NALA SPECIAL REPORT. EXECUTIVE SUMMARY NALA Statement Re Report of the New Jersey Supreme Court Committee on Paralegal Education and Regulation Background in formulating the regulations for New Jersey paralegals. Any such guidelines By way of background information, the or regulations should encourage the use New Jersey Supreme Court established of paralegals while providing both the above referenced committee in 1992. attorneys and paralegals with standards Prior to that, the New Jersey Supreme that together with the Rules of Court Committee on the Unauthorized Professional Conduct can guide their Practice of Law considered a question as practices.” to whether an attorney who hires a “independent” paralegal is supporting NALA’s statement focused on several someone in the unauthorized practice of key aspects of the report in light of the law. The Committee issued an opinion in corporate mission and responsibility of the affirmative in 1991 (Opinion 24.) the National Association of Legal This opinion was reviewed by the New Assistants to support the development of Jersey Supreme Court which decided on the paralegal profession. This includes May 14, 1992, that there is no rational supporting and enhancing the basis for the disparate way in which professional growth of those within the Opinion No. 24 treated employed and field; as well as promoting the paralegal independent paralegals. occupation as an excellent career option for those just entering the workforce. In its opinion, the Court stated that NALA statement reinforces the New although independent paralegals may Jersey Supreme Court’s Opinion in Re have a greater potential for conflicts, the Opinion 24 by emphasizing that risk is not essentially different from that 1) paralegals are valuable and necessary experienced by paralegals who change members of the attorneys’ work force in jobs. Further, as paraprofessionals who the effective and efficient practice of work solely under the supervision of law, and 2) any system of regulation attorneys, independent paralegals were should encourage the use of paralegals. not found to be engaged in the practice of law. As part of the Court’s opinion, it Report Summary stated that a committee on paralegal education and regulation “is necessary The report of the Committee on and will be established to study the Paralegal Education and Regulation, practice of paralegals and make published on July 27, 1998, sets forth recommendations.” “The committee may several recommendations concerning the consider guidelines from other states, bar attorneys’ use of paralegals in the associations and paralegal associations delivery of legal services, sets forth a system of licensure and prerequisites, Committee on the Unauthorized Practice promulgates a code of professional of Law. conduct for paralegals, suggests modifications to the Rules of 4. A licensure mechanism must be Professional Conduct concerning developed in response to a demonstrated attorneys’ use of paralegals, and need; based on objective, quantifiable discusses the administrative body and research; and must serve the public organization required to effect the interest. recommendations. The report emphasizes that paralegals in New 5. The report and recommendations Jersey always work under the could cause public harm unnecessarily supervision of licensed attorneys and increasing the cost of legal services to their work is merged with and becomes consumers and eliminating the benefits the attorney’s product. of the utilization of nonlawyers in the delivery of legal services. The National Association of Legal Assistants believes the report and 6. Professional associations offer viable recommendations of the New Jersey alternatives to governmental regulation. Committee on Paralegal Education and The first two points provided Regulation involves matters of vital interest to paralegals in New Jersey as information from throughout the nation well as those throughout the United describing the general acceptance of the States. role of the paralegal in the delivery of legal services. This includes the NALA Statement-Points statement from the United States Supreme Court in the 1989 case of In its analysis of the report, NALA Missouri v. Jenkins, 491 US 274, 109 focused on the following points: S.Ct. 2463, 105 L.Ed.2d 229 (1989), in which the Supreme Court of the United 1. The paralegal’s role is accepted and States held that an award of attorneys’ necessary in the efficient practice of law. fees may include the market value of services rendered by paralegals, stating 2. The Supreme Court permits the use of the following: nonlawyers by New Jersey attorneys. “It has frequently been recognized in the 3. “No rational basis exists for the lower courts that paralegals are capable disparate way in which Advisory of carrying out many tasks, under the Opinion No. 24 treats employed and supervision of an attorney, that might independent paralegals. The testimony otherwise be performed by a lawyer and overwhelmingly indicates that billed at a higher rate. Such work might independent paralegals were subject to include, for example, factual direct supervision by attorneys and were investigation, including locating and sensitive to potential conflicts of interviewing witnesses; assistance with interest.”