|
The TPJ wants to hear from you! The Publications Committee will poll members concerning their thoughts on some of
the “hot topics” of the day. During each quarter, the Committee will draft a question, which will be distributed to
membership, through the Directors. Each question will direct you as to where to send your response. We will print the
responses in the following TPJ, reserving the right to edit for space considerations. While we prefer to print a name
and city with each response, we understand that some of you may prefer that we not print your name. We will honor this
request, so long as the response is not contrary to the objectives of the Paralegal Division or the Publications Committee.
We hope that this column provides a way for PD members to express themselves, constructively, on issues that impact our
profession, our communities, and our country.
Question of the Quarter:
Certification is a voluntary act a professional undertakes to demonstrate his or her commitment to a profession,
the pursuit of excellence in that profession, and the ability to meet certain standards and requirements. Thousands
of industries and organizations administer examinations to individuals who hope to demonstrate their knowledge and
proficiencies in their chosen field by meeting the requirements set out for certification. Paralegal certification is
no different in its scope and intent than any other type of certification. Paralegals who wish to demonstrate their
knowledge and competencies in their chosen career can seek certification through several organizations that award
candidates their own copyrighted brand of certification.
However, while certification or specialization is evidence of greater competency and expertise, it also
carries with it a higher standard of care for attorneys, doctors, and other professionals.1
1. Do you think a court would ever hold a supervising attorney or firm to a higher standard in a malpractice
action involving a certified paralegal?
2. If so, is there anything a certified paralegal or specialist can do to minimize this risk?
1 See “Certification Standard of Care Applies to Certified Attorneys,” by Paul B. Geilich,
Certification Link, June 2002, a quarterly publication of the ABA’s Standing Committee on Specialization. (Available
at http://www.abanet.org/ legalservices/specialization/downloads/certlink0602.pdf)
RESPONSE: No, attorneys are required to supervise their employees and the rules concerning
paralegals/legal assistants are very clear regarding UPL. I believe this would apply to paralegals with certification,
those without, as well as those with any other credentials of higher education.
—Toylaine H. Spencer, Austin
RESPONSE: First of all, I don’t think a court would ever hold a paralegal, certified or not, liable for any
malpractice issue for their behavior. As we all know, our profession REQUIRES that we be supervised, at all times, by an
attorney. That puts the burden of any liability back on the attorney, not the paralegal. Second, if for some reason the
courts begin to hold the paralegal responsible in malpractice claims, then the paralegal profession should begin to
license its members. Only then would paralegals be held responsible for their actions. When you start to assess
responsibility to the paralegal, then you are also suggesting that the individual is making decisions without the
supervision of the attorney and then you are looking at whether that individual is practicing law without a license. So,
to answer the question on how to minimize the risk, the only way would be to license paralegals and require paralegals to
carry malpractice insurance. And that is not going to happen in most cases. Again, the law firm where the paralegal is
employed carries malpractice insurance for the firm, but we are all required to be supervised by an attorney as we
perform our duties to the client.
—Linda Valerius, College Station
RESPONSE: I do not believe that a court would hold a supervising attorney more or less accountable or to a
higher standard in a malpractice suit where the paralegal was certified because I believe the attorney’s responsibility
is to supervise the work of the paralegal, therefore, the responsibility ultimately lies with the attorney. The paralegal
is under the direct supervision of that attorney.
As far as minimizing the risk, I do believe that the paralegal should follow the rules of their profession and make
sure all their work has been reviewed and approved by the attorney as to not violate the rules. A paralegal that is
guilty of unauthorized practice of law would definitely be a risk for the attorney and the attorney could be guilty of
malpractice if they are not supervising the paralegal properly and thus enabling violations of the rule.
—Candi Wilson, Austin
RESPONSE: I believe that a court may hold a supervising attorney or firm to a higher degree for a
certified paralegal than for a non-certified paralegal, arguing that the certified paralegal has shown greater competence
in that area of law as shown by the certification.
The only suggestion might be to put something in the employment agreement to help limit any higher standard
liability - that way if there is a malpractice action, the firm could argue that they had a contract that limited the
standard for potential malpractice liability that was negotiated between the parties.
—Jeff Goldstein, Austin
RESPONSE: My answer is “No” to question No. 1, because regardless of whether the paralegal is certified
or not, the attorney is ultimately responsible for the paralegal’s actions and/or omissions for which the attorney’s
liability insurance carrier would be covering for malpractice. Ultimately, there is nothing a paralegal (certified or
otherwise) can do to minimize the risk because their work is directed exclusively by the attorney they work for.
—Kim Chambers, Austin
RESPONSE: 1. Yes
2. I don’t believe this involves any more or less than any other “certification” should call for - or ANYTHING, for
that matter, and that is to PAY ATTENTION.
—Carol Fell, Austin
RESPONSE: Whether a paralegal is certified or not, it is given that he or she should follow ethical practices
under an attorney’s supervision. While the level of work a certified paralegal is given could be different than that of
others, they each still have like obligations. For example, to bill for “substantive” work is something we are each
obligated to do, and I think the liability remains the same even if a judge decided to award higher sanctions on a
specific case.
—W. Jahna Chism, Austin
RESPONSE: I don’t believe that a court would hold a supervising attorney or a firm to any higher standard than
they do now, which is that ultimately the supervising attorney or firm bares the burden of accountability, but in the
event that it did, a certified paralegal could carry insurance, just as a notary does, or any other licensed
professional.
—Patti Claar, Plano
RESPONSE: No.
—Melanie F. Johnson, Houston
RESPONSE: No. Since a licensed attorney is ultimately responsible for the work of any paralegal/legal
assistant/secretary etc., it is unlikely the qualifications of the actual “worker bee” would be a part of the decision
process.
—J. Lombard, Plano
RESPONSE: There is a huge factor that is not being considered in this question. That factor is that all the
fields identified—attorneys, doctors—involve licensing. Certification is simply a particular organization’s way of
recognizing individuals who have met that organization’s criteria for excellence. It is not a governmentally recognized
qualification.
I find it hard to believe that a court would recognize certification as a higher standard in a malpractice action.
Malpractice actions are those allowed for by law based on licensure regulations.
—Lisa Sprinkle, ACP, El Paso
RESPONSE: 1. Yes
2. Keep abreast of changes in the area of law of their expertise and seek out clarification from the attorney in
charge on all malpractice cases as they unfold. On all malpractice cases, the paralegal should take it upon themselves to
double-check the guidelines of that particular case with the attorney, even though they may have had a prior similar
case. You want to be sure if an attorney is sanctioned for malpractice, your work as a paralegal is not the root cause of
that problem. Likewise, keeping abreast will aid you in assisting the attorney in a more meticulous, professional
manner.
—Willie Williams, Columbus
|
