Unauthorized Practice of Law by Legal Assistants and Paralegals - Research Paper Example

Un ized Practice of Law by Legal Assistants and Paralegals Introduction There is currently a debate concerning the role of paralegals and theirexpanding encroachment into areas once reserved solely for lawyers. On one side are the attorneys who contend that allowing non-lawyers to assume tasks that require legal training exposes the public to dangers of fraud and inadequate legal advocacy or incompetent procedural assistance. On the other side are the paralegals who claim that they have sufficient knowledge and training to competently discharge some tasks, such as the preparation of legal forms, without harm to the public, and for a much lower fee than lawyers charge. They claim that it is a service to the public, and a chance for them to engage in the business of providing such service. The legal profession and the state statutes specify that non-lawyers cannot discharge tasks that constitute the practice of law. According to the American Bar Association (ABA), “functionally, the practice of law relates to the rendition of services for others that call for the professional judgment of lawyers. The essence of the professional judgment of the lawyer is his educated ability to relate the general body and philosophy of law to a specific legal problem of a client” (Lieberman, 2002) Cull gives a brief history on the unauthorized practice of law (http://www.paralegals.org/ Associations/2270/files/much.htm). She traces the delivery of legal services by non-lawyers to colonial times (Christensen, “The Unauthorized Practice of Law: Do Good Fences Really Make Good Neighbors?”) Only in the early 1900s did laws explicitly prohibit unauthorized practice of law, and in the 1930s UPL laws were enforced with greater severity (ABA Report). At present, more than two-thirds of all states that make UPL a misdeamenor, while other states regard UPL as contempt of court (Cull, 1999). Definition of a Paralegal / Legal Assistant The ABA adopted in 1997 the following definition: “A legal assistant or paralegal is a person qualified by education, training or work experience who is employed or retained by a lawyer, law office, corporation, governmental agency or other entity who performs specifically delegated substantive legal work for which a lawyer is responsible.” According to the National Association of Legal Assistants, or NALA, certain standard determine the qualifications of a paralegal (http://www.nala.org/98model.htm). To be accredited a paralegal or legal assistant, one has to undertake the following: 1. Successful completion of the Certified Legal Assistant (CLA)/Certified Paralegal (CP) certifying examination of the National Association of Legal Assistants, Inc.; 2. Graduation from an ABA approved program of study for legal assistants; 3. Graduation from a course of study for legal assistants which is institutionally accredited but not ABA approved, and which requires not less than the equivalent of 60 semester hours of classroom study; 4. Graduation from a course of study for legal assistants, other than those set forth in (2) and (3) above, plus not less than six months of in-house training as a legal assistant; 5. A baccalaureate degree in any field, plus not less than six months in-house training as a legal assistant; 6. A minimum of three years of law-related experience under the supervision of an attorney, including at least six months of in-house training as a legal assistant; or 7. Two years of in-house training as a legal assistant. For purposes of these Standards, "in-house training as a legal assistant" means attorney education of the employee concerning legal assistant duties. In addition to review and analysis of assignments, the legal assistant should receive a reasonable amount of instruction directly related to the duties and obligations of the legal assistant. Paralegals are generally acknowledged to do tasks delegated to them by an attorney, provided that the attorney supervises the work and assumes responsibility for the outcome of the work. These include: researching cases and other legal authority; factual investigation; preparing legal documents; reviewing and organizing case files; assisting at and preparing a case for trial; assisting at depositions; summarizing depositions; drafting interrogatory questions and answers; interviewing clients and witnesses; assisting in court; handling administrative matters; and communicating information to clients and other people. (The Missouri Bar, in http://www.mobar.org/bc1c9200-2123-46fb-9727-8bc6a83f2cf7.aspx) There are, however, tasks that a paralegal may not discharge. The statutes are not explicit in defining these tasks, but provide general guidelines which allow the court leeway in arriving at decisions responsive to the particulars of the case. In general, the following are accepted: 1. Paralegals may not represent a client in court. There have been specific exceptions to this, however, according to the Federal Administrative Procedures Act, 5 U.S.C. 555 (b). This statute permits any person to represent another if allowed by the agency, such as the Social Security Administration, Internal Revenue Service, Consumer Product Safety Commission, Department of Labor, and Environmental Protection Agency. 