Imagine with me, if you will, a world where if someone gave an educated opinion it could be illegal. Would it surprise you to know that this is established practice in America? If you become a paralegal (I’m currently in my first year) then you face the chance of committing the “Unauthorized Practice of Law.”
The America Bar Association has a handy breakdown of what a lawyer may not delegate to a paralegal:
1) establishing an attorney-client relationship,
2) establishing the amount of a fee to be charged for a legal service and
3) a legal opinion rendered to a client.
The first point is one I am fine with. Attorney-client privilege is especially important in all facets of the legal world. An argument could easily be made against the second point because fees are fees. If the lawyer offers a service for “X” amount of dollars, then the paralegal should be able to relay the information. I’m not saying that any commitment should be made, but a general guideline of understanding for clients that paralegals could relay should be common sense. Why should a lawyer’s job be any more difficult?
The third point is simply outrageous. While most would say (and rightly so) that this only affects “clients,” that is only half the truth. Clients can often be anyone who seeks to hire a lawyer so the rule could, effectively, apply to anyone looking for “legal” advice.
The third point turns paralegals into supervised, controlled and barely glorified secretaries as far as I’ve read. I’m not attacking the lawyers who are to be supervising paralegals. They need to watch their ethics and, due to other rules, they have to watch their paralegal for ethics violations or the lawyer could face punishment. I’m not attacking paralegals either as they provide a valuable resource to lawyers in the forms of research, preparation and various other administrative tasks.
I am, however, attacking the system. The system of law is a massive institution in our democracy. While it serves a function that cannot be transformed overnight, it is still desperately in need of that revolution. With the advent of technology and the internet, anyone with access can do research in and about the legal field. The only thing different between private citizens and paralegals is a title since one could “self-teach” with enough perseverance.
I admit to being an opinionated and passionate person. I have been interested in politics all my life. Now, with furthering my education, I could get in trouble for being outspoken if one were to construe my opinion as “advice.” Even the ABA switches back and forth on their vernacular using opinion and advice in the same sentence; even worse it is presented in such a way that it is the same thing.
Perhaps I am over-reacting. Perhaps I have misconstrued what the rule is meant to do and protect. Yet, the more research and learning I dwo, the more I realize that this rule (among others) only manages to hurt paralegals.
The most common sense solution would be to license paralegals. The ABA, National Association of Legal Assistants (NALA) and the National Federation of Paralegal Associations (NFPA) are the largest and most representative of the legal field in general. I see no reason that these three couldn’t come together to create a modified Bar Exam with a modified Licensure for paralegals.
Let paralegals work. It’s just common sense.