Bar Journal - June 1, 2002
The State of Paralegal Regulation in NH
By: Linda M. Racette, CLA
This article first appeared in the April-June 2002 issue of the "Annotator," which is the quarterly newsletter published by the Paralegal Association of New Hampshire.
The paralegal profession is one of the most needed, yet least understood, components of the legal profession. Public perception of the paralegal seems to range from viewing them as a glorified legal secretary to someone who has been to law school but has not taken the bar exam. Neither of these perceptions is correct. Outside of participating in the practice of law, a paralegal can perform most tasks an attorney would perform.
The paralegal profession is also one of the least regulated professions in the United States. In fact, although most states have instituted laws concerning the unauthorized practice of law, many states do not even define what a "paralegal/legal assistant" is.
Consider New Hampshire's definition, as set forth in Supreme Court Administrative Rule 35. Our Supreme Court has defined a paralegal as "a person not admitted to the practice of law in New Hampshire, who is an employee of, or an assistant to, an active member of the New Hampshire Bar."1 This definition is extremely broad and can apply to anyone working for an attorney - whether this individual is employed as a paralegal, legal secretary or serves in some other capacity. The definition appears to cover all bases.
The lack of a clear definition leaves the door open for any individual to adopt the title "paralegal" or "legal assistant," even if the individual is not qualified (either through formal education or training) to do so.
Nevertheless, many paralegals find the thought of regulation frightening. Some paralegals believe that regulation would force them to apply for a license, take a certification exam, or pay for malpractice insurance. In addition, some paralegals feel state regulations will restrict their freedom to accept an out-of-state position.
In addition, questions arise as to who would regulate paralegals and how regulations would be enforced. Some paralegals believe that regulation should fall under state law; others feel that the state bar association should handle regulation. In addition, it is believed that regulation of the work of paralegals would be impossible to enforce.
Although there are downsides to regulating the paralegal profession, regulation has some positive attributes. For example, the titles "paralegal" and "legal assistant" have always been synonymous. However, in recent years legal secretaries unhappy with the title "secretary" have begun to use the title "assistant." Because there is no regulation concerning the use of the title "legal assistant," a legal secretary can adopt this title without suffering any legal repercussions. Not only is this practice wrong, it causes confusion with those employed in the legal community, who have understood a that a legal assistant is a paralegal, not a legal secretary.
Putting the problem of titles aside, regulation provides other benefits as well. Regulation offers protection to the public and provides minimum standards an individual must possess to practice as a paralegal/legal assistant. In addition, regulation can provide broader enforcement of ethics standards. Paralegals should be held to the same ethics standards as attorneys. However, other than being dismissed by an employer for unethical behavior, there are no sanctions in place in New Hampshire to discipline ethical breaches by a paralegal.
In addition, there are no laws preventing disbarred attorneys from practicing as paralegals. Disbarment is a process reserved for the most grievous of ethical breaches. If an attorney has been disbarred, it is due to repeated unethical behavior. Since paralegals are expected to follow the same ethics standards as attorneys, logic should dictate that if an attorney is disbarred, that same attorney should be prevented from practicing as a paralegal.
Regulation may also assist in preventing the unauthorized practice of law ("UPL") by requiring paralegals to continue to educate themselves through mandatory CLE hours, with some of these hours directed towards ethics. The problem of monitoring and educating the paralegal against UPL currently falls on the supervising attorney's shoulders. Placing CLE requirements on the paralegal may remove this burden from the supervising attorney and force the paralegal to be more aware of and cautious about UPL.
Regulation can also provide a means to educate and protect the public against individual who choose to call themselves paralegals, or provide the public with an understanding of what tasks a paralegal can and cannot perform.
PARALEGAL REGULATION IN OTHER STATES
As stated above, New Hampshire does not have a clear definition concerning paralegals, nor has the state proposed regulation of the paralegal profession. Any individual is free to call himself a paralegal whether or not this individual possesses any paralegal training, understands ethics surrounding the legal profession, has any legal background, or understands the boundaries of what constitutes the practice of law. Other states have recognized the importance of defining and placing minimum standards on the paralegal profession.