2. Paralegals may not give legal opinions, even in response to client questions. The must duly inform the client that they are prohibited from giving their own legal opinion or advice to clients. They may, however, give factual and procedure information when asked. 3. Although a paralegal may prepare and draft legal documents, the lawyer, however, retains responsibility for reviewing and approving the document contents. (The Missouri Bar, in http://www.mobar.org/bc1c9200-2123-46fb-9727-8bc6a83f2cf7.aspx) Arguments For and Against Prohibiting Paralegals from Engaging in ULP The main argument against allowing paralegals to assume tasks comprising the practice of law is that the public must be protected from the chance that they might be represented or aided by one not qualified nor competent to do so. The Maryland State Bar Association (MSBA), for instance, opposed all legislation that expands the rights of non-lawyers to perform those services that have been traditionally provided by attorneys. This include the preparation of legal documents, such as living wills, uncontested divorces, probate proceedings, tax matters, residential real estate transactions, name changes, powers of attorney, revocable living trust, incorporations, stepparent or agency adoptions, and healthcare proxies and directives. The prohibition should also cover the other area for which paralegals have claimed competence, that is, the representation of others before administrative agencies or boards such as public utility commissions, workers’ compensation boards, motor vehicle administrations, environmental permit bodies, rent court, and public assistance entities. It is the opinion of the legal community that the expanding role of non-lawyers in performing these tasks result in poorer quality of service and lack of protection of the public when services are inadequate. (MSBA, in http:// www.msba.org/sec_comm/committees/lawscomm/legislativeprogram02/unauthorprac.htm) On the other hand, the National Federation of Paralegal Associations or NFPA (http://www.paralegals.org/displaycommon.cfm?an=1&subarticlenbr=331), express the opinion that paralegals’ training and certification should at least entitle them to function as independent document preparers. At present, there are numerous books, online resources, and even pro-forma fill-in-the-blank forms that any individual may use to prepare any type of legal form. It would be more prudent for such people to be allowed to hire paralegals, rather than leave the document preparation to people with no legal background, armed only with a do-it-yourself legal forms kit. Presently, California law allows this, but other states such as Iowa, New York and Texas classify document preparation under the unauthorized practice of law (UPL). The advantage for the public is that they would be able to have their legal documents professionally prepared pursuant to the Rules of Court, at a cost much lower than if they had hired a lawyer. The education and training, as well as certification process, more than sufficiently equips a paralegal with the competence to undertake this task. Also, this would allow paralegals to set up their own businesses, concentrating solely on document preparation without providing legal advice. Selected Cases Defining Certain Tasks as ULP Case 1: In re Mark Albert Boettcher, Jr. (United States Bankruptcy Court) Mark Boettcher, representing himself, filed a motion seeking dismissal of his Chapter 7 case. The motion was completely botched procedurally. Among other things, the court noticed that the proof of service was signed by Terry Mohr, the bankruptcy petition preparer. Mohr, in response to the court’s order to explain her actions, admitted that she prepared the motion but argued that she did not draft the motion, but used a prepared form of motion by a supervising attorney of We the People Forms and Service Centers USA, Inc. Mohr contended that she only filled in the blanks of the pro-forma motion prepared by the attorney. The issue was whether or not Mohr’s actions constituted unauthorized practice of law. The court ruled that Mohr’s actions in filling in the blanks of a previously-prepared