My remarks today will give you a brief background of the paralegal profession in Texas, then I'll discuss the benefits of regulation of the profession, and my recommendations for the future.
Just so you know up front, I favor full and complete licensure of paralegals. I define full licensure as a system that defines what a paralegal is and what a paralegal may do, sets minimum educational standards for entry into the profession, provides an entry-level examination, and requires minimum continuing legal education as a prerequisite to maintaining a license. I believe that such a system would certainly have many costs, but that the benefits„in the form of enhanced professionalism and opportunities for paralegals, protection of the public from unethical or unscrupulous practitioners, and increased delivery of higher quality legal services to the public„would far outweigh the costs.
Several recent studies reflect overwhelming support for regulation among practicing legal assistants. A survey conducted by the Long Range Planning Task Force of the Legal Assistants Division, State Bar of Texas, found that over 90% of the nearly 400 respondents to the survey favored limiting or defining entry into the paralegal profession.3 In response to this same survey, 90% of respondents believed mandatory continuing legal education for paralegals would enhance professionalism.4 And, in response to a survey conducted in the spring of 1999 by the Capital Area Paralegal Association, 79% of respondents favored regulation of paralegals. Among the reasons cited for supporting regulation, many paralegals commented that regulation would enhance professionalism and offer greater opportunities to those engaged in the profession.
Paralegals, or legal assistants as those terms are used interchangeably, have been recognized as a distinct profession for around twenty or twenty-five years. The State Bar of Texas Legal Assistants Division defines a legal assistant as
"a person, qualified through education, training, or work experience, who is employed or retained by a lawyer, law office, governmental agency, or other entity in a capacity or function which involves the performance, under the ultimate direction and supervision of an attorney, of specifically delegated substantive legal work, which work requires sufficient knowledge of legal concepts that, absent such assistant, the attorney would perform the task."5
What does that definition really mean? It means different things to different people. I think the definition itself is sufficiently broad to encompass most of the tasks that paralegals currently perform. There are other means of regulating paralegals currently in place. A paralegal cannot practice law as defined in Texas Government Code „81.101:
"In this chapter the 'practice of law' means the preparation of a pleading or other document incident to an action or special proceeding or the management of the action or proceeding on behalf of a client before a judge in court as well as a service rendered out of court, including the giving of advice or the rendering of any service requiring the use of legal skill or knowledge, such as preparing a will, contract, or other instrument, the legal effect of which under the facts and conclusions involved must be carefully determined."6
There is no exception within the Government Code for a legal assistant to perform any of the defined tasks while working under the supervision of an attorney. In my experience, many, if not most paralegals would run afoul of the Unauthorized Practice of Law statute if it were strictly enforced. In my daily practice, I prepare pleadings and other documents incident to lawsuits; I appear before judges at docket call to announce ready for trial; I prepare and analyze contracts and other instruments, and many other tasks that would logically be considered the practice of law, under the above definition. Only because the statute is not strictly enforced, as written, are many paralegals able to perform everyday paralegal tasks.
"Everyday paralegal tasks" are as varied as one could imagine. In my experience, I have been fortunate to have worked with attorneys who were willing to delegate many interesting and challenging tasks to me, including researching and preparing title opinions, substantive legal research and drafting of trial and appellate briefs, and trial preparation and sitting second chair at trial. The work I have done requires the exercise of independent legal judgment. Many of those opposed to regulation argue that regulation is unnecessary because paralegals always work under the supervision of attorneys and do not exercise independent legal judgment. However, I believe the reality is that most paralegals exercise independent legal judgment as a daily function of their delegated duties. Without standards or regulation of paralegals, an attorney (and indirectly, the ultimate consumer„the client) must rely on a form of "marketplace regulation" to ensure that the paralegals he or she supervises are qualified and competent to perform the tasks delegated.
Many argue that the de facto "marketplace regulation" in place today is sufficient to achieve the goals of licensure or any form of restriction of paralegal practice. "Marketplace regulation" means, for the most part, that law firms will only hire paralegals that are qualified, as defined by the law firm. However, in practice, I believe "marketplace regulation" does not work, and does not serve the best interests of the consuming public or of the paralegal profession.
A case in point is the firm where I currently work. Our firm has an established legal assistant program, that consists of entry standards, a "career ladder" similar to the associates program (although without the partnership track), and professional development opportunities. Our minimum requirements for entry as a legal assistant are a bachelor's degree with a 3.0 minimum grade point average and a three year commitment to the firm. There is no paralegal-specific certification or education requirement. Paralegals are compensated in a fashion similar to associates, based on years of experience and hours billed, primarily.
