Will Paralegals End Up with Too Much Power?

Hot topicA few days ago, a thought-provoking article by the President of the Connecticut Bar Association, Mark Dubois, emerged causing much discussion in our LinkedIn group: Paralegal Group. Dubois raised a number of questions in regard to a recent report by a Connecticut Bar Association committee and the suggestion that the lack of access to legal services could be met by empowering paralegals to offer direct-to-the public service. 

This debate has been around for years and years. It is just now beginning to see some resolution, primarily because strong resistence to more paralegal power is being taken away from attorneys. By "taken away", I am describing the result of the public demand for lower cost legal services that is causing attorneys to back off. 

Dubois, of course, has to make sure that he cites a paralegal who stole some money as a possible example of why paralegals should not be given more power. Get real, Dubois. Paralegals in that kind of trouble are rare which is why it hits the news.  One only has to pick up any monthly magazine such as the California State Bar newsletter and see pages and pages of suspended or disbarred attorneys who have had licenses ripped away for stealing from client's trust accounts.

Read the article. It presents a number of good questions as to whether the field is ready to give more power to paralegals. The article goes on to address licensing; whether paralegals rather than attorneys should bear malpractice responsibilities;  UPL; and the definite need for continuing education – all good points to ponder.

Gray Loy, a Japan based in-house attorney for Mitsubishi, wrote a stirring response. In an email to me, Loy stated, "I work in a corporation in Japan where there are two American lawyers. I am the only one with a primarily legal function. The remainder of people are not legal professionals at all. Though I am quite fond of my present co-workers, were I to wake up one morning, go to work and out of the blue find four or five experienced paralegals working beside me, I would probably be a very happy person." 

Oh, Mr. Loy…Paralegals need more attorneys like you. It's not so much that paralegals need more attorneys who want to use paralegals,  it's that paralegals need more attorneys who will outwardly express appreciation and understanding of their worth. They are out there, aren't they?

Here is what Loy has to say:

"The problem is not so much one of power as responsibility. There are some paralegals who are very knowledgeable and more experienced than the average attorney. And, let's throw in ethical to a fault. We all know of attorneys who do not serve their clients so well. Human beings are diverse.

However, attorneys are required to pass additional hurdles and obtain additional education. Arguably, there are aspects of the legal profession that paralegals simply are never trained for. And I do know of paralegals who are quite convinced, most incorrectly so, that they possess the wisdom of a whole bench of seasoned appellate judges. It is sort of a risk hedging issue really.

By forcing a person to go through what is essentially extra screening/training, we obtain a better result on balance for the client. I agree there are things that paralegals can do now better than attorneys,  given their experience,. The problem is that human beings are what they are, especially we Americans, and there is no shortage of people who are going to take advantage of a new status.

Ethical considerations always become most real to us when someone gets really hurt. People get hurt relying on attorneys as well but as attorneys, we have it particularly drummed into us what this means. We could drum it into paralegals but if you do enough of that sort of precautionary training, they might just as well become attorneys and be done with it.

The point of being a paralegal is to do certain very important legal work at a certain locus in the legal system without being subjected to the full gamut and cost of a legal education and certification. If we add to the paralegal's powers, we are going to have to add to the paralegal's responsibilities and costs as well (and they quite understandably are going to expect to be and need to be paid a little better, at least where they are bearing more responsibility).

I am not dogmatic. There is no holy writ requiring that only the anointed set foot in court with a client in tow. We do this because it works, gives people what we believe to be optimal protection and we are familiar with it. Now there are pressures for change and indication that the people we serve could be better served with a shift of some responsibilities to a lower cost classification. We should consider this. It is probably inevitable.

However, we should be very careful about what tasks are additionally permitted for unsupervised paralegals. We should be clear what education is required. We should decide this with input considered carefully and in good faith from the paralegal profession. It should be the fully enfranchised who makes the call. We should consider what the impact of the costs of this education -initial and ongoing- will have on the price of paralegal services (we must be both realistic and fair) and we must have strict penalties for violation.

Finally, I must emphasize that while this should be a partnership between the two professions, there should be no question as to which partner is senior. That is, until such time as the requirements for entry and maintenance of status in the two professions have so radically changed that the present rules no longer make sense.

There is additionally a question of taking work away from attorneys. One could argue whether an attorney's services are properly priced for the market. We have no shortage of attorneys and yet there is a very real demand for this sort of paralegal participation. Price and supply and demand may be off kilter here. But that argument would just confuse the above so I save it for another day."

Readers: These are the kind of issues that are changing your very jobs. Where do you think the profession is headed? Where will it be in another five or ten years? Will you be required to be licensed? Will there be universal entrance requirements? You're the ones in the drivers seat responsible for your own career path. Not attorneys. You tell me.