The Paralegal Contract

My last post was a set of 10 New Year Resolutions for Paralegals. Number two on the list is “Join a professional association.” I am, in general, a big fan of professional associations as anyone who checks out the “Professional Associations” category can attest. When run effectively they provide benefits to the individual members, to the public, and to the profession itself. In this “guest post” Clifford Smith argues that the ABA and most paralegal professional associations have made the profession into one that is subservient rather than independent, thus curtailing rather than enhancing its historical roll. [Clifford also contributed an article on Independent Paralegals to The Empowered Paralegal Professionalism Anthology.] When I contacted Clifford for permission to re-publish his “The Paralegal Contract” article, he informed me that there is now a Part II to “The Paralegal Contract.” Only Part I is reprinted here, but Part II can be read by clicking this link.

Here is Part I:

The Paralegal Contract
By Clifford C. Smith*

If the philosopher Jean-Jacques Rousseau were alive today, what would he have to say about paralegals? 1 Would he say paralegals are born free and everywhere they are in chains? Perhaps not such a dramatic statement, yet at the heart of his central work, Du contrat social ou Principes du droit politique, there is an underlying premise of freedom.2
Here, The Paralegal Contract briefly describes the evolution of the independent paralegal movement and the organizations that have emerged around paralegals, vying for control of the paralegal profession through certifications, regulations and educational guidelines. Ultimately, The Paralegal Contract encourages all paralegals to act from a deeper center of awareness, as opposed to the subservient support role that has been endorsed by paralegal organizations and advanced by the ABA’s Standing Committee of Paralegals. In many ways, law and its application has become separated from the higher principles of equality and social justice, resulting in unhappiness among many members of the legal profession, from paralegals to lawyers.

Much of the legal work being performed today is extrinsically motivated and revolves around personal financial outcomes, rather than on the intrinsic motivation to deliver legal services to those who need it the most – poor people with no access to justice.3 With the present global economic crisis, the way law will be delivered and practiced is being transformed, as consumers look for affordable solutions to legal problems that don’t involve traditional aspects of law delivery. In effect, corporations and small business will continue to slash their budgets and look for legal solutions through self-help resources, interactive legal software, internet-based law solutions, alternative dispute resolution, and online mediation. Paralegals have an opportunity to be at the forefront of this major transformation and shift, while also challenging and expanding their present roles in the legal workplace.

Paralegals – A Brief History
There are two distinct paralegal groups that emerged around the same time – one was the legal assistant who worked for a lawyer or law firm – and the other was the independent paralegal, which evolved out of the self-help law movement driven by the countercultural movement of the 1960s. Both took rather different paths. For the most part, the legal assistant was not a mainstream concept in the 1960s or 1970s, since most legal assistants worked behind the scenes and little was known about their actual function in the law office. On the other hand, the self-help legal movement was driven by a California based publisher known as Nolo Press, and by non-lawyers who provided self-help legal services directly to consumers.4 Gradually, these self-help providers became known as “independent paralegals,” and many of them operating self-help law clinics were unjustly targeted and shut down, because they were competing with lawyers.

Thus, it was through controversy that independent paralegals gained media recognition and the term “paralegal” stuck in the minds of consumers looking for affordable solutions to their legal problems. It was also through consumer trust and an affinity towards paralegals that propelled the name into mainstream consciousness. It was much later that the term paralegal was incorporated into what was generally referred to as the legal assistant working for a lawyer or law firm. Even magazines like the Legal Assistant Today, years later changed its name to Paralegal Today.

The National Federation of Paralegal Associations (NFPA) is the only national organization that incorporated the word paralegal in its name from its inception in 1974.5 It was founded by eight local associations, some of which later changed their names to incorporate the term paralegal:

Atlanta Association of Legal Assistants (Georgia Association of Paralegals); Minnesota Association of Legal Assistants (Minnesota Paralegal Association); Rocky Mountain Legal Assistants Association (Rocky Mountain Paralegal Association); and San Francisco Association of Legal Assistants (San Francisco Paralegal Association).

