Paralegals and access to justice

February 26, 2016

The traditional role of the paralegal, or legal assistant, was just that, an assistant to an attorney, albeit one with training that resulted in that assistance being far more than clerical, often involving legal research and the initial drafting of documents. Each action by the paralegal was taken to advance the lawyer’s representation of a client and under the direct supervision of the lawyer. Over the years, at least in some jurisdictions, the level of supervision required has diminished and some paralegals are now permitted to deal with clients, either in their own name or with only limited supervision required.

As we look at the various possibilities, we must remember that the practice of law is almost totally controlled by states and there is neither a federal system of bar admission nor a national set of rules regulating lawyers or paralegals. When it comes to state regulation, it is sometimes the legislature, sometimes the highest court, and sometimes a combination of both that set the rules. By this state action, paralegals who meet specific education and experience requirements may be permitted to engage in activities that once were the sole province of lawyers. As a broad statement, it can be said that it is the unauthorized practice of law (often a crime) if a paralegal (or any person) ventures into territory reserved for attorneys.

Not intending to do a state-by-state analysis, we will look at several forms of regulation enacted by a few states. As a start, New Jersey has not enacted any changes to the traditional view that a paralegal must work under the supervision of a lawyer and may not offer legal services directly to the public. There was a movement in the late 1990s to provide for the licensing of paralegals but the Supreme Court chose not to follow the recommendations of a committee that proposed a comprehensive scheme combining education and experience components. In the last 15 or so years there has been little effort to renew the initiative.

So what is happening around the country? Quite a bit, actually, with a number of states having paralegal regulatory plans in place or proposed. The most recent action has been by Utah, where the Supreme Court has established the title of Licensed Paralegal Practitioner (LPP). Quoting a 2014 American Bar Association study that found there is a large unmet (often because of cost) need for legal services, LPP’s are authorized to directly represent clients in three specialty areas: specified components of family law, eviction and debt collection. There are limits to the representation, with the most significant being that LPPs may not represent clients in court. Many Utah attorneys are reported to not be in favor of the overall plan so time will tell how successful it will be.

North Carolina has had a system of voluntary certification for more than 10 years that mainly serves to assist lawyers in hiring paralegals since it does not grant them any additional authority in representing clients.

Next time we will look at the kind of education well-prepared paralegals receive.

By: Ronald Goldfarb

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