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									     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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