motion constitute UPL. The court’s ratio decidendi is that Mohr engaged in the unauthorized practice of law by obtaining a form that she considered appropriate for Boettcher’s motion and providing it to him. The fact that the form itself may have been prepared by a lawyer does not change the nature of Mohr’s act. Since the attorney who prepared the form was in no way supervising Mohr, her use of the attorney’s form was just as unlawful as if Mohr had gone to the courthouse and used a motion to dismiss she found in some file. As a result, Mohr was fined $2,000, but such fine may be suspended if Mohr provides a competent, licensed attorney to represent Boettcher in his Chapter 7 case at no cost. Furthermore, Mohr was permanently enjoined from obtaining, selecting, or recommending any form or pleading on behalf of a debtor from any source. Case 2: John Doe, Alias v. Condon (Opinion No. 25138 of the South Carolina Supreme Court) In the instant case, petitioner sought the court’s opinion in determining whether certain tasks performed by a non-attorney employee in a law firm constitute the unauthorized practice of law, specifically: (1) whether it is the unauthorized practice of law for a paralegal employed by an attorney to conduct informational seminars for the general public on wills and trusts without the attorney being present; (2) whether it is the unauthorized practice of law for a paralegal employed by an attorney to meet with clients privately at the attorneys office, answer general questions about wills and trusts, and gather basic information from clients; and (3) whether a paralegal can receive compensation from the paralegals law firm/employer through a profit-sharing arrangement based upon the volume and type of cases the paralegal handles. The Court ruled that the aforestated three acts constitute UPL, based on the premise that they required the professional discernment of a lawyer. The activities of a paralegal do not constitute the practice of law as long as they are limited to work of a preparatory nature, such as legal research, investigation, or the composition of legal documents, which enable the licensed attorney-employer to carry a given matter to a conclusion through his own examination, approval or additional effort (Matter of Easler, 275 S.C. 400, 272 S.E.2d 32, 33 (S.C. 1980). The instant case does not fall within this criteria, for the following reasons: (1) On the matter of the educational seminars: Petitioner intends to conduct unsupervised “wills and trusts” seminars for the public, and plans to answer estate planning questions from the audience. As such, the petitioner will actually be giving legal advice on legal matters, and require the exercise of professional judgment by a licensed attorney. (2) On the matter of conducting initial client interview: Petitioner intends to gather client information and answer general estate planning questions during his proposed “initial client interviews.” A non-lawyer may properly compile client information, but may not answer estate planning questions (Matter of Easler, supra.). The answering of legal questions would constitute the unauthorized practice of law because it requires the exercise of legal judgment. While the clients will be subsequently directed to an attorney for “follow up” consultations, the paralegal may not give legal advice in any event. Furthermore, preparatory tasks must be performed under the attorney’s supervision. A follow-up interview does not constitute the requisite supervision. (3) On the matter of compensation: Petitioner’s law firm intends to compensate him based upon the volume and types of cases he “handles.” At the outset, paralegals are prohibited to “handle” any case. Furthermore, the fee arrangement is in direct contravention of Rule 5.4 of the Rules of Professional conduct, SCACR 407, prohibiting fee splitting. The limitation serves to “discourage the unauthorized practice of law by law persons and to prevent a non-lawyer from acquiring vested pecuniary interest in an attorney’s disposition of a case that could possibly take pre-eminence over a client’s best interest” (Matter of Anonymous Member of the S.C. Bar, 295 S.C. Furthermore, the court expressed concern that the petitioner’s desire to market the law firm’s services via the educational seminars and to meet individually with clients creates a situation ripe for abuse, the very evil Rule 5.4 intended to prevent. Case 3: Opinion No. 41 of the Committee on the Unauthorized Practice of Law, Appointed by the New Jersey Supreme Court: On Notaries Public and the Unauthorized Practice of Law The Committee has been asked by several members of the State Judiciary to investigate lay persons who are commissioned as notaries public