Regulation of Paralegals
The debate regarding the need for paralegal regulation is as old as the profession itself. The arguments often parallel views on the role of paralegals in the delivery of legal services.
Are paralegals merely assistants to lawyers, or do they represent an independent profession that requires separate regulation and supervision?
Regulation is a generic term that includes all processes granting authority for recognition to an individual or institution, and there are a number of ways to regulate any profession. Some forms of regulation specific to paralegal professions include registration, certification, and licensure. State regulation of paralegals in the United States varies greatly from state to state, from none at all to very strict regulation, and nearly everything in-between. Some states have educational and work requirements in place for paralegals, while other states have enacted Codes of Professional Responsibility along with regulations or standards for legal assistants.
Because of no across the board standard regulation, anyone may deem themselves to be a paralegal, and any lawyer may call his assistant a paralegal – whether that assistant is primarily answering the phone and making copies or performing substantive paralegal work (or usually a combination of both). As a result, many lawyers have difficulty recognizing and establishing a productive working relationship with a paralegal.
Paralegals are usually regulated by voluntary or mandatory registration, statutory regulations passed by the state’s bar association or legislature, or rules administered by the state bar association of the state where the paralegal is employed. All types have one common element – the terms “paralegal” and “legal assistant” are used interchangeably. ABA Guideline G-103 (d), “[a] legal assistant or paralegal is a person qualified by education, training or work experience who is employed or retained by a lawyer, law office, corporation, governmental agency or other entity and who performs specifically delegated substantive legal work for which a lawyer is responsible,” remains the most universally accepted definition.
Registration involves individuals or institutions listing their names with an association or agency, and the process may be voluntary or mandatory. Education, training or bonding requirements are sometimes associated with registration. Voluntary registration of paralegals may be done with the state bar association, as it is in North Carolina and Texas, or through a private organization, as is the case in Delaware.
In the state of California, it is unlawful for a person to identify himself or herself as a paralegal unless he or she has met certain qualifications under California law and performs all services under the direction of a qualified lawyer. Under California Section 6454, the terms “paralegal,” “legal assistant”, “lawyer assistant,” “freelance paralegal,” “independent paralegal,” and “contract paralegal” are all synonymous. The law creates a crime enforceable by the courts and allows consumers to bring a cause of action against a non-lawyer who violates California Section 6454, but there is no governing body, mandatory competency testing or registration for the paralegal profession, and it does not provide for “ethics” checks or a disciplinary system.
Some voluntary registration programs also allow paralegals to take on a greater role, as in King County, Pierce County and Spokane County, Washington, where the local bar associations have created voluntary registration programs that allow qualified non-lawyers such as paralegals to perform certain “direct” legal services, such as registering with the bar or the court to present orders which will not be argued with an adverse party in court.
In some states, registration is required for certain non-lawyer direct service providers. “Legal Document Assistants” and “Unlawful Detainee Assistants” in California are subject to registration and bonding under California Business & Professions Code. To be eligible to register as one of these direct service providers, applicants must meet minimum educational or experience requirements under California law.
Similarly, legal document preparers in Arizona have to meet certain minimum education requirements, experience requirements, and pass a written examination.
Currently, the decision to obtain paralegal certification is strictly voluntary, and no state has put into place a mandatory program. A paralegal in North Carolina or Texas can choose not to be certified and still perform substantive legal work under the supervision of an attorney and can use the title “paralegal” or “legal assistant.” In North Carolina, paralegals must meet a minimum level of education to be eligible for certification and must have a minimum level of continuing education to remain certified under the plan. To become board certified in Texas, a legal assistant must meet several eligibility requirements, including a showing of involvement in the specific area of law for which certification is sought. The legal assistant must also have at least five years of experience, have peer reviews by professionals associated with the specialty area, pass a four-hour written examination, and sometimes undergo an oral interview as part of the certification process. Currently, there are over 320 board certified paralegals in Texas.
The states of Florida, California, and Louisiana (as of May 2010) have instituted voluntary paralegal certification programs, which are administered through their respective paralegal associations. To be eligible for these state certifications, the paralegal must first get a national credential by passing the Certified Legal Assistant/Paralegal examination given by the National Association of Legal Assistants (NALA) or the Paralegal Advanced Competency Exam offered by the National Federation of Paralegal Associations (NFPA), two highly-recognized national professional certification programs.
NALA’s Certified Legal Assistant/Paralegal (CLA/CP) program was started in 1976, and more than 13,000 paralegals have earned the CLA/CP credential since then. It is a voluntary self-regulatory program that encourages the growth of the paralegal profession and a high level of achievement. The CLA/CP examination is a two-day comprehensive exam with more than 1,000 questions based on federal law and procedure, and continuing education is required to maintain certification.
NFPA’s Paralegal Advanced Competency Exam (PACE), established in 1994, provides a competency evaluation of paralegals through a four-hour exam taken via a computer. An applicant who successfully passes the exam obtains the Registered Paralegal designation, and continuing education is required to maintain it.
Licensure is a process by which an agency or branch of government grants permission to persons meeting predetermined qualifications to work in a specific profession. No state currently requires that legal assistants be licensed to work in the profession or use the term “paralegal,” largely because not everyone agrees on the need for mandatory regulation of paralegals. Some courts and paralegal organizations believe that consumers of legal services are adequately protected by the license of the lawyer for whom the paralegal works, and that regulation may hinder the growth of the paralegal profession.
Attorneys, on the other hand, must be licensed to practice, and are ultimately accountable for the work done by a paralegal under their supervision. For their own protection, lawyers must verify academic credentials and prior work history when considering employment of a paralegal and must ensure that their paralegals are informed of changing laws and ethical concerns.