Paralegal
From LawGuru Wiki
A paralegal is a non-attorney who works under the supervision of a lawyer whose work is usually billed to clients. Paralegals have many job duties, including drafting motions and subpoenas, document review, and filing papers with courts. Paralegals have traditionally dealt more with procedural law than with substantive law.
In the United States and Canada, paralegals may work independently as freelancers and in private practice as well as directly under the employ of individuals or corporations. Freelance paralegals are rare and have been the subject of much controversy as in some cases they have crossed the line into the "unauthorized practice of law" (UPL) defined in state statutes as the practice of law without a license. The vast majority of paralegals work for law firms, solo-practitioner attorneys, the government, or in legal departments of large corporations, which are headed by in-house attorneys.
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The Battle of Terminologies
Related jobs that share boundaries but are often not clearly delineated or share synonymous titles are legal secretary and legal assistant. These professionals have been discussing how to define their professions. Recently, the main issue in discussion seems to be whether the terms "paralegal" and "legal assistant" are synonymous and if not, what the definitions of these terms are.
The heart of this issue is one of professional pride and distinction. Even though paralegals evolved from legal secretaries in the 1960s and 1970s (a fact readily admitted by all of the involved national organizations), the paralegal profession has long struggled for distinction and recognition within the legal profession and court systems of the United States, and as a class, paralegals regard themselves as something different from legal secretaries. Generally, paralegals have more general or legally specialized training than legal secretaries, and perform more legally substantive work that is "billable," while legal secretaries are more proficient at typing, editing, and other office tasks, and are considered administrative staff whose time is not "billable" to the client.
In some parts of the United States, such as the Washington, D.C. area, the term "legal assistant" is used instead of or interchangeably with "paralegal," while in other parts of the country, legal secretaries are often called legal assistants, just as secretaries are sometimes called an "executive assistant" if they work for an officer of a corporation or an "administrative assistant" if they work for a manager. Thus, the issue in this case is that while the term legal assistant is ambiguous as a job description, the term paralegal is distinctive and not easily confused with the profession of legal secretaries. While it is difficult to tell for certain, it appears that the term paralegal is slowly gaining acceptance nationally as opposed to legal assistant.
In addition to the paralegal vs. legal assistant controversy, there are a few rare firms in the United States that have begun using the term "legal technician" instead. There is one firm in the Pittsburgh area that goes further and rates its "legal technicians" by grade (i.e. Legal Technician I, Legal Technician II, etc.). The term "legal technician" for paralegal is not sanctioned by any of the organizations and is considered by many to be derogatory to the paralegal profession, as an attempt to reduce paralegals to "technicians." It also seems somewhat inappropriate, as the term "technician" commonly refers to someone trained to repair, operate, or set up equipment, such as an X-ray technician, which does not describe well the tasks normally performed by paralegals.
The National Organizations
There are four national organizations that have shaped the definition and development of the paralegal profession in the United States: The American Bar Association (ABA), the National Association of Legal Assistants (NALA, "nala"), the National Federation of Paralegal Associations(NFPA, "naf-pa"), and the American Assocation for Paralegal Education (AAfPE).
- The American Bar Association (ABA) was forced in 1968 to recognize the emerging paralegal profession and formed a committee, now known as the ABA's Standing Committee on Legal Assistants, to guide and advise attorneys in their relationship, employment, and tasks assigned to paralegals. The committee currently has both attorneys and paralegals as members. The committee also articulates the ABA's official policies in regards to the employment of paralegals by attorneys and speaks for the profession when various paralegal issues are raised before the supreme courts of the various states. Finally, the ABA offers a voluntary certification program to institutions that provide paralegal education, thereby setting standards for paralegal education.
- The National Association of Legal Assistants (NALA) and the National Federation of Paralegal Associations (NFPA) collectively represent over 30,000 paralegals and legal assistants across the United States and have served as the voice of the professions before the courts. However, these two organizations have been in competition in the rhetorical battle in shaping the definitions of paralegal and legal assistant. The National Federation of Paralegal Associations prefers and officially sanctions the use of the term "paralegal," while if the National Association of Legal Assistants were to agree, it would have to change its name.
- The American Association for Paralegal Education (AAfPE) is composed of institutions and instructors of paralegal education programs and seeks to level the field of paralegal education standards and introduce consistency.
An interesting side note to the development and struggles of the paralegal profession for recognition and distinction was the recent controversy over whether paralegals and legal assistants should be considered "exempt" or "non-exempt" employees under the overtime pay provisions of the Fair Labor Standards Act (FLSA). The issues in this argument are extremely complex, and both major paralegal and legal assistant organizations published official stands on this issue, but overall, it appears that most firms and employers prefer to treat paralegals as "non-exempt" employees.
