The Empowered Paralegal

Through the AAfPE (and likely several others) LinkedIn discussion board Barbara Liss passes this on:

Here it is! California State Bar’s Limited License Legal Technician Proposal:

http://board.calbar.ca.gov/docs/agendaItem/Public/agendaitem1000010722.pdf

The proposal’s Executive Summary says:

EXECUTIVE SUMMARY

In March 2013, the Board Committee on Regulation, Admissions & Discipline Oversight created the Limited License Working Group  (“Working Group”)  to explore the issue of licensing legal technicians and whether to create a limited license to practice law program in California. Legal Technicians are not fully licensed attorneys. They would be licensed to provide limited, discrete legal services to consumers in defined legal subject matter areas only.

The bottom line:

ISSUE – Should the State Bar of California propose a further study, development, and implementation of  a limited license to practice law program in California?

CONCLUSION -Yes.

So some progress is being made, but I am always leery of the study groups conclusion that an issue should be further studied. Sometimes that’s just a way to bottle up a proposal. (See, e.g., Congress.)

Thanks to Barbara there’s been a lot of discussion of this issue on various LinkedIn discussion boards. Some of that discussion is excerpted on this blog here.

Share on Facebook

Thanks to Barbara Liss several LinkedIn discussion forums are discussing the California Bar’s Working Group on Limited Licensing. The best discussion I’ve read so far is on NFPA’s board: http://www.linkedin.com/groupItem?view=&gid=1072727&type=member&item=239565298&commentID=137562643&report.success=8ULbKyXO6NDvmoK7o030UNOYGZKrvdhBhypZ_w8EpQrrQI-BBjkmxwkEOwBjLE28YyDIxcyEO7_TA_giuRN#commentID_137562643.

The discussion is based on a story in the California Bar Journalthat states:

Looking for ways to increase consumer protection and expand legal services to poor Californians, the State Bar’s Board of Trustees began studying the idea of limited-practice licensing following a bar retreat in San Diego this January. The working group, an advisory body that will ultimately make a recommendation to the Board of Trustees’ Regulation, Admissions and Discipline Committee, held its first public meeting on April 11. The group heard from Littlewood and other speakers, including a representative from the Law Society of Upper Canada.

The article also does a fairly good job of describing the program recently initiated in the state of  Washington.

Of particular interest is Barbara’s initial comment and Kathleen Mountjoy’s response, both of which are set forth below in full. I haven’t asked for permission to do this re-posting so Barbara, Kathleen, and NFPA, if there’s an objection, please let me know and I’ll remove them.

Barbara:

The concern I have is about whether the California State Bar is the appropriate vehicle for oversight of any limited license legal technician or whether instead a division of the California Department of Consumer Affairs is the better avenue. At present, Consumer Affairs has a division for licensed professional fiduciaries and private investigators. The Secretary of State’s office is charged with monitoring immigration consultants (and hasn’t done a very good job of it, frankly, but that’s not entirely the SOS’s fault, the code is missing any educational requirements and doesn’t specify any continuing legal education requirements either).

The State Bar is the entity that monitors lawyers’ behavior and makes sure that the lawyer monopoly is protected. Therefore, it would have a direct conflict of interest if it was also charged with determining what falls in the realm of work for limited license legal technicians and what is outside the scope and thus UPL. It seems to me that a more independent board charged with this responsibility, answerable to the Dept. of Consumer Affairs would be the better and more objective entity to make that call.

Kathleen:

Regarding Barbara’s comments. Good thinking on the DOCA oversight authority. However, LDAs are governed by the DOCA and it does nothing. ALDAP complained to the DOCA, providing investigative reports and evidence concerning fraud upon unknowing consumers (we performed a number of sting operations much like contractors do). We reported to the State Bar, local law enforcement, including District Attorney’s offices and DOCA. No response from the DOCA. The other agencies did respond, but it took months.

Before its demise, ALDAP was working on a proposal that the Secretary of State should be the agency to govern LDAs inasmuch as it already governs notaries and immigration consultants. I really like how the SOS maintains a page on its website where consumers can look up an immigration consultant’s credentials and photograph. I also like how the SOS sent me a re-register letter the week before my IC registration lapsed.