-New Jersey Supreme Court depositions, interrogatories, and Opinion In Re Opinion No. 24 of the document production; compilation of statistical and financial data; checking forms of individual credentialing - legal citations; and drafting licensure, certification, and registration. correspondence. Much such work lies in These terms are frequently interchanged a gray area of tasks that might in conversation; however, their appropriately be performed by either by differences are quite distinct. an attorney or a paralegal. [Id., 109 S.Ct., at 2471-2472].” Licensure is a mandatory governmental requirement necessary to practice in a The United States Supreme Court added particular profession or occupation. that paralegal services may encourage Licensure implies both practice cost-effective legal services by reducing protection and title protection in that the spiraling cost of litigation. [Id., 109 only individuals who hold a license are S.Ct. at 2471]. permitted to practice and to use a particular title. In order to meet the In the presentation of the third point, the definition of a licensing program, the statement focused on the findings of the mechanism must be related to specific New Jersey Supreme Court in its review job functions or duties and of opinion No. 24. The committee’s responsibilities. Also, by their very report and recommendations specifically nature, licensure mechanisms are created address freelance paralegals who work by government and designed to protect for attorneys on a contract basis as a the health, safety, and well-being of separate class of paralegals. The citizens. A licensure mechanism is recommendations would essentially appropriate in instances where the public eliminate freelance practice in the state nay be harmed by incompetent products by requiring many years [sic] experience or services. in order to qualify for a license. Thus, should the licensing proposal be The Committee’s report has not demon- adopted, it would be impossible for strated a public need for the licensure of someone to obtain experience as free- paralegals. Rather, the report focuses lance legal assistant. In connection with solely on the relationship between the this, NALA’s statement presented legal assistant and the attorney/employer information supporting the fact that and the regulation of those who are freelance paralegals who work under the admitted to the practice of law. Further, supervision of attorneys should not be the licensure mechanism recommended treated differently than employed does not relate to any specific duties and paralegals. responsibilities that may be performed only by licensed persons, rendering the The fourth point of the statement dis- process a completely ineffective and cusses the elements of a licensure costly bureaucratic exercise. Without a mechanism and the purpose of licensing foundation in duties and responsibilities, mechanisms. It is interesting that the any person may perform paralegal duties committee focused on licensing as the regardless of his or her licensed status. means of credentialing paralegals in the The report emphasizes that paralegals state of New Jersey. There are three and (sic) New Jersey always work under the supervision of licensed attorneys and of years of experience alone, and further their work is merged with and becomes segments those who are employed as the attorney’s product. paralegals and have a bachelor’s degree in any field and only in-house paralegal The discussion within this point further training. identifies the following: (a) This latter group of paralegals may 1. The Committee’s licensure recom- only seek employment with law offices; mendation sets forth a complicated they are not eligible for employment as system of plenary licenses and restricted paralegals in corporations, government, licenses, divides the paralegal profession or on a contract basis; into two groups based on conditions of employment, although there is no (b) The licensing scheme prescribes the rational basis for this segmentation, and number of paralegals a law firm may classifies paralegals according to their employ with this qualification and by education and experience. The whom they are supervised; Committee’s approach to defining the career field into separate segments has The licensing mechanism prohibits no basis, particularly when these qualification and employment of parale- segmented groups have identical duties gals by virtue of years of experience and responsibilities. after three years of the rule’s inception. A majority of those currently employed 2. The Committee’s report and recom- as paralegals in New Jersey have mendations with regard to a licensing achieved their positions by virtue of mechanism dismisses the present day experience and in-house training. realities of the practice of law and the paralegal occupation. Rather than support the growth of the paralegal field, and encouraging the use 3. No occupational research is offered to of paralegals, the Committee’s report substantiate the Committee’s fragmenta- and recommendations could cause tion