Competing Official Paralegal Definitions
It is interesting and instructive to compare the competing definitions promulgated by the various national organizations:
- The American Bar Association defines a paralegal or legal assistant as "A legal assistant or paralegal is a person qualified by education, training or work experience who is employed or retained by a lawyer, law office, corporation, governmental agency or other entity who performs specifically delegated substantive legal work for which a lawyer is responsible." Under this definition, the legal responsibility for a paralegal's work rests directly and solely upon the lawyer.
- From the NFPA website, the National Federation of Paralegal Associations offers the following definition: "A Paralegal is a person, qualified through education, training or work experience to perform substantive legal work that requires knowledge of legal concepts and is customarily, but not exclusively, performed by a lawyer. This person may be retained or employed by a lawyer, law office, governmental agency or other entity or may be authorized by administrative, statutory or court authority to perform this work. Substantive shall mean work requiring recognition, evaluation, organization, analysis, and communication of relevant facts and legal concepts."
- From the NALA website, the National Association of Legal Assistants offers the following definition: "Legal assistants, also known as paralegals, are a distinguishable group of persons who assist attorneys in the delivery of legal services. Through formal education, training and experience, legal assistants have knowledge and expertise regarding the legal system and substantive and procedural law which qualify them to do work of a legal nature under the supervision of an attorney." In 2001, NALA adopted the ABA's definition of a paralegal or legal assistant as an addition to its definition.
- From the AAfPE website, the American Association for Paralegal Education offers the following definition: "Paralegals perform substantive and procedural legal work as authorized by law, which work, in the absence of the paralegal, would be performed by an attorney. Paralegals have knowledge of the law gained through education, or education and work experience, which qualifies them to perform legal work. Paralegals adhere to recognized ethical standards and rules of professional responsibility."
Educational Background
In the United States, paralegals have taken many different paths to their careers. These paths comprise an array of varying levels of education, different certifications, and on-the-job-training. They work in government, for law firms, for corporations, for real estate firms, and for nonprofit organizations. Where they work and what they do often depends on what mixture of experience, skills, education, and certification they possess.
There is no specific educational requirement in most U.S. states for legal assistants or paralegals. Some paralegals have only on-the-job experience. Many paralegals have completed a bachelor's degree in paralegal studies. Others have completed a bachelor's or even a master's degree in another field, and quite of few of these have also completed a regular or post-baccalaureate paralegal certificate. Many have completed a two-year course before working in the profession, and still others have certificates.
Paralegal or legal assistant courses of study have long been available in associate's degree or certificate programs at community colleges. However, similar programs exist at four-year universities and have expanded over the years. More and more prestigious universities offer bachelor's degrees and post-baccalaureate certificates in the subject. One guess to the increasing trend might be that as law responds to rapidly changing technology, social, and business environments, the workload of law firms and even their way of doing business changes as well.
Levels of Paralegal Education & the Marketplace
Over the last decades, four distinctive levels of paralegal education have developed: on-the-job (OJT) training, associate's degree or undergraduate paralegal certificate programs, bachelor's in paralegal programs, and post-baccalaureate certificate programs. Many problems with professional recognition of the paralegal profession are due to the lack of certification standards for paralegals and the unevenness of paralegal education levels over the past decades. This section describes each level of education and current trends.
- Paralegals having only on-the-job training are rare; while this was the way in which the first paralegals were trained in the 1960s and 1970s, most remaining OJT paralegals are older paralegals who are coming to the end of their careers. Lawyers and other professionals prefer degrees and formal certifications, so the path for the majority of modern paralegals involves some legal education. Additionally, employers in general like to hire people already trained and certified for jobs, and on-the-job training is in a general decline in all professions.
- Many paralegals currently in the field have completed associate's degrees or undergraduate paralegal certificate programs at local community colleges. Many have also added years of paralegal experience. However, as the paralegal profession has developed, emerged, and struggled for recognition and distinction, the bar of education has been raised: many corporations or law firms require their paralegals to have at least a bachelor's degree from an accredited paralegal program, or a post-baccalaureate paralegal certificate. Thus, people without a bachelor's degree will find it increasingly difficult to obtain employment or placement in an entry-level paralegal position.
- Despite the market demand, there is still a relatively low number of four-year colleges offering a bachelor's degree program in paralegalism or paralegal studies. Several colleges have discontinued their programs, while others have sought official recognition by the American Bar Association. This has created an opening for institutions offering post-baccalaureate certificate programs. Occasionally, a bachelor's degree in legal studies (sometimes called "pre-law") is sufficient for entry into the paralegal profession, but since there are few official standards defining qualification to work as a paralegal, the qualifications criteria is left to the individual employers.
- Humber College in Toronto Ontario, since 2002 has been offering a degree program in Paralegal studies. The program is supported by: Department of Justice Canada, Ontario Ministry of the Attorney General, City of Brampton - Prosecutions Office, City of Mississauga - Prosecutions Office and Thomson Carswell. The School is also in talks with the Universty of New Brunswick to allow students with degrees in Paralegal Studies to apply to their law school. The Paralegal program also offers a 14 week paid work term in year 3 of the program.