I transcribe immigration trial tapes and can tell you from the testimony I have banged out that the ALJs are well aware of the fraud and incompetence of ICs and actually, many know the worst ICs by their business or personal name. They ask who did your paperwork and they ask other questions such as where did you meet this person, how much did you pay, what is their address, phone? It is up to the ALJ and the federal attorney to report these abusers and they do – or at the least, it has been placed on record that they plan to do so.

It seems to me that the SOS would be the best “monitor” as you are correct, Cal Bar only has quasi authority over non-attorneys. In any event, as we at ALDAP were told, California does not have a budget or means to investigate non-attorney consumer protection fraud. Some of the DA offices told us that its fraud unit can only handle child abuse, elder abuse and bad checks – all due to budget cuts.

I doubt this licensing will gain teeth just yet. And it will be interesting to see the legislation itself if and when it appears. Registration vs. licensing? Law Students or law grads? But let us hope, for the sake of consumers, that paralegals and LDAs not be allowed to provide legal advice. Yes, there are those that would be exceptional, but there are far more who could cause harm consumers’ rights and remedies due to lack of knowledge and misperception of the law/statutes. I have seen paralegals time and time again, create documents with points and authorities which were incomprehensible. As a paralegal I know to seek legal advice from competent attorneys and I do for my own personal legal matters.

LDAs are, pursuant to statute, allowed to provide published information to their clients. In that regard, I supply my clients with rules of court, attorney practice guide information and sample documents – and any other writings or publications I can locate if necessary. This helps self-representing court users to gain success with their legal matters and I avoid UPL. If my clients are unable to comprehend the materials, I tell them that they should seek the services of legal counsel. This is also pursuant to statute. However, such a determination is in and of itself UPL. My provision of the published information creates a threshold for which such a determination may be made.

Finally, AB 590 provides for mandatory attorney pro bono work on behalf of impoverished parties in civil cases who meet the “criteria.” I would like to see Cal Bar institute mandatory pro bono attorney clinics – to work much like MCLE – where attorneys are required to donate so many hours to providing any and all inquiring consumers with free legal advice (much like the law library programs).

The article states, “If Washington State’s experience and California’s history is any indication, it could be a long and contentious road ahead for a State Bar of California group exploring the idea of a limited-practice licensing program.” This is likely true. However, I do hope that at the end of that road is a good legislation creating the limited license. It is important for the paralegal profession, but even more important is the effect it can have on the access to justice problem in the United States.

Share on Facebook

This topic seems to have become “hot” over the last few days. As noted in my previous post, the California Bar Journal for February contains an article indicating that the California State Bar is giving the concept some thought. A current discussion thread on the AAfPE discussion forum responds to concerns expressed by one member that Washington’s states efforts might actually be bad for paralegal (“icing them out.”) The general consensus is that with paralegal and paralegal education representation on the state board charged with moving the issue forward, it is likely to be good for paralegals. Janet Olejar informs the thread, ” truly appreciate the support this listserve is providing from Bob, Pat, Steve, and others. Especially important are the leads I’m receiving from Dr. Barbara Scheffer and Michelle Ryan to understand what is being accomplished in other states and countries to register or license paralegals/technicians. Please keep these leads coming. You can access documents and the LLLT Board minutes at the www.wsba.org website. Look for the folder under the Boards tab. (Emphasis added.) Other posts refer us to an article from the NY Times last week, “A Call for Drastic Changes in Educating New Lawyers” that includes this:

Paula Littlewood, a task force member and the executive director of the Washington State Bar Association, put it this way to her colleagues: “There’s a time for incremental change and a time for bold change. This is the time for bold change.”

Hers is one state that is not waiting. It has established a board to create a program for limited-license legal technicians, the first in the country. Within a year, the board is expected to lay out the educational and professional framework for the technicians. They will have more training and responsibility than paralegals but will not appear in court or negotiate on their clients’ behalf.

