The Empowered Paralegal

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.

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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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Just a few weeks ago the dean and president of Vermont Law School spoke out on the increasing role of nonlawyers in serving the legal needs of our community. This is, of course, a opportunity for paralegals as I noted in my post regarding his comments. However, my focus in this regard has been on the role paralegals can play in resolving the access to justice problem in the United States (see the “Access to Justice” category.) In 2010 I commented, “On accepting his appointment as Senior Counselor for Access to Justice in the Department of Justice where he will lead a newly launched initiative aimed at improving access to civil and criminal legal services, Laurence Tribe stated, ‘Access to justice for all is at the core of our nation’s values.’ The DOJ initiative recognizes a need to ‘enhance the delivery of legal services to the poor and middle class, and identify and promote alternatives to court-intensive and lawyer-intensive solutions.’ One alternative to lawyer-intensive solutions is the effective utilization of paralegals.”

Now Gillian Hadfield, the Richard L. and Antoinette Kirtland professor of law and economics at the University of Southern California, is making a similar point. While I’ve based many of my comments on the model presently being tested in Ontario, Canada (see “Canada” category,) Professor Kirtland focuses on the differences between the present American system and the system in place in Great Britain in a story on CNN.  First. some of her statements on the present status of access to justice in the U.S.:

In our country, lawyers and judges regulate their own markets. The upshot is that getting legal help is enormously expensive and out of reach for the vast majority of Americans. Anyone faced with a contract dispute, family crisis, foreclosure or eviction must pay a lawyer with a JD degree to provide service one-on-one in the same way lawyers have done business for hundreds of years.

Increasingly, the only “persons” with access to legal help are “artificial persons” — corporations, organizations and governments. No wonder that in a 2010 New York study, it was shown 95% of people in housing court are unrepresented. The same is true in consumer credit and child support cases; 44% of people in foreclosures are representing themselves—against a well-represented bank, no small number of whom engaged in robo-signing and sued people based on faulty information.

These numbers are just the tip of the iceberg. For every person who is unrepresented in court there are probably tens of thousands who didn’t have any legal advice when they did the things that landed them in hot water in the first place. Who can afford $200 to $300 an hour to get advice on local small business regulations, the fine print in a mortgage document, or how not to make mistakes that will cost you in court when fighting over kids and money with your soon-to-be ex-spouse?

Professor Kirtland then reinforces my point:

That’s why the only way to increase access to justice is to expand the group of people and organizations that can provide legal help beyond JD-trained and licensed lawyers.

Authorized nonlawyers and organizations could help ease our overburdened courts in many ways. Each year, 2.3 million New Yorkers, for example, represent themselves in state courts. These litigants do not want to be in court or to manage their problems alone, but have no other practical choice. They frequently labor under huge misunderstandings about legal procedures, requirements and forms. Oodles of judges and lawyers have complained about the delays and complications these misunderstandings create.

Imagine how much more efficient the court would be if the unrepresented could obtain low-cost legal assistance from people expert enough to help them navigate the process. Especially if those people were using the systems and protocols developed by a large-scale company, maybe even online.

She then uses the Great Britain system to illustrate her point:

The use of non-JD legal assistants and nonlawyer dominated businesses is not a venture into uncharted waters. The United Kingdom has a long history of allowing a wide variety of differently trained individuals and organizations provide legal assistance, and studies show that the practice works very well. In many cases, people are better served by a nonlawyer organization that specializes in a particular type of legal help—navigating housing or bankruptcy matters, for example—than they are by a solo practitioner with a general practice.

Furthermore, when people have access to lower-cost alternatives to full-fledged attorneys, they use these resources. In practical terms, that means that only 5% to 10% ignore their legal issues in the United Kingdom. Compare that to New York, where significant majorities of low-income households with legal problems—65% with housing problems, 59% with financial issues, 50% with health insurance problems—do nothing in response to their problems. But as often is the case, untreated problems lead to worse problems—and bigger headaches for our courts.

The entire article is well worth the read. Her solution is to change the way we regulate the provision of legal services, a proposal that we as a country should seriously consider. Indeed, it is past time for mere consideration. It is time to begin acting on this type of proposal and legal professionals of all stripes should be at the forefront of that process.

….

