A Vision for Our Profession
by Diane L. Soroko
Ed. Note: Following is the text of an address originally given in April 2000 by PACE Coordinator Diane L. Soroko to the Manhattan Paralegal Association.
Thank you for the opportunity to speak with you this evening. I have been asked to share with you a vision of the future of paralegals and how PACE fits into that vision.
Who Are We?
First, I'm going to take a couple of steps back in defining who we think we are. I'm not sure if many of you are familiar with my past, but sharing it is my easiest way to punctuate a couple of points.
In 1993, I returned from NFPA's Spring Convention as its newly-elected president. Now that is both a heady and intimidating position in which to find oneself. One of the first calls I received was from Legal Assistant Today. In all my innocence, I took the call. The first question fired at me was, "How does it feel to be the newly-elected president of a radical organization?"
Needless to say, that brought me quickly back to reality! I had never thought of NFPA as a radical organization. After fumbling around for a couple of minutes, I managed to come up with some semi-intelligent response about the association being issues-oriented, member-driven, and grass roots. These qualities do not necessarily equate to "radical."
Another part of my history, which certainly dates me: I'm a child of the '60s. Now that is the part of my background that I consider "radical"! Comparing NFPA to campus riots seemed a pale comparison. Even though at the time we didn't see ourselves as radical, the changes we catapulted heralded an unprecedented openness in American society.
The call from the reporter brought home two lessons:
So welcome, fellow radicals!
Those Who Change
We who push the envelope of the status quo will almost always be misunderstood. After all, I've heard it said: "Only wet babies like change."
NFPA has long stood on the platform of expanding paralegal roles. Now that is really a marvelous sound bite: "expanding paralegal roles." It was coined early in our history, and it is ageless. Look back through paralegal history.
1970s. The profession emerged. Extraordinary legal secretaries who took on additional responsibilities were recognized for that extra effort. The profession emerged in response to the need for cost-efficient, affordable legal services.
1980s. The legacy of growth and action caused many to view our profession in a different light. Lawyers discovered that paralegal work could be billed to clients, and paralegals sought formal education to confirm their roles. As the profession matured, a growing number of paralegals achieved higher levels of expertise, embraced higher levels of responsibility, and worked more autonomously.
1990s. Paralegals became an integral member of the legal team. We embraced technology, and many in our ranks offer services to the public through court and regulatory authority. Our predecessors labored long and hard to take on new and higher levels of responsibility. Today's paralegals continue the tradition.
These trends will continue. They require that formal education and competency evaluation be utilized to ensure public protection.
Who Are the Lawyers?
We paralegals have followed a path similar to the one lawyers followed. Law schools did not become an important part of American legal education until the end of the 19th century. Most American lawyers, like Lincoln, read law and apprenticed in a lawyer's office. This long remained the most common form of legal education and one that was defended vigorously even after formal law schools were available.
By 1860, there were 21 law schools in existence. The country's 24,000 lawyers in 1850 increased to 64,000 by 1880. Although the greatest number of these had trained through apprenticeships, the importance of a more rigorous intellectual experience was beginning to be valued. Training in a law school also gave luster to the professional status of lawyers, but the perceived need for an apprenticeship remained.
Meanwhile, societies of lawyers aimed at raising the level of legal training came into existence. They gave rise to the notion of a general requirement of apprenticeship, part of which might be served in law school, followed by an oral and informal bar exam. By the 1870s, when the American Bar Association was founded, many jurisdictions required a formal period of either law school study or apprenticeship as well as written bar examinations.
Where Does PACE Fit In?
PACE, the Paralegal Advanced Competency Exam, a written exam, is only the most recent initiative in NFPA's long history of expanding paralegal roles. But, if we can embrace the future, it could be the most important step we take. It's not so much that we're afraid of change or so in love with the old ways. It's the place in between that we fear . . like being between trapezes . . . like Linus when his blanket is in the dryer . . . there's nothing to hold onto. That seems to be where we find ourselves today.
Now, at the genesis of the new millennium, there is the potential for expanding paralegal roles that we never thought possible even five short years ago.
Is PACE Radical?
PACE is unique and therefore misunderstood - even radical. With PACE, we have dared to go outside the boundaries of the conventional paradigms. Instead of restricting entry into the profession, PACE is a mechanism to expand paralegal roles and prepare practitioners to embrace those expanded roles. That's been a difficult concept to explain, because so many certification and regulatory exams are restricting entry into the particular profession. Rather, PACE will be the mechanism to create a multi-tiered paralegal profession to render the appropriate level of legal services at the most suitable fee.
