Friday, December 7, 2007

What's in a Name?

By Sue Sullivan, Director, University of San Diego Paralegal Program

First there were legal secretaries, then there were legal assistants, paralegals, freelance paralegals, contract paralegals, independent paralegals, law clerks, and in 1998 document clerks. Today, the Business & Professions Code sets forth the requirements for paralegals, legal assistants and legal document assistants (LDAs). How is one to know the difference, know what to be, who to hire or what is going on? It is important to take a look at the evolution of all of the above titles and understand a little about the history, duties, educational requirements, legislation and background of the above professions.

Most of us are familiar with legal secretaries who typed, answered phones, kept the appointment book, billed clients, filled out forms, and generally performed all of the functions necessary to keep attorneys looking efficient and clients well-informed. Legal secretaries often performed paralegal functions as well as routine office tasks. They are a vital part of any legal team.

In the late 60’s and early 70’s, there were great increases in attorneys fees and along with that a concern about the lack of affordable attorney services for much of the general public. In response to this need, the terms “paralegal” and “legal assistant” were created. With additional educational background and practical training, these new professionals were able to work more directly with clients, assist with forms, procedures and paperwork, and free the attorney to go to court, give legal advice, set fees and make legal decisions. These persons would not only understand the practical aspects of many legal procedures but they would also understand why they were performing certain tasks because of their legal education and legal research skills. With the advent of paralegals who were paid much less than attorneys, the client could reap the benefit of the lower fees. Up to that point, many attorneys were their own paralegals.

As educational institutions developed programs for this new field, the American Bar Association got involved in the approval of programs in order to ensure quality education for paralegals. The organization also defined paralegals or legal assistants as persons who only work under the supervisions of attorneys. Thus the two terms became synonymous and interchangeable. Most professional paralegal associations now prefer the term paralegal; because it gives the professions a distinct one word term.

In the beginning, the majority of paralegals worked in law firms but since the 1970’s the field has expanded, and paralegals now work in corporations, hospitals, government agencies, banks, legal clinics and any place where there is a need for an attorney. With the proliferation of the field and so many paralegals with extensive experience in the workforce, many paralegal professionals decided on a new track called independent, freelance or contract paralegals. These persons always work under the supervision of an attorney but may work for one attorney or several firms. They pick and choose their assignments and areas of law and generally are considered experienced independent contractors although their work product is ultimately the responsibility of the contracting attorney.

At the same time, because there was no legislation or regulation of who used many of the above titles, the public became very confused and in some instances was legally harmed because of those who were calling themselves paralegals or legal assistants without any legitimate education or experience. The public was unaware of specific terms and titles and presumed anyone using any law related title had legal training and was qualified to perform many of the same functions as attorneys. In some instances, persons were led to believe an attorney was involved when in fact they were not. Some of the people offering these services directly to the public called themselves legal clerks, document clerks and other titles. While there were many good knowledgeable people assisting the public there was no recourse if a client was harmed.

As an answer to the potential harm, California enacted legislation in 1998 that set some minimum qualifications for those assisting the public, and gave a formal title to those individuals who were helping to prepare legal documents without the assistance of an attorney. Senate Bill 1418 was enacted and created the title of “legal document assistant” (LDA). This title was created to define those persons who, for compensation, help members of the public who are representing themselves in legal matters. Under the law, an LDA must be registered and bonded, and is limited to preparing documents in a ministerial manner, assisting with published documents and filing and serving documents at the direction of the client. This legislation separates out those document preparers who work independently (LDAs) as opposed to those professionals who are working under the supervision of an attorney (paralegals). Many document preparers have extensive background, knowledge and in some cases have worked as paralegals. They are not, however, working in a paralegal capacity when they prepare documents for the public. The legitimacy and viability of this profession cannot be underestimated because LDAs provide a much needed service for those who cannot otherwise afford an attorney.

In 2001 another law was enacted that better defined who could use the term “paralegal” or “legal assistant.” Business and Professions Code 6450-6456 defines a paralegal as a person who either contracts with or is employed by an attorney, law firm, corporation, government agency or other entity who performs substantial legal work under the supervision of an active member of the State Bar of California. These persons must have specific educational background and maintain continuing education credits. The law also prohibits these persons from giving legal advice, representing a client in court, setting fees, acting as runners or cappers or suggesting specific forms to clients unless they are instructed to do so by an attorney.

All of the above provisions are effective only in California although many other states are enacting legislation relating to paralegals and those providing legal services. Although both bills are far from perfect it was a good start to enact some forms of legislation so that the public could understand the different titles, the legitimacy of services and offer alternatives to the public other than the hiring of an attorney for certain legal document preparation. More information on these fields can be found by exploring the websites for the American Bar Association , the Alliance of Legal Document Assistant Professionals, the National Association of Legal Assistants , and the National Federation of Paralegal Associations .

Sue Sullivan is the Director of the ABA Approved Paralegal Program at the University of San Diego. She is former President of the American Association for Paralegal Educators (AAFPE), and has worked with the National Association of Legal Assistants (NALA) and the National Federation of Paralegal Associations, Inc. (NFPA) on their certification exams. She has also served on the American Bar Association’s Approval Commission for paralegal programs and currently serves as an educational consultant for the ABA’s Standing Committee on Legal Assistants.

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