The Empowered Paralegal

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!

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A recent post on the NYCPA LinkedIn discussion board linked to an article entitled “Top 10 Qualities of a Great Paralegal.” The article lists and explains these ten items:

1. Analytical Skills
2. Communication Skills
3. Detail Oriented
4. Ethical Judgment
5. Great Writer
6. Interest in the Law
7. Interpersonal Qualities
8. Organizational Qualities
9. Research Skills
10. Tech Savvy

I agree that all of these are attributes that every good paralegal has, but I’d likely not classify all of them as “qualities,” but as “skills” as some of them are listed. And it is likely that my “top ten” list would be different. Certainly I would add to the list. In terms of skills I would at least add the basic skills of time, workload, calendar, client, and attorney relationship management to the list – the basic set of skills that form the basis for The Empowered Paralegal: Effective, Efficient, and Professional. For example, even the best writer and the best researcher are of little value to a law office if she cannot get the work done on time. In terms of attributes I consider qualities, those such as integrity, reliability, and the other components of professionalism come higher up the list than some of those in this list. Again, a great writer and researcher is a problem rather than an asset to a firm if he is unreliable or lacks integrity. In the end a law firm can teach improved writing and researching skills if necessary to a reliable paralegal with integrity but can do little to improve the reliability of a person with little integrity.

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A recent post on the Paralegal Gateway LinkedIn Discussion Board linked to an posting at Law21 entitled, “And the walls came down…” in which Jordan Furlong explains “the challenges facing the legal profession today and outline the contours of the legal market of tomorrow.” The whole post is well worth the read, but of most interest to most of the readers of this blog (or at least to this blogger) is:

In my home province of Ontario, paralegals are members in full standing of the Law Society of Upper Canada, lawyers’ governing body. The United States will hold out against this trend longer than anyone else — except possibly India — but its arrival here is still only a matter of time. Lawyers will be sharing the market with non-lawyers, and I cannot overstate how important that will prove to be.

Furlong and I agree on this.  We are also in agreement regarding the conclusions to draw from it and the causes of it:

2. Non-lawyers will have proliferated throughout the market.

I dislike that term intensely, by the way: “non-lawyers.” We are the only profession I know that divides the world into “us” and “not us.” We use that term all the time, and we rarely appreciate how insulting it is to the people thus described.

But non-lawyers are coming. We are going to share this market with them. The sooner we accept that and start working to accommodate its impact, the better. They’re coming because they are proving their abilities and reliability every day. They’re coming because lawyers have claimed too much territory under the all-powerful description “the practice of law,” too many activities that do not require a lawyer’s rare and valuable skill and judgment.

And they are coming because we have done a lousy job of serving the entire legal market. Clients, both individual and corporate, are spending more and more and waiting longer and longer for outcomes that leave them less and less satisfied. And that’s just the people who can afford lawyers and the legal system in the first place. Many people are not even in the game at all.

And that is on us. These problems developed on our watch, under our administration and stewardship of the legal system. They are our responsibility. We have had ample opportunity to rectify them, and as everyone here knows, we have not moved fast enough or far enough. So governments and citizens are going to start saying, “Time to let someone else try.” Time to start putting the “Unauthorized Practice of Law” in the history books. Look at what’s happening in England and Wales, and recognize that eventually, inevitably, it will happen here.

I especially focus on the first point, a digression from Furlong’s main point that serves well to illustrate a large part of the problem:

I dislike that term intensely, by the way: “non-lawyers.” We are the only profession I know that divides the world into “us” and “not us.” We use that term all the time, and we rarely appreciate how insulting it is to the people thus described.

This is especially disturbing in its implications for the paralegal profession as it at least suggests that lawyers simply classify all “non-lawyers” as one group, not recognizing the special nature of the paralegal profession and its potential for resolving access to justice and other problems without simply abandoning the “unauthorized practice of law” concept. At the very least, if lawyers are going to create a wall between “us” and “them,” they should recognize that paralegals are and should be on their side of the wall. Working together as two professions that complement each other the two professions can tackle many of the problems set out by Furlong.

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For most of you it’s likely difficult to imagine doing anything for fifty years. (I’m frequently amazed that I’ve practiced law for over 35!) It’s especially hard to envision a paralegal working as a paralegal for fifty years when the ABA did not recognize the profession until 1968. However, the ABA is frequently at least a few years behind the real world. I’m presently working on a course syllabus for a course that studies the paralegal profession through film, including 1949′s “Adams Rib” and, of course, Della Street from “Perry Mason.” But those are fiction, and now we have real life proof that there were people performing the functions of paralegals before the ABA recognized the profession as NewOK reveals in its story, “Paralegal marks 50 years with Oklahoma City law firm.”

