Licensing & Due Process Rights

COMMITTEE MEMBERS:

Lucy Jackson
Gregory Skordas

CHARGE

Investigate the effect licensing of legal assistants/paralegals may have on due process rights.

FINDINGS

The proposal to license Utah's legal assistant/paralegal profession raises Fourteenth Amendment due process concerns. To evaluate these concerns, we must look to the experience of other professions which have encountered due process challenges. Over the years, their membershave brought complaints of due process violations before the judiciary in Utah and across the nation. The courts' resolutions of these complaints provide background to weigh the constitutionality of Utah's proposal.

Due Process Tests

Currently, two types of analyses take place in due process examinations which will guide our investigation. The Supreme Court established the first analysis in 1972, with a case involving a teacher's property interest in tenure. This analysis consists of two steps to establish violation of due process. The first step is to determine whether a protected liberty or property interest is implicated. If a protected interest is found, the second step is initiated. This second step weighs the particular interests of the individual and the state to decide what form due process protection should take.

Constitutionally Protected Liberty Interest

To meet the first part of the two-prong test, legal assistants/paralegals must have a constitutionally protected liberty or property interest in the practice of their profession. As early as 1897 the Supreme Court established the definition of "liberty" as used in the due process clause includes the right to pursue a livelihood or lawful vocation. The Court has subsequently affirmed this definition in modern times. Furthermore, employment has been held to be included in the meaning of property. Thus, on a federal level, the interest has been secured as protected.

Utah's courts have also weighed the right to pursue a vocation. In 1938 the Utah Minimum Wage Law was challenged as depriving plaintiffs of property without due process. Here, the Utah Supreme Court recognized the right to pursue one's calling as a valuable personal and property interest entitled to due process of law and protection. In later opinions where conflicts surrounding licensing were resolved, the Court restated that the right to engage in a profession is a property right entitled to protection by law. More specifically to our charge, the right to practice law has been recognized by the Supreme Court as a property right within the meaning of the due process clause of the Fourteenth Amendment, although there is some alternative discussion. Additionally, it must be noted that some state courts distinguish between a constitutionally protected property interest, such as a right to take a bar exam, and a vested property interest such as the license. In a due process analysis these states give greater weight to the license. Thus, the legitimate claim of entitlement exists only when a fully qualified candidate is denied the opportunity to obtain a license. However, Utah does not make this distinction. Therefore, in Utah, the legal assistant/paralegal profession still possesses the necessary protected interest to pass the first step of the two-part test.

Consequently, the next step is to weigh the interests of the individual and the state to determine what procedures are required to protect due process. In this stage of analysis, the Supreme Court's Mathews v. Eldridge test applied. This additional type of analysis has three areas of consideration to determine the dictates of due process needed. These considerations, applied to the legal assistant/paralegal profession, are:

1. The private interest in performing work as a legal assistant/paralegal that would be affected by license regulations;

2. The risks of erroneously depriving legal assistants/paralegals of their livelihood through the license procedures, and probable value of safeguards such as grandfather clauses which set exceptions for prior experience, exams, education, and out of state standards, among others, as well as notice of the regulations; and

3. The government's interest in increased legal assistant/paralegal competence, better public access to inexpensive legal assistance, in addition to the fiscal and administrative burdens additional due process procedures in step two would entail.

Without a specific legal assistant/paralegal licensing statute yet to analyze, the experience of other professions provides possible answers to the Mathews v. Eldridge test above.

Private Interest

The first part of the Mathews v. Eldridge test was fulfilled earlier where it was determined that legal assistants/paralegals have a private interest in their career which is constitutionally protected.

Risks of Deprivation and Safeguards

The erroneous risk of deprivation applied to the legal assistant/paralegal means those not meeting license requirements may be deprived of their career without due process, or in "error." If license requirements are instituted, legal assistant/paralegals would not be deprived of their right to work within the legal profession entirely. For example, they could work in another capacity, such as a legal secretary. However, the hardship still remains significant in that it would, "...interrupt and destroy the employment of persons who had been lawfully hired." This is a risk of considerable weight. The key to overcoming erroneous risk of deprivation is to ensure regulations are not arbitrary or discriminatory, and define reasonable classifications. Therefore, to meet the second part of the Mathews v Eldridge test, safeguards need to be in place that will minimize the risk of deprivation without due process.

