The Myth of the "Independent Paralegal"

This article originally appeared in the Spring 2010 issue of The Scrivener, as "The LDA's Bookshelf: The Independent Paralegal’s Handbook."

First published in 1986, The Independent Paralegal’s Handbook (1) has spawned a misnomer that, to this day, serves only as a barrier to acceptance of the legal document assistant (LDA) profession by members of the traditional legal community.

As a new LDA, I purchased a copy of the Handbook, with the hope that it would help me sort out who I was, what I did, and for whom I did it. I was a formally trained, experienced paralegal; but totally in the dark about the logistics of LDA contracts, questionnaires, and business practices designed to give UPL a wide berth.

The Handbook includes general information regarding establishing a new business, and an overview of the history of UPL (from 1967-2003) and many states’ positions regarding non-attorney legal services. However, most of this information is skewed toward the misnomer that is the subject of this article.

The misnomer? It’s contained in the book’s very title itself. It is ALDAP’s position that using the term “independent paralegal” to describe non-attorney, self-help legal services is not – and never has been – accurate, proper, or in the spirit of consumer protection.

Reading the Handbook as someone new to the profession left me somewhat unclear about the passage of SB 1418 (Bus. & Prof. Code § 6400 et seq.) and AB 1761 (Bus. & Prof. Code § 6450 et seq.). I had previously read the Code and, I thought, had a pretty good handle on it – I would register as an LDA to assist consumers, and would pick up freelance paralegal gigs to diversify my income and give my brain some room to exercise. But after reading about all of the “independent paralegals” in the Handbook, I was left facing a severe identity crisis.

Even the book’s Introduction states, “In fact, in California, IPs are prohibited from referring to themselves as paralegals.” How is this a fact? If so-called “independent paralegals” are prohibited by law from calling themselves “paralegals,” then they aren’t really paralegals (independent or otherwise) in the first place, now, are they? This sort of cognitive dissonance is difficult to resolve, even for the most sophisticated legal mind.

As I became more involved in the LDA profession, and ALDAP in particular, I began to intuitively understand what I have since researched and verified. Throughout the text of the Handbook, the references to this improper terminology come from the Handbook’s authors; and not the judges, legislators or reports to which the authors cite. The book contains numerous parenthetical references to the term “independent paralegal” immediately following the actual, proper terminology stated in a statute or court opinion (i.e. “legal technicians,” “nonlawyers,” or a similar term). Similarly, the Handbook’s claim that in 1976, Colorado began allowing “the preparation of divorce forms by an independent paralegal,” is erroneous and misleading. In fact, the court case the authors cite (2) contains absolutely no mention of the term “paralegal”; but the authors took certain editorial liberties to push their “independent paralegal” agenda, which conflicts with what they describe as “organized lawyerdom,” as well as several public policy concerns.

The California Paralegal War – An (Un)Civil War

The paralegal profession emerged in the 1970s, when consumer demand to reduce legal fees drove many attorneys to start giving their legal secretaries more substantive assignments. “In response to this need, the terms ‘paralegal’ and ‘legal assistant’ were created,” wrote Sue Sullivan, Director of the University of San Diego Paralegal Program, in an article for SCRIBE. “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. Up to that point, many attorneys were their own paralegals.”

Around the same time, individuals – many without any formal legal training – began working directly for the public, with some practitioners calling themselves “paralegals” and raising serious issues concerning the unauthorized practice of law. Worse still, some of these establishments were operated by disbarred attorneys or other questionable characters.

From day one, the lack of differentiation between the bona fide paralegal and the self-help document preparer confused and, in some instances, legally harmed consumers. Members of the public did not know the difference between the two, and many believed they were getting someone with formal legal training or attorney oversight (and the consumer protections that accompany licensure). Immigrant communities were particularly susceptible to fraud, as members of these communities often believed “paralegal” to be synonymous with “lawyer.”

