Independent Paralegals and UPL

In her comment to a previous post on independent paralegals Melissa H. of Paralegalese expressed a concern regarding UPL issues. This concern is well grounded. As noted by Mary Kay Lieberman, RP, in DCBA Brief: Journal of the De County Bar Association in May of 2002,

There are cases on point about paralegals and other nonlawyers being prosecuted for the unauthorized practice of law. Although not all cases have been included, listed below are some cases of interest.

a. Statewide Grievance Committee v. Patton:1 Defendants provided customers a form to indicate the type of service they requested. The service provided legal documents for nonlawyers to file in their own uncontested legal actions. The question was whether the acts performed were those commonly understood to be the practice of law.

b. Attorney Grievance Commission v.Hamilton:2 The attorney was charged with violating the rule that prohibited a lawyer from assisting unlicensed persons in the unauthorized practice of law when the attorney failed to adequately supervise a paralegal in the representation of a church at a zoning hearing.

c. Davis v. Woolridge:3 Lawsuit filed against 40 independent paralegals in the San Bernardino County Superior Court charging the paralegals with unauthorized practice of law. This suit was filed in 1997.

d. In re Reed:4 The court ruled that Christine Mandjik, who runs Affordable Court Assistance and is a nonlawyer bankruptcy petition preparer, did not engage in the practice of law by advising a debtor about which exemption to select on her bankruptcy papers.

e. In the Matter of Arons:5 A lawsuit was filed in the Supreme Court of the State of Delaware by the Office of Disciplinary Counsel against Marilyn Arons and others for engaging in the unauthorized practice of law. Arons runs the Parent Information Center of New Jersey and provides services to parents of disabled children in due process headings before administrative agencies.

f. Florida Bar v. Catarcio:6 Florida Supreme Court ruled that a paralegal may not use the phrase “free consultation” to advertise legal form preparation service.

g. Furman v. Florida Bar:7 The Florida Bar prosecuted a former legal secretary and tried to have her jailed for helping poor and middle-income people complete routine divorce forms. The Florida’s governor granted her a pardon and she did not serve any jail time.

h. Oregon State Bar v. Smith:8 Robin Smith, an independent paralegal who ran Peoples Paralegal Service, was put out of business after being successfully sued for unauthorized practice of law.

In the Furman matter the former legal secretary was sentenced to eighteen months of jail time. This is significant even though she did not serve the time due to the pardon.

In some states a distinction is made between “paralegals” and “legal document preparers” with the latter being subject to regulation. the California Legislature enacted legislation recognizing and regulating the industry. Since 2000, all California independent paralegals have been classified as Legal Document Assistants and have to register with the Department of Consumer Affairs, post a bond, and meet minimum education and experience qualifications. Paralegals working under the supervision of an attorney have escaped this type of regulation. The regulation that does exist, according to ABA.net,

In California, the desire to increase standards has resulted in legislation that sets out a higher standard of education and mandatory continuing education for paralegals. Sponsored by the California Alliance of Paralegal Associations, California Business & Professions Code Sections 6450-6456 became effective on Jan. 1, 2001. Under the California statute, it is unlawful for a person to identify himself or herself as a paralegal unless he or she has met the qualifications of the statute and performs all services under the direction of a qualified lawyer. Further, the terms “paralegal,” “legal assistant”, “lawyer assistant,” “freelance paralegal,” “independent paralegal,” and “contract paralegal” are synonymous under Section 6454.

The California statute does not establish a governing body, mandatory competency testing, or mandatory registration for the paralegal profession. It does not provide for moral character checks or a disciplinary system. However, it creates a crime enforceable by the courts and allows consumers to bring a cause of action against an individual who violates the law.

I have received communication from Efrem Martin of  Martin Paralegal Services LLC  www.martinparalegalservices.com addressing this issue. It states in part,

Thank you for putting our conversation for others to view and I am always open to good discussion regarding the paralegal profession.  I am a rare breed of paralegal because I know most paralegals are really concerned about being accused of UPL but I have been in this field too long and understand the difference between answering questions and giving legal advice, my entire background in the Criminal Justice System has prepared me to address any attorney, judges and anyone else regarding UPL, the Supreme Court has already spoken on this issue and their is case law so I am never concerned.  Efrem

For Efrem, as I suppose it was for Furman, this is more than simply a matter of career or profession. In discussion another point regarding blogs, he states (again in part),

I will not ever provide a forum like yours for just paralegals there are too many of them out there and they are used primarily to give information to paralegals.  I have a greater mission and that is to make sure those people who represent themselves in court that I provide to them information in order for them to make a better decision, I cannot help all Pro Se Litigants trust me I refer a lot of people to attorneys because their cases are more complicated then they think and only an attorney will be able to help the.

I think one point on which we can all agree is that the ultimate goal must be to benefit the public as much as possible. I like to focus in particular on the role paralegals can play in bring services to those who might otherwise not be able to afford or obtain access to legal services. The question, of course, is how best to accomplish this goal.

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5 Comments

  • […] legislation relating to paralegals has come up in previous posts, particularly Independent Paralegals and UPL. The legislation capped “CAPA’s [California Alliance of Paralegal Association] longtime […]

  • Virtual Paralegals, Independent Paralegals and Freelance Paralegals prevent UPL if they work only under the supervion of a licensed attorney.

  • R. E. Mongue says:

    Virtual and freelance paralegals can avoid UPL by working only under the supervision of a licensed attorney and are properly supervised. Simply cloaking oneself with the appearance of a supervising attorney is not enough. In fact, attorneys have been reprimanded or worse for allowing their paralegals to do acts which constitute UPL. “Independent” paralegals as used on most of the posts on this blog refers to individuals who are assisting clients without the supervision of an attorney, along the line of Efrem Martin. Those paralegals, by definition, are not supervised by an attorney, and are even more likely to be subject to charges of UPL as evidenced my Martin’s current difficulties with the bar association as recounted in my “ABA, meet Efrim Martin” post.

  • Mark says:

    Adding onto Mongue’s post, paralegals are also called legal assistants. Due to the nature of the job and that industry, they must be assisting an attorney. Because of the sensitivity of paralegals and lawyers dealing with the law all the time, this hierarchy must be followed.

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