“The consuming public cannot afford lawyers, and the profession needs to figure that out and own it,” Ms. Littlewood said. “Our hope is to provide more access. The second point is that you have these folks out there doing unauthorized practice, which is harming the public. The hope is to bring them under the tent.”

And I’m trying to join the concept of limited practices license with access to justice in Mississippi through a comment to Judge Larry Primeaux’ excellent post on a recent symposium at Ole Miss on Poverty and Access to Justice.

All in all the topic has suddenly become “hot.” I am hopeful that paralegals and paralegal associations throughout the country join in the discussion while it is still on the front burner. If states move forward with limited practice licensing, it will be best for the profession if paralegals are at the head of that movement.

Update: A reply by Kristen to my comment on Judge Primeaux’s blog post provides a link to an article entitled, “The Washington State Limited License Legal Technician Practice Rule: A National First in Access to Justice,” that is well worth reading. Thanks, Kristen!

Share on Facebook

We’ve previously noted the new Washington Admission to Practice Rule 28 which creates a new legal service provider category named Limited License Legal Technician. The NFPA LinkenIn Group discussion board recently posted the following announcement:

Brenda Cothary, President of the Washington State Paralegal Association, has been appointed by the Washington State Supreme Court to serve on the Limited License Legal Technician Board.

Washington recently passed a law where certain paralegals can provide services directly to the public. Brenda will be on the inaugural board which will establish the requirements and procedures for paralegals who wish to work in this capacity. Brenda is very excited to be appointed and NFPA is proud of the work that WSPA members put into this project.

I join in congratulating Brenda and extend that congratulations to all the WSPA members who worked on moving the profession forward. Not every paralegal will or can be appointed to boards of this nature, but each can contribute to their own professional growth and the growth of the profession by actively participating in professional associations, civic affairs, and pro bono projects.

Share on Facebook

It’s always nice to start out the new year with new stuff, but, alas ( a very old word but it works here  – besides I also am old), the first item that has caught my attention this year is (1) left-over from a Paralegal Jobs & Continuing Education group LinkedIn Discussion Board, and (2) about an issue that seems to re-occur on a regular basis despite efforts from Marianna Fradman of the NYCPA, myself, and many others at clarification.

The discussion starts when a prospective paralegal student asks, “I am looking to go back to school to be a paralegal. Can anyone give me some inexpensive school names? … Also interested in schools that do payment plans. Thank you in advance.” The first response states, “Depending on where you live, it is best to check the American Bar Association, and the section that shows ABA Accredited, meaning that they approved that school and you will be hired once out of school. These days that’s important…” and another adds, “Accrediatation is everything. if if isn’t approved by the ABA its NOT worth the money.” These comments are incorrect on several levels.

First, the ABA does not provide accreditation of paralegal schools. Accreditation is provided by regional accreditation organizations. For example, the University of Mississippi and other SEC schools are accredited by the Commission on Colleges of the Southern Association of Colleges and Schools. The ABA approval is obtained by some paralegals on a voluntary basis. If a school claims to by accredited by ABA or that graduates are ABA certified, the school is, at best, misleading its students.

The ABA does not even provide certification. Here’s Marianna Fradman on that topic:

I’m on my soapbox today with a pet peeve. I noticed that some paralegals are putting “ABA Certified Paralegal” on their resumes, social media or announcing it to friends and employers. Here’s a suggestion: Stop now while you still can! Save yourself some embarrassment or even keep yourself from getting rejected from a job!

The ABA does not offer certification. Certification is a process of taking a very rigorous exam that is based upon work experience and knowledge. It is not your final exam in paralegal school. Generally, you need to meet certain educational and work experience requirements, submit an application for approval, pay a fee and take the exam in a secured environment.

For example, The Organization of Legal Professionals, OLP, offers a certification exam in eDiscovery.