On September 18, 2001, the State of California signed AB 1083 into law. This law amends California's Business and Professions Code, §§ 6450 and 6451, that relates to paralegals. AB 1083 defines a paralegal as follows:
"6450. (a) 'Paralegal' means a person who holds himself or herself out to be a paralegal, who is qualified by education, training, or work experience, and who either contracts with or is employed by an attorney, law firm, corporation, governmental agency, or other entity, and who performs substantial legal work under the direction and supervision of an active member of the State Bar of California, as defined in Section 6060, or an attorney practicing law in the federal courts of this state, that has been specifically delegated by the attorney to him or her. Tasks performed by a paralegal may include but are not limited to, case planning, development, and management; legal research; interviewing clients; fact gathering and retrieving information; drafting and analyzing legal documents; collecting, compiling, and utilizing technical information to make and independent decision and recommendation to the supervising attorney; and representing clients before a state or federal administrative agency if that representation is permitted by statute, court rule, or administrative rule or regulation." 2
The bill further specifically defined what tasks a paralegal is not permitted to perform, thus outlining what constitutes UPL. In addition, it establishes a minimum educational level an individual must have attained before individuals can call themselves "paralegals."
Under California's new law, paralegals are required to certify completion of four hours of mandatory continuing legal education in legal ethics every three years. Every two years, all paralegals are required to certify completion of four hours of mandatory continuing legal education in either general law or in a specialized area of law. The paralegal is responsible for keeping a record of the certifications.
In addition, disbarred attorneys are prevented from practicing as paralegals.
California's statute is truly comprehensive, providing a clear definition of what a paralegal is, who may call themselves paralegals, explains specifically what tasks paralegals cannot perform and provides provisions for continuing legal education. California has provided the paralegal profession with a regulation that sets minimum standards and provides the public with a definition of what a paralegal is.
On October 27, 2000, the Hawaii State Bar Association's Task Force on Paralegal Certification unanimously approved two proposals that taken together could impose a degree of regulation on paralegal use and requires certification of paralegals. One proposal would add language to the Hawaii Rules of Professional Conduct Rule 5.3 regarding non-lawyer assistant responsibilities. The language of the new rule would allow a licensed attorney to permit a paralegal to assist in all aspects of a client's representation under general attorney supervision, rather than direct supervision. The new rule also requires - not suggests - that lawyer's employ only certified paralegals. Attorneys would be prevented from billing for paralegal time unless paralegals are certified.
A new proposed rule, Rule 1.14, of the Hawaii Supreme Court requires paralegal certification after the paralegal completes one of the following:
- Any nationally recognized, competency based exam such as the National Federation of Paralegal Associations' Paralegal Advanced Competency Exam ("PACE") or the National Association of Legal Assistants' Certified Legal Assistant Exam ("CLA").
- Graduates from an American Bar Association-approved paralegal program or an accredited paralegal program of at least 60 credit hours with 18 of those hours concentrated on paralegal studies.
- Earns a bachelors degree in any subject from an accredited college or university and accumulates at least one year of in-house paralegal training.
- Earns a high school diploma and either completes at least three years of law-related experience under the supervision of a licensed lawyer, including at least one year of in-house paralegal training, or completes at least two years of in-house paralegal training.
The proposal also establishes what a paralegal cannot do, such as set fees, represent clients in court unless authorized by law, engage in UPL or use the titles "legal assistant" or "paralegal" for advertising or identification purposes unless the paralegal is certified under the provisions of the new rule. The proposal does not include any provision for a CLE requirement, essentially because Hawaii's attorneys are not held to this requirement.
The proposals are pending before the Hawaii Supreme Court as of this writing. If accepted, Hawaii would be the second state to have a regulation in place.
On September 15, 2000, the Oklahoma Bar Association Board of Governors approved minimum education and skill standards for paralegals. The definition of paralegal adopted by the Oklahoma Bar Association is as follows:
"A person qualified by education, training or work experience, who is employed or retained by a lawyer, law office, corporation, government agency or other entity, who performs specifically delegated work legal work for which a lawyer is responsible, and absent such assistant, the lawyer would perform the task."3
The educational and work standards include the completion of an ABA-approved paralegal studies program, a bachelors degree in any subject with two years paralegal work experience, successful completion of either the CLA or PACE exam or high school graduation and five or more years of legal work experience. The standards also recommend 12 hours of continuing legal education in order to maintain competence and ethical obligations.
Although the Oklahoma Bar's adopted standards are not a formal regulation, the standards can be used later to assist the state of Oklahoma in preparing for paralegal regulation.
In June 2000, the State Bar of Wisconsin Paralegal Task Force, comprised of lawyers and paralegals, prepared formal recommendations concerning paralegal licensure and regulation. The Task Force recommended that the Supreme Court regulate individuals who would use the title "paralegal." The report contains a clear definition of a paralegal, defines minimum education standards, provides for a "window" for individuals to complete education (a grandfather clause), requires that paralegals complete at least 10 hours of CLE's during a two-year period, would prevent disbarred attorneys from practicing as paralegals and would provide that paralegals be held to a set of ethical rules similar to those regulating attorneys.
