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.