Yet, we hire other legal professionals, who are legal assistants in everything except name. We call them "project assistants", "project specialists", and "general office clerks," and, in many cases, they are delegated substantially the same work as legal assistants. There are no educational or certification requirements for entry into such a position; they are not on the "career track"; but in some cases, their hourly billing rate (and presumably, their compensation) exceeds that of legal assistants.
Other, smaller firms have no such developed system for compensation and hiring of legal assistants. At each firm where I've worked as a legal assistant, from solo practitioner to the largest firm in Texas, there have been legal secretaries whose pay exceeded my own. If there is true "marketplace regulation", then only qualified legal assistants would be hired to do true legal assistant tasks, and each would be paid a salary commensurate with that legal assistant's training, education, and experience. And salaries would achieve some type of parity, with other legal professionals such as legal secretaries and associates.
I want to mention another problem I have encountered that I attribute, in part, to a lack of regulation or standards for paralegals. I have been very involved in preparing continuing legal education programs for paralegals. Continuing legal education for paralegals is important, because, by definition, a paralegal is supposed to have sufficient legal knowledge to perform substantive legal tasks that, absent the legal assistant, would be performed by the attorney himself. Capital Area Paralegal Association's ("CAPA") bylaws state that one of the goals of the organization is to provide continuing legal education for paralegals. The ABA's Model Guidelines for the Utilization of Legal Assistant Services states "[a] lawyer who employs a legal assistant should facilitate the legal assistant's participation in appropriate continuing education and pro bono publico activities." (Guideline 10). Although there are no minimum continuing legal education requirements for legal assistants imposed by the State of Texas, several voluntary certifications are available to legal assistants, such as the National Association of Legal Assistants' Certified Legal Assistant designation, the National Federation of Paralegal Associations' Registered Paralegal Examination, and the Texas Board of Legal Specialization's Board Certification examination. Each of these voluntary certifications requires minimum continuing legal education as a prerequisite to maintaining the certification.
In the not-so-distant past, the State Bar Minimum Continuing Legal Education Committee regularly granted accreditation to Legal Assistants Division and CAPA-sponsored seminars, as long as they met the Bar's criteria for accreditation. Although the quality of the seminars, and the criteria itself have not changed, the Bar has apparently adopted a policy of not approving legal assistant seminars for accreditation. I have heard varying reasons for the denial of accreditation, among them "if the target audience is not attorneys, it does not qualify" and "the seminar is not sufficiently rigorous to meet accreditation standards." In most instances, the seminars I have planned include attorney speakers re-presenting topics they have recently presented at State Bar-sponsored Professional Development Programs. The accreditation criteria in question, Standard C, states that "CLE activities shall be accredited for MCLE in Texas if they meet the following accreditation criteria: . . . (c) The activity is primarily designed and targeted to attorneys and/or other professionals who would require the same level of instruction as attorneys in the area of study that is the subject of the activity." (emphasis added).
Therefore, the rub lies in the interpretation and application of this criterion to legal assistants. One must assume that the Bar interprets criterion C to mean that legal assistants are not "other [legal] professionals," since many seminars submitted for accreditation contain "the same level of instruction" as the seminars which are granted accredited status. Licensure of legal assistants would provide definition and standards for the profession, possibly with a separate accreditation board for continuing legal education, if the Bar is not willing to perform that function.
I believe that the development of the paralegal profession is analogous to the development of another profession„physician assistants. In 1993, the Texas Legislature passed the Physician Assistant Licensing Act.7 The purpose for the licensing statute, as stated in the preamble to H.B. 2498, encompasses a finding that the "health, safety, and welfare of the people of this state are best advanced by the establishment of an orderly system for licensing physician assistants." Physician assistants currently must be licensed in Texas and must practice under the supervision of a Texas-licensed medical or osteopathic doctor. To obtain a license, a P.A. must either have graduated from a P.A. program accredited by the AMA Committee on Allied Health Education or have passed the certifying examination administered by the National Commission on Certification of Physician Assistants. Licensed P.A.s may perform many medical services, including:
According to the American Academy of Physician Assistants, the Physician Assistant profession began in the mid-1960s, when physicians and educators recognized there was a shortage and uneven distribution of primary care physicians. A Duke University Medical Center physician put together the first class of P.A.s in 1965, and based the curriculum on the fast track training of doctors during World War II. Today, around half of all P.A.s practice in primary care medicine, i.e., family practice, internal medicine, pediatrics, and obstetrics and gynecology.8
There are obvious parallels to the legal assistant profession that come to mind.
