By now most of you are familiar with Washington state’s new LLLT program, a topic covered here several times. (See the link in “Categories” for “LLLTS, etc.,” a sub-category of “Regulation, Certification and Licensing.” I’ve long argued for a variety of methods of utilizing paralegals as part of efforts to close the access to justice gap in the United States. Now California may join Washington in closing the gap through LLLTs. According to an article in the California Bar Journal, “A State Bar task force last month proposed the development of a pilot program for limited licensing of legal technicians as part of a series of recommendations aimed at closing the so-called “justice gap.” The article is short, but provides a concise telling of the task force’s work, reasoning, and recommendation. As one member of the bar trustees said, ““Our recommendations are a start rather than an end.” There is a long way to go before the recommendation is implemented and, if it is implemented, there’ll still be a lot to do to close the gap.
Posts Tagged ‘California’
Lay Advocates will be in California’s future if Barbara Liss is correct. She makes a good argument for them in an email to Chere Estrin, part of which is posted by Chere on The Estrin Report. Since I’ve provided a link to the full post, I won’t re-post it here. As a teaser, I’ll just post her conclusion:
Once a journeyman, however, a full-fledged paralegal may often be as able as a lawyer in many aspects to provide considerably beneficial direct services to the public and has great potential to significantly diminish the existing gap in access to justice in California. I look forward myself to being soon able to contribute my own services in that way when I am able to test and obtain a limited license as a California Lay Advocate.
Barbara Liss continues to keep the LinkedIn Paralegal Group informed on developments in California where, as you likely have heard, the Bar Association’s efforts to police the unauthorized practice of law faltered when the legislation was vetoed by Governor Brown only to rise from the ashes in what one political commentator characterized as a “somewhat sneaky action”. Barbara says,
The State Bar just issued/published a summary stating that there is no opposition to AB 852 (a copy of the summary is in my LinkedIn activity — for some reason, I’m not able to attach it here; it’s also available directly at the State Bar’s website: http://board.calbar.ca.gov/docs/agendaItem/Public/agendaitem1000011937.pdf). AB 852 renews the State Bar’s attempt to gain civil penalties for pursuing all non-lawyers for the unauthorized practice of law, not merely rogue immigration consultants or foreclosure scam artists, as addressed in the summary. Once again, the language of AB 852 is broader than the bar’s stated intent.
I understand that the State Bar is frustrated because UPL, although already a criminal offense, is not something it can control directly. It is up to the appropriate prosecutors to make decisions about prosecuting UPL. Many times those prosecutors have crimes they consider more heinous on their minds. I do believe there is merit in protecting the public from UPL, but I remained puzzled and troubled by a proposal that allows an essentially private organization to enforce UPL prohibitions be recovering civil fines. The summary is not clear on the subject, but it appears the fines, which are in addition to the costs of prosecution, would actually stay with the Bar, not go into the public coffers or to the consumers the Bar purports to be protecting. This seems to make a situation that seems to involve a conflict of interest even more so.
Melanee Cottrill, Paralegal at Civitas, provided this update the task force tasked with investigating implementation of a LLLT program in California through the NFPA LinkedIn discussion board:
There was a thread on this a while ago, but I can’t find it now it’s too old. As some of you know, the CA bar formed a working group to look at doing a limited license program, inspired by WA state. The working group passed a resolution supporting the general concept and asking to be directed to develop a program. Rather than direct the working group to develop a program, the RAD committee (responsible for the working group) instead ordered some studies on access to justice and other things related to the need for a limited license. I think we all know the easiest way to kill something is to order studies on it…I’ve been in touch with bar staff but it seems to be going nowhere fast. Disappointing to say the least.
But Lisa Vessels, RP, CP, FRP, was more optimistic in her comment:
Actually, this is exactly what the WA state committee did first as well. It was (in my opinion) the most compelling piece of the reasoning of why the WA Supreme Court ordered the creation of the WA LLLT program. It also became the cornerstone of how they approached which practice area would be tackled first, etc.
Also, you can subscribe to the page where they post the agendas for the committee, and get updates when they are posted.
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:
The proposal’s Executive Summary says:
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?
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.
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.
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.
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.
This blog has often suggested that it would be worthwhile for the U.S. to consider licensing paralegals for limited practice, perhaps modeled on the system in Ontario Province in Canada (See the “Canada” category.) Recently Washington state established a board charged with investigating the possibility, a board that is moving forward with paralegal help as Brenda Cothary, President of the Washington State Paralegal Association was appointed to the board. Janet Olejar, a member of the American Association for Paralegal Education was also appointed to that board.
Now another state is considering limited-practice licenses. The February issue of the California Bar Journal includes an article entitled, “State Bar to Look at Limited-Practice Licensing Program.” Unfortunately since this is a state bar initiative, the article casts the efforts in terms that I think somewhat misses the point. While there is recognition of the fact that such licensing would help resolve access to justice issues, e.g., “Trustee Heather L. Rosing said those who can’t afford the services of a licensed attorney are often forced to turn to non-lawyers because of cost,” but the bar seems primarily interested in improving the “State Bar’s regulatory function” and creating “an avenue of employment for law school graduates and legal technicians who haven’t passed the bar, board members said. Engaging in limited practice might be an avenue to eventually becoming a qualified lawyer.”