of the career field or creation of the paralegals and the public harm by admission requirements. arbitrarily defining those citizens who may or may not qualify for employment 4. The licensure requirements provide as a paralegal and by unnecessarily that the sole acceptable means of restricting the delivery of paralegal obtaining paralegal education is by education. completing a program approved by the American Bar Association, which, in The purpose of the paralegal profession addition to being unrelated to present is to offer a means by which attorneys day realities, raises serious may deliver legal services in a more anti-competitive issues. cost-effective and efficient way, resulting in lower legal fees for 5. The licensure mechanism contem- consumers. The licensing of paralegals plated prohibits qualification for through this system does not increase the employment as a paralegal on the basis efficiency of delivery of legal services nor reduce the cost. It does not related to the utilization of paralegals in streamline the practice of law by the delivery of legal services will be lost allowing paralegals to perform functions and replaced with rising costs. generally reserved for attorneys. On the contrary, it adds substantially to the cost In its concluding point, NALA’s state- of legal services through direct costs, ment provided information describing such as will not relieve the professional the role of professional associations in associations of their standard-setting establishing standards for those within a duty to those within the career field. career field. In considering the foundation for this report of the Summary Committee it is safe to surmise that the purpose of the Committee’s In summary, it is the position of NALA recommendations are founded on the that the Committee’s recommendation premise that governmentally imposed that the Supreme Court establish rules licensing mechanisms may be used to for New Jersey attorneys regarding the establish standards within profession. On utilization of legal assistants will provide the contrary, licensing mechanisms exist the necessary guidance to attorneys and solely to define who may and who may would serve to further clarify the super- not engage in a certain practice and to visory role of attorney-employers of protect the public. legal assistants and other lay personnel. Professional standards are created by It is also the position of NALA that this those within the career field through proposal for licensure of paralegals in their professional associations. This the State of New Jersey is harmful to the includes creation of a code of ethics, growth of the profession and is association membership requirements, anti-competitive. This proposal is not and voluntary certification programs. based on any occupational or The identification and creation of professional research, is subjective, standards for those within a profession costly, and would result in the loss of far exceed the purposes and functions of jobs. Further, licensing fees, and indirect a licensure mechanism. In fact, the mere costs related to the methods by which creation of a licensing mechanism for firms supervise the services of paralegals in New Jersey the licensing paralegals. Other indirect costs proposal effectively minimizes the associated with the licensing mechanism accountability of supervising attorneys would include the cost of separate mal- by rendering the issue of paralegal practice insurance for paralegals as conduct and accountability away from licensed individuals. The final cost cate- the law office and thrusting it into an gory associated with this mechanism is administrative maze of plenary and the cost to the public not only in terms of restricted licenses for paralegals that increased cost of legal services but also operates independently of attorney in terms of the public funds required for licensing. This specific licensing initial and on-going capitalization of the proposal creates a myriad of other program. Any cost-saving benefits unnecessary and debilitating problems and does not encourage the use of paralegals by attorneys or the growth of the profession. To understand the issues involved with this and other proposals, one should first research the general question of occupa- tional regulation. For additional reading, see: Certification, A NOCA Handbook, National Organization for Competency Assurance, 1200 19th St. NW, #300, Washington, DC 0036-2422, 1997. Certification and Accreditation Law Handbook, Jacobs, Jerald A., American Society of Association Executives, Washington, DC, 1992. Current Principles and Practices in Association Self-Regulation, Lad, Lawrence J., DBA, American Society of Association Executives, Washington, DC, 1992. This article originally appeared in the NALA Newsletter Winter 1999, the membership newsletter of the National Association of Legal Assistants, Inc. Reprinted with permission. A copy of the Report of the New Jersey Supreme Court Committee on Paralegal Education and Regulation can be down- loaded from New Jersey State Courts, Notices to the Bar at www.state.nj.us/judiciary/cmtee.htm.
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