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Bulletin Focus |
Paralegal
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MSBA Special Paralegal Committee's Study of Paralegal
Certification/Regulation/Licensure in Various States
By Alan F. M. Garten and Weston A. Park
The MSBA Special Committee on Paralegals is studying the actions of various
states with respect to the regulation, certification, or licensure of paralegal
professionals. The Special Committee has found that state regulation of paralegals
varies greatly in the United States running from non-existent to stringent
regulation. Some states have educational and work requirements, while other
states have enacted Codes of Professional Responsibility along with regulations
or standards for paralegals.
The Special Committee has also found that three basic approaches appear to
be used throughout the country in the regulation of paralegals. The first approach
is to have a volunteer program where paralegals register with the state bar,
as is the case in North Carolina, or register with a private organization,
as is the case in Delaware. The second approach is to have the state's highest
court or legislature pass rules or statutes that contain minimum requirements,
such as are found in Florida and Indiana. The third approach is to have the
state bar association adopt rules for the qualifications and utilization of
paralegals. These rules include disciplinary remedies, within the lawyer disciplinary
rules, for the violation of the standards by supervising attorneys, such as
is found in Rhode Island. This third approach seems most prevalent where membership
in the state bar association is mandatory and the bar administers its own discipline.
Each approach has one common element: the identification of the term(s) "paralegal" and/or "legal
assistant". With some degree of regularity, the chosen definition has been
that used by the American Bar Association:
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 and who performs specifically delegated
substantive legal work for which a lawyer is responsible. [ABA Guideline
G-103 (d)]
This definition permits the "grandfathering" of current para-professionals
within the guidelines, rules or statutes. The passage of "grandfathering" enactments
seems to be a universal issue, and is dealt with differently from state to
state. It presents a problem in that the adoption of a regulatory scheme, without
addressing the status of persons already in the profession, can be punitive.
Common threads in the regulation of paralegals include the requirement of
an approved course of study, or an approved course of study in combination
with some degree of on-the-job experience. Often, the specific nature of the
paralegal degree requires a different length of work experience. Under this
type of program, the higher the degree received, the less work experience required.
In some instances, these regulatory schemes even differentiate work experience
times where a paralegal receives a degree from a program that is not approved
by a particular state.
Some states have adopted the standards of the American Bar Association as
the requirement, others have not. The Committee will study the ABA standards
for approval at http://www.abanet.org/legalservices/paralegals/.
Other standards for the approval of a paralegal program (that do not involve
the ABA) use the standards set by a particular state's higher education certification
body such as Maryland's Higher Education Commission. This allows for a variation
of approvals from state to state.
One of the substantial differences between the ABA process and other recognized
state sanctioning processes is the treatment of online, hybrid or compressed
classes within the curriculum. Different accreditation bodies treat the use
of these classes in different ways. For instance, the permitted number of accredited
courses within the curriculum, and factors within the courses, varies from
state to state. An example of a varying factor is the presence or non-presence
of interaction from student to student or student to instructor. This is different
from the ABA model, which has uniform standards for the treatment of interaction
and a limitation on the number of credit hours of online courses that is permitted.
Certainly the efficacy of a paralegal program depends more on the personnel
and curriculum than on the nature of the approval process. Universally, however,
some third-party criteria have been utilized to assure the quality of a particular
program.
The Special Committee plans to further analyze the regulation of paralegals
throughout the United States and determine what, if any, changes they will
recommend to the MSBA with respect to the regulation, certification or licensure
of paralegal professionals in Maryland.
Alan F. M. Garten is Chair of the MSBA Special Committee
on Paralegals. Weston A. Park is Program Coordinator, Legal Studies, Harford
Community College.
