STATUS OF REGULATION EFFORTS

Transcription

1 STATUS OF REGULATION EFFORTS Regulation of the paralegal profession began in earnest in the United States back in the late 1960s when debate about providing lower cost legal services to the public was discussed by Congress, the American Bar Association, and others. Arguably, the paralegal professional has come a long way since that time, and the debate on paralegal regulation is one of the top issues for our profession. Since many of the states in the U.S. which have news on paralegal regulation this year will be discussed in depth by someone familiar with the issues later in the program, my outline below will only hit the highlights on states which have had recent news on this topic. Internationally, those countries with recent news will be covered in more depth here, as we likely will not have someone in attendance from outside the U.S. this year. Please also review the comprehensive matrix included in these materials which is always available on NFPA s website at: CANADA In November 2006, the first five paralegal members were appointed by the Ontario government to develop the current regulatory framework which became effective May 1, The first paralegal licenses in Ontario were issued in early 2008, and now almost 3,000 paralegals in Ontario are licensed to help members of the public with matters in small claims court, traffic court, tribunal hearings and minor criminal matters. In March 2010, the first-ever election of representatives for the Paralegal Standing Committee of the Law Society of Upper Canada in Ontario took place. The Law Society of Upper Canada is the governing body for lawyers and paralegals in Ontario. The Paralegal Standing Committee is comprised of 13 total members: five paralegals, five lawyer bencher members and three lay bencher members. At the end of the balloting period, five licensed paralegals were elected from 39 candidates to represent their colleagues on Law Society of Upper Canada s Paralegal Standing Committee. The five paralegals elected to a four year term on the committee are: Cathy

2 Corsetti, Paul Dray, Michelle L. Haigh, Kenneth C. Mitchell, and Robert Burd. Cathy Corsetti was elected committee chair, and will serve a one year term. Two of the five elected paralegals, Michelle Haigh and Paul Dray, were chosen by the committee s paralegal members and lay benchers as the paralegal benchers who will participate in Convocation. Convocation is the governing board for the Law Society of Upper Canada. It consists of 40 elected lawyer benchers, two paralegal benchers, and eight lay benchers, along with an undefined number of ex-officio benchers. Visit: for more information. SCOTLAND The Law Society of Scotland and the Paralegal Association of Scotland is scheduled to launch the Registered Paralegal regulatory scheme on August 16, The Registered Paralegal designation in Scotland will be recognized as: [a] professional status for paralegals in Scotland, regulated by the Law Society of Scotland. Scottish Registered Paralegals will work under Scottish solicitors, qualify through one of three methods over the course of this year and next year in three different stages. The first stage will recognize those who qualify with formal education and experience as a paralegal. The second stage will focus on those with mainly work experience only, and the third, called The Full Route will encompass new paralegals who will begin as Trainee Registered Paralegal and transition to a fully-recognized Registered Paralegal upon completion of the one year training period where: both general competencies and competencies specific to the legal area I which the paralegal is working are achieved. All those qualifying through the Full Route must possess a formal education in paralegal studies, the requisite standards of which are outlined in the regulation. The Full Route will be the only way to qualify for the Registered Paralegal scheme after August 16, For more detailed information, please visit either the Scottish Paralegal Association s web page ( or the Law Society of Scotland s website: ( The Law Society of Scotland also maintains links to the two position papers on the regulatory scheme which provide detailed background information, definitions, and answers many related questions:

3 -_Paper_1.pdf ENGLAND AND WALES The National Association of Licensed Paralegals (NALP) is the leading professional body for paralegals in England and Wales, promoting the paralegal profession and offering paralegal training courses. Since 1987, the NALP has dedicated itself to promoting the status of Paralegals and paralegal training in the United Kingdom and abroad. As you may know, a Solicitor is much like an attorney in the U.S. So what is the difference between Solicitors and Paralegals in England and Wales? According to the NALP, in the U.K, a Solicitor controls: conduct of litigation, rights of audience in the main courts, certain aspects of a conveyancing transaction and the extraction of a Grant of Representation. However, in the vast majority of other matters, Paralegals have the right to conduct general legal business and also have absolute rights of audience in the Small Claims Court and in the majority of Tribunals. In addition, provided that they are representing their solicitor or qualified litigator employer, paralegals can have rights of audience on most interim application hearings and hearings in Chambers and in family case applications including hearings in chambers in both the High Court and the County Court other than reserved family proceedings. ( Probably more importantly, in England and Wales, the unauthorized practice of law (UPL) is a foreign concept! As NALP succinctly points out: the question of UPL takes up more time in connection with the conduct (within and without the attorney's office) of paralegals than any other topic. Unlike England and Wales where anything can be done provided that it is not specifically prohibited or impermissible without sanction, in America (and to some extent in Canada) nothing can be done unless it is specifically authorised. There is a further delineation of the paralegal profession in England as well: Legal Executives. The Institute of Legal Executives (ILEX), was formed in the early 1960s as a reconstruction of the old Solicitors' Managing Clerks' Association. However, ILEX does not serve Paralegal exclusively. They are the controlling organization for Legal Executives. A Legal Executive falls within the definition of a Paralegal but is recognized as a separate entity. A

4 person who is not qualified as a Legal Executive is not able to describe him/herself as one, whereas a Paralegal who is not qualified as one, can call him/herself a Paralegal (NALP s licensure is voluntary.) Only Fellows of ILEX can call themselves a Legal Executive, and the average time that it takes to become a Fellow is in the region of six years. Even when qualified as a 'Legal Executive' they have to work under the supervision of a Solicitor and are unable to work for themselves. The Higher Certificate in Paralegal Studies was introduced by the NALP in 1988, and awarded national approval and accreditation by the National Open College Network (NOCN), a network of further and higher education colleges and educational establishments throughout England and Wales in Since 1989, when the first examinations were held, over 7000 students have sat for the Associate Qualification (A.PLL) - the Association's Higher Certificate in Paralegal Studies. The A.PLL was expanded by offering thirteen different substantive law areas leading to Fellowship of the Association (F.PLL). The Post Graduate Diploma in Paralegal Practice was introduced to assist paralegal graduates by bridging the gap between an academic degree and the practical and procedural knowledge and skills necessary to be able to function effectively as a career paralegal. Additionally, the Higher Diploma in Procedural Law allows a university to offer to their students an optional career path as a paralegal within their degree program. The effect is that on graduation the student will receive their law degree, the Association's Higher Diploma in Procedural Law and Graduate Membership of the Association. The University of Sunderland has run the Higher Diploma program with the NALP since 2005, and talks are underway with other universities for 2010/11 and beyond. In 2005, the NALP implemented self-regulation of the paralegal profession by licensure. This action was accomplished after the Government initiated a review of the legal profession by Sir David Clementi in The NALP is the first organization of its type to achieve accreditation for its programs of study from the Office of the Qualifications and Examinations Regulator (OFQUAL), the Government agency regulating qualifications in England. The accreditation enhances the professional body s standing within the UK and internationally. The NALP celebrated their

5 23rd Anniversary and Awarding Body Status on the March 11, 2010 at the House of Commons. Visit their website at: for additional information. WEST VIRGINIA West Virginia House Representative Mark Hunt submitted House Bill 3302, entitled the Certified Legal Assistant Act (hereinafter the Act ) proposing regulation of paralegals. The Act defined a list of terms; established minimum educational and/or experience qualifications; set forth responsibilities of the lawyer and of the certified legal assistant (as defined in the Act); and provided rule-making authority to the West Virginia Supreme Court of Appeals in conjunction with the West Virginia State Bar. One of the ways to qualify under the Act is by passing the Certified Paralegal (CP) / Certified Legal Assistant (CLA) designation conferred by the National Association of Legal Assistants, Inc. (NALA). Other ways to qualify are: completion of an ABA-approved program of study or other study program for legal assistants which is institutionally accredited but not ABA approved, and which requires not less than the equivalent of sixty semester hours of classroom study; or completion of a course of study for legal assistants, other than the two previously-defined programs, plus not less than six months of in-house training as a legal assistant; or legal assistant work experience and/or previous employment in the specialty which they are certified will qualify for the grandfathering provision. The grandfather provision will only be in effect for twenty-four (24) months after the date the Act becomes law. The Act was referred to the House Judiciary Committee on January 13, The bill died in committee when the West Virginia Legislature adjourned on March 20, You may view the legislation on the website of the West Virginia Legislature at the following link: &sesstype=RS&i=3302, or visit and search for HB3302 for updated status or tracking. As of this writing, the legislature s website had not been updated with the latest details on the status of the bill due to the legislature s adjournment on March 20, 2010.

6 WISCONSIN As you may know, Wisconsin paralegals were surprised in 2008 when the Wisconsin Supreme Court rejected a plan for paralegal regulation which was embraced by both paralegals and the Wisconsin State Bar. The proposal would have established licensure, and regulation for paralegals in Wisconsin. As a result of this decision, and encouragement from the Court recognizing the importance of paralegal regulation, and oversight, paralegals in Wisconsin are working on a legislative approach to regulate the paralegal profession in their state. The decision to pursue this method for paralegal regulation was made based on the Court s interpretation of their role in oversight of the profession, as submitted in the previous proposal submitted back in In its ruling, it was noted the Court is only charged with regulating the activities of the attorneys in Wisconsin. Wisconsin paralegals anticipate the legislation will be ready for submittal by their sponsor for the legislative session in fall The 2004 report and proposal, can be found at: ContentDisplay.cfm&CONTENTID=36337 KANSAS Paralegals and attorneys who are part of a committee of the state bar association in Kansas, are researching various paralegal regulation schemes nationwide to report back to the Kansas Supreme Court on the issue. The long range plan is to hopefully begin drafting their own plan for paralegal regulation. The Kansas Bar Association maintains a committee on paralegals comprised of paralegals and paralegal educators, and attorneys to promote and maintain high standards in the effective utilization of paralegals throughout the state of Kansas. NORTH CAROLINA North Carolina was among the first states in the U.S. to establish a voluntary paralegal regulation program in conjunction with the North Carolina Bar Association. The history of this program s evolution dates back to the 1990s, combining the extensive efforts of paralegal associations supporting some type of regulation lobbied the state bar association and legislature. It was out of the efforts of these combined groups that the Plan for Certification of

7 Paralegals was approved in October 2004, and the first applications for the North Carolina Certified Paralegal (NCCP) designation were accepted on July 1, The Plan for Certification of Paralegals included an initial grandfathering provision, which continued until June 30, As of July 1, 2007, all applicants must satisfy the educational requirements of Rule.0119(a) and successfully pass an examination. As part of Rule.0119(a)(1)(A) designates an associate s, bachelor s or master s degree from a qualified paralegal studies program as an acceptable formal education. The North Carolina Bar Association maintains a list of those schools which qualify under this designation, and as an interesting twist, also lists the NCCP exam passage rate of graduates from the list of approved schools. The listing of approved schools passage rates can be found at: on the website maintained by the North Carolina Paralegal Certification program. As of mid-may 2010, over 3,075 paralegals in North Carolina alone are currently listed as qualified NCCPs. Approximately 2,000 more are listed as certification or re-certification pending, eligible for certification, or certification lapsed or revoked. Another interesting avenue in the North Carolina program is that paralegals outside of North Carolina can become a NCCP. A number of paralegals in surrounding states have availed themselves of this certification, as well as those in states as far away as Utah, and even one person from Oxford, England! OHIO In June 2006, the Ohio State Bar Association (OSBA) established a voluntary credential program for paralegals in Ohio due to the combined efforts of the five paralegal associations in Ohio. Paralegals interested in earning the OSBA Certified Paralegal designation, which is valid for four years, must meet educational standards stipulated by the bar association, combined with the appropriate corresponding length of paralegal experience, provide references, have completed 12 hours of continuing education in the three years preceding the examination, and pass a written examination of approximately 100 questions covering substantive law (from two topics of their choosing), procedural law, legal research, ethics, communication, computer knowledge and law office management.

8 The first applications were made available beginning Jan. 1, 2007 and the first exam was scheduled for June 2, Annually the applications are made available from January through March. Biennially, the OSBA Certified Paralegal must report that there has been no material changes in the information submitted during the application process. If any changes have taken place, updates must be fully described. Additionally, the OSBA Certified Paralegal must complete at least 12 hours of continuing legal education every two years. The Biennial reports are accompanied by fees as established by the OSBA. A Paralegal Certification Board (Board), comprised of at least nine, and a maximum of twelve members, appointed by the OSBA president to serve on staggered terms, oversees the administration of the program as well as the disciplinary procedures. The Board is defined to have at least three associate paralegal or regular attorney members (who are not students) recommended by the OSBA Paralegal Committee; two members recommended by the OSBA Legal Ethics and Professional Conduct Committee; and two members be recommended by the OSBA Unauthorized Practice of Law Committee. The remaining members shall be regular members of the OSBA, at least one of whom will have a background in paralegal education. The OSBA also extends associate membership to paralegals in the OSBA. Associate Paralegal members comprise the OSBA Paralegal Committee. Earning the OSBA Certified Paralegal designation is a separate procedure. As of this writing, 147 OSBA Certified Paralegals were listed on OSBA s website. For eligibility requirements and answers to frequently asked questions go to The standards for the program can be found at: or view the OSBA s brochure on the program at: INDIANA At this writing, no change has occurred with regard to the rejection of proposed Rule 2.2 of the Indiana Rules for Admission to the Bar and the Discipline of Attorneys, a plan under which paralegals in Indiana who qualified with education, work experience, training and/or PACE or CLA/CP certification would have registered with the Indiana Supreme Court and receive the designation of Indiana Registered Paralegal (IRP). Registration would have been

9 voluntary under proposed Rule 2.2. Many paralegals spent countless hours crafting the proposal, and it had unanimous approval by the Indiana Bar Association, but the Indiana Supreme Court rejected proposed Rule 2.2. This issue appeared to hinge on the lack of authority under the Indiana Rules of Professional Conduct to govern IRPs directly. The Court did say they would be open to reexamining the issue at a future date. The proposal for Rule 2.2 can be found at: FLORIDA The voluntary Florida Registered Paralegal (FRP) program administered by The Florida Bar became effective March 1, 2008 ( To date there are 3,742 FRPs and the numbers have steadily climbed since inception. One question continues to grow in volume along with the number of participants: When will The Florida Bar initiate mandatory implementation? As you will learn during my presentation of the case study on Florida, the Florida Alliance of Paralegal Associations (FAPA) was the group which was instrumental in moving the issue of paralegal regulation forward in Florida. The FAPA group has continued to stay active in monitoring The Florida Bar s activities with Rule 20 implementation, and has taken the lead in addressing the issue of mandatory implementation. At the 2010 Annual Meeting of The Florida Bar where the FRP Committee (the committee selected by the Board of Governors to oversee administrative implementation of Rule 20) will again meet, FAPA will formally present its plan for mandatory implementation to the FRP Committee. At last year s annual meeting, the FRP Committee held an open forum to garner feedback on two issues: the definition used in Rule (d) for Approved Paralegal Program, and a possible extension of the scheduled sunset (February 28, 2011) of the grandfather clause as defined in Rule (c). There were many paralegals in attendance to voice their opposition to extending the 2011 deadline to qualify as an FRP with paralegal experience only, and simultaneously voice their support for mandatory implementation (although it wasn t a topic on the agenda.)

10 As a result of the overwhelming number of people in attendance asking about mandatory implementation, the FRP Committee briefly discussed how the topic would be handled in the future. The result was a decision that a sub-committee could be formed to address the issue, and a wider group of volunteers would be sought to participate. Many left that day thinking this subcommittee would be imminently formed, but later clarification by FAPA confirmed that the FRP Committee deemed it too early in the program to discuss mandatory implementation of Rule 20. FAPA has not ruled out a return to the alternative pursuit of mandatory regulation through the legislature, which was instrumental in bringing forth The Florida Bar to negotiate Rule 20 where they had failed to do so before. No other substantive changes to Rule 20 have been submitted or implemented, although there has been some minor housekeeping items discussed during meetings of the FRP Committee. Amendments to the Rules Regulating the Florida Bar proceed in bi-annual submission cycles.