Historical Perspective

The following provides a brief history of studies and recommendations on the regulation of legal assistants, with emphasis on what has been done in the state of Utah.

The Legal Assistants Association of Utah (LAAU), an affiliate member of the National Association of Legal Assistants (NALA), has been aware of issues surrounding the debate over the regulation of legal assistants since 1990, when it appointed a committee and prepared at least one article discussing the pros and cons. The committee made no recommendation on the subject. At least two members of the committee submitting this report worked on that project.

NALA has determined that the regulation of legal assistants is not necessary, given the availability of voluntary certification offered by that organization. NALA also finds that formal regulation of legal assistants by a governing body inhibits the growth of the para-profession by perceived restrictive rules and regulations. NALA, therefore, cautions legal assistants against such regulation.

The American Bar Association appointed a Commission on non-lawyer Practice in 1992 and in 1995 made recommendations as follows:

The range of activities of traditional paralegals should be expanded, with lawyers remaining accountable for their activities.

States should consider allowing non-lawyer representation of individuals in state administrative agency proceedings. Non lawyers should be subject to the agencies' standards of practice and discipline.

The activities of non-lawyers who provide assistance, advice, and representation authorized by statute, court rule, or agency regulation should be continued, subject to review by the entity under whose authority the services are performed.

With regard to the activities of all other non-lawyers, states should adopt an analytical approach in assessing whether and how to regulate varied forms of non-lawyer activity that exist or are emerging in their respective jurisdictions. Criteria for this analysis should include the risk of harm these activities present, whether consumers can evaluate providers' qualifications, and whether the net effect of regulating the activities will be a benefit to the public. State supreme courts should take the lead in examining specific non-lawyer activities within their jurisdictions with the active support and participation of the bar and public.

The American Bar Association, state, local, and speciality bar associations, the practicing bar, courts, law schools, and the federal and state governments should continue to develop and finance new and improved ways to provide access to justice to help the public meet its legal and law-related needs.

The American Bar Association should examine its ethical rules, policies and standards to ensure that they promote the delivery of affordable competent services and access to justice.

In 1995, the Utah Supreme Court appointed a subcommittee of the Supreme Court Advisory Committee on the Rules of Professional Conduct to study the Licensing and Regulation of Paralegals/Legal Assistants. The group studied what other law related organizations were doing on the regulation of legal assistants, including the ABA, the Utah State Bar, LAAU and NALA. Considerable time was spent on the Unauthorized Practice of Law and the "California Experience" of licensure of legal technicians in very specific substantive areas. (Which attempt ultimately failed. Presumably the result of perceived competition with lawyers because the licensure was direct to the public -- no attorney supervision.) Attempting to combine the two subjects of licensing and the unauthorized practice of law made for much confusion and debate, likely because some non-lawyers found to be practicing law called themselves "legal assistants" or "paralegals," when in fact most of them were not the traditional, trained legal assistants. The committee met several times during 1995 and 1996.

Concurrent with the work of the subcommittee, the Utah State Bar petitioned the Utah Supreme court to create a legal assistant division, which petition was granted on March 26, 1996. The subcommittee thereafter made no recommendations.

The Legal Assistant Division quickly accumulated a membership of more than 300 legal assistants. During late 1997, the Access to Justice Report, completed by the Utah State Bar's Task Force on Access to Justice, recommended the licensing of legal assistants. In response, the LAD approached the President of the Bar, Charlotte Miller, and explored what the LAD could do to aid in pursing the recommendation of the Access to Justice Committee, the premise being that should the Bar choose to regulate legal assistants, the group to be regulated would likely have credible and valuable information.

As a result of the meeting with Charlotte Miller, the Board of Directors of the Legal Assistant Division authorized a Licensing Committee to study the matter of licensing. The goal of this committee is to prepare a model for the licensing of legal assistants to be considered by the Board of Bar Commissioners. The Licensing Committee began their work during November 1997.

Some general negative comments received from legal assistants involved, fear of having to take an examination, financial concerns over costs to the legal assistant of licensing and examination fees, concern about time to study for an examination or having to attend classes, concern over having to prove their competency when they have proven it already through years of successful legal assisting, fear of losing their ability to earn a living as a legal assistant should they not pass an examination, loss of overtime compensation, and one suggestion that the Bar wants to license legal assistants simply so lawyers may pass off, to the legal assistant, the lawyer's duty to provide pro bono services.

Positive comments from legal assistants relate to the ability to expand their duties, increased perception of professionalism, potential increases in earnings, affirmation that those who are not doing legal assistant type duties can no longer hold themselves out as legal assistants, and a higher level of competency allowing personal and professional growth.

The few comments by lawyers revealed a split, as well. Positive comments show licensing will aid employers when hiring legal assistants because lawyers know the legal assistant has been through some type of background check by the Bar, that the legal assistant will possess a certain level of competency to perform their duties, that the "gray" area of when the lawyer might be guilty of aiding in the unauthorized practice of law when delegating duties to a legal assistant may become more defined, and expanding the duties of licensed legal assistants will permit the ability to lawyers, agencies, and courts to provide better legal services to the financially disadvantaged and to other client bases who need economical legal services. Negative remarks relate to concerns that lawyers will only be able to bill paralegal time for licensed legal assistants, see no need for legal assistants to be licensed to perform current legal assistant duties, and no plan to expand the duties of the legal assistant in certain practice areas.