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According to ABAJournal.comVermont Law School Plans to Downsize Staff; Dean Says Nonlawyer Specialists Will Do More Legal Work The dean and president of Vermont Law School states:

The field of health care has been transformed with more cost-effective treatment by nurse practitioners and physician assistants, and the legal field will follow with less work being done by lawyers, according to a law dean who is preparing for changes ahead by downsizing…

Mihaly told AP that law firms will no longer be staffed only with lawyers. ‘‘The market and technology are going to take that model and shake it,” he said. Firms will instead give more work to specialists who have less than three years of legal training, he said.

This is not surprising.  As regular readers of this blog know I view paralegals as a large part of the solution to the access to justice problem in the United States. However, the profession will not be able realize its full potential until it is recognized as a profession in the same sense that physician assistants and nurse practitioners are in the medial field as mentioned by Mihaly. There has been great progress in this regard, usually lead by paralegal professional associations such as NALA, NFPA, and NALS.

But let’s talk a bit more about  who these “specialists who have less than three years of legal training” are as it presents quite an array of opportunities for paralegals. For example, I am presently schedule to present as part of a six part webinar sponsored by the Organization of Legal Professionals on the Role of the Trial Technician. This edition starts in February of 2013. (It was last presented at the end of 2011 and this will be a “new and improved” version.) OLP also provides training and certification in e-discovery specialties.  In short, Mihaly is talking about a paralegal with specialized experience, training, and certification. If he sees the future correctly (and I think he does), the world is just beginning to open up for the effective, efficient, and professional paralegal.

Disclosure: I am also on the OLP Advisory Board although OLP seems to do quite well with little advice from me!

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From time to time Clifford S. Smith weighs in here with a comment to one of my posts. His most recent was this comment to my post, “ABA President Stuck in 20th Century:”

I disagree with the ABA’s position and have put together a short paper that provides an alternative basis that would meet the needs of people who have no access to justice.

The paper, “National Access to Justice: A New Model” can be downloaded from http://napa.club.officelive.com/Documents/NatAccessJusticeArticle.pdf

At my request Clifford as done a summary of his paper which I post here as a “Guest Blog:”

National Access to Justice: A New Model, presents a viable solution on expanding the role of paralegals using the existing federal framework of the Administrative Procedures Act, where a non-lawyer is authorized to represent people appearing before federal agencies and hearings.   

Many studies have shown that low to moderate income people can’t afford to hire a lawyer. More often than not, it has led to innocent people being convicted of crimes, only later to be exonerated by DNA establishing their innocence.   

Licensing paralegals under federal law and expanding their role would allow paralegals to provide limited legal services in areas of federal law, such as social security; patent, trademark and copyright; federal child support; bankruptcy; and limited representation in federal civil and criminal matters.  Such representation would fall under an adaptation of an exigent circumstance rule used in urgent situations; where a paralegal would only represent client if they could not locate a lawyer to take a case on a pro bono basis.

Because of the history of paralegals being targeted by state bar associations for unauthorized practice of law, the interest of state regulated lawyers would be balanced with the interest of federally regulated paralegals. This separation of legal fields would be good for competition.

Education would be adapted to train paralegals in specific areas of federal law where paralegals would practice, while also teaching the federal rules of civil and criminal procedure, evidence, legal writing and general advocacy.  Certificate programs would be based on practical skills for advocating cases before federal agencies and, in urgent situations, before federal trial courts.

Programs would be based on the California model of 24 semester units in law-related studies, thus avoiding the general studies areas required of longer degree programs, which have little practical application.  Continuing education would also be mandatory and lead to paralegal specializations.

Federal licensing would empower paralegals and lead to professional autonomy while also addressing the legal needs of millions of working people who have no access to justice. Once licensed, paralegals could be deployed to crisis regions across the United States, in order to effectively target the regions that need assistance the most.

The Administrative Procedures Act provides the perfect model to expand the role of paralegals while serving the legal needs of people who need it the most.  

Clifford is also a contributor to The Empowered Paralegal Professionalism Anthology.

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The Northeast Florida Paralegal Association is part of a consortium of groups banding together to provide legal services to low-income elderly. According to the Jacksonville Daily Record:

Building on the current efforts of dedicated Jacksonville Area Legal Aid (JALA) pro bono attorneys Pat Vail and Joe Meux, attorneys, paralegals and law school representatives met July 12 at the offices of Akerman Senterfitt to discuss plans for expanding services to low-income senior citizens in Northeast Florida.

The expansion in services will be modeled after the Military Reservists Wills and Advance Directives Pro Bono project that has been offered to Navy and Army reservists at local military facilities.

