What is a Paralegal?
A paralegal is a person who is employed by or retained by a lawyer, law office, corporation, governmental agency or other entity and who performs specifically delegated legal work for which a lawyer is ultimately responsible. They may be referred to by the profession as a "legal assistant."
The work of a paralegal involves work which requires training or experience in legal matters but is not considered to constitute the unauthorized practice of law. The field has evolved over the years to an extent that there are now two types of paralegals, litigation and non-litigation.
The functions performed by paralegals and the work done in litigation almost solely are performed under the supervision of licensed attorneys. For this reason , it always is prudent for a paralegal to confirm with an attorney any information the paralegal may have concerning a client’s matter to make sure that the attorney has the same insight and opinion regarding the information. Litigation paralegals are usually "hands on" during the entire process until the appeal is completed.
Non-litigation paralegals, on the other hand, usually do a great amount of work for the corporate world or an insurance company. The character of the work usually is more limited and is performed on specific projects or assignments that require limited ongoing supervision. And the services offered tend to be more specialized in nature than the wide variety of services offered by attorneys and litigation paralegals. Typically, their work involves drafting, reviewing and/or preparing transactions and documents that are generated by the client lawyer and/or a supervising lawyer. And the paralegals provide collection, review, evaluation and analysis of information or data necessary to meet the client’s needs.
Restrictions Regarding Paralegals’ Legal Work
As agents of the attorney, paralegals have a responsibility that encompasses a great deal of authority. That authority, however, has its limits, and the law clearly defines what a paralegal may do and what is considered the unauthorized practice of law.
With few exceptions, professional paralegals are restricted from representing clients in court, providing legal advice, and offering opinions regarding legal strategies. Those concerns are the domain of the attorney who employs the paralegal. Paralegals also cannot prepare pleadings that must be filed with the courts, give depositions, or appear before the Judge.
A paralegal does not practice law if he/she works under the supervision of an attorney and strictly assists the attorney in his/her legal work. Paralegals have no independent authority to act on behalf of a client at any time, so without supervision, a paralegal is considered to be practicing law. The timing and scope of activities involved in most paralegal employment are highly structured and do not involve legal remedies. All work to be done by paralegals is reviewed, supervised, and finalized by the attorney.
Keeping the supervisory responsibilities of attorneys in mind, paralegals must choose their jobs wisely, accept no assignments that go beyond the statutory boundaries, and follow the guidance of the supervising attorney. The most common employment objectives for paralegals are legal document preparation, client and witness interviews, discovery assistance, case management, legal research, trial preparation, and legal reference, but much of what must be accomplished by the paralegal is developed and defined by the employing lawyer’s needs.
Exemptions to This Prohibition
The first exception is being under the direct supervision and control of an attorney. To be considered under the direct supervision of an attorney the paralegal must: Under the direct supervision test, legal assistants may perform duties that are normally reserved for licensed attorneys. An example would be: An example of when a paralegal is within the control of an attorney would be when a paralegal is employed by a corporation or other entity as part of its regular staff to work only for that entity and not for any outside entity. Legal services performed by the corporation’s regular staff for their employer excludes the performance of legal services "on behalf of" their employer and therefore does not violate unauthorized practice statutes. In the past, some states have interpreted direct supervision and within the control of an attorney to mean that the attorney had to be in the same room when the legal services were performed. In these states, paralegals could only do clerical and administrative support tasks. Almost every state has adopted ABA’s position that a licensed attorney can use judgment to determine if the paralegal needs to be strictly supervised. The second exception is that paralegals can engage in activities which are not considered the practice of law when working for government agencies, non-profit entities, and other exempt institutions. The specific duties allowed depend upon the exception in each particular state. For example: A third exception is that many states have granted exemptions to authorized corporations or statutory corporations from practicing law when the services to be rendered fall within the scope of work defined by the statute governing the corporation. Examples include providing routine legal advice and representation of clients in public agency concern in commercial or administrative agency matters. There are a few other exceptions. Some states allow paralegals to represent clients before a government agency in certain noncontested matters. Also, the state courts of some states allow paralegals to represent clients in small claims matters. As you can see there are a few exceptions that allow paralegal to perform some legal services otherwise considered to be the practice of law, but I imagine most of you wont be able to get a job as a paralegal for the goverment, a non-profit, or other exempt institution. The restrictions on what paralegals can do about practicing law are there to protect the public so they want unlicensed paralegals performing legal services that may violate state rules and statutes.
The Need for Attorney Oversight
To begin with, paralegals are not licensed attorneys, and therefore are not authorized to provide legal services or advice on behalf of the legal community. Because of this, paralegals must work solely under the direct supervision of an attorney, whereas administrative personnel do not have that requirement. The need for client confidentiality as well as an attorney’s legal liability when mistakes are made are two major reasons for the need for this supervision.
