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.