…

The services will help to organize their affairs and by planning ahead, these seniors will protect their rights and make informed decisions about their health care, property and family in the event of their own incapacity or death.

….

By helping senior citizens make these choices, the Senior Citizen Wills and Advance Directives Pro Bono project will help provide stability, dignity and comfort to the seniors and their families as they make decisions during end-of-life chapters.

“There has been deep discussion over how to broaden the reach of the advanced directive program by encouraging other lawyers, paralegals and law students to participate as well,” said attorney Pat Vail, who has provided leadership and advocacy for this population.

Vail added that there have been many “willing hands” interested in helping to provide services to seniors, including members of the Elder Law section of The Jacksonville Bar Association, service coordinators at residential centers, Florida Coastal School of Law, the Northeast Florida Paralegal Association and Jacksonville Area Legal Aid.

This is an excellent idea. In general, bar associations and paralegal associations should work together to maximize access to justice in the United States.  There are no losers and many winners when this happens. The lawyers accomplish far more than they would without the assistance of paralegals. The paralegals gain experience, network, project a good image with both the bar and the public, and satisfy  ethical obligations. And the benefits to the community are obvious.

Kudos to all involved.

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Paralegalism takes on identities quite different than that exemplified here in the United States, as can be seen in the posts in the “International Paralegalism” category. However, the role of paralegals as persons who can assist in providing access to justice to those in need remains consistent. Here’s another example, this time from Dubai, published originally in The National

Paralegal ‘first aid’ builds a base for Filipinos to know rights
Ramona Ruiz

DUBAI // Filipinos facing legal and employment-related problems will soon be able to turn to a team of paralegal volunteers for help.

A series of paralegal training workshops starting on Friday in Dubai aims to educate Filipinos about their rights, the labour laws, the Filipino Migrant Workers Act and the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families.

“Our main aim is to form the first paralegal team in the UAE, who will make our compatriots understand their cases better,” said Nhel Morona, the secretary general of migrant rights group Migrante-UAE. “This team will explain the local laws and ways to address their problems and concerns.”

The organisers, Migrante-UAE and the women’s rights group Gabriela-UAE, are targeting leaders and members of the Filipino community to be part of this pool of paralegal volunteers.

For the rest of the story click on the link for The National above.

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The Law Society of Upper Canada continues to consider changes in its experiment of paralegal licensure and regulation to assist in remediating access to justice issues. At the moment there is controversy brewing because the LSUC is beginning its discussion of expanding the scope of permitted paralegal activity based on “a decade-old report that backed paralegal calls to practise in that area as the basis for a promised review of the scope of their practice.”

Here’s some of the back-and-forth as reported by Law Times:

Marshall Yarmus, the paralegal whose motion at the annual general meeting last year sparked the commitment to a review, says Cory’s report is a “good starting point.”

“In terms of family law, we’re looking for things beyond what he suggested because paralegals used to be allowed to make appearances in the family court for certain matters,” he says.

“But at least it also addresses other issues like wills, real estate, and other areas of law where paralegals are not currently allowed to practise and [that] he recommended.”

Chris Surowiak, president of the Paralegal Society of Ontario, welcomes the law society’s action on the scope of paralegal practice.

“The public needs assistance within many aspects involving family law and the public can only benefit in using the professional services of a paralegal in this area,” he says. “Expanding our scope of practice can be a win-win for lawyers, paralegals, and ultimately the public.”

But Cynthia Mancia, co-chairwoman of the Family Lawyers Association, isn’t so sure.
“The biggest underlying theme of justice Cory’s [report] was access to justice, and I think it’s a mistake to equate expanding the use of paralegals as an answer to the existing well-documented access-to-justice [issues] that exist,” she says.

“There is a perception out there that paralegals can provide the same services that lawyers provide but more cheaply. The fear family lawyers have is that that perception isn’t grounded in reality.”

I’m somewhat biased on this as I’ve been arguing for quite some time that paralegals should have an expanded role in plugging the access-to-justice gap.  So it may be no surprise that I take issue with Mancia’s characterization.  It seems to me that it is quite correct to equate expanded paralegal actions with an answer to access to justice issues.  The issue is not whether paralegals can provide the same service as attorneys. They cannot. However, there is no reason paralegals can’t provide some services now provided by attorneys at a lower cost thereby expanding access to justice for those who cannot currently afford any representation.

