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.

Come On Alabama, Join the Paralegal Bandwagon

The paralegal blogosphere has been riled lately by the South Carolina state bar's stance against voluntary certification. You can read about it at the Estrin Report. My opinion of this news and some of the reasoning behind it could better be expressed by a facial expression rather than words.

However, while I am connected with paralegals all over this great country, and some of you actually live and work in South Carolina - keep up the good fight, you'll get there sooner or later - I live and work in Alabama. This report inspired me to investigate my own state bar's stance on paralegals. It was quite the interesting research project.

The first source I found was the February 2009 minutes report from an Alabama State Bar Board of Commissioners Meeting. The state bar of Alabama has apparently created a "Task Force on Allied Professions," an effort which goes to their credit. At the February 2009 meeting, this task force presented a new definition for the word "paralegal" in the state of Alabama. The presenter gave several reasons for a new definition, including profitability of law firms and proficiency in staffing. However, a few objections to the definition arose. First, someone believed that describing paralegals as performing services similar to lawyers, which the definition apparently provided for, would appear to permit the unauthorized practice of law. Another objector stated that the bar association's job is to regulate attorneys and that the attempt to define the term "paralegal" would lead it down a "slippery slope."

My thoughts on these fine lawyers' opinions vary. First, I understand our first objector's concerns about UPL, however overbroad I think his interpretation of it to be. It is still a valid concern. Yet, if he is concerned about a new definition appearing to advocate UPL, he should be more concerned about the one we already have for legal service providers. Ala. Code section 6-5-572 currently defines a legal service provider as

Anyone licensed to practice law by the State of Alabama or engaged in the practice of law in the State of Alabama. The term legal service provider includes professional corporations, associations, and partnerships and the members of such professional corporations, associations, and partnerships and the persons, firms, or corporations either employed by or performing work or services for the benefit of such professional corporations, associations, and partnerships including, without limitation, law clerks, legal assistants, legal secretaries, investigators, paralegals, and couriers.

Under the definition provided by statute, there is very little distinction between lawyers and nonlawyer legal professionals. A state bar recognized definition of paralegals would only serve to better define and better set the limits of paralegal work.

The second objector's opinion, I also find almost agreeable. My problem is this: one of the inherent characteristics of the paralegal profession as most of us know it includes working under the supervision of an attorney. We do not exist without lawyers. Many lawyers would have a hard time existing without us. Our relationship is symbiotic and mutually beneficial. If paralegals do not exist apart from attorneys, then we need some interaction on a real level with the state bar association. We do not have to be accepted into membership, with fair reason. But it makes no sense for the men and women who hire and utilize us on the one hand to ignore the need to define our presence in the legal field on the other. Makes me feel like that dorky girl who some too-cool guy hangs out with in private but feels like he has to ignore in public. Sigh.

I was unable to find whether the definition has ever been brought to a vote by the full Alabama State Bar. I believe that if it had been accepted I should have been able to find it on their website. Alas, I found no such thing. There's always next year. And a new generation of attorneys who are entering a legal world where the presence of paralegals in this field is the rule, not the exception. I just hope my state's bar isn't the last one to join the dialogue regarding paralegals in meaningful way. Perhaps Alabama will someday jump on to the quickly growing list of states that either define or regulate paralegals. With any luck, it will happen before I retire.