One of the most important considerations in regulating the paralegal profession is protection of the public. There is no question that in the absence of regulation, the public is not adequately protected from unqualified or unethical paralegal practitioners. Without regulation, a disbarred attorney may practice as a paralegal without restriction. Without regulation, a paralegal is not formally bound to any code of ethics. With no educational or experience requirements for paralegals in place, a lawyer is free to hire anyone as a paralegal. Although many law firms and lawyers argue that they should be free to hire anyone they deem qualified (since paralegals work under the supervision of an attorney), in today's marketplace, the vast majority of firms bill their clients for paralegal services. Without standards, a client is at the mercy of the "marketplace" to determine the quality of paralegal services he will receive. Clients are becoming aware of the effect of lack of regulation, and have demanded paralegal resumes or other proof of paralegal qualifications in responses to requests for proposals for legal services. Certainly, in fee recovery cases, the trend has been for the courts to require proof of "(1) the qualifications, if any, of the legal assistants; (2) whether the tasks performed by the legal assistants were of a substantive legal nature or were the performance of clerical duties; and (3) the hourly rate being charged for the legal assistant."9 In cases reported on this issue, the courts have found that the party moving for recovery of paralegal fees failed to introduce proof of elements 1 & 2 enumerated above, and thus denied recovery of fees for paralegal services.
Perhaps an even more important, yet controversial, consideration in the debate over regulation is expansion of delivery of legal services to the public. After years of study and hearings, including testimony from nearly 400 witnesses and receipt of over 2,000 documents, the American Bar Association Commission on Nonlawyer Practice issued a report, in which it found that as many as 70 percent of low and moderate income people do not hire lawyers to meet their law-related needs, and instead, rely upon themselves, nonprofit agencies, and non-lawyers, or go without help.10 "There are huge, astronomical needs that are not being met," according to Zona Hostelter, aWashington lawyer on the Commission.11 In addition to finding that there is a huge unmet need for legal services to low and moderate income people, which could be fulfilled through nonlawyer delivery of legal services, the Commission reported that "an extensive array of federal and state administrative agencies allow nonlawyers to provide advice to self-representing persons and even to represent parties in agency proceedings." Some of the federal agencies cited in the report as allowing nonlawyer practice are the Internal Revenue Service, the Immigration and Naturalization Service, the Social Security Administration, and the Patent Office.12 The report also found that legal technicians, defined as "a person who provides advice or other substantive legal work to the public with regard to a process in which the law is involved, without the supervision of a lawyer and for which no lawyer is accountable," currently provide services in a myraid of situations, including tax preparation, divorce, eviction, bankruptcy, and probate matters.
The report concluded that "nonlawyers, both as paralegals accountable to lawyers and in other roles permitted by law, have become an important part of the delivery of legal services, and that their expertise and dedication to the system have led to improvements in public access to affordable legal services," but, there are still "many inadequacies among lawyers in providing professional services which have given rise to increasing dissatisfaction with our profession by the public."13 The Commission recommended increasing public access to the justice system and to affordable legal assistance through enhanced use of nonlawyers, while protecting the public from harm arising from incompetent or unethical conduct.14
Among the major options being considered in the regulation debate are registration, certification, and licensure. I favor licensure because it would accomplish the most. Registration, defined as "a system . . . by which practitioners of the profession or occupation register with a designated state agency, but without the imposition of prequalifications or requirements for issuance of the registration other than payment of a fee,"15 is not restrictive enough to accomplish the goals of adequate protection to the public and restriction of entry into the profession. Certification is available on a voluntary basis today„through the National Association of Legal Assistants' CLA exam, the National Federation of Paralegal Associations' PACE exam, and in Texas, for advanced practitioners, the Texas Board of Legal Specialization's Board Certifictation exam in various specialty areas such as civil trial law and family law. Voluntary certification, in a profession regulated only by the marketplace, has failed us. Too few lawyers and law firms understand the certification choices available to paralegals. The reality is, there is no real incentive in terms of increased salary or compensation for those legal assistants who attain such a certification. Mandatory certification would also be an option, but the primary effect of mandatory certification would be to raise entry-level barriers to the profession. Mandatory certification would not, I believe, achieve all of the goals of regulation.
Enhanced professionalism and opportunities for paralegals, protection of the public from unethical or unscrupulous practitioners, and increased delivery of higher quality legal services to the public„I believe such goals are attainable. But such goals are only achievable through a licensure system that simultaneously defines and increases paralegal duties, imposes sanctions for unscrupulous or unethical conduct, and requires minimum continuing legal education and a competency-based entry exam.
1 Pamela R. Horn is a Legal Assistant with the Austin office of Vinson & Elkins L.L.P. She has over twelve years experience in the field. She holds a Bachelor of Arts degree in government from U.T. and a certificate of completion in Lawyer's Assistant Studies at Southwest Texas State University. In addition, Ms. Horn is Board Certified in Civil Trial Law by the Texas Board of Legal Specialization. She currently serves as President of Capital Area Paralegal Association.
