Posts Tagged ‘regulation’

More on Washington State Licensing Rule

Saturday, July 7th, 2012

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.”

Canadian Experiment Report

Friday, July 6th, 2012

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.

Ontario Law Society Quandry: Does Disbarred or Suspended Attorney Have the “Good Character” to be a Paralegal?

Monday, November 28th, 2011

One aspect of the Ontario experiement in licensing paralegals that I posted about favorably here is the “good character assessment.” Commenting on an unusual case before a Law Society Appeal Panel, I noted,

The scary part is that there is nothing to prevent our own Nics from calling themselves paralegals here in the United States. We are hopeful that UPL laws will prevent them from operating independently, but depend on law firms to do the character assessment and background checks to keep Nic and his ilk out of the legal system. Unfortunately, this procedure all too often fails. Indeed, some paralegals are so un-reviewed and unsupervised that they are able to embezzle huge sums from the law firms themselves. One managed to grab $1.7 million before being caught!

Indeed, there is a concern that persons found unfit to be an attorney could become paralegals under our system, a concern I addressed in “If he smells bad there, he’ll smell bad here.” As noted in that post, it seemed that a paralegal licensing program that included a good character assessment would prevent corrupt attorneys from becoming paralegals after disbarment.

A recent article in the Law Times though makes it clear that not just any licensing regulations will do:

The Paralegal Society of Ontario says it’s “seriously concerned” about Law Society of Upper Canada regulations allowing disbarred and suspended lawyers to apply for paralegal licences, an issue that culminated in Mississauga, Ont., lawyer David Robert Conway’s successful appeal of his disbarment this month.

“As an organization, we’ve made it perfectly clear to the law society that we highly object to a lawyer applying to serve as a paralegal when they’ve been suspended or disbarred,” says Janet Wigle-Vence, treasurer of the paralegal society.

According to Wigle-Vence, while paralegals serve clients in a limited scope compared to lawyers, the regulator should hold both types of practitioners to a similar standard of character.

“If they can’t pass the test to serve as a lawyer, it doesn’t make sense that they would be allowed to serve as a paralegal,” she adds.

The problem lies in the particular way the regulations are written. They include “grandfather” and hearing provisions that do allow disbarred attorneys to have a hearing on a paralegal license application which could, in theory, find that they do not have the “good character” to be an attorney, but do have the “good character” necessary to be a paralegal!

The article implies, however, that this is more of a theorectical problem than a practical problem, noting through a statement by Harry Kopyto, himself a disbarred attorney, a subject of posts on this blog, and occasional communicator with this blog, few attorneys have been successful in taking this route back into legal practice precisely because of the good character requirement. Nonetheless, it seems odd that this would even be an option. The regulations should make it clear that disbarment or suspension as an attorney is itself sufficient indication that the applicant lacks the good character required to be a licensed paralegal.

“National Access to Justice: A New Model”

Wednesday, October 26th, 2011

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.

ABA President Stuck in 20th Century

Wednesday, August 31st, 2011

I was quite disappointed in the comments of the current ABA president as reported in this from ABAJournal.com:
 
ABA President: Allowing Nonlawyers to Practice Law Isn’t Solution to Justice Gap
Posted Aug 31, 2011 7:44 AM CDT
By Debra Cassens Weiss 

ABA President Wm. T. (Bill) Robinson III agrees the poor need more legal help, but says deregulating law practice is not the answer.

Robinson outlines the ABA’s views on legal aid for the poor in a letter to the editor of the New York Times. His letter responds to a Times op-ed last week that suggests the “justice gap” could be addressed by allowing nonlawyers “into the mix” who could handle easier matters such as uncontested divorces. A Wall Street Journal op-ed by two Brookings Institution fellows, also published last week, made a similar point.

Robinson disagrees. “A rush to open the practice of law to unschooled, unregulated nonlawyers is not the solution,” he writes. “This would cause grave harm to clients. Even matters that appear simple, such as uncontested divorces, involve myriad legal rights and responsibilities. If the case is not handled by a professional with appropriate legal training, a person can suffer serious long-term consequences affecting loved ones or financial security.”

Robinson offers another solution: more funding for the Legal Services Corp. He also points out that the ABA supports lawyer pro bono and legal aid funding provided by Interest on Lawyers Trust Accounts.

Of course I agree that we should not “rush to open the practice of law to unschooled, unregulated nonlawyers.” But it appears that Mr. Robinson is unaware that many paralegals are very well schooled, many in programs that have been approved by the ABA itself! In addition, many have received advanced certificatification from associations such as NFPA, NALA, NALS, OLP, and other organizations every bit as professional as the ABA. 

