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Memphis, Tennessee, United States
Small town paralegal in the city. Once ran a law office, now being run by one. Med mal defense litigation. I think it's growing on me.

Thursday, September 10, 2009

Regulate Me

Update 9/16/09 This post has given me some grief. In the moment, it made perfect sense to me. Several re-reads later, I only partly agree with myself here. In the interest of full disclosure and complete honesty with my readers, it is left available for your reading pleasure. I still hold to the idea that state level associations should move toward their own certification standards for paralegals, which would help employers choose highly qualified individuals by a familiar and closed set of standards, and would further promote education and professionalism of legal professionals in the state. In my own state, and especially in my more rural area, paralegals and their employers would likely greatly benefit from such a system.

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"So how does the paralegal profession deal with ethics violations?" asked the Boss. It was a perfect question. We were discussing the idea of non-lawyer practice that some states allow, licensing standards for legal professionals, and the fact that it takes knowledge and experience, not inherently a degree, to be competent in the legal field. That being said, we both agreed that regulation is key in the legal field to weed out the incompetent, unethical, and otherwise dangerous people from taking advantage of the public. So when talk turned to paralegal standards, he asked the above question.

My answer was simply that probably paralegals who violated the rules of the organization that certified them, whether a state bar association or a national paralegal association, could lose their voluntary certification. I have never heard of this happening, but I simply imagine this to be the case. What is given can be taken away. Of course, because there are no uniform standards that all paralegals must uphold, and because certification on national and some state levels is purely voluntary, the punishment does not seem very severe. So I explained that this is one reason I am in favor of regulation and uniform standards, at least at the state level. This assessment led to another question:

"Would you really want to be held to a standard that took away your paralegal status if you engaged in the unauthorized practice of law? The rules are so vague." He went on to describe the rules for attorneys as hard and fast, unchanging and definite, compared to gray and varying rules for paralegals. Cha-ching. My attorney gets it. He went on to describe me as more careful than most, and yet agreed that some of the things I do on a daily basis could be stretched to be construed as UPL. After all, I have read some crazy UPL opinions in my time. My favorite was the suggestion that paralegals should not use words like "our" or "we" when talking about clients or the firm, I suppose because those words imply a level of representation. I am guilty of using "our" when referring to firm clients or firm actions. As I see it, I am an extension of my attorney, so "our" is perfectly appropriate. Also, my state was not the one which expressed the restrictive opinion.

But the Boss hit the nail on the head. How can we hold ourselves to regulatory standards before hammering out definite uniform rules? When are we going to gather together under one banner and one set of accepted rules and values, at least state by state? That is the first step. Many states have begun taking such steps, with paralegals submitting to certification and/or regulation from one organization within the state. Of course, one of the problems in other states, including my own, is that while paralegal ethics rely upon attorney ethics for their existence, many bar associations refuse to associate with paralegal organizations in a meaninful enough way to aid in governance. Unfortunately, they must do so if paralegals are to be meaningfully governed. This is a conundrum. They do not seem to realize that they already inherently govern our standards by extension, just not in an organized and effective manner.

And yet, at the same time, I am not of the mind that all state bar associations should adopt a paralegal division and begin regulating paralegals. That is merely the answer that sounds good to me today. I am not sure what the specific answer is. I do know that until we have hard-line rules in each state and at the national level, the profession itself will remain fairly unorganized.

This is the conclusion I came to today. Please give me some feedback and your thoughts. I'm not married to these ideas, but this is a discussion that we must start having, for the legal community, for our profession, and for ourselves.

8 comments:

  1. Melissa...You've raised some good questions. However, your statement that we should 'start having this discussion' is inaccurate. The discussion of regulation/licensure has been going on since the dawn of the paralegal profession. It was a topic that occupied much of my time when I was President of NALA.