in New Jersey and whose actions may constitute the unauthorized practice of law. The investigation disclosed that some notaries public in New Jersey are performing functions outside the scope permitted by statute. The Committee defined that when a person in New Jersey is commissioned as a notary public, he or she is given a copy of the New Jersey Public Manual (New Jersey Division of Revenue). The manual states that a notary is authorized to: administer oaths and affirmations; take acknowledgments; execute jurats for affidavits and other verifications; take proof of deeds; execute protests for non-payment or non-acceptance. The manual further cites that a notary must be at least 18 years old, and that he or she may not prepare a legal document, give advice on legal matters, or appear as a representative of another person in a legal proceeding. Investigations of various complaints by the Committee reveal that unsuspecting consumers, many of whom are unfamiliar with the English language, have paid substantial fees to persons holding the title of “notary public” to have pleadings, affidavits, briefs and other submissions to the court prepared for them. Many are not aware that notaries public in this country differ in powers and duties from their counterparts in other lands, where a notary public may encompass broader duties and be the equivalent of a legal advocate. Often, such “notario fraud” involves the notary’s preparation of legal documents, such as a complaint for divorce, for a person seeking remedies in a court of law. The Committee has seen incidents of hundreds of dollars charged by notaries to consumer-litigants who were told merely to sign what was put in front of them. They received only a cursory explanation by the non-lawyer notary who had prepared the papers. The Committee concludes that it is beyond the scope of the permissible duty and authority of a notary public of the State of New Jersey to render assistance by giving advice or by preparing, reviewing, analyzing or completing any forms, writings, pleadings, or other documents in person, in writing, electronically or otherwise, or to perform services other than those approved by the statute. Case 4: Statewide Grievance Committee vs. Karen Zadora et al. (AC 20185), April 17, 2001 The facts of the case state that plaintiff Statewide Grievance Committee charged defendants, who were doing business as Divorce Documentation Service of Connecticut, with the unauthorized practice of law. Defendants do not dispute the fact that they are not attorneys. The complaint alleged that the defendants’ business, which claims that it offers only typing and forms for dissolution actions, actually offers legal advice to its customers. Said actions consisted of the mailing of flyers with attached business cards to numerous places, containing phases such as “what we do is show people how they can obtain a divorce on their own,” “we do all the necessary clerical preparation work for the individual,” “pro bono work accepted,” “extensive research” and “consultation.” However, Zadora et al. state that they merely supply blank forms requested by the customer and type consumer generated responses. The lower court ruled that defendants were in violation of the prohibition to engage in unauthorized legal practice. In the subsequent decision, the judgement of the lower court was affirmed. Ratio decidendi explicitly stated that the act of advertising alone is sufficient to constitute the unauthorized practice of law if the advertisement is for activity that amounts to legal services. The principle may apply despite the presence of disclaimers of being an attorney or providing legal service. Defendants were thus found in wilful contempt and ordered to terminate their unauthorized practice of law. Case 5: In the Matter of Marilyn Arons, Ruth Watson and Parent Information Center of New Jersey, Inc., Delaware Supreme Court No. 444, 1999 Arons and Watson are the founder and Executive Director, respectively, of Parent Information Center of New Jersey, Inc., a non-profit organization that provides advice, counselling and advocacy services to families of children with disabilities. On five occasions, the Center represented families of children with disabilities in “due process” hearings held by the Delaware Department of Public Instruction. Four of the five hearings were handled by Arons, and one was handled by Watson. Neither Arons nor Watson is an attorney, although both possessed special knowledge and training with respect to the problems of children with disabilities. Due process hearings in Delaware are conducted in a manner typical of contested, adjudicatory hearings. The parties include the parent(s), the local school board and the Department