The California Business & Professions Code ยง 6450 requires a paralegal be supervised by an attorney who is directly responsible in the following manner: (1) each client must be informed that the paralegal is working in the legal department or office as a paralegal; (2) that all paralegal activities must be performed under the direct supervision of an attorney; and (3) that confidentiality of information obtained from the client must be maintained.
It is important to note that the California Bar Association has held that a paralegal can hold herself out to the public as being qualified in a specialized field of law, such as bankruptcy, provided that the paralegal does not give legal advice or otherwise engage in any type of legal representation.
In addition to the authority given attorneys to delegate functions to paraprofessionals, courts have ruled on the importance of attorney supervision. For example, in the case of Cardenas v. U.S. Smokeless Tobacco Manufacturing Co., Inc. (11th Cir. 1999) 191 F.3d 654, the court held that the law firm’s delegation of certain vital functions to paralegals rendered it civilly liable to a plaintiff who was injured, not by the product, but by the process by which it reached consumers. The firm had performed inappropriate tasks such as: (1) sales forecasting and calculation; (2) development of a roll-out plan; (3) manufacture of promotional materials; (4) placement of advertisements; (5) data retrieval and formatting; and (6) review of large volumes of documents. The form dealt with the manner in which and the degree to which attorneys may delegate their legal duties and responsibilities, and when or in what circumstances they remain fully responsible for those duties and responsibilities when that delegation is made to a paralegal.
Paralegals vs. Attorneys
To clarify the distinction, Paralegals and Legal Assistants are different from Lawyers. A Lawyer in most cases is a member of a law school that has received a Juris Doctor degree commonly known as an attorney in most countries. In most cases, Lawyers must pass a state bar exam in their state of jurisdiction prior to being able to practice law. They both work closely with people needing legal support; however, their duties in the legal field are completely different for either a paralegal or a lawyer. Lawyers have an important duty , and that duty is to make sure that the law is followed upon when it comes to being for the client. Lawyers are also advocates for the law, also protectors of the law, and helpers to the law. Paralegals don’t argue cases in a court of law; they work behind the scenes, preparing documentation necessary for a lawyer to proceed in his or her job. A paralegal prepares the litigation, prepares documents for the trial, and helps limits the work for a lawyer that needs to be done.
Assistance Provided by Paralegals
Helping Attorneys Maintain Efficiency and Quality: Paralegals are crucial in legal practice for their ability to take on heavyweight tasks that lift the burden off the shoulders of the attorney. Paralegals and attorneys work collaboratively to provide high quality legal services to clients, while ensuring efficiency and time management. When paralegals are able to take on responsibilities from the attorney, attorneys can spend more time focusing on the strategic nature of cases and legal matters, which ultimately results in improved client service.
In accordance with the California Business and Professions Code, Section 6450, subdivisions (a) and (b), paralegals may do the following tasks:
Preparation of a wide variety of legal documents under the supervision and direction of an attorney;
Obtaining, reviewing and organizing medical and financial records, social security and employment history and other information and documents relevant to personal injury, workers’ compensation, Social Security, bankruptcy or estate planning matters under the supervision and direction of an attorney;
Drafting articles, briefs, motions, pleadings, correspondence, contracts, discovery documents, hearing notices, wills and trusts for review and signature by the attorney;
Filing pleadings and other documents with the court;
Coordinating case-related activities, such as scheduling and planning the preparation of cases for settlement, trial or other disposition.
Paralegals cannot file documents without attorney supervision. However, in California, paralegals can file documents electronically.
How to Become a Paralegal, including Skills and Qualifications
Unlike attorneys, there are no national requirements for paralegals, although many states, employers, and professional associations impose requirements on themselves or others. However, several national professional organizations for paralegals have implemented voluntary educational and ethical standards, such as standards which prohibit paralegals from providing legal advice or representing clients in court. When paralegals did not adhere to these standards, some cases have been thrown out of court because of issues that arose from paralegals practicing law without authorization.
Federal level requirements do not exist yet for paralegals in the USA. The closest standard to federal regulation of paralegals is the voluntary competency examination process created by the NALA, the National Association of Legal Assistants. However, some employers, and even some state legislatures, impose requirements on paralegals, encouraging the use of professional standards as a means of assuring good quality services.
There are several pathways available for individuals who wish to pursue a career as a paralegal . Many community colleges offer 2-year Associate’s Degree programs that include practical instruction in reading and analyzing briefs, documents, and case law. In many cases, an Associate’s Degree in Paralegal Studies is sufficient for entry-level positions in law firms and corporations. However, there is an increasing trend toward requiring Bachelor’s Degrees, and even advanced degrees, in order to serve as a paralegal.
In addition to federal guidelines, some states and employers have written guidelines. For example, in 2000, the District of Columbia’s Court of Appeals recognized that learned societies were regulating paralegals. The Court even went so far as to extend the definition of "legal assistant" to include paralegals who are certified by a national association. Likewise, in 1984, the New York City Bar Association issued a statement of goals for the paralegal profession. These guidelines, though voluntary, may carry weight in courts where non-lawyers are permitted to represent clients.