This focus on the bar and law students is not the best approach. The fact is that many paralegals are quite able to assist members of the public in a limited way and have no desire to becoming lawyers. The goal should be to match those competent persons with the people who need them in a way that protects the public. Improving the regulatory function of a state bar association or providing work for law students who can’t pass the bar should come fairly far down the list of priorities.
There’s been an interesting thread on the Paralegal Today listserv recently. It started with a post concerning whether an advertisement for a paralegal position misrepresented the position. This is a difficult question in general. Many attorneys remain confused regarding the proper role for paralegals leading good, professional paralegals to be unhappy in their positions. Even courts have some difficulty determining what is “suitable work” for paralegals. This is especially true in areas where there is fine distinction between legal assistants and paralegals. One commenter asked whether the California law establishing a definition of “paralegal” was helpful. Another responded that it “didn’t do a darn thing.” This drew a response from Jack Ingram which I include here in its entirety with Jack’s permission. In obtaining that permission I noted to Jack that his post contained most of what I would say on the topic. I do have further comments, but will save them for another occasion.
Here’s Jack’s comment:
In regards to Calif. Business & Professions Code Section 6454, doing "not a darn thing", I couldn't disagree more. Sure, admittedly, on Craigslist, it may be likely that there will be so-called professional job postings in which the language misuses and misrepresents the "paralegal/legal assistant". But Craigslist is not the norm; keep in mind people can practically purchase "adult services" among other things... So, the job postings on Craigslist are not what I would consider as being representative of the entire population of employers - employers whom actually value (if not require) paralegal certification and paralegals as a skilled class of legal professionals. In addition to the codification requiring people employed as paralegals to attain a certain education and standardized testing for certification, before they can call themselves a "paralegal" (on their resume, etc.), the codification also allows for certified paralegals to act as "Legal Document Assistants" ("LDA/""UDL") upon registering and in the county and being bonded by the state. The state of CA recognized a growing trend in the amount of self represented litigants (NYT just had a front page article about 3 weeks ago regarding the growing amount of self represented litigants in NY) and essentially created a a niche industry, providing to those legal professionals whom possess entrepreneurial aspirations, to create their own lucrative, business, while offering a valuable, low-cost alternative to as many more litigants are representing themselves, especially in BK. There are also many litigation support positions (ie, trial presentation techs, EDD specialists) requiring in depth-knowledge and proficiency of legal-industry specific technologies: this field is dominated by (what I call) "techie-paralegals"; many have certification in specific software programs. Having paralegal certification in this arena makes a legal professional more marketable. The certification is just a foot in the door. I've had paper weights brighter than some of the attorneys I've worked w/ in the past. Its experience that matters in this industry, if your concern is upward mobility. But common sense, thick skin, a good sense of humor will make it sustainable and tolerable.
Yesterday I did a post based on a Paralegal Today Forum discussion regarding state regulation of paralegals. Today I’m yielding the blog to Stacey G. Hunt, CLA, CAS a paralegal with Duggan Smith & Heath LLP in San Luis Obispo, California, for a guest post on the history of the California law regulating paralegals:
Hi, Lucy. Elona is right – UPL and paralegal regulation are two separate issues. There are huge downsides for paralegals in states where there is no recognition of the profession at all, either through bar membership or certification or regulation that go beyond people practicing UPL. In California we tried everything – a Supreme Court opinion/order, regulation through the State Bar, hiring a lobbyist, and were shot down every time. An interesting string of events allowed us to get through the regulation we have in place now.
Believe it or not, one of the strongest oppositions we received when the California Alliance of Paralegal Associations originally attempted some form of regulation was from the AARP. They wanted senior citizens to have access to inexpensive legal help, and they thought the only way to do that was through “independent paralegals’ who at the time were practicing UPL. They did not want traditional paralegals to put those people out of business. In approximately 1997, the governor of California got into a big disagreement with State Bar and literally shut it down by vetoing the bill approving the funding for the State Bar. The Bar actually ceased to exist for a couple of years and the “machine” was in complete disarray. During that time, two bills went through, one creating Unlawful Detainer Assistants and the other creating Legal Document Assistants. These two new groups were non-attorneys who had to register in their counties and be bonded, but were allowed to help lay people with their court paperwork. I doubt these bills would ever have passed if the State Bar hadn’t been too busy trying to get itself put back together to oppose them.
After those statutory schemes were in place, the AARP and other “anti-attorney monopoly” groups were satisfied, so when we came along with our proposed legislation for paralegal regulation, they did not go after us. Once we talked the independent paralegals into giving up the title and instead embrace the legal document assistant concept, we had overcome most of the opposition out there and our bill sailed through quite easily. We did have to make concessions that we hated. One of them was that we were forced to allow disbarred attorneys to be called paralegals, as long as they were properly supervised like we are, which the State Bar viewed as a form of rehabilitation for them so they could eventually get their licenses back. But we thought that in the big picture it was worth it.