And the regulation comment is a definite red-herring. If the problem is a lack of regulation, then propose some regulations – the ABA is no stranger to that process, having adopted Model Rules for just about everything to which model rules would apply and is well-versed in lobbying legislatures to get legislation adopted. Worse comes to worse, the ABA might be able to crib some of the basic from Canada.  (See the “Canada” category for posts on the system of licensing paralegals to work independently for attorney in limited areas in one Canadian province.) If the ABA cannot handle this on its own, there are hundreds of members of paralegals associations that can help them get the job done – just as they help attorneys get the job done in offices across the country.

Unfortunately, Mr. Robinson’s comments have an air of simply “protecting the turf.” However, as discussed in several posts here (see “Access to Justice” category), this is not turf that needs protecting. The problem is that many people simply cannot afford an attorney and attorneys will not provide the services these people need. Licensing and regulating trained paralegals will fill a gap in the turf that lawyers simple do not cover, not take the turf away from lawyers.  To suggest that this problem can be handled by more funding for Legal Aid when Congress is focused only on cutting, not adding (the Republican leader is presently insisting that a dollar be cut from programs like and likely including Legal Aid for every additional dollar need to aid victims of Hurricane Irene and otherwise fund FEMA), indicates that Mr. RObinson is simply detached from the many of the realities of access to justice and funding in the 21 Century!

New York Paralegal Licensure Bill Proposed

Monday, July 25th, 2011

A bill directing the NY Board of Regents to develop a paralegal licensure program has been sent to the New York legislature’s Committee of Higher Education. I’ve included the bill’s summary below. The full bill is available here.

BILL NUMBER:A8532

TITLE OF BILL:
An act
to amend the education law, in relation to requiring licensure for
the paralegal profession

PURPOSE OR GENERAL IDEA OF THE BILL:
Requiring licensure for the paralegal profession.

SUMMARY OF SPECIFIC PROVISIONS:
Section 1: The education law is amended by adding a new article 167 to
read as follows; the board of regents upon the recommendation of the
commissioner shall establish a program to require the licensure of
paralegals practicing in this state. The program shall define the
scope of paralegal practice, establish license application fees and
license renewal fees and create an independent board to adopt rules
and regulations.

JUSTIFICATION:
Every year more and more attorneys are allowing their paralegals to
work extensively on important and complex cases: Cases that impact
the life of their clients and other people involved. Some of these
paralegals tend to commit errors that could lead to nightmares for
the clients. This legislation would require paralegal to have the
qualification necessary in order to provide improved and more
professional services to clients of attorneys.

H/T to Dr. Robert N. Diotalevi, Esq.,LL.M., Associate Professor, Florida Gulf Coast University on the AAfPE listserv

Increase in UPL Complaints in Ottawa after Paralegal Regulation

Friday, July 1st, 2011

It should, perhaps, come as no surprise that when a jurisdiction requires a license to perform a service there will initially be an increase in complaints of that service being performed without the required license. We’ve followed the regulation experiment in a Canadian province fairly closely to see how paralegal regulation might work here, recognizing that the role of a paralegal in Canada was different from that in the United States prior to the inception of regulation. Here’s a report on the increased UPL complaints from thestar.com:

The Law Society of Upper Canada is taking aim against people practising law without a proper licence after a jump in the number of complaints.

New complaints rose from 134 in 2007 to 445 in 2009, but dropped to 330 in 2010 and have further decreased this year, according to a report by Zeynep Onen, the society’s director of professional regulation.

In 2006, the law society reduced the number of legal services paralegals were allowed to do without a licence in an effort to tighten professional regulation.

“The increase in the complaints reflects that legal services are now regulated and those individuals who seek to avoid being regulated or who can’t meet the qualifications are now more easily exposed as breaking the law,” said Roy Thomas, the law society’s director of communications.

For more on this, click on thestar.com link above.

Jouben on Status of Regulation in Florida

Wednesday, June 15th, 2011

Among the many people not doing nothing while I’ve been otherwise engage is Elona Jouben who passed on an email dated 05/30 stating, “The effort to regulate paralegals in Florida was voted down by the PEC at last Thursday’s meeting in Key West. No changes to the current program were made and so the voluntary registered paralegal program will continue.” Elona reports this as “good news.” Of course, not everyone agrees with her assessment, but it should be noted that Elona wrote her thesis for her Masters Degree at George Washington University on the topic entitling it, “Compulsory Regulation of Florida Paralegals is Unnecessary.” She also provided a written response to the February 22, 2011 Report of the [Florida Bar] Special Committee to Study Mandatory Paralegal Regulation. There are two important points here:
(1) Whether you agree with Elona’s position or not, her efforts to analyze the issue, articulate and advance her position, illustrate the professionalism that we would like to be exhibited by all paralegals. Each member of the profession should be in the thick of this issue, analyzing, writing, discussing, and advocating for the position that feel will best benefit the profession.
(2) Elona’s thesis, with minimal editing, is included in The Empowered Paralegal Professionalism Anthology that I just finished editing and indexing, along with several other well-thought-out position papers on this issue.
Fortunately, the pre-publication reviews for the Anthology and for Elona’s article have been quite good, including this:

“This anthology delivers on the title’s promise: it is a thought-provoking compilation of issues facing paralegals today and a challenge to individual paralegals to embody professionalism as the profession itself grows and develops.”

Florida Paralegal Legislation Nixed

Tuesday, May 10th, 2011

Just about every paralegal blog and listserv has written about the proposed legislation to license paralegals in Florida except this one. (I know, I know, this one hasn’t had a post about anything in quite awhile.) If you don’t know about it, check out this account in the Estrin Report or this one at Practical Paralegalism or this one from the Paralegal Mentor. I’ve temporarily emerged from the pile of papers and exams I’ve still to grade before commencement exercises on Saturday long enough to chime in with this from Elona Jouben on the Paralegal Todaylistserv:

This was just delivered to my in-box:

As of 05/07/2011, the House Bill 1149 regarding the Regulation of the Paralegal Profession has been “Indefinitely postponed and withdrawn from consideration” and subsequently “Died in Civil Justice Subcommittee”.

http://www.flsenate.gov/Session/Bill/2011/1149

I checked the Senate Bill and it has met the same fate.

Elona, by the way, wrote her thesis for her Masters at George Washington University arguing that compulsory regulation of paralegals in Florida is unnecessary. An slightly edited version of that thesis appears as an article in The Empowered Paralegal Professionalism Anthology, soon to be available in college bookstores and at online vendors. (As soon as I finish the editing of the galley proofs and complete an index, that is.)

Ontario Paralegal and Law Society on Same Immigration Page

Tuesday, December 7th, 2010

Since many Ontario paralegals are licenses and practice independently of attorneys, issues can arise over potential competition between the two. As previously discussed here, some paralegals there object to the fact that paralegals are regulated by the Law Society of Upper Canada on this basis, i.e., lawyers regulate their competition. I’ve argued that in the United States, licensing paralegals for limited tasks would help solve the access to justice prob lem without causing competition because most of people with an access to justice problem simply cannot afford attorneys and are not serviced by them in any case.

A recent article in the Law Times, however, indicates that the Law Society of Upper Canada has successfully lobbied MPs to exempt paralegals from regulation as immigration consultants. According to the report, the paralegal society and the law society were “on the same page” on this. This may just be an example of the “common enemy” rule in practice, though. The issue is who is going to regulate paralegals providing immigration services. According to the article,

Bill C-35, the cracking down on crooked consultants act that’s currently winding its way through Parliament, is the federal government’s response to a string of controversies involving unqualified and unethical consultants who exploited prospective immigrants to the country.

The bill tightens up the rules on who can charge fees for immigration advice. In the meantime, hearings are underway to find a governing body to regulate consultants and thereby replace the Canadian Society of Immigration Consultants.

So people providing immigration services are going to be regulated by someone and the Law Society was essentially saying the turf was already covered:

After the government announced the legislation in June, the Paralegal Society of Ontario wrote to the federal government to request an exemption given the LSUC’s regulation of paralegals.

“We provide a valuable choice for the public and are recognized as a valuable provider of legal services,” wrote paralegal society president Chris Surowiak.

“Individuals wanting to immigrate to Canada can be assured they will have a qualified representative when they retain the services of a paralegal member of the law society.”

Last month, the law society backed him up, sending Treasurer Laurie Pawlitza to make the pitch for paralegals at the standing committee on citizenship and immigration.

She pointed to the law society’s 200-year track record of successful regulation and discipline and noted paralegals must carry professional liability insurance.

Surowiak tells Law Times the exemption will save paralegals who practise immigration law more than $3,000 per year in fees paid to remain members of CSIC.
Of course, not everyone is happy.

 “Sergio Karas, a past chairman of the Ontario Bar Association’s citizenship and immigration section, sees the whole bill as an erosion of lawyers’ territory but finds the law society’s move on paralegals particularly galling.

“I think it’s a scandal because it is invading areas that are traditionally the province of lawyers,” he tells Law Times. “The law society is undermining the role of lawyers.”

One does wonder how many people have not had access to justice for fear of “undermining the role of lawyers” and an unwillingness to buck tradition.