The need still exists for traditional paralegals who work with direct attorney supervision to provide limited assistance with legal matters. Because of the direct attorney supervision, regulation would only raise unnecessarily the cost of the services these paralegals provide. Education and training are still the appropriate preparatory tools for traditional paralegals.
PACE, however, will be the mechanism through which courts and legislatures can authorize PACE Registered Paralegals (RPs) to provide paralegal services in an expanded capacity. PACE establishes clear, objective criteria for courts and legislatures to evaluate competency to perform routine legal services that require legal knowledge but not complex legal judgment. PACE endorses professional ethical guidelines and will ultimately provide a disciplinary mechanism and consumer redress. It establishes requirements for continuing education and will provide recognition for expertise in specialty areas of law. This multi-tiered legal system will permit consumers to obtain the level of legal expertise that best meets their needs at the appropriate fee, whether that level is at the attorney level or the Registered Paralegal level.
The most comparable profession to the trail we are blazing is the certified public accountant or CPA. A person can be an accountant without being a CPA. You will be able to continue to be a paralegal without ever becoming a Registered Paralegal. CPAs are required to obtain education, experience (apprenticeship) and pass a written exam. Services CPAs offer were once considered the practice of law. Over the years, CPAs have carved out an exception to the UPL statutes and practice of law definitions.
It will take time, but I believe PACE can provide the same opportunity for paralegals. Robert F. Kennedy said, "Few will have the greatness to bend history itself; but each of us can work to change a small portion of events, and in the total of all those acts will be written the history of this generation."
The Paralegals' Opportunity
We have the opportunity to change a small portion of events. We have the opportunity to create exceptions to UPL statutes for RPs to offer defined services either directly to the public or as autonomous members of firms and corporations.
Again, I call on my personal history as an area of comparison. Immigration law especially lends itself to the concept I have described. Ninety-five percent of the work in routine business immigration cases is already being performed by paralegals. The U.S. has certain types of visas, with clearly established criteria and parameters for obtaining those work visas. If a foreign national fits the category, then he or she can obtain the work-related visa. Don't get me wrong - I'm not so radical as to want to hang out my shingle. I like having the expertise of lawyers and paralegals in other practice areas to call on when the need arises to address tax questions or employment law questions that impact my clients. I would like, however, the authority to sign the product of my own efforts and expertise.
I recognize that there are areas of immigration law that require a lawyer's expertise, training, and education. I like being a part of a firm, to have that expertise readily available, just as other attorneys in the firm call upon each other to fill in the gaps for different specialty areas.
Nothing should preclude paralegals from performing to the fullest extent of our expertise and capability. Statutes should not prevent clients from obtaining affordable legal services by requiring that a lawyer be involved, whether or not the lawyer's expertise is actually needed.
PACE and Multidisciplinary Practices
As I wind this down, I want to share with you an opportunity we never considered when we developed PACE.
Einstein said, "Your imagination is your preview of life's coming attractions."
Back in 1994, NFPA never imagined multidisciplinary practice, or MDP, as a coming attraction. MDPs, nevertheless, are about to become the reality of the 21st century.
In 1998 the American Bar Association created the Commission on Multidisciplinary Practice. The Commission was directed to study and report on the extent to which, and the manner in which, professional service firms operated by accountants and others who are not lawyers are seeking to provide legal services to the public.
The Commission is analyzing:
Among the Commission's recommendations is this language:
Lawyers should be permitted to share fees and join with nonlawyer professionals in a practice that delivers both legal and nonlegal professional services (Multidisciplinary Practice), provided that the lawyers have the control and authority necessary to assure lawyer independence in rendering of legal services. "Nonlawyer professionals" means members of recognized professions or other disciplines that are governed by ethical standards.
Besides the ABA Commission, approximately 41 state and local bar associations are currently studying the question whether, and to what extent, the current ethical prohibitions on fee sharing and entering into a partnership with a nonlawyer should be relaxed.
The ABA Commission poses several models for the organizational structure for the delivery of legal services in a multidisciplinary organization.
Under a fully integrated model, the debate centers on whether this model poses a threat to the core values of the legal profession sufficient to remove it from consideration. The Commission recognizes concerns voiced by many commentators who believe that independence of professional judgment may be at risk when a nonlawyer supervises a lawyer in connection with the delivery of legal services to a third party. The Commission recognizes that different sizes of MDPs will require different structural safeguards.
