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.


"Florida Supreme Court hears paralegal rule argument"

Paralegals working in Florida will want to keep an eye on the proceedings outlined in the Jacksonville Daily Record:

"The Unlicensed Practice of Law (UPL) program was established by the Supreme Court of Florida to protect the public against harm caused by unlicensed individuals practicing law.

"This program is a proposal only. It has been approved by the Board of Governors of The Florida Bar. The Supreme Court of Florida must now rule on the proposal.

"Monday, the Supreme Court of Florida held oral argument on the proposed Florida Registered Paralegal rule [PDF]. The Court gave no indication as to when it will rule or how it will rule. Updates will be posted on the Bar’s Web site."


"Paralegal licensing is good news"

After a hard-fought legislative battle, independent paralegals in in Ontario will become a regulated profession on May 1. This Toronto Star article outlines why licensing is needed:

"In recent years, the need for regulating paralegals has been the subject of considerable comment by Ontario judges and in two Ontario government reports. The most recent comment occurred in a Superior Court decision of Justice Deena Baltman last October. It was published last month in the Ontario Reports.

"In December 2002, Pamela Elliot received an eviction notice from her landlord claiming rent arrears of $2,700. Shortly afterward, the Ontario Rental Housing Tribunal issued an eviction order against her.

"Elliot contacted Vince Chiarelli, a paralegal, to stop the landlord's eviction. He promised her in writing that for a fee of $1,200 plus expenses he could file an appeal to Divisional Court and obtain a stay which would 'prevent or significantly delay the eviction proceedings.'

[snip]

"Eventually, Elliot sued Chiarelli in Small Claims Court to recover the money she paid him, based on professional negligence, breach of contract and alleged violations of the Business Practices Act.

[snip]

"'As a legal service provider,' Justice Baltman wrote in her decision, 'Mr. Chiarelli had a duty to provide good advice. Instead, Mr. Chiarelli advised Ms. Elliot to pay him nearly $1,800 so that he could postpone her eviction by what he knew could only be a matter of weeks. That was bad advice.'"


Role of Nonlawyers in Law Practice

What the Michigan State Bar has to say about the utilization of legal assistants:

"Article 1, Sec 6, of the Bylaws of the State Bar of Michigan defines 'legal assistant' for purposes of membership in the State Bar Legal Assistant Section as follows:

"Any person currently employed or retained by a lawyer, law office, governmental agency or other entity engaged in the practice of law, in a capacity or function which involves the performance under the direction and supervision of an attorney of specifically delegated substantive legal work, which work, for the most part, requires a sufficient knowledge of legal concepts such that, absent that legal assistant, the attorney would perform the task, and which is not primarily clerical or secretarial in nature . . ."

"While the Guidelines are directed primarily at the utilization of legal assistants as defined above, many of the same considerations would apply in the utilization and supervision of any other nonlawyer assistants. While the Guidelines necessarily discuss the conduct of legal assistants, they are directed at lawyers who use or supervise legal assistants. The Guidelines are intended to aid the lawyer in fulfilling responsibilities under the Michigan Rules of Professional Conduct."

You can find more info in the detailed 9 Guidelines.


Canada's new paralegal regulations study grads

It will be most interesting to compare U.S. regulation with Canada's approach:

"She will be among the first students to graduate from Humber College's first bachelor degree programs. As a newly minted paralegal, Sheelagh McLellan will also be among the first in Ontario to benefit from groundbreaking legislation that will regulate the often-misunderstood profession.

"'I was interested in becoming a paralegal because one of their objectives is to provide legal services for people who may not be able to afford a lawyer,' McLellan says. 'I think the regulation of paralegals is a positive. It definitely gives creditability to our profession and I think it will help me if I decide to one day open my own office.'

[snip]

"But the profession is undergoing an important transformation. Under new Access to Justice Act legislation, paralegals in Ontario will be regulated by the Law Society of Upper Canada. For the first time in Canadian history, they will be required to receive training, carry liability insurance and report to a public body that can investigate complaints. The regulation comes into force May 1.

[snip]

"Mary Selvanathan, a senior legal consultant with Access Legal Services, lauds Humber's program. 'I personally find that Humber's bachelor program is way ahead and once the law (requiring paralegals to be regulated by the Law Society) comes into effect, they are well ahead.'"


Editorial: 'Lawyers will regulate paralegals'

Another strong opinion about regulating Canadian paralegals:

"Ontario has passed a law that will regulate paralegals. This is good news. Until now, what has it taken to be a paralegal? Call yourself one. That's it. No training required. No liability insurance. No minimum standards. No discipline for bad ones.

