If You License, Will They Come? Licensing issue debuts in New York

Dreamstimecomp_19500966The other day, a paralegal sent me a panic email.  OMG!  Licensing of paralegals had been introduced as a bill in the state of New York.  Her reaction about the bill was pretty standard.  In a nutshell, she was saying, "What?????"

In short the bill:

    a) Requires mandatory licensing
    b) States that paralegals "practiced" (an ethical question, to be sure)
    c)  States that mandatory minimum standards for qualification into the field are required (but does not state what standards)
    d)  Establishes licensing fees not to exceed $100.00
    e)  Creates an independent board to adopt rules and regulations 
    f)  Is an amendment to the education law
    g)  Offers this 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[s] to have the qualification[s] necessary in order to provide improved and more professional services to clients of attorneys."

Taking a look at the bill, my response was:

If this particular document represents the ability of those who would a) pass such a bill and b) draft such a bill, we're all in trouble. It appears to have little thought, research or understanding of the paralegal profession. Further, it is drafted as a punitive action (or reactions) rather than progression of a 40 year old field. 

Generally, certification, licensing or mandatory education of paralegals comes about because too many misinformed and under-educated paralegals deliver markedly poor services directly to the public and consequently, steps are taken for protection. 

This document in particular references those paralegals who work under the supervision of attorneys. It sidesteps the consumer issue completely.

Licensing is not necessarily a bad thing. However, it is putting the cart before the horse. Before licensing any profession, educational standards must first be created. Not establishing mandatory education is the same as handing the keys to a brand new car to a 16 year old and saying, "Here are the keys to the car.  Please, don't take driving lessons, don't wear a seat belt, don't study the drivers rulebook and handbook and laws, don't get tested on your skills and bonus!  No one is looking as to whether you drink while you're driving." What happens? Hate to imagine.

The paralegal profession is one of the few professions where, in most states, anyone who wants to, can become a paralegal. It is to the credit of 13 states that so far, have created mandatory education, that the paralegal "job" has any chance whatsoever of rightfully being called a profession.  But mind you, that means 37 or 74% of all states say that anyone who wants to can become a professional (i.e., paralegal) without any training or educational standards whatsoever including the necessity of having a high school diploma.

In 1986 (yes – before some of you were born), I was asked to address CAPA (California Association of Paralegal Associations) on the issue of licensing paralegals. I took the same position then as I do now: There's nothing wrong with licensing as long as there is a solid foundation leading up to a sound, sensible and well-thought out program. Licensing cannot be accomplished successfully as a punitive reaction to a few complaints.

Regulation for mandatory continuing legal education originally came about in California as a result of continuous mishandling of services directly to the public by what was then called a paralegal. The resulting legislation, AB 1760 that became Business and Professions Code section 6450, took 10 years to pass. That bill sets forth regulation of education for paralegals and is not licensing. (Originally, when licensing was first proposed in California, the Consumer Board of Affairs was set to govern. That agency also governed dog grooming licenses, manicurists, even morticians. It didn't exactly appeal to too many people.)

Licensing or any other type of regulation such as certification starts with first setting down mandatory legal education. There are no other "helping occupation" professions I am aware of handling important criteria affecting the client's life that do not require mandatory education such as nursing, accounting, financial, even dental assisting.

I hope that New York paralegals step in and rally for a better situation than what appears to be careless and random actions by their state government.  Come New York!!!  Let's step up to the issue!

 

2 Replies to “If You License, Will They Come? Licensing issue debuts in New York”

  1. I’m attaching the original NY bill A08532 with the accompanying justification, which is available at:

    http://napa.club.officelive.com/Documents/NYParalegalBillA08532.pdf

    The justification states:

    “Every year more and more attorneys are allowing their paralegals to work extensively on important and complex cases. Some of these paralegals tend to commit errors that could lead to nightmares for the clients. This legislation would require paralegal [sic] to have the qualification necessary in order to provide improved and more professional services to clients of attorneys.”

    I have written a short paper in response to the bill, which also refutes the justification. It is available in PDF at:

    http://napa.club.officelive.com/Documents/ParalegalRegulationNY.pdf

    My paper focuses on several issues: 1) Regulation, 2) Minimim qualification, and 3) Access to justice.

    Cliff

  2. Chere,

    This whole situation is analogous to what happened when some women got erroneous Pap smear results and died of cervical cancer. This was back in the early 80’s. There was a huge uproar about the “pap smear mills” that read 100’s of smears a day and all the mistakes that were being made. “Women’s lives at stake” read the headlines. Well-in truth, they were. The cytotechnologists were being forced to review more than they could possibly do in order to keep up with Lab XYZ down the road and bring in as much money as possible.

    So the politicians jumped in and mucked around and they came up with something called the Clinical Laboratory Improvement Act of 1988. You want to know the joke here? Yes, ma’am, there’s a joke. Remember those pap smears? They STILL are not regulated. The rest of the laboratory industry is, but not cytology or histology. After 35 years, they still haven’t figured out a way to do that. It has improved, yes, but it still is not regulated.

    However, because of CLIA 88, costs of doing lab work escalated enormously. You have to be careful when you bring in this stuff-somebody has to monitor and supervise all the standards and did you or didn’t you’s. It gets messy-and costly.

    I’m not saying that licensure/certification isn’t a good thing-I think it is. I’m just saying to be very careful how you set it up. It can bite you in the butt and both ankles-and it’s those little nips in the ankles that really are the devil.

    Paralegals/legal assistants are relatively “late to the party”. Other professions have already been down this road. It would likely behoove those interested to contact veterans of those wars to share their insights. It could save a great deal of pain and suffering!

    Ellen Wright, CRP

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