    Here are some points for your consideration:

    1. There are ethics guidelines for paralegals put in place by most paralegal associations (NALA, NFPA, AAPI) and by the American Bar Association. No, they are not mandatory but they do set ethical standards for the paralegal profession.

    2. If you or any other paralegal commits an ethical violation, you will lose your certification so quick it will make your head spin. Believe me, this has happened.

    3. The definition of a paralegal includes the statement that they work under the supervision of the attorney. The ABA's Model Rules of Professional Conduct address the attorney's obligations to be certain his or her staff understands ethics rules and that they abide by them. If any member of the attorney's staff commits an ethics violation, it is the attorney who will be disciplined. The staff member may be subject to criminal charges and civil litigation.

    4. A paralegal can commit the unauthorized practice of law while working for an attorney, just as an attorney can commit the unauthorized practice of law if, among other things, they practice in a state where they're not licensed. Again, if the paralegal commits UPL while working for the attorney, it is the attorney who will be disciplined.

    5. When a person is licensed by a governing body, all the license says is that they meet the lowest standards for entry into the profession. It does not say they are terrific. It does not say they are ethical. (Example: a hair dresser must be licensed to work as a hair dresser...the license does not say they're a good hair dresser, only that they have the basic skills and knowledge to ENTER the profession.)

    6. Yes, the rules regarding the Unauthorized Practice of Law are vague. It is pretty simple, though, to understand that people who give legal advice without a license to do so are committing UPL. Some states do regulate document preparers...who still can't give legal advice.

    7. Voluntary certification is now, and always has been, a way for paralegals to demonstrate that they have a higher level of knowledge and expertise. It says that they hold themselves to a higher standard. It sets them apart and it gives them credibility among professionals.

    8. Voluntary registration (such as instituted in Florida), as well as standards set by a State Bar (such as those for California paralegals), usually include mandatory ethics courses. This is a good thing and will go a long way to make sure paralegals understand their ethical obligations.

    9. Uniform? There can be no national regulation or licensure of paralegals...just as there is no national licensure for attorneys. Attorneys are licensed state by state. If they want to practice law in another state, they must meet that state's licensure standards. So...if a paralegal is licensed in Alabama and wants to move to North Carolina, the paralegal would have to be meet licensure standards in NC. That would inhibit our ability to change jobs.

    10. While you work under the supervision of an attorney, you still cannot give legal advice, set fees, establish the attorney-client relationship, appear in court, or exercise independent legal judgment on behalf of the attorney. All of this would be committing UPL. Any letters that offer legal advice must be signed by the attorney. You cannot sign the attorney's name (or your name) to pleadings.

    Melissa...If you research the standards set for paralegals by professional associations and by the ABA, as well as the tremendous efforts that are made to continually educate paralegals regarding their ethical responsibilities, I think you will agree that the paralegal profession is really very organized.

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  2. Vicki, thank you for your comments. I regret that my first attempt at responding ended up with an error message and the disappearance of my nice long comment into cyberspace. So I will try again...

    First, again, thank you for your insight. I admit it is inaccurate to suggest that this conversation hasn't been ongoing for several years. If I remember my own thoughts correctly, I want to see more conversation, less satisfaction with the status quo. I'm usually a status quo person, but here I see positive changes that could affect greater unity among paralegal professionals.

    I am not suggesting mandatory *licensure* of paralegals by some national association. But I am advocating joining together under one banner and speaking with one voice as a profession. While the paralegal profession may be organized among its different groups, I do not perceive those groups as cohesively working with each other. NALA, NALS, and NFPA all have their own certification tests, certification standards, and designations for their certified/registered paralegals. Paralegals can be voluntarily certified as CLA, CP, PP, or RP by the various national organizations.

    I personally joined both NALA and NALS because they are so different and offer two separate communities of legal professionals in my area. I am certified through NALA, but if I were not involved with my local NALS affiliate, I would feel rather alone in my local legal community.