One of the first proprietary schools for paralegals was the Paralegal Institute, Inc., which was formed in 1972, in New York. The founder, Carl E. Person, is a Harvard Law School graduate and attorney, who brought an antitrust action against the ABA in connection with its Guidelines and Procedures for Approval of Legal Assistant Education Programs. 6 Person’s contention was that the ABA’s paralegal school accreditation program violated antitrust laws and that it was designed to eliminate competition and restrict entry into the market for the recruitment, training and placement of paralegals. That it was unreasonable when applied to proprietary schools such as the Paralegal Institute. Little did Carl Person know that years later the Department of Justice would bring an antitrust lawsuit against the ABA for numerous violations and anticompetitive practices. 7

The 1980s and 1990s saw the widespread expansion of paralegal educational programs and paralegal organizations marketing memberships and certifications, while enacting a variety of guidelines to oversee the paralegal field. In 2000, Governor Gray Davis signed AB 1761, a bill that defined and regulated paralegals under California law. It is important to note, however, that prior to the adoption of the bill, that it was paralegals who were providing self-help law services directly to consumers and with the passage of AB 1761, they were forced to trade in the designation “paralegal” or “independent paralegal” for Legal Document Assistant (LDA). Yet, it was those pioneers who popularized the term paralegal and put it on the map, along with the many independent paralegals working in other states, such as New York, Florida and elsewhere.8
This important point often gets blurred following the consolidation of the title paralegal by national and local paralegal organizations. Even the ABA itself changed from “The Standing Committee of Legal Assistants” to “The Standing Committee of Paralegals.” Younger paralegals entering into the field, today, may be unaware of this blurring of the term paralegal.

What we now have is control over the title so that paralegals are placed into a one size fits all definition of the profession, when historically it was not.

The Pioneers
The pioneers who propelled the paralegal self-help movement to the forefront were notably different from the legal assistants who worked for lawyers and law firms. It was the latter group that converged around NALA and the NFPA, where both organizations played a
part in shaping much of what we have in the way of restrictive ideology and of paralegals working under the supervision of lawyers. 9
Yet both organizations have failed to advance independence on the part of paralegals and in many respects, have become miniature extensions of the American Bar Association and its relegation of paralegals to working under the supervision of lawyers, which is at the heart of the ABA’s definition of a legal assistant or paralegal.
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.
Despite those qualifications of education, training or work experience, paralegals now find themselves micromanaged by a variety of organizations and inescapably locked into support roles, while being controlled along each step of the way.

Epilogue
The Paralegal Contract is about remaining true to the higher principles of equality and social justice, rather than being defined by any one professional organization or regulatory body desiring control over a group through use of its collective power.
The consolidation of the paralegal profession by paralegal organizations and the American Bar Association has created a tragic situation where paralegals are prevented from realizing their full potential and growth, as independent professionals. Thus, figuratively, they have traded their freedom for a form of paralegal servitude.
That even though paralegals must enter into social contracts with lawyers and the organizations overseeing them, in doing so, they should not lose sight of their fundamental vision of freedom and inner recognition of independence.
For a true association of paralegals to exist, there must be the unanimous consent of all its members.

* Cliff is a writer and holds an advanced paralegal credential. He is also a graduate of Duke Continuing Studies.
1 Jean-Jacques Rousseau was born on June 28, 1712 in Geneva, Switzerland. Rousseau’s philosophical writings have greatly influenced modern philosophy.
2 Rousseau’s work, The Social Contact, describes the relationship of man with society. Rousseau argued that no social contract can exist without the unanimous consent of all its members, resulting in a true association, instead of an aggregation, which has no validity. The framers drew from Rousseau when drafting the U.S. Constitution.
3 “Intrinsic motivation” refers to motivation that is driven by an interest or enjoyment in the task itself; and “Extrinsic motivation” refers to the performance of an activity in order to attain an outcome, which then contradicts intrinsic motivation. See Ryan, M. R., & Deci, L. E. “Self-Determination Theory and the Facilitation of Intrinsic Motivation, Social Development, and Well-Being,” American Psychologist, 2000
4 Nolo Press was formed by two lawyers, Charles (Ed) Sherman and Ralph (Jake) Warner, both of which had worked for legal aid in the late 1960s. Seeing a need for affordable legal services, they began publishing self-help law books and training non-lawyers to assist consumers with uncontested divorces through the Wave Project. More and more independent paralegals began using Nolo resources to assist consumers in self-help law. See “Nolo History” at .
5 See THE HISTORY OF THE NATIONAL FEDERATION OF PARALEGAL ASSOCIATIONS at
6 Paralegal Institute, Inc. v. American Bar Association, 475 F. Supp. 1123 (1979).
7 In 1995, the Department of Justice brought an antitrust action against the American Bar Association. The lawsuit alleged numerous violations under the ABA’s law school accreditation process, along with other anticompetitive practices. See
8 See Ralph Warner, et al., Independent Paralegal’s Handbook, 6th Ed., California: Nolo (2004) (Provides a historical background on the self-help law movement and independent paralegals working throughout the United States).

9.The ABA’s Standing Committee sets out a variety of guidelines on how paralegal services can be utilized to the benefit of lawyers. See the “ABA Model Guidelines for the Utilization of Paralegal Services,” and “Economic Benefits of Paralegal Utilization” available at <http://www.americanbar.org/groups/paralegals.html>

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