The enactment of Business & Professions Code § 6450, et seq. in 2000 righted that wrong. “It took 20 years before we got AB 1761 through the Legislature,” said Carolyn Yellis, ACP, past president of the California Alliance of Paralegal Associations (CAPA). “Ultimately it was successful because of the differentiation argument and the need to protect consumers.”

At the time, many LDAs raised strong opposition to AB 1761, and some of their remarks remain published today, as position statements on websites targeting the LDA community. There were claims that the bill would not protect consumers, and that, “The only reason CAPA introduced AB 1761 was to protect its turf.”

However, we need only look within the Handbook itself for evidence that, as early as 1988, California governing bodies refused to refer to non-attorney legal document preparers as “independent paralegals,” instead defining them as “legal technicians”; yet the authors’ bias toward this improper terminology shines through, with a parenthetical reference, “(IP),” presumably to “clarify” for the reader that what the California Public Protection Committee (3) really meant was “independent paralegal” rather than the terminology it actually used.

This Handbook, however, is not the sole cause of confusion regarding the differences between self-help legal service providers and legitimate paralegals. Other significant confusion-inducing elements have come from exactly the same source. Around the same time the Handbook was published, one of its authors co-founded the California Association of Independent Paralegals (CAIP); which was finally forced to change its name to California Association of Legal Document Assistants (CALDA) upon the passage of AB 1761. One person is behind both of these far-reaching, long-standing, public “statements” that non-attorney, self-help legal service providers are – or should be – called “independent paralegals.” This individual may not have known what she was talking about, but she said it with a megaphone; leaving generations of LDAs to clear up confusion that has held the profession back, and made us all vulnerable to the “rogue” paralegals.

It appears that the enactment of section 6450 was in direct response to exactly this misinformation, and the stubborn refusal to correct it voluntarily. AB 1761 may never have passed, absent the loud proclamations from non-paralegals that they should be allowed to call themselves “paralegals.”

LDAs and “independent paralegals” are not the same. They never have been the same. And those who continue to insist that they are – or were – the same, do nothing but a disservice to our profession and the clients we serve.

As written, sections 6400 and 6450 would have – and should have – afforded at least some measure of consumer protection, if they were enforced and dutifully followed by members of both professions. But far too many LDAs continue to muddy the waters by insisting on defining themselves as, “formerly known as independent paralegal.” A more accurate statement might be, “sometimes erroneously referred to as independent paralegal,” or “don’t want to give up any perceived competitive advantage I get by advertising as a paralegal.”

In the Handbook’s chapter on naming your business, the authors claim that “paralegal can mean almost anything.” This statement could not be more false. The same year that this book was first published, the American Bar Association adopted its model definition of legal assistant/paralegal – which did not include the provision of self-help services to consumers. While this erroneous information may have been caused by the delay between the time of writing to date of publication, these statements certainly should have been corrected on one of the five subsequent editions.

The decades-long confusion created by the inappropriate application of this term to describe non-attorneys who assist self-represented litigants is a direct result of misinformation such as that contained in this Handbook. How many new practitioners were just like me, desperate for information and thrilled to find such a Handbook? This book is now out-of-print, but new LDAs will continue to scour eBay or Amazon for used copies, only to learn an improper vocabulary and outdated or erroneous historical context for the consumer protections afforded under today’s Business & Professions Code.

Until such time that we, as a profession, cast aside this improper, confusing title in favor of proudly proclaiming our rightful distinction as bonded and registered legal document assistants, our own businesses, the paralegal community, and the general public will continue to be harmed by rogue paralegals – who are neither paralegals nor LDAs. It’s been ten years. Let’s take back our titles and put the rogues out of business.

Notes:

1. Ralph Warner, Stephen Elias & Catherine Elias-Jermany, The Independent Paralegal’s Handbook, (6th ed., Nolo 2004).
2. Colorado Bar Ass’n v. Miles, 192 Colo. 294 (1976).
3. The California Public Protection Committee was appointed in 1986 by the California State Bar to investigate public harm from nonlawyer legal services, and to determine if regulation of the nonlawyer providers would be appropriate.