October 2008

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The Debate Behind Paralegal Regulation
by Shirley Caroline Bryant, PLS

 

In recent years, there has been much debate regarding the regulation of paralegals.  Mandatory regulation is a controversial issue that will eventually affect everyone in the legal profession.  One recent survey has demonstrated that many legal support professionals actually support mandatory regulation.1 However, further research has shown that many others, including legal support professional associations, support regulation in the form of voluntary certification while opposing mandatory certification.2  At this time, many states do not regulate paralegals, but this will most likely change in the future as an increasing number of states create policies that support the regulation of paralegals.

Most individuals who support the regulation of paralegals do so because they believe that regulation would maintain a standard of quality in the legal services industry.  Theoretically, paralegals who are required to maintain a certain level of education and legal knowledge possess a sufficient degree of competency, which would protect the public from serious consequences.  Incompetent paralegals, who are either undertrained, undereducated, or both, would no longer be allowed to work as paralegals.  However, the regulation of paralegals would affect the hiring decisions and policies of law firms, who would be forced into following the regulation guidelines when filling a vacant position.  As a result, certain paralegals who are qualified to work for the firm may be denied a job because s/he does not meet the regulatory guidelines.  Because of this possible scenario, some entities, such as the International Paralegal Management Association, believe that firms should be the ones that decide who to hire rather than the agencies that dictate regulation.3

Those who oppose paralegal regulation maintain that regulation is not needed because paralegals already work under the supervision of an attorney.  Because attorneys are already regulated by various ethical standards and legal rules, they are qualified to supervise the paralegals.4 The logic behind this argument is that attorney supervision provides consumers with adequate protection from paralegal incompetence, so anyone who hires an attorney should not worry about paralegal ineptitude.5  In addition, attorney supervision also helps prevent the Unauthorized Practice of Law on the part of paralegals.  Currently, there is much controversy regarding legal technicians, legal document preparers, and independent paralegals who perform work of a legal nature without the supervision of an attorney.  According to some, the work performed by these individuals constitutes UPL.  Regulation proponents claim that the UPL issue is at the heart of the legal technician licensure debate and that regulating them would remedy this problem.

Regulation opponents maintain that mandatory regulation may prove too costly for law firms and their clients.  In recent years, more and more individuals have been seeking the services of independent paralegals, legal technicians, and legal document preparers in order to save money.  Presently, the ever-increasing costs of legal services, along with the state of the national economy, could further prohibit low-income or indigent individuals from acquiring legal assistance.  Mandatory regulation, which would increase the price tag for legal services, would compel even more individuals to use non-attorneys for their legal needs rather than the attorney-paralegal team at a firm.

No matter which side of the issue one supports, mandatory regulation, whether in the form of certification, licensure, or registration, is guaranteed to become more prevalent in the not-too-distant future. It is in every legal support professional’s best interest to remain informed regarding this very important issue.  Today, all legal professionals are expected to continue their educations, sharpen their skills, and deal with ever-present change.  If your state enacts new or additional regulatory legislation, will you be ready?

If you have any information regarding regulatory activity in your state, please contact Jill J. Hale, PP, PLS, CLA (wandr@cableone.net) or Antoinette B. Van Schaick, PP, PLS (tonivpls@aol.com), Co-Chairs of the NALS Regulation/Certification Committee. 

 

Endnotes

1Ashley Johnson, “Reacting to Regulation,” Legal Assistant Today, November/December 2007 [article online]; available from http://www.legalassistanttoday.com/my_opinion/Results/nd07_MOresults.html; Internet, accessed 4 September 2008.

2Roger LeRoy Miller and Mary Meinzinger Urisko, West’s Paralegal Today:  The Legal Team at Work, 3rd ed., (Clifton Park, NY: Delmar Learning, 2004), 9.

3“International Paralegal Management Association Position Paper on Paralegal Regulation” [paper online] (International Paralegal Management Association, June 2008, accessed 1 September 2008); available from http://www.paralegalmanagement.org/ipma/docs/Regulation%20Position%20Paper.pdf; Internet.

4Miller and Urisko, 100.

5Catherine R. Durgin, “Getting Legal With Paralegals,” Business Law Today 16:3, January/February 2007 [article online]; available from http://www.abanet.org/buslaw/blt/2007-01-02/durgin.shtml; Internet, accessed 1 September 2008.