Also under consideration is a model that is a modified version of the Rule 5.4 of the Washington, DC, Rules of Professional Conduct, which currently permit a lawyer, subject to certain conditions, to enter into a partnership and share fees with a nonlawyer. At the heart of the DC rule is the provision that "the partnership or organization has as its sole purpose providing legal services to its clients."
An alternative would be a DC-type rule with one major modification: the substitution of the language "a principal purpose" or "a purpose" for "its sole purpose." This would provide greater flexibility in structuring MDPs and lead to expanded choices for MDP clients.
Yet another model focuses on contracts or affiliations. For generations, law firms and professional service firms, both large and small, have referred clients to one another. Generally speaking, these referral arrangements have not been a cause of professional alarm or considered a threat to a lawyer's independence of professional judgment. These informal arrangements are now referred to as "strategic alliances" and are becoming increasingly formalized. The Commission is concerned that where the substance of the arrangement is not consistent with its form, the practical effect of such an alliance will be to create a virtual MDP.
There are other matters of concern and interest to the Commission.
Appendix A to the August 1999 Recommenda- tion contained a proposed definition of the practice of law modeled on Rule 49 of the DC Rules. The Commission is considering whether it should include any definition in its final Recommendation and, if so, what that definition should be. Over the course of the past two decades, the concept of what constitutes legal services has changed. Law firms are now regularly providing client services that were unheard of 20 or even ten years ago. Nonlawyers are now providing services that mimic those provided by law firms, such as environmental, human resources, and compliance consulting. Given the complexity of the lawyer and nonlawyer services offered to clients today, it may be impossible to define "the practice of law" satisfactorily on a national level.
The Commission has also been asked to consider whether a lawyer should be permitted to enter into an MDP with any nonlawyer or only certain types of nonlawyers. The choice is complicated. There is an argument to be made for letting the marketplace decide the extent and scope of services an MDP may offer. Proponents of this view argue that restricting MDP membership to certain groups of nonlawyers may deprive clients of innovative services. Licensure is not a helpful criterion, since many licensed nonlawyers (cabdrivers and beauticians, for example) provide services that might not be considered an appropriate part of an MDP. One possible solution is employing a definition such as "a member of a recognized profession whose conduct is governed by ethical standards" and supplementing the definition with a list of such professionals. The Commission recommends that such a list might include, for example, accountants, psychologists, psychiatric social workers, and real estate brokers, among others.
While paralegals are not named or listed as recommended partners, they are certainly not excluded. PACE is our mechanism to meet the ABA definition of a recognized profession governed by ethical standards. Never doubt that a small group of thoughtful, committed citizens can change the world. Margaret Mead believes that, indeed, it is the only thing that can.
NFPA Must Set the Example
If we are to be successful in the days to come and implement a professional testing program for paralegals that survives beyond the 21st century, then we need paralegals who are committed to that cause and dedicated to the principles that our actions will enhance the public's ability to obtain affordable legal services and will continue to move the profession forward on its path of growth.
If we are to open innovative opportunities for all paralegals, then NFPA members must set an example. This will be difficult to accomplish. NFPA has no magic formula for achieving its goals, but NFPA can illustrate the atmosphere of change, the tone of excellence, and the attitude reflecting our vision and hope for the future.
Although we have accomplished many objectives towards our goal in creating PACE, there are many more to complete. We must remember that a higher purpose exists. We must consider how we can best use our talents for the public's benefit and for the profession's benefit. The question of what the profession will become depends upon what we do in the area of professional testing and upon the kind of program we embrace. We must greet healthy controversy as the hallmark for healthy change. Will we appeal to the lowest common denominator, or will we offer the necessary leadership and courage to move forward?
The essence of any successful program is the willingness and commitment of members to support it. With PACE, we have made an important decision about what our profession must be, how it must move, what its function shall be, what its image shall be, and whether it shall stand still or move forward.
As for me, my interest is in the future, because that is where I am going to spend the rest of my professional life. We must be the generation who look to the future, who are ready to break into that future, and who are ready to lead the way.
Working together is essential for success. The time has come to embrace a standard of excellence for the profession. In doing so, we should not be satisfied with the status quo. As we work together to forge the profession's future, let us not be content with or mollified by our past successes. Let us challenge our paradigms to reach new heights of excellence and success.
In late July, the ABA voted against MDP and disbanded the commission studying the ethical considerations. State bar associations, however, such as the Washington, DC, bar association, still have the option to endorse MDP and develop their own ethical guidelines.
Diane L. Soroko is an immigration paralegal with Long, Aldridge & Norman, LLP, in Atlanta, GA, and a Robie Award winner.