    I realize, as you point out, that lawyers are not licensed on the national level, but that doesn't keep them from speaking with one voice through the ABA. The ABA may be a voluntary association, but it is THE national level bar association. Paralegals have at least three different national voices, multiple standards for certification, different standards for education to keep certification through these national organizations, etc.

    Meanwhile, some states and state bar associations are providing voluntary certification and regulation, which is fantastic. But many more are not. Yet.

    I believe there are wonderful things happening all over, and I don't mean to focus only on what has not been done yet. As a new member of this dynamic career field, though, I do not see the level of cohesion I hope to see in the future.

    Paralegals are often compared to nurses. Yet we are missing the agreed-upon standards and even minimum regulation in most states that nurses of all levels are held to.

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  3. Vicki Voisin ACP The Paralegal MentorSeptember 12, 2009 at 6:41 AM

    Melissa...After I hit 'send' on my comment, I realized I had omitted NALS. This was unintentional so I am pleased you mentioned that association.

    You say that paralegals are often compared to nurses. Nurses deliver treatment directly to patients. Paralegal services are delivered under the supervision of the attorney, at his or her direction, and the attorney takes responsibility for the final work product. If you are suggesting that paralegals deliver services directly to the public, omitting the attorney direction, supervision and responsibility, then YES paralegals should be licensed. I'm certain that's not what you are suggesting.

    The ABA is the largest attorney association. However, not all attorneys belong to the ABA, nor is it the only association for attorneys.

    While the ABA has its Model Rules of Professional Conduct, not all states have adopted them.

    Also, many states do not have mandatory state bar requirements.

    That there are several associations for attorneys is a good thing, just as it is for paralegals. This allows for differences in styles and philosophy. All of these associations are working for the good of the profession.

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  4. Of course, I don't think there is a need for mandatory licensure. At least not yet. Who knows what the legal landscape will look like in fifty years? But there is a need for unity. The existence of several organizations to belong to is one thing, but the fact that voluntary certification is offered from several different sources with different standards for certification and different designations for the certified, I believe causes problems. Perhaps that is why a young lawyer once told me she thought the paralegals at her firm had just made up their designations. If you have CPs, CLAs, PPs and RPs, and they all supposedly mean the same thing but came from different sources with different requirements, then no wonder someone would get confused.

    And while, as you and I have both already stated, ABA membership is voluntary, the entire American legal field looks to its standards and opinions. We are all beholden to it. Even as paralegals, we look first to its definition of ourselves before looking anywhere else. The first definition of paralegal in my first text book was the ABA definition. And as for whether states adopt the Model Rules or not, the fact is that the ABA is the national standard bearer, and state rules are often held against ABA rules for comparison and contrast.

    Because attorneys are licensed and paralegals are voluntarily certified, it is inaccurate to compare one to the other without qualification. Licensure is state level, and every state requires it of attorneys. But certification is not uniformly state-level, and thus many paralegals must go to national organizations for voluntary certification. Yet there are so many to choose from that certification itself gets bogged down in lack of uniformity.

    All that being said, I believe voluntary certification offered at the state level is well and good. It promotes uniform standards for ethics, continuing education, and a certain level of experience/education to use the certified designation. At least in the states that offer state-level certification, employers can look to one source and one set of standards (other than their own individual needs) when comparing prospective employees.

    As for the paralegal/nurse comparison, you are correct. I had never thought of it in that light. In such case, perhaps paralegals can be more accurately compared to physician assistants, who work under the supervision of a doctor when providing care to patients. Yet medicine is different than law, and even the PA profession requires higher education, certification and licensure. Certification of PAs is given through one governing body, National Commission on Certification of Physician Assistants. So every PA who is certified, is certified according to one set of standards and one type of test. Separate states require separate licensing procedures.

    I believe it would be beneficial for paralegals to answer to one national body for broad certification standards and then separate state organizations for state by state credentialing. Even if it remains purely voluntary, we, our employers, and the legal field would only benefit from such unity and structure.