The first of two safeguards are Grandfather Clause exceptions. By including these exceptions in license regulations, the majority of persons currently working as legal assistants/paralegals will be eligible for a license. Those who are excluded will have been denied eligibility in as fair a manner as possible, fulfilling the second part of the Mathews v. Eldridge test. A case that demonstrates possible problems a licensing statue could entail is Berger v. Board of Psychologist Examiners, 521 F.2d 1056 (D.C. Cir. 1975). In Berger, a psychologist who had been practicing psychology for fourteen years was precluded under a new licensing law from practicing psychology because he did not meet newly required education standards. Here, the court declared the licensing statute unconstitutional since it did not contain a "grandfather" clause which would permit the psychologist to demonstrate his competence. The court held, "[T]he irrebuttable presumption of professional incompetence absent a graduate degree is not invalid with respect to future psychologists, but only with respect to current practitioners who have no meaningful grandfather rights . . .."

In contrast, an earlier Utah case concerning a Grandfather Clause withstood a constitutional challenge. In this case an engineer was denied registration because he did not qualify under a Grandfather Clause. The Court held that the Grandfather Clause provided for exclusion that was neither arbitrary, nor discriminatory. The challenged statute permitted persons practicing in other fields to be registered; to register without examination upon filing an application within one year and paying a $15.00 fee; and required applicants to satisfy good character provisions, as well as a minimum of four years residency and practice in the profession.

A Grandfather Clause provision in the license provision of legal assistants/paralegals is an essential ingredient to ensure due process rights are secure and erroneous risks are minimal. It is also one which will need further research on each exception listed in the final model to fully mitigate part two of the Mathews v. Eldridge test.

Notice

Notice is the second safeguard needed to protect due process within part two of the Mathews v. Eldridge test. Before a person is deprived of a protected interest, such as a right to employment as a legal assistant/paralegal, he or she must be afforded opportunity for some kind of hearing or notice. When Delaware initiated new license requirements for psychologists, a complaint was filed stating the notice was insufficient. The notice consisted of a public hearing announcement containing specific reference to the proposed requirements and procedures for licensure as a clinical psychologist. The court held the notice provided was enough to offer due process protection. In addition, the court stated that, "[N]otice is sufficient if it affords interested parties a reasonable opportunity to participate in the rulemaking process." Examining the rulings from these two other states provides examples of notice that were able to overcome constitutional challenges. Including notice and participation for the legal assistant/paralegal license can minimize the risk of depriving persons of their career erroneously, and thus meet the second part of the Mathews v. Eldridge test.

Government's Interest & Administrative Considerations

This third part of the Mathews v. Eldridge test weighs the Government's interest and administrative burden. The Government's interest is represented by the state's police power to regulate professions as a rational means to a legitimate end, such as protecting a consumer interest. Where the need to protect the public is high, regulations tend to withstand constitutional challenges. The government's interest in public welfare has a long history. The medical profession gained consumer protection restrictions as early as 1664 by the Duke of York for the colony of New York. The state of Utah has established the right to control its professions for many years. In 1900 the Utah Supreme Court held that the state's police power is exercised to promote health, comfort, safety, good morals, and the general welfare of people." Later, in 1934, the Court found that a statute requiring licensing of produce dealers did not violate due process and was a proper exercise of business regulation. By 1955 the profession of engineers had become specialized and a revision to the previous statute from 1935 was enacted. When the new statute was challenged as being discriminatory, the Court affirmed the statute's constitutionality. Its opinion provides strong reasons why the government's interest in regulating the legal assistant/paralegal provision is a valid exercise of police power.

It has been recognized since time immemorial that there are some professions and occupations which require special skill, learning and experience with respect to which the public ordinarily does not have sufficient knowledge to determine the qualifications of the practitioner. The layman should be able to request such services with some degree of assurance that those holding themselves out to perform them are qualified to do so. For the purpose of protecting the health, safety and welfare of its citizens, it is within the police power of the state to establish reasonable standards to be complied with as a prerequisite to engaging in such pursuits."

More recently, a Utah statute was challenged in an unlawful practice of law charge. Here the court found that, "[T]he practice of law is so affected with the public interest that the state has both a right and a duty to control and regulate it in order to promote the public welfare . . .." Similarly, in a charge of unlawful practice of dentistry the court held, "[T]he dental profession is so charged with a public interest, we think, that the statute here represents a reasonable exercise of the police power . . .." At stake with the licensing of the legal assistant/paralegal profession is whether the statute aimed at licensing is indeed a reasonable exercise of police power. On the surface, the concept of providing better public service seems reasonable. However, forthcoming details involving administration of the regulation will need to be taken into account. It may be that the administering of items such as examinations, license renewals, continuing education, malpractice actions, and pro bono work prove to be too costly and burdensome. As a cautionary note, Utah has ruled statutes to be unreