Paralegals are not lawyers, and, therefore, in every state it is illegal for them to practice law. Just what is meant by "the practice of law" is, however, unknown. Among the states, there is no uniform definition of "paralegal" or "unauthorized practice of law." Lack of clarity in this area creates uncertainty as to what duties paralegals may perform and what duties must be performed by licensed attorneys. It creates the potential for paralegals to unknowingly and unintentionally commit the unauthorized practice of law.
This article will discuss the unauthorized practice of law (UPL) generally, the need to expand legal services to make them more attainable and affordable for the vastly underrepresented lower and middle classes, and the obligation to ensure that the public is protected from harm. Finally, this article will advocate an increased role for paralegals in the delivery of legal services nationwide.
Background of the Unauthorized Practice of Law
Delivery of legal services by nonlawyers in the United States dates back to colonial times (Christensen, "The Unauthorized Practice of Law: Do Good Fences Really Make Good Neighbors?"). It was not until the early 1900s that laws prohibiting the unauthorized practice of law were enacted. Beginning in the 1930s, UPL laws became increasingly enforced (ABA Commission on Nonlawyer Practice, "Nonlawyer Activity in Law-Related Situations, A Report With Recommendations," 1995) (ABA Report). Today, more than two-thirds of all states have statutes making UPL a misdemeanor, while other states regard UPL as contempt of court. (Rhode, The Delivery of Legal Services by Non-lawyers, 4 GEO J. LEGAL ETHICS 209, 211 (1990) (hereinafter, Rhode, Delivery of Legal Services).
While the legal profession has attempted to justify UPL statutes by the need to protect the public from harm, opponents of such statutes claim the true motivation behind UPL statutes is attorneys' self-serving motive of preventing competition. Whatever the motivation, UPL statutes must be taken seriously. State bar UPL committees from California to New York have sued, and are continuing to sue, nonlawyers for practicing law. In some extreme cases, lawyers, in their individual capacities, have sued nonlawyers for UPL and unfair competition with attorneys. (Davis v. Woolridge, RCV 29284, (1997)).
While in most states enforcement of UPL statutes has declined in recent decades, UPL statutes still exist and continue to be enforced.
To aid in determining when the UPL occurs, a uniform definition of the terms "unauthorized practice of law" and "paralegal" is vital. Unfortunately, no uniform definition of these terms exists. Many states have defined "paralegal" in statutes, state supreme court rules or case law; however, the definition varies from state to state, with many of the states defining the term only vaguely. In fact, about 15 states prohibit UPL without defining UPL. (Rhode, Delivery of Legal Services, 211.)
Some states, such as Maine, Montana and South Dakota, provide an explicit definition of "paralegal." South Dakota's Code specifies the minimum qualifications for a paralegal's education and lists services paralegals may perform. A specific definition such as South Dakota's enables paralegals to perform a wide range of activities without fear of engaging in UPL. Many other states, however, have no definition or, at best, vague definitions. The lack of uniformity creates tremendous difficulty in determining which duties paralegals may perform and which duties must be performed by a licensed attorney. In states that do not provide a list of tasks paralegals may perform, paralegals run the risk of engaging in the unauthorized practice of law.
In an effort to ". . . promote the growth, development and recognition of the paralegal profession as an integral partner in the delivery of legal services," NFPA has implemented Model Disciplinary Rules (Model Rules) and the Model Code of Ethics and Professional Responsibility (Model Code). In PACE, NFPA has provided an instrument for testing advanced competency. The Model Code and Model Rules establish ethical guidelines requiring paralegals to achieve and maintain a high level of competence, personal and professional integrity, professional conduct and confidentiality. In addition, NFPA has provided direction as to what duties paralegals may perform through defining the term "paralegal."
The ABA Report differentiated a paralegal as ". . . a person who performs substantive legal work or provides advice to a client with the supervision of a lawyer or for which a lawyer is accountable." It further distinguished paralegals from "document preparers," who assist in the preparation of forms and documents but who provide no substantive legal information or advice, and from "legal technicians," who perform nearly identical work to that of a paralegal, but who are not supervised by an attorney.
The ABA has defined "the practice of law" in the Model Code of Professional Responsibility, as activities
Several broad exceptions to UPL statutes generally exist. The most common include exceptions allowing pro se representation and nonlawyer representation in specified regulatory and administrative proceedings. In some jurisdictions exceptions allow nonlawyers to perform legal activities that are incidental to other established businesses.
The Need to Increase Access to Low-Cost Legal Services
"Cost is the greatest barrier to use of legal services and it disproportionately restricts access among individuals of limited means." (Rhode, Delivery of Legal Services at 229). Access to legal services by low- and middle-income individuals is further hindered by UPL laws that increase the cost of legal services, making them unaffordable for a large segment of society. UPL statutes force consumers to obtain the assistance of attorneys for even routine legal matters that could be competently handled at a much lower cost by a paralegal or other sufficiently trained nonlawyer. A large portion of the unmet need is in the areas of divorce and family law and probate, areas in which paralegals already play significant roles.