"I've seen some good paralegals. I've seen some bloody awful ones too. Of course, the skeptics will say the same about lawyers. At least lawyers have certain minimum training, have passed competency exams, pay liability insurance in case they screw up, and they can get booted out of the profession if they are unethical. Until now, there was virtually nothing you could do about a bad paralegal.

[snip]

"With the Law Society in charge [PDF link], it will have to strike a balance that protects the public and preserves the roles of both paralegals and lawyers. I'm hoping that it will find the right balance.

"I don't consider paralegals to be competition for me in my practice. We are simply not going after the same work. On the other hand, there are paralegals doing some things that are way out of their league.

"In my view, paralegals should never be doing separation agreements or family law. They should not be doing wills and estate planning. They should not be doing real estate transactions. These are areas of law where the amateurs think that it is just filling in the blanks on a 'standard' form. It isn't."

By Ian Johncox, a partner with the Mason Bennett Johncox law firm in Whitby, Ontario.


Ontario paralegal must reimburse client

Cases like this undoubtedly supported the fight to regulate paralegals in Canada:

"It was a dream payday for Brampton, Ont., paralegal Vince Chiarelli: He made $1,800 for just two hours of work.

"But for his client, Pamela Elliot, that contract with Mr. Chiarelli would represent her lowest point in a year of sheer hell.

"Having already lost her husband and her job, the 39-year-old single mother was facing eviction from her basement apartment. Until Mr. Chiarelli arrived on the scene, that is, and promised to win her a lengthy reprieve.

"Five weeks later, a bailiff threw her out. Ms. Elliot ended up living in her car for two weeks in wintry conditions, separated from her children, until a Salvation Army shelter took her in.

"In a Superior Court of Ontario ruling that seethes with controlled outrage, Madam Justice Deena Baltman [scroll to end for bio] has ordered Mr. Chiarelli and his company -- Total Management Services -- to reimburse Ms. Elliot's fees, plus interest and legal costs.

[snip]

"Judge Baltman noted that Ms. Elliot was so desperate that she had to borrow money from her mother to pay Mr. Chiarelli's fee. 'It doesn't take a lawyer, or even a paralegal, to figure out that spending $1,800 to buy five weeks of time is throwing good money after bad,' she said.

"By a coincidence of timing, Judge Baltman made the ruling within hours of a long-awaited bill to regulate paralegals becoming law in Ontario on Thursday. Under the new law, paralegals will be required for the first time to receive training, carry liability insurance and report to a public body that can investigate complaints."


Ontario regulates paralegals, 'puts lawyers in charge'

This news is not a surprise, but it does sound like the battle continues:

"Ontario became the first province in Canada to regulate paralegals Thursday, but many in the profession worry they could be forced out of business because they will be regulated by lawyers - the very people they compete against for most of their work.

"The Liberal government had to use its majority to out-vote the Conservatives and New Democrats, who stood in opposition to the Access to Justice Act - a new law that puts the Law Society of Upper Canada in charge of regulating paralegals [PDF link].

"For the first time, paralegals will be required to receive training, carry liability insurance and report to a public body that can investigate complaints.

"'We are really witnessing the birth of a new profession,' said Attorney General Michael Bryant. 'Paralegals are joining the ranks of doctors, lawyers and teachers as a regulated and respected profession in Ontario.'

"But the Paralegal Society of Ontario is fearful the Law Society will stop paralegals from providing a low-cost alternative to lawyers for civil cases, incorporations, wills, divorces and other family law disputes.

"'This legislation is going to hurt the public, as they're going to be limited in choice because it's going to go back to just being lawyers,' warned spokeswoman Susan Koprich.'"


Paralegal regulation in Canada 'on cusp of becoming law'

Regulation up north has definitely been a hard-fought battle:

"Last month, the Ontario Bar Association managed to lobby successfully for further clarity of the portion of bill 14 that amends the Law Society Act, after it made submissions to the Standing Committee on Justice Policy.

"As a result, the legislation now refers to paralegals as 'paralegal members' rather than 'persons licensed to provide legal services.''

[snip]

"After bill 14 passes, the Law Society of Upper Canada [PDF link] will be responsible for drafting the bylaws to create the rules and guidelines that will govern the paralegal profession, based on its 2004 report proposing its approach to paralegal regulation.

[snip]

"According to Steven Rosenhek, chairman of the Ontario Bar Association's paralegal task force, 'the great benefit of the bill is that it sets out a comprehensive scheme for regulation of paralegals in Ontario, which encompasses all of the kinds of things that we at the OBA have advocated for years, including mandatory educational requirements, discipline measures, requirements to carry insurance — all of the things that will protect the public from incompetent or unscrupulous paralegals.'"

Click here & here for the paralegal point of view; also see the Paralegal Society of Ontario.


"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."