- The post-baccalaureate programs offer the most flexible and exciting approach to paralegal education and certification. As the title suggests, students enrolled in these programs must first have a bachelor's degree from an accredited institution and often must also possess years of "professional experience" before being accepted into the program. However, there is little or no restriction on what kind of degree or experience is required; therefore, students in these programs will enter with a wide variety of educational and professional backgrounds, which they then carry into the paralegal profession upon graduation. Additionally, students entering the paralegal profession through these programs tend to be much older than those graduating with associate's or undergraduate paralegal certificates. This is a significant advantage because maturity and stability are considered to be the hallmarks of professional behavior in any profession.
Certification
In the United States, "paralegal" is not a licensed profession. Certification is voluntary, increases a paralegal's skill sets or prepares him or her to enter the profession, often increases the likelihood of a paralegal's hire or promotion, and serves to identify a person as capable of work that is on par with certain standards. Certification is accomplished by taking and passing one of several privately-administered tests from one of several paralegal associations. Graduation from a certificate program does not certify a paralegal; passing an exam administered by a recognized entity is the only benchmark generally considered to be a "certifying" event.
Advanced certification and continuing legal education
Many paralegals pursue advanced certification through certifying associations or agencies in specialty areas such as business and commercial law, corporations, criminal law, real estate, tax and probate, estate planning, intellectual property (IP), or even in the legal systems of a specific state.
These certifying entities often require maintenance of certification through continuing legal education (CLE).
Various paralegal certificate programs
There are many certificate programs. Some are "approved" by the American Bar Association (ABA). Some claim to be compliant with the ABA standards for approval but have not sought approval. Others do not seem to be ABA-approved.
At the time of writing, certificates are not required in most states for those who wish to become paralegals. Different states have different requirements for how quickly people can themselves a "paralegal," and certificates or degree programs with ABA approval often hasten the process. Additionally, certifying entities seem to offer their examinations to only those applicants with certain combinations of education and work experience, and certificates or degree programs are often a factor. Ultimately, a state's laws will often determine who is a "paralegal" and when.
Nurse Paralegals
Because the essence of common law civil litigation is the "harm done," and many civil cases involve bodily injury, disease, or death, a specialized niche has developed in the paralegal profession for "nurse consultants" or "nurse paralegals." This is part of the overall crossover trend bringing medical professionals into the legal professions, for example, there are many doctors and nurses who have second careers as attorneys. Some law firms boast of having a doctor or even a surgeon (who is not an attorney) on staff and rarely, one may also find "doctor paralegals." This crossover trend does not appear to operate both ways, as there are very few people who were first attorneys or paralegals who have subsequently become doctors or nurses.
The essence of the "nurse consultant" or "nurse paralegal" specialty is that attorneys and law firms need someone who is experienced in medicine, familiar with the vast vocabulary of medicine from formal medical training, and the organization of medical records to examine the medical records and translate the medical information into terms that are meaningful to the attorney. Nurse consultants and paralegals also are able to identify key documents and evidence, and to deal more easily with medical care providers in obtaining the records, and the myriad laws governing medical records and confidentiality. Nurse consultants and paralegals are also able to communicate effectively with medical expert witnesses who are required in almost all cases to testify and help the court determine the true extent of the plaintiff's injuries and the defendant's alleged malfeasance.
The primary difference between the terms "consultant" and "paralegal" in this context lies in the amount of legal education the person possesses. Those who are called nurse or doctor "consultants" usually do not have any significant legal education and are employed in-house by the law firm solely for their medical knowledge and certifications. Those who are called nurse or doctor paralegal will generally have some formal legal education as a paralegal (usually a minimum of a certificate or associates degree in paralegalism), though most of the work done by "nurse paralegals" has far more to do with medical records than with normal general paralegal tasks. And, of course, those nurses and doctors who have become attorneys have graduated from an accredited law school and obtained a license to practice law, so these people have been formally educated and licensed in both the fields of medicine and law.
Paralegals in Television and Literature
Unlike nurses and physician's assistants (the rough medical profession equivalent of the paralegal), paralegals have not caught the popular imagination and rarely are seen or mentioned in fictional or non-fiction legal television programs, or in legal fiction in print. But they are there, hovering quietly in the background. When opposing counsel on the television program Law & Order dramatically produces a motion and brief from his or her coat pocket or briefcase at the proper moment, rest assured, some team of unnamed paralegals, law clerks, and/or junior associate attorneys had a lot to do with it (the format of Law & Order vastly distorts the actual time that passes during each case and the staff work required to prosecute each case). When an attorney in a trial movie produces a blow-up exhibit, or examines or cross-examines a witness on the stand, or brings documents to court to introduce as evidence, any and all of that would involve the work of one or more paralegals who prepared the exhibits, or interviewed and prepared the witness, or obtained the documents by subpoena or by locating and copying public records.