Second, as I’ve stated here before, many ardent discussions occur on the internet as to whether ABA approval is beneficial to programs as a marketing device or to graduates as a tool for gaining employment. I suspect that the answer depends on more on geography than anything else.  This is not to say that there should not be some firm criteria for assessing a good paralegal program. Indeed, I argue in many posts here for the need for uniform educational standards.  However, it is not at all clear that the ABA should be the organization making these determinations, at least not in isolation. AAfPE does have representatives on ABA committees and does provide members for site review committees, but has little to no control over final decisions by ABA regarding its conception of the proper way to educate paralegals. Within AAfPE (American Association for Paralegal Education) there is some ongoing discussion about whether the ABA is the correct institution to be “approving” paralegal programs: does it make sense to have lawyers rather than educators determining what makes a good educational program, even if the topic being taught it law? (AAfPE has some good information on choosing a paralegal education program and a list of its members here.)

Third, the fact of the matter is that ABA can often be out of step with advances in education. For example, the Masters Degree program at George Washington University – one of our countries most prestigious institutions (and I think at last count the most expensive to attend) cannot obtain ABA approval because it relies on online education. Yet, it would seem that if online education was in itself bad, GWU would know about it. Many other institutions meet all of the ABA requirements for approval but do not seek it because it is a tremendous drain on resources, both in terms of money and personnel. The costs of obtaining ABA approval are substantial and must be either passed on to students or deducted from other parts of the budget.

This is confusion is just one of the many problems arise from the current state of the paralegal profession’s development. As I previously noted here, and more extensively in The Empowered Paralegal: Effective, Efficient, and Professional, even attorneys can be confused leading to must frustration for both paralegals and attorneys on the legal team.

Those interested in paralegal professional identity, regulation, certification, and education should check out the fine articles included in The Empowered Paralegal Professionalism Anthology.

Share on Facebook

Imagining a new job is a wonderful pastime, if you’ve time to pass. But creating imaginary jobs can land you in jail. posts here. Those posts generally dealt with the problem of determining what it took to be “certified” as either a paralegal or paralegal supervisor in that parish. Those adventures appear to have come to an end with a guilty plea by Aaron Broussard to federal corruption charges. Unfortunately, it appears it will end without an answer to the certification questions unless someone is willing to stop by the parish offices, read the “Jefferson Parish Executive Pay Plan” and other documents, and report back to us.

According to WWLTV, Broussard met with other officials to “Karen Parker, a woman Broussard would marry eventually, a job.” Normally that in itself would not constitute corruption, but this is:

“Broussard specifically wanted to have other Parish officials, including Wilkinson, be the individuals who hired Parker, because he knew that once he took over the position of Parish President, he could not hire Parker, and there would be increased scrutiny as a result of their romantic relationship,” says the factual basis.

During the meeting, all three men agreed to get Parker a job as a paralegal supervisor at the parish attorney’s office. It was also understood by the men that the position created just for Parker would be unnecessary.

OK, so they create an unnecessary position and hire Parker for it. But I’m still  confused. Did they also change the Executive Pay Plan to include the position or was there already such a position in the pay plan? If it was already in the pay plan, what was the job description for the position? Was it for a paralegal who  could also supervise other standard employees ( a Paralegal/Supervisor) or a person that could supervise paralegals? If they created the position and put into the Pay Plan, why was “Her starting salary was $48,000 – “higher than the salary range allowed for the position of Paralegal Supervisor under the Executive Pay Plan for Jefferson Parish?”

Finally, while everyone now agrees “Parker, despite holding position she was unqualified for, was trying to collect overtime/comp pay claiming that she working from home – a violation of parish rules,” we still are no further along in our quest to find out what those qualifications were and what it means to be “certified” as having those qualifications.

Share on Facebook

I’m just now finding my way to looking closer at the new Washington Admission to Practice Rule 28 which creates a new legal service provider category named Limited License Legal Technician assisted by the post on the AAfPE LinkedIn discussion board by Sally Bisson, J.D., Professor and Director of Paralegal Program at College of Saint Mary. She links to a news release at legaco.com that provides a nice synopsis of the rule.

Those of you who have read my posts on great need for a solution to the access to justice problem in the U.S. and my strong belief that paralegals are likely to be a major part of that solution (See “Access to Justice” category) would probably guess my enthusiasm for the Court’s reasoning:

According to the Washington State Supreme Court:

“ there are people who need only limited levels of assistance that can be provided by non-lawyers trained and overseen within the frameworks of the regulator system. … This assistance should be available and affordable. Our system of justice requires it…[P]rotecting the monopoly status of attorneys in any practice area is not a legitimate objective.”