The recommendations are pending before the Wisconsin Supreme Court.
In Indiana, the State Supreme Court has enacted rules regarding paralegals. Under the Rules of Professional Conduct: Guidelines on the Use of Paralegals it is stated that subject to the provisions in Rule 5.3, all lawyers may use paralegals in accordance with the guidelines.
The guidelines provide that paralegals may perform services only under the direct supervision of an attorney authorized to practice law in the state of Indiana and in the employ of the lawyer or the lawyer's employer. A provision for independent paralegals is also included. The guidelines also establish what tasks an attorney may delegate to a paralegal, a duty to inform clients and others that the individual is a paralegal, provide that attorney allow the paralegal to attend continuing legal education events and provide an attorney ensure that a paralegal is complying with ethical standards. The guidelines also provide a definition of UPL.
In addition, the Indiana Legislature has adopted a clear definition of a paralegal, similar to the Oklahoma Bar's definition.
The states of Iowa, Rhode Island and South Dakota have also adopted guidelines and procedures for the utilization of paralegals. The guidelines are similar to those enacted in Indiana. South Dakota also has a provision prohibiting disbarred attorneys from practicing as paralegals.
Although guidelines do not constitute formal regulations, they do provide attorneys with specific rules they must follow in order to employ paralegals.
Colorado, Connecticut, Florida, Illinois, Kentucky, Maine, Michigan, Missouri, Montana, Nevada, New Mexico, North Carolina, North Dakota, Texas, Virginia, Washington, and West Virginia have all adopted a definition of a paralegal. Although the definitions differ slightly, each definition states: a paralegal is qualified through education and experience; performs substantive legal work under the supervision of an attorney; and has sufficient knowledge of legal concepts that, absent the paralegal, the attorney would perform the work.
Although a definition is far from being a guideline or a regulation, a clear definition provides the legal community and the public with a better understanding of what a paralegal is and what role a paralegal plays in the legal community.
PROTECTING THE PUBLIC AND THE PROFESSION
Last year, an advertisement appeared on ebay™ for a "Home-Based Independent Paralegal (form prep) Business (No Degree Needed)." The package sold for $2,995. The advertisement stated that this was an inclusive package and that the business could easily bring the buyer $25,000 - $50,000 per year working no more than 15 - 20 hours per week. The advertiser stated that she had "seen first-hand how much attorneys charged their clients, and how most of the work was done by paralegals. Much of the work involved filling out complicated forms; but once you did it a few times, it was easy."
At first blush, to the general person, it would not appear that such a promotion poses a problem. What could be so wrong about having an individual prepare a form for a client? There are several problems with the practice of preparing forms for clients, even if a paralegal knows precisely which form to prepare and how to prepare the form. A paralegal cannot assist clients with selecting forms with out advising them. Advising clients constitutes UPL. In addition, telling clients what information goes into the particular blanks on a form the clients have selected also requires advice. This again constitutes UPL.
A well-educated paralegal knows this, and would never purchase a package such as the one discussed above. An individual who is uneducated concerning UPL or other ethical practices would be unaware of this and could leave himself open to both civil and criminal penalties.
In March of 2001, a federal judge recommended closure of a Florida-based "paralegal kit company" such as the one discussed above. The closure recommendation came after several complaints were filed with the Federal Trade Commission. The complaints were filed after purchasers were promised a paralegal diploma and client referrals. The Federal Trade Commission determined that the defendants were engaged in deceptive trade practices, failed to address complaints made by purchasers, failed to determine the legality of their own dissemination of business opportunities because the business was not properly registered and failed to educate the purchasers concerning UPL.
What is most disturbing about this type of "kit" is having the public believe that by merely purchasing a kit an individual could become capable of providing the services of a paralegal. Becoming a competent, educated paralegal requires some form of education, provided by quality paralegal studies programs, supervising attorneys and CLE's. Regulating the paralegal profession could assist in ending this type of misleading trade practice.
In addition, regulation could protect the public in other ways. By prohibiting a kit such as the one discussed above from being sold, the public can be protected against having an uneducated paralegal preparing legal documents for them. Although legal documents are often prepared by paralegals, an attorney always reviews any legal documents prepared by a paralegal. Thus consumers can end up with a document that has been incorrectly prepared and with little recourse against the unlicensed individual who prepared it.