Since the bill became law in 2001, we have been very pleased with the results. Many of the “Mary’s Beauty Salon and Paralegal Services” signs have come down. The “become a paralegal in 3 weeks” schools have gone away. Senior partners at enlightened firms have stopped bringing in their wives and college kids to the office and calling them paralegals. We learned of a woman in a neighboring city who was advertising herself out as a paralegal/legal document assistant and I was able to call the local police department who put a stop to it. We finally have case law now (in a California federal court) that actually reduced an attorney’s fee claim because the paralegals were not qualified under the code. Talk about sending a message! When it gets to the attorneys’ pocketbooks, they will sit up and take notice. And I believe they were talking about revising a judicial council form filed in probate matters to recover fees that required the attorney to attest that all paralegals whose fees were being charged to an estate were qualified paralegals under the code.
It is a big fight and well worth it. I encourage your state paralegal association to continue its efforts.
Back in April I used the state of affairs regarding UPL in Wisconsin to launch a discussion of the possibility of licensing and regulating paralegals as a means of addressing the access to justice problem in the United States. As discussed in previous posts UPL laws and regulations of legal professionals exist amid tension between the need to provide the public with access to justice and the need to protect the public from snake-oil salesmen posing as legal professionals. I noted that what I read on the bar website does not deal at all with the access to justice issue. I do not favor unregulated snake-oils salesman practicing law – as attorneys or as paralegals. However, it does seem clear we must do more to allow if not provide access to legal services than we do now. A well educated, well trained, well regulated paralegal profession may just be the answer.
Today a paralegal from Wisconsin posted on the Paralegal Today Forum stating,
I’m in Wisconsin, a state which doesn’t license (or register, or certify) its paralegals. Anyone can call themselves a paralegal here, regardless of whether they’ve worked as one, or studied to be one (I’m getting a post-college certificate). In recent years, paralegals here have asked the state for permission to be licensed. The state courts declined the request. I’ve noticed lots of UPL articles and legislative proposals on our state bar website. I agree that UPL needs to be prevented, of course, but anyone who attends paralegal school knows how to avoid UPL. My questions to the list-serv are these:
1) Do you live in a state that doesn’t regulate paralegals?
2) How do you deal with this in your work as a paralegal?
This led to several interesting responses including these:
Ditto for Louisiana. We do have a state certifying exam administered by NALA, but a lot of paralegals do not avail themselves of this certification, because (1) it doesn’t automatically increase their salary, (2) you have to study to take the exam and pass, and then have to pass the CLA exam within 2 years to get the certification, (3) why bother when you can call yourself a paralegal even if you mostly do secretarial work.
Until paralegals across the nation realize that education and continuing education is what puts them above the run of the mill employee, anyone and everyone is going to apply for a paralegal job and give the rest of us a lot of disrespect when they can’t do the job.
AND before we get into that age-old debate about education vs. experience, ALL JOBS, including paralegal jobs include OTJ training and always will. Education only enhances skills.
I often see a lot of misunderstanding, misperception, and misinformation about ‘regulation’ of paralegals. There is only one state that has any sort of mandatory regulation of paralegals and that is California. Interestingly enough, the California regulatory scheme doesn’t have any kind of agency, board, or other such entity to administer or oversee the regulatory scheme. There is not one single state that requires paralegals to be licensed, certified, or ‘registered’ in order to function as a paralegal.
NFPA has a section of their website devoted to the regulation issue: http://www.paralegals.org/displaycommon.cfm?an=1&subarticlenbr=795 Scroll down the page and check out their comprehensive chart that details the efforts towards regulation for each state. Some states offer a voluntary certification program through the state Bar, e.g. TX, OH, and NC. Florida offers a voluntary registration program. The WI Supreme Court recently rejected a proposal for mandatory regulation and suggested the proponents look at the Florida FRP scheme as a possible alternative.
Personally, I believe that the UPL issue and regulation of paralegals are two separate and distinct issues. Most every state has UPL laws, statutes or Bar rules prohibiting UPL by anyone. Florida has an aggressive Bar and UPL Committee that investigates and prosecutes UPL claims. The Florida Bar Rules specifically state that non-lawyers offering services directly to the public cannot use the title of ‘paralegal’. Mandatory regulation of paralegals (who by definition work under the supervision of a licensed attorney) will not prevent ‘John Doe’ from setting up his own shop and offering his services directly to the public.
Whether one agrees with mandatory regulation or not, it would be helpful if we all spoke knowledgeably on this issue. I think the dissemination of inaccurate information clouds the issue and distorts the message.
Elona M. Jouben, FRP
NWFPA Parliamentarian/Membership-Student Liaison Chair
Wilson, Harrell, Farrington, Ford
Pensacola, FL 32502
Several months ago I posted a Call for Papers for an anthology on paralegal professionalism. One article submitted is a very good statement of the current status of regulation in the United States and two articles argue in favor of regulation. No one submitted an article opposing regulation – which means I’ll probably have to do that one myself!
I do agree with the last paragraph of Elona’s response above: Whether one agrees with mandatory regulation or not, it would be helpful if we all spoke knowledgeably on this issue. I think the dissemination of inaccurate information clouds the issue and distorts the message.