While the licensed personnel will be called “Legal Technicians” it is interesting to note the requirements for the license include paralegal training:

Requirements

In order to be licensed, Legal Technicians must:

• have a formal paralegal training, and paralegal job experience,
• have completed at least 20 hours of pro bono legal service in Washington State within the prior two years,
• take and pass an exam and pay annual license fees,
• show proof of financial responsibility,
• have a principal place of business with a physical street address in Washington State,
• personally perform services for the client,
• complete a number of credit hours in courses or activities approved by the Board,
• enter into a written contract describing their services and fees with their client prior of the performance of services.

While the license will not permit activities as extensive as those allowed in Ontario (see “Canada” category,) the list of permitted activities goes well beyond what is allow in most (if not all – I did not check California’s rules today) American jurisdictions:

Scope of Practice

Legal Technicians are allowed to:

• explain facts and relevancy,
• inform the client of procedures and “anticipated course of the legal proceeding,”
• provide the client with self-help materials approved by the Board or prepared by a Washington state lawyer,
• review and explain the other sides documents and exhibits,
• select and complete forms approved by various groups,
• perform legal research and write legal letters and documents, but only if reviewed by a Washington lawyer,
• advise the client about other needed documents,
• assist the client in obtaining needed documents.

One concern for those of us advocating an expanded role for paralegals is the ability to monitor for “bad behavior,” a task now rather cumbersomely performed indirectly through discipline of the supervising attorney. The Washington rule applies many of those rules directly to the practitioner:

Legal Technician-Client Relationship

Additionally, rules regarding attorney-client privilege and fiduciary responsibility to the client apply to the Legal Technician-client relationship to the same extent as they apply to attorney-client relationships.

I will definitely being keeping an eye on the implementation of this rule and the effects of that implementation on the public and the practitioners. In a few years perhaps we will have a report similar to that just issued on the “Ontario experiment.”

Share on Facebook

As usual I am behind in my reading. I am just now noticing that 29 days ago Marianna Fradman of the NYCPA posted a link on the NYCPA LinkedIn discussion board entitled, “A Warning to All of the ‘ABA Certified Paralegals” on Law.com Legal Blog Watch, which itself was a synopsis of Chere Estrin’s article entitled, “Are you a “Certified Paralegal”? Maybe not.” The gist of the article is this:

I’m on my soapbox today with a pet peeve. I noticed that some paralegals are putting “ABA Certified Paralegal” on their resumes, social media or announcing it to friends and employers. Here’s a suggestion: Stop now while you still can! Save yourself some embarrassment or even keep yourself from getting rejected from a job!

The ABA does not offer certification. Certification is a process of taking a very rigorous exam that is based upon work experience and knowledge. It is not your final exam in paralegal school. Generally, you need to meet certain educational and work experience requirements, submit an application for approval, pay a fee and take the exam in a secured environment.

For example, The Organization of Legal Professionals, OLP, offers a certification exam in eDiscovery.

The full article is worth the read, especially since it includes the correct way to reference graduating from an ABA approved program.

This is just one of the many problems arise from the current state of the paralegal profession. As I previously noted here, and more extensively in The Empowered Paralegal: Effective, Efficient, and Professional, even attorneys can be confused leading to must frustration for both paralegals and attorneys on the legal team.

Those interested in paralegal regulation and certification should check out the fine articles included in The Empowered Paralegal Professionalism Anthology.

Share on Facebook

I’m still traveling, taking a side trip to San Francisco after the very productive AAfPE Board of Directors Meeting in San Diego, but wanted to pass on this from Brian Haberly of the Washington State Paralegal Association:

Last Friday, the Washington State Supreme Court approved a proposal from the WA State Practice of Law Board authorizing the creation of a new Admission to Practice Rule 28, setting out some basic guidelines for a new category of non-attorney legal service provider.

The Washington State Paralegal Association is still reviewing the order and we have long been advocates of expanding the role of well seasoned, tested, and bonded paralegals to help close the gap of unmet legal needs in our state.

He sent along a copy of the order, but I have not had time to review more than the first two of its 25 pages. What I’ve seen so far is interesting, especially in the court’s recognition of the role of paralegals in meeting unmet legal needs.  I’ll post more later and, if I can figure out how to do it, attach the order to that post.

Brian has been kind enough to provide these links:
http://www.courts.wa.gov/newsinfo/?fa=newsinfo.pressdetail&newsid=2136

http://www.courts.wa.gov/content/publicUpload/Press%20Releases/25700-A-1005.pdf

Share on Facebook

Patti’s Paralegal Page today posted the link to the  new The North Carolina State Bar Handbook noting that the rules governing the certification of paralegals can be found in Subchapter G.

The stated purpose of the rules is certainly laudable:

The purpose of this plan for certification of paralegals (plan) is to assist in
the delivery of legal services to the public by identifying individuals who are
qualified by education and training and have demonstrated knowledge, skill,
and proficiency to perform substantive legal work under the direction and
supervision of a licensed lawyer, and including any individual who may be
otherwise authorized by applicable state or federal law to provide legal services
directly to the public; and to improve the competency of those individuals
by establishing mandatory continuing legal education and other requirements
of certification.

And the powers and duties of the certification board are quite formidable:

Subject to the general jurisdiction of the council and the North Carolina

Supreme Court, the board shall have jurisdiction of all matters pertaining to certification

of paralegals and shall have the power and duty

(1) to administer the plan of certification for paralegals;

(2) to appoint, supervise, act on the recommendations of, and consult with

committees as appointed by the board or the chairperson;

(3) to certify paralegals or deny, suspend or revoke the certification of paralegals;

(4) to establish and publish procedures, rules, regulations, and bylaws to

implement this plan;

(5) to propose and request the council to make amendments to this plan

whenever appropriate;

(6) to cooperate with other boards or agencies in enforcing standards of professional

conduct;

(7) to evaluate and approve continuing legal education courses for the purpose

of meeting the continuing legal education requirements established by the

board for the certification of paralegals;

(8) to cooperate with other organizations, boards and agencies engaged in the

recognition, education or regulation of paralegals; and

(9) to set fees, with the approval of the council, and to, in appropriate circumstances,

waive such fees.

Here are the “Privileges and Limiations” of certification under the program:

Privileges Conferred and Limitations Imposed

The board in the implementation of this plan shall not alter the following

privileges and responsibilities of lawyers and their non-lawyer assistants.

(1) No rule shall be adopted which shall in any way limit the right of a lawyer

to delegate tasks to a non-lawyer assistant or to employ any person to assist him

or her in the practice of law.

(2) No person shall be required to be certified as a paralegal to be employed

by a lawyer to assist the lawyer in the practice of law.

(3) All requirements for and all benefits to be derived from certification as a

paralegal are individual and may not be fulfilled by nor attributed to the law firm

or other organization or entity employing the paralegal.

(4) Any person certified as a paralegal under this plan shall be entitled to represent

that he or she is a “North Carolina Certified Paralegal (NCCP)”, a “North

Carolina State Bar Certified Paralegal (NCSB/CP)” or a “Paralegal Certified by

the North Carolina State Bar Board of Paralegal Certification.”

Of course, the real nuts and bolts of the program are in the Standards for Certification which are too long to post here. However, the issue of certification and regulation of paralegals is important enough that it is worthwhile reading through the requirements of North Carolina’s program. 

I do note that the educational requirements can be satisfied by obtaining a J.D. While I understand the reasoning behind this, we do need to keep in mind that there are significant differences between the roles of attorneys and those of paralegals. A J. D.  does not necessarily (and most likely does not) provide a person with the skills necessary to be a professional paralegal. The hope, I suppose is that the other standards for certification compensate for this, thus ensuring that those certified are qualified to do paralegal work.

In any case, I’d like to here from North Carolina paralegals and attorney with their impressions of the program and how it is working.

Share on Facebook