 The position of attorneys who oppose this type of role for properly educated, licensed, and regulated paralegals are contending that somehow people lacking any legal training at all who cannot afford an attorney are better off confronting the legal system on their own. This position is counterintuitive and I strongly suspect they cannot provide any data to back up the claim.

For more on these issues check out  the “Canada” and “Access to Justice” categories.

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As is no secret by now, this commentator argues that well-trained, well-regulated, professional paralegals provide one viable answer to the access to justice issue. In support I’ve quoted authorities such as Giliam Hadfield, a Harvard law professor arguing in The Washington Post for innovative approaches to low-cost, quality legal services. He notes,

…in U.S. surveys 30 to 40 percent of Americans with an identifiable legal problem say they do nothing to resolve it, compared with just 5 percent in Britain. Yes, Britain spends far more public funds on ensuring access to justice — $76 in legal aid per capita compared with $13 in the States (including charitable contributions). But the critical difference is the widespread and diverse availability of help in Britain and other advanced-market democracies for people with legal troubles — not just criminal arrest but issues such as foreclosure, divorce, child custody, employment and bankruptcy. The United States urgently needs to expand capacity for non-lawyers to meet the legal needs of ordinary Americans in innovative and less costly ways. [Emphasis added.]

To this I can add the comments of Lester Brickman, Professor of Law at the University of Toledo College of Law writing in the University of Vanderbilt Law Review:

If access to legal services is thus essential for the attainment of democratic values, then the efficacy of the legal delivery system is of supreme importance. Much has been written examining the inefficiency of present methods of law practice as a means of conveying services to the consumer, and still more written decrying the shortage of basic legal services for the poor and for the middle class. In response to this criticism and as a way of meeting other needs, the profession is trying such new delivery systems as group legal services, prepaid legal insurance and specialized practice. Additionally, there has been a virtual explosion of interest in using legal paraprofessionals to assist the lawyer in supplying legal services.

The problem is that Professor Brinkman’s article, “Legal Paraprofessionalism and Its Implications: A Bibliography,” appears in 24 Vand. Law Review. Yes, volume #24 published in 1970-71. How can it be that forty years after a virtual explosiong of interest in using legal paraprofessionals to assist the lawyer in supplying legal services to the poor and middle class that Professor Hadfield can state:

“My research suggests that Americans have a much higher rate of simply giving up in the face of legal difficulties, with effectively nowhere to turn if they cannot afford a lawyer who comes at a minimum price of $150 an hour. This means giving up on seeing their children or saving their homes or credit ratings or jobs. Unlike people in Britain, those facing legal problems in the United States can’t turn to local volunteer organizations, their unions or consumer organizations. They can’t buy what they need from entrepreneurs or the full-service stores like Wal-Mart that now package low-cost eye exams, insurance, banking and more with their diapers and detergents”?

And after forty years,

The United States stands largely alone in advanced-market democracies in drastically restricting where and how people can get help with their legal problems. In all states, under rules created by bar associations and state supreme courts, only people with law degrees and who are admitted to the state bar can provide legal advice and services of any kind.

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A while back I was invited to join the New York City Paralegal Association Advisory Committee. Thus far I have been of little assistance to the group. However, while in NYC last week I did have the pleasure of meeting with four members of the NYCPA Executive Board: Mariana Fradman, President, Cynthia Bynum, Vice-President, Nicole DeMent, Treasurer, and Channet Jusino, Secretary.  These Board Members reflect the NYCPA as a whole: remarkably diverse, knowledgeable, competent, and professional. And they pretty much cover the range for the paralegal profession, including a single attorney law office, a very large law office, corporate in-house counsel office, and a “hybrid.”  While the purpose of the meeting was to discuss the association’s involvement in access-to-justice programs, I also learned a lot about NYCPA. I was impressed.

This relatively new paralegal association appears to exemplify the best of professional associations. The creation of a nation-wide advisory committee is just one example. The association also provides CLE programs designed to meet the needs of the membership – no small task given the diversity of the membership, networking events, newsletters, and the other standard benefits of a professional association. This association also goes further providing pro bono opportunities through NYC Housing Court and immigration access-to-justice programs. It also has entered into at least one international agreement with the goal of establishing standards for paralegal practice. 

Thanks in particular to the contribution of one of the members of the Board, the association also seems to have a unique sense of branding. I left the meeting with one example, a notebook/pen set bearing the NYCPA logo.

 All-in-all the group seems to be admirably living up to its Mission Statement:

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