Coming soon to a law firm near you: Paralegals giving limited legal advice?

Do you believe in licensing paralegals?

I have been following Barbara Liss, a senior paralegal and president of the Santa Barbara Paralegal Association (California) regarding limited licensure. Recently, I received a very interesting email from her regarding the California State Bar Civil Justice Strategies Task Force on limited licensure. While the entire email is just too long to reprint here, (she sure can write!) Barbara has made some very interesting and forward thinking thoughts.

Paralegals: here is a possible view of the future:

Today's Guest Blogger:

LissBarbaraBarbara Liss
Sr. Paralegal

California is unique!  It is the only state in the union to have codified a definition of “paralegal” and created minimum educational standards to qualify.  Unless California paralegals meet these standards, attorney fee reimbursement orders may not include paralegal fee awards.  (See: CRC, Rule 7.703(e); additionally I have cases available on request.)  Therefore, the task force has a starting point that isn’t from “the beginning.”  It needs to be aware of it.

Just as not every nurse is qualified to be a nurse practitioner and must obtain higher training, education and skills; just as not every accountant is qualified to become a CPA but sits for a test to acquire that designation after years of preparation and work, so too might a lay advocate achieve such a designation, after meeting specific, predetermined requirements which might include a certain number of years of experience in an immersed law environment, level of education or alternatives similar to those contained in the Professional Fiduciary Act and the other materials referenced above. 

The testing, licensing, monitoring and disciplining of lay advocates whose advanced skills are demonstrated through the new system established, should be independent too – to avoid the inherent conflict of interest that would exist if under the auspices of the State Bar, whose role it is to protect attorney interests, among other things.  The California Department of Consumer Affairs, the Judicial Council or another arm of the AOC would be a more appropriate administrator for this new license’s oversight.

That too would help in determining other interrelated questions, such as would limited license lay advocates be bonded or would they be required to carry malpractice insurance?  Would the prohibition against lawyers and non-lawyers, (such as the limited license lay advocates) owning law business ventures together be relaxed?  (It would be beneficial to the public if lay advocates had easy access to refer cases beyond the scope of their expertise to lawyers in whom they had vested confidence and with whom they had a business relationship.) Avoiding conflicts (or even the appearance of them) by maintaining separation of interests when facing these issues will make them far less complicated to sort out.

As well, there are areas of the law where at present, it is not economically feasible for lawyers to provide services profitably but where lay advocates might if UPL statutes were relaxed or rescinded.  For example:

  •         Personal injury matters valued under $10,000
  •         Small claims court consultations
  •         Advance health care directives [many hospice social workers are involved in assisting/advising in this arena but paralegals in the estate planning area may not do so at present]
  •         Landlord/Tenant (tenants often have difficulty obtaining advice if they don’t qualify for Legal Aid assistance)
  •         Harassment/Restraining Orders
  •         Records expungement
  •         Bankruptcy
  •         Worker’s compensation

        and more.

While not every lay advocate might be appropriately trained in each of these areas, objective testing could be developed so that if one is determined to be qualified, one could be permitted to act in those areas in which testing demonstrates sufficient capability.

Perhaps least understood by most bar members is the degree of education received by paralegals and LDAs [Legal Document Assistants] today.  In many ways, a paralegal certificate or degree emulates the education obtained in law school.  Unfortunately, paralegal education, like law school education, also fails to adequately prepare the graduate for real life and it takes time and actual employment in the work to evolve into a fully operational professional.

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.

 Readers? Time to comment. (This is the risk taking portion of the program.)