THE DOWNSIDE TO REGULATION
Although regulation can protect, regulation can also hinder. Without regulation, an attorney is free to hire any individual the attorney believes can function as a paralegal, whether or not the individual has had formal education. As long as the attorney supervises the employee's work, the employee can work as a paralegal, and use the title of paralegal. Regulation would prevent the attorney from continuing this practice. In some fields, such as real estate, the attorney may be more concerned with a prospective employee's experience in the real estate field than as a paralegal. In addition, regulation might hinder a paralegal from securing employment in another state.
Regulation also brings a new set of policing problems. Should paralegals be regulated by the state's bar association or would a new agency have to be created? How often would a paralegal have to reapply for certification? How would attorneys be certain they are hiring a certified a paralegal? Would a new credential have to be created? Would the paralegal or some regulatory agency have to provide an employer with a certificate?
As you can see, there are many questions and many problems associated with any regulatory scheme. However, this does not mean the State of New Hampshire or the New Hampshire Bar Association should not make some modifications.
WHAT ABOUT NEW HAMPSHIRE?
The American Bar Association has adopted the following definition of a paralegal:
"A paralegal/legal assistant is a person qualified through education, training or work experience to perform substantive legal work that requires knowledge of legal concepts and is customarily, but not exclusively, performed by a lawyer. This person may be retained or employed by a lawyer, law office, governmental agency or other entity or may be authorized by administrative, statutory or court authority to perform this work."4
This definition sharply and precisely defines in detail what a paralegal is. The New Hampshire Bar Association should replace the current definition (found in Supreme Court Administrative Rule 35) with the ABA model definition. Paralegals do perform substantive work and should be defined as such. Adopting the ABA's definition would alleviate the ambiguity presented in the state's definition.
The New Hampshire Bar Association could also adopt formal guidelines for paralegal utilization. As discussed above, states such as Indiana, Rhode Island and South Dakota have clear guidelines for paralegal utilization in place. The guidelines also assist with defining the paralegal's role in the legal community.
Finally, if regulation does become a reality in New Hampshire, it could use the National Federation of Paralegal Associations ("NFPA") model licensure act for paralegals. The NFPA's act gives clear definitions, restricts the use of the titles "paralegal" and "legal assistant," provides that a paralegal must make a non-lawyer disclosure, provides direction on how a state licensure board could be created, qualifications are for licensure, character and fitness standards, examination criteria, a renewal period, a recommended number of continuing education hours to maintain a license, a written complaint procedure, revocation and suspension provisions, penalties for violations, an appeals process. The NFPA's ambitious model act provides a comprehensive means of organizing a regulation or licensing scheme.
Paralegals are a vital competent of the legal community. If I were to ask attorneys if their law office would run as efficiently without their paralegals, I am certain the answer would be a resounding "No." If I asked attorneys if they felt they could work without their paralegals, the answer would most likely also be a resounding "no." In addition, if I asked attorneys if they thought paralegals should seek continuing legal education hours, including ethics, the answer would most probably be "yes."
If paralegals are such a necessary component of the legal community, and if paralegals should continue to edu cate themselves, then perhaps the time has come to adopt a clear definition of a paralegal, and provide attorneys with more detailed guidelines on paralegal utilization. Perhaps the time has come to begin seeking a way to regulate the paralegal profession in the State of New Hampshire.
||The New Hampshire Supreme Court Administrative Rule 35, "Guidelines for the Utilization by Lawyers of the Services of Legal Assistants."|
||Section 6450 of the California Business and Professions Code. (Feb. 2001)|
||Oklahoma State Bar Association, September 2000.|
||American Bar Association, 1997|
ABOUT THE PARALEGAL ASSOCIATION OF NEW HAMPSHIRE
The Paralegal Association of New Hampshire ("PANH") is a state wide non-profit organization dedicated to the development of the paralegal profession.
PANH offers continuing education programs and other benefits to its members. PANH provides invaluable opportunities for traditional paralegal professional development and networking.
PANH is dedicated to building communication bridges with other paralegal associations and maintaining a mutually beneficial working relationship with local and national bar associations, educational institutions, and businesses serving the legal community. For more information, contact PANH at www.panh.org.
To obtain information concerning voluntary certification exams for paralegals contact:
National Federation of Paralegal Associations, Inc.
PO Box 33108, Kansas City, MO 64114-0108
National Association of Legal Assistants, Inc.,
1516 S. Boston #200
Tulsa, OK 74119
Linda M. Racette, CLA, is employed as an in-house paralegal at Rock of Ages Corporation in Concord, NH. CLA ("Certified Legal Assistant") is a designation achieved by passing an examination and other standards set by the National Association of Legal Assistants (see sidebar). Linda is the president of the Paralegal Association of New Hampshire.