of Public Instruction. The hearing is conducted by a three-member panel, one of whom is an attorney admitted to practice in Delaware. Hearing are chaired by the attorney member of the panel. Evidence is presented through witnesses, who are subjected to direct and cross-examination. While the rules of evidence do not strictly apply, the Chair rules on legal issues, the qualification of experts and objections to relevance, materiality and admissibility. The issue in the instant case is whether or not lay persons may discharge the functions abovementioned, even if the procedure is a due process hearing before State administrative agencies. The court ruled that appellants Arons and Watson undertook the unauthorized practice of law, since “[t]he carefully drawn statutory language does not authorize these specially qualified individuals to render legal services. Although the [statute] does give “[a]ny party to any hearing” the right to “present evidence and confront, cross-examine, and compel the attendance of witnesses,” those functions are not designated to be performed by lay advocates. Furthermore, the statute does not use the word “represent” in subsection (d)(1), as would be expected if Congress intended to place expert and legal counsel on the same footing.” Clearly, the ruling avers that even when the terminology of the law appear to allow non-lawyers to undertake the task, where the functions require the specialized knowledge and judgment of a lawyer, then non-lawyers may not undertake such functions. Conclusion Determining whether or not paralegals or legal assistance should be allowed to discharge certain functions formerly reserved for lawyers is a contentious matter. There is a practical reason for advocating such, given the economic necessities of individuals who may want to avail of legal services though may not have the means to do so, for relatively simple tasks as the preparation of legal documents. After all, it is true that publicly available resources proliferate that encourage lay persons to “do-it-yourself” in writing out frequently-encountered legal forms. However, lawyers’ concerns about the possible abuse or harm to clients due to incompetence, and the lack of accountability on the part of the paralegal or legal assistant, are valid points that require considerable thought. This matter would probably be one for the high courts to decide. Another important consideration, however, is what act or acts constitute the unauthorized practice of law. It will be seen from the above cases that even legal authorities, such as the U.S. Department of Justice which acted as amicus curiae in support of the defeated appellants in In the Matter of Arons (Case 5), are not clear on this. Furthermore, the different statutes and case laws for each state adds to further confusion about this matter. On this subject, as with all legal developments, it is only through the compilation of case decisions that will come that a picture of what constitutes ULP will eventually be threshed out. Until such time, then, the matter will be guided by the general admonition that, where legal knowledge and judgment are required, only counsel who have had the proper training, have passed the bar examinations and been duly administered the oath – in short, only lawyers may properly discharge such functions. References Cull, Rebecca. How Much Is Too Much? Paralegals’ Duties and the Unauthorized Practice of Law. Reporter, Fall 1999. Accessed 8 November 2009 from http://www.paralegals.org/Associations/2270/files/much.htm In the Matter of Marilyn Arons, Ruth Watson and Parent Information Center of New Jersey, Inc., Delaware Supreme Court No. 444, 1999 In re Mark Albert Boettcher, Jr.. United States Bankruptcy Court. Accessed 8 November 2009 from http://www.canb.uscourts.gov/node/600) Lieberman, Mary Kay. Unauthorized Practice of Law by a Paralegal: What It Is and How to Avoid It. DCBA Brief Online Journal of the DuPage Country Bar Association, 2002. Accessed 8 November 2009 from http://www.dcba.org/brief/mayissue/2002/art40502.htm Maryland State Bar Association (MSBA) 2002 Final State Legislative Program. Accessed 8 November 2009 from http://www.msba.org/sec_comm/committees/lawscomm/legislativeprogram02/unauthorprac.htm Missouri Bar’s Proposed Rule/Statute On Unauthorized Practice of Law. Accessed 8 November 2009 from http://www.abanet.org/cpr/mjp/comm2_mbc2.html Opinion No. 41 of the Committee on the Unauthorized Practice of Law, Appointed by the New Jersey Supreme Court: On Notaries Public and the Unauthorized Practice of Law Statewide Grievance Committee vs. Karen Zadora et al. (AC 20185), April 17, 2001 The Missouri Bar, in http://www.mobar.org/bc1c9200-2123-46fb-9727-8bc6a83f2cf7.aspx Read More