Estimates by organizations such as Americans For Legal Reform have found that as many as 90% of the nation's lawyers serve 10% of the population. (HALT, Issue Brief: Challenging the Lawyer's Monopoly, 3 Oct. 1987). (HALT stands for "Help Abolish Legal Tyranny," the organization's slogan.) Even by its own estimates, the ABA recognizes that the Legal Services Corporation is unable to handle 1.3 million cases of low-income individuals per year. Other researchers have found "that Americans pay lawyers as much as $1.9 billion annually for divorces, bankruptcies, incorporations, and wills, and that legal technicians could cut this bill and other legal fees by a substantial amount." (Rhode, Delivery of Legal Services at 229).
Finally, the ABA Report found that, rather than hiring an attorney, as many as 70% of low- and moderate-income individuals represent themselves, go without help, or seek help from nonprofit agencies or nonlawyers.
A large number of federal agencies and some state administrative agencies permit nonlawyers to represent parties in agency proceedings. These opportunities have proven that paralegals with developed expertise in their area of practice can effectively advocate for their clients. In comparison to attorneys in small, non-corporate practices, paralegals who specialize may be more competent than an attorney with a general practice.
An urgent need exists to make legal services more broadly available to the under-represented segments of our society. Relaxing restrictions on nonlawyer activity will lower fees and increase accessibility to the public. (Morgan, The Evolving Concept of Professional Responsibility, 90 HARV L. REV 702, 707- 712). Such relaxation would prevent attorneys from maintaining the current monopoly in which high fees are charged, even for simple legal services. Allowing paralegals to provide increased services to the public will help bridge the financial gap that currently denies middle- and low-income individuals adequate legal advice and guidance.
Protecting the Public From Harm
The legal profession's Model Code of Professional Responsibility (Model Code Canon 3, EC 3-1 and 3-9, DR 3-101) and the Model Rules of Professional Conduct (Model Rules, Rule 5.5) both prohibit the unauthorized practice of law. The stated justification for these rules and for UPL statutes at the state level is protecting the public from harm caused by the "rendition of legal services by unqualified persons." (Comment to Model Rule 5.5). In addition to protecting the public from incompetent representation, the legal profession claims that it is also protecting the public from unscrupulous and fraudulent providers of legal services. However, having a license to practice law does not insure that the public will be protected from incompetent, unscrupulous and fraudulent providers.
While protecting the public from incompetent and unscrupulous legal service providers is a legitimate concern, it is not a concern unique to the paralegal profession. Attorneys themselves must regulate their profession and provide protection to the public from incompetent and unscrupulous attorneys. Just as state bars regulate lawyer conduct, so too can the paralegal profession be regulated.
The same systems in place for disciplining attorneys, namely state bar associations, or similar licensing and regulatory bodies for nonlawyers, can effectively police the profession to ensure that the public is protected. In fact, NFPA currently has a system in place that could provide such regulation. The NFPA Model Rules and Model Code set forth enforceable obligations for all paralegals and provides a formal regulatory framework for professional discipline.
By establishing ethical guidelines for the paralegal profession, the Model Code and Model Rules, along with the adoption of a voluntary certification system for paralegals, make regulation of the paralegal profession not only possible, but practicable. With such regulation, paralegals can play an expanded role in the administration of justice without putting the public in harm's way.
This is a win-win situation for the public, as well as the paralegal profession. The public will have increased access to affordable, competent legal services, and paralegals will be able to use their education and training to perform more legal tasks.
Increased Role for Paralegals
In the ABA Report, the Commission recommended an increased role for paralegals. The Commission recognized the important role paralegals play in providing the public with access to legal services. The ABA Report noted a variety of tasks currently performed by paralegals. The report went on to state that ". . . a major opportunity for enhancing law practice and improving access to legal services involves more extensive utilization of paralegals." The ABA Report specifically noted that expanding the substantive responsibilities of paralegals is a step to improving access to justice.
The ABA Report went on to note the suggestions made to the Commission by several attorneys that paralegals be permitted to appear for their law firms in court on routine matters such as calendar calls, small estate probate hearings and previously agreed-to matters such as child support calculations.
While recommending an increased role for nonlawyers, the ABA Report gave few specifics on the types of duties nonlawyers should be allowed to perform. The ABA Report did, however, note that nonlawyer representation under the federal Administrative Procedures Act had shown that nonlawyers could effectively practice before administrative agencies and recommended that state administrative agencies be similarly opened to nonlawyer practice.
In addition to the ABA Report, bar task forces in states have proposed expanded roles for nonlawyers. Bills proposing an expanded role for nonlawyers have also been introduced in some states. In contrast, however, bar task forces in other states have recommended that roles of nonlawyers not be expanded.
To expand paralegals' roles in the legal system, the Commission's Report should be formally adopted by the ABA, and a committee should be established to determine specific areas in which paralegals may take on increased duties. Then, the ABA should urge state bar associations to adopt the recommendations of the committee. The ABA's recommendation would be a strong endorsement and could significantly advance the cause of expanding paralegals' roles in the administration of legal services.
Conclusion
The time has come to increase access to legal services by allowing paralegals to play a larger role in the legal system. Adopting uniform definitions of "paralegal" and "UPL" will clarify the duties paralegals may perform. In addition, allowing paralegals to perform an expanded role by permitting them to perform more substantive duties will provide the public with lower-cost alternatives to certain widely used legal services. This objective can be met while still ensuring that the public is protected from incompetent, fraudulent and unscrupulous providers by adoption of a certification, licensing and disciplining system for the paralegal profession. Meeting these objectives will allow paralegals to serve the needs of the public while still ensuring high-quality legal services and protecting the public from harm.