2 I use the terms "paralegal" and "legal assistant" interchangeably in this article.
3 Carolyn Benson, "The Survey and Results," 3 Tex. Paralegal J. 10, 11 (Fall 1997).
4 Id.
5 Sec. 3, Bylaws of the Legal Assistants Division of the State Bar of Texas, as amended through September 1994 (definition initially adopted June 13, 1987) (Appendix B to the Legal Assistants Division, State Bar of Texas Procedures Manual [rev'd Sept. 1996]).
6 Tex. Gov't Code Ann. „ 81.101 (Vernon 1998).
7 H.B. 2498, 73rd Leg., R.S., codified at Tex. Rev. Civ. Stat. Ann. art. 4495b-1.
8 See the American Academy of Physician Assistants website at www.aapa.org for more information on the P.A. profession.
9 Gill Savings Association v. International Supply Company, Inc., 759 S.W.2d 697 (Tex. App.- -Dallas 1988, no writ). Gill Savings was a case of first impression in Texas regarding recovery of legal assistant fees as part of an attorney's fee award. The elements of proof cited above have been followed by Texas courts since Gill Savings was decided. See, e.g., Law Offices of Rodney R. Elkins v. Alexander, 1996 W.L. 167923 (Tex. App.„Dallas 1996, no writ); Moody v. EMC Services, Inc., 828 S.W.2d 237 (Tex. App.„Houston [14th Dist.] 1992).
10 "Nonlawyer Activity in Law-Related Situations: A Report with Recommendations." American Bar Association Commission on Nonlawyer Practice (1995). To date, the American Bar Association Board of Governors has not adopted the Commission report.
11 Appleson, Gail. "ABA Commission Supports Greater Role for Nonlawyers." Mercury Center 6 August 1995
12 "Nonlawyer Activity in Law-Related Situations: A Report with Recommendations." American Bar Association Commission on Nonlawyer Practice, at 11 (1995).
13 "Nonlawyer Activity in Law-Related Situations: A Report with Recommendations." American Bar Association Commission on Nonlawyer Practice, at 20 (1995).
14 The Commission's Summary of Recommendations in its entirety is:
SUMMARY OF RECOMMENDATIONS Whereas, Increasing the Public's Access to the Justice System and to Affordable Assistance With Its Legal and Law-Related Needs Is an Urgent Goal of the Legal Profession and the States; and
Whereas, The Protection of the Public from Harm Arising From Incompetent and Unethical Conduct By Persons Providing Legal or Law-Related Services Is an Urgent Goal of Both the Legal Profession and the States; and
Whereas, When Adequate Protections for the Public Are in Place, Nonlawyers Have Important Roles to Perform in Providing the Public With Access to Justice;
THEREFORE, The American Bar Association Commission on Nonlawyer Practice Recommends:
1. The American Bar Association, State, Local and Specialty Bar Associations, the Practicing Bar, Courts, Law Schools, and the Federal and State Governments Should Continue to Develop and Finance New and Improved Ways to Provide Access to Justice to Help the Public Meet Its Legal and Law-Related Needs.
2. The Range of Activities of Traditional Paralegals Should Be Expanded, With Lawyers Remaining Accountable for their Activities.
3. States Should Consider Allowing Nonlawyer Representation of Individuals In State Administrative Agency Proceedings. Nonlawyer Representers Should Be Subject To the Agencies' Standards of Practice and Discipline.
4. The American Bar Association Should Examine Its Ethical Rules, Policies and Standards to Ensure that they Promote the Delivery of Affordable Competent Services and Access to Justice.
5. The Activities of Nonlawyers Who Provide Assistance, Advice and Representation Authorized by Statute, Court Rule or Agency Regulation Should Be Continued, Subject to Review By the Entity Under Whose Authority the Services Are Performed.
6. With Regard to the Activities of All Other Nonlawyers, States Should Adopt an Analytical Approach in Assessing Whether and How To Regulate Varied Forms of Nonlawyer Activity that Exist or Are Emerging in Their Respective Jurisdictions. Criteria for this Analysis Should Include the Risk of Harm These Activities Present, Whether Consumers Can Evaluate Providers' Qualifications, and Whether the Net Effect of Regulating the Activities Will Be a Benefit to the Public. State Supreme Courts Should Take the Lead in Examining Specific Nonlawyer Activities Within Their Jurisdictions With the Active Support and Participation of the Bar and Public.
Id. at 21.
15 Mary Evelyn Medway, CLAS, "Registration: One Option in the Regulatory Process," 3 Tex. Paralegal J. 20 (Fall 1997), citing Tex. Gov't Code Ann. „ 6318.003(a)(1) (West Supp. 1996).
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