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  5. Just a few thoughts along the way as I run out to do some kayaking (priorities! :)

    I don't think the split of national vs. state-by-state is god-given. Just because attorneys state licensed doesn't mean that paralegals have to be. After all, attorneys and paralegals provide different services to different audiences - the attorney is oriented towards the general public, the paralegal towards the attorney.

    Which brings me to a different point: The attorney/law firm ultimately decides what functions they want to be fulfilled by paralegals. Since that can be everything from drafting motions and witness interviews to typing up pleadings and watering flowers, I don't think that mandatory certification is an efficient way to regulate the profession, because it creates huge barriers to entry to the entry level positions, which may have no need for the skills required for such certification.

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  6. Thanks for the comments Sebastian! Well-stated.

    At the same time, if someone's "paralegal" is only typing dictated pleadings and watering office plants, I would suggest that the employee be given another title. Of course, this leads into a whole other topic, educating and encouraging the correct usage of the individuals called paralegals. Since "paralegal" means so many different things to different paralegals and their employers, we need the clarification that state level certification and/or one national voluntary certification would provide.

    Of course, if we disagree as to whether clarification is needed and whether attorneys should strive to use their paralegals in a substantive capacity, then I understand the argument that no national standard bearer and/or state-level certification is needed.

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  7. Melissa, you have reopened a discussion which has been ongoing in the paralegal profession for many years.

    According to one source (http://www.michbar.org/legalassistants/pdfs/LA_4-08.pdf), the paralegal profession was first recognized by the American Bar Association (ABA) in the 1960’s. The National Federation of Paralegal Associations (NFPA) was formed in 1974. The National Association of Legal Assistants (NALA) was formed in 1975.

    By contrast, the ABA was founded in 1878. Even by today’s fast-moving standards, the paralegal profession in the United States is still very young.

    In December, 1978, NALA issued its Statement on Licensure, http://nala.org/New2/Upload/file/PDF-Files/News-Articles/issues.pdf
    It seems to me that NALA’s Statement is still quite relevant in its assessment of this subject.

    Although the ABA is a central national-level association for attorneys, the ABA site indicates that roughly half of all attorneys are members. The ABA site further lists numerous other Bar associations in existence throughout the United States. A number of those organizations maintain national memberships. As paralegals, we now have several national-level organizations from which to choose. Rather than a hindrance, I look at that as a freedom. As our profession grows and paralegals become more specialized, I believe that more associations will be established and that even more certifications will become available.

    One central professional organization is not going to give us equal credibility. There will always be another certification we could obtain or another professional organization we could join. We must choose those which serve our long-term career goals.

    The term “paralegal” has several different definitions, but so do most words in the English language. Licensing will only establish that certain minimum requirements have been met.

    I do agree that we need to continue educating attorneys and the general public concerning our profession. It’s ironic, but sometimes I think the very attorneys we work with are the least knowledgeable about the ethical boundaries for paralegals.

    As for crazy UPL opinions: We have crazy case law which interprets crazy statutory and regulatory laws. The addition of more rules and regulations does not necessarily solve the problem, mean more clarity, or organization, but quite often makes the problem more complex. Those hard line rules get amended over and over. We get frequent updates on rule changes for every court or agency in every jurisdiction.

    Trying to read between the lines, what I think you may desire -- what we all desire -- is clear understanding of and respect for the professional level which you (we) have obtained. Those are achieved through continued education of paralegals, attorneys and the general public. Respect as a professional is earned -- degree or no degree, certification or no certification, license or no license.

    Your discussion of this topic reminds us that we have a continuing responsibility to build our profession. By networking with paralegals in other organizations, we can help build the unity which you mention!

    Great topic! Thanks for allowing me to share my point of view!

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  8. Cathy, thanks for the great comments! You are always welcome to share your point of view here. And thank you for pointing out angles that I had not considered in this topic.

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