Jo Balding “stumbled” into the job starting as a legal secretary according to the story, but it’s clear that the job ultimately demanded all the skills of a paralegal, including the ability to relieve stress. Here’s a bit of the story:

Balding said her job takes strong organizational skills and, with a lot of last-minute tasks, the ability to handle stress.

As a way of relieving stress, she said she joins friends she’s made through various quilters guilds in making quilts for wounded soldiers who return to the U.S., quilts for soldiers in Afghanistan and quilts for preemie babies at the various hospitals.

“It feels good to do something for someone else, and it’s calming and relaxing,” Balding said.

Crowe & Dunlevy directors Michael Laird and Brooke Murphy praise Balding’s five decades of service.

“For 50 years, Jo Balding has invested her intelligence, savvy, courage and wit in this firm and in the clients we serve. She has truly been the professionalism benchmark by which so many others who have come after her are judged,” Laird said.

“She understands the importance of strict attention to detail for each client matter on which she assists our attorneys,” Murphy said, “and she has dedicated her career to consistently maintaining high standards.”

So, congratulations to Jo Balding and to her firm!

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When I last did a post about Jerry O’Neil, an “Independent Paralegal” in Montana, in 2010 he had just won a skirmish in a long-running “war” with Montana authorities over UPL.  Of course as I noted in that post, here technically can be no such thing as an independent paralegal since every generally accepted definition of paralegal in the United States requires that the paralegal be supervised by an attorney. However, O’Neil’s saga is still an important one for the paralegal profession.

Now Richard Hanners of Hungry Horse Newsreports that O’Neil says he won the war even though he lost every battle!

In my 2010 post I wondered aloud about what O’Neil’s qualification were to call himself a paralegal, independent or otherwise. Hanners’ report answers that questions and more:

O’Neil said he “officially” began his career as an independent paralegal in 1984 when he registered his business as Kalispell Mediation Services. He also became licensed to practice law as a lay advocate on the Blackfeet Indian Reservation that same year.

A staunch libertarian who believes in less government and more freedom, O’Neil’s problems with the state’s lawyers and judicial branch began in February 2001 when Flathead County District Court Judges Ted Lympus, Katherine Curtis and Stewart Stadler wrote to the Commission complaining that O’Neil was “engaged in the unauthorized practice of law.”

According to the Montana Supreme Court in their 2006 ruling on the case, O’Neil never attended law school, was never licensed to practice law in Montana, had never sat for the state bar exam and “has not met the Montana Supreme Court’s character and fitness requirements.”

So where  is the “win?” At the end of a long line of loses:

O’Neil got his day in court in 2004, but following a two-day trial, Lake County District Court Judge Deborah Christopher, sitting in for Lympus, Curtis and Stadler, found O’Neil in contempt for engaging in the practice of law when not authorized to do so and permanently enjoined him from engaging in the practice of law “until such time as he becomes duly authorized.”

The Montana Supreme Court upheld Christopher’s ruling in 2006. O’Neil took his case to federal district court in Missoula and lost, and then appealed his case to the Ninth Circuit Court of Appeals and lost again. But things changed after that, he notes.

O’Neil has long claimed that state law on the authorized practice of law was “unconstitutionally vague” and that it restricts economic freedom by giving the state bar association a monopoly.

In a complete turnaround, the Montana Supreme Court on April 20, 2010, dissolved its Commission on the Unauthorized Practice of Law, noting that “we conclude that this court is not authorized either directly or through a Commission to regulate the ‘unauthorized practice of law.’” It also concluded that “what constitutes the practice of law, not to mention what practice is authorized and what is unauthorized is, by no means, clearly defined.”

O’Neil, according to the report continues to practice in Montana. The position of the U. S. DOJ in 2009 is also interesting:

O’Neil notes that he had an ally in his cause — the U.S. Department of Justice’s Antitrust Division, which he had contacted about his case. They wrote to the Montana Supreme Court on April 17, 2009, to comment on the Commission’s proposed revisions to rules on the unauthorized practice of law.

“Consumers generally benefit from competition between lawyers and non-lawyers,” Acting Assistant Attorney General Scott Hammond wrote. “We are concerned that the Commission’s proposal, by identifying broad categories of activities that may constitute the practice of law … will unduly restrict non-lawyers from competing with lawyers.”

