I'll betcha $.25 cents this is the way it's headed - and trust me, I never go more than $.25.

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