Some issues do not go away. In Ontario, Canada, paralegals can be licensed to limited work independently. Yet there continues to be at least some controversy because both are regulated by the Law Society, originally comprised of and for lawyers. And there continue to be some “turf wars.” Yet, one wonders (i.e., I wonder) whether there some merit in have a set of written parameters for the battle such as exist in Ontario rather than the open field that exists in Montana or the very, very closed field we have in other states.

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Karen Greer McGee, ACP
NALA President 2010-2012

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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.”

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I’ve often discussed or referred to the particular form of regulation of paralegals established in Ontario, Canada.  That discussion has included comments about or from persons who do not view the program favorably. (See “Canada” category.) Under the program, regulated paralegals can perform many lawyer-type functions without the supervision of an attorney. The program has been in effect for five years now and the Law Society of Upper Canada has presented a report to Attorney General John Gerretsen, declaring it a success. Of course, those who object to the role of the Law Society in the program (and other more objective observers) will be somewhat cynical about the objectivity of the report.

Nevertheless, the report is important reading for those concerned about the future of paralegal regulation and indeed the paralegal profession itself in American. According to the press release,

…the report shows that paralegals and the public have both benefited from regulation.

The extensive review looked at whether Law Society regulation had established fair and transparent licensing processes, reasonable standards of competence and conduct, and fair and transparent investigative and disciplinary processes for paralegals. It also examined the effect that regulation has had on licensed paralegals and the public who have used their services…

As part of the review process, the Law Society solicited submissions from paralegals, lawyers, legal organizations and members of the public, and received 26 submissions – 12 from organizations and 14 from individuals. All of these submissions were considered in the preparation of the report.

A consultant conducted extensive research, including focus groups with paralegals and members of the public who have used paralegal services. Online surveys of licensed paralegals and users of paralegal services were also conducted. These research findings helped to inform the report’s analysis.

“Results show that paralegals are well on their way to establishing a prestigious and well-regarded profession,” said Law Society Treasurer Thomas G. Conway. “Paralegal regulation has provided consumer protection while maintaining access to justice. The Law Society is proud of all that has been accomplished in the past five years and we are pleased to present this report to the Attorney General.”

When I return to campus at the end of the month, I will try to get a copy of the complete report for further comment and discussion.

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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.

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I recently returned to the topic of men in the paralegal profession, noting the first male graduate of a particular paralegal education program. So I am particularly pleased to see that in this month’s The Paralegal Voice Vicki and Lynne “welcome two male paralegals — one with extensive experience and the other newer to the profession — to get the male perspective and their interesting insight on male paralegals in the profession today.” Here’s more info from Vicki Voisin’ The Paralegal Mentor website:

Carl H. Morrison II, PP, AACP is a Senior Certified Paralegal with Rhodes, Hieronymus, Jones, Tucker & Gable, in Tulsa, Oklahoma where he specializes in insurance defense, medical products, medical malpractice, vaccine litigation, asbestos litigation, products liability and dram shop liability. He has a degree in Biological Sciences (Pre-Med) and is a NALS Certified Professional Paralegal (PP), as well as an American Alliance Certified Paralegal (AACP).
Zachary W. Brewer, CP is a paralegal with Hall Estill, one of the larger firms in Oklahoma. He specializes in medical malpractice and has expanded into other areas, including banking, transactional, divorce and nursing home litigation. Zach has an interesting educational background with an AA in History from Tulsa Community College (TCC) and a BA in History from the University of Tulsa. He received his teaching certification in secondary education from Northeastern State University and he graduated from the paralegal studies program at TCC. He also earned his Certified Paralegal credential from NALA.
Carl and Zach discussed:

What they do in their paralegal jobs.
What drew them to the paralegal profession.
Is there an increase in men enrolling in paralegal programs?
How they found their first jobs.
Does a “glass elevator” exist, allowing male paralegals to advance faster than females
Challenges male paralegals face.
Their advice for men considering the paralegal profession.

For information on how to contact Carl and Zach, and for Vicki & Lynne’s monthly practice tip and social media tip, be sure to listen to this episode. It’s easy…and it’s free! Just click on the following links:

Page URL: http://legaltalknetwork.com/podcasts/paralegal-voice/2012/05/the-best-paralegal-law-technology-trends/

MP3 Link: http://legaltalkmedia.com/LTN/PLV/PLV_052912_NewTech.mp3

The Paralegal Voice also thanks its sponsor: NALA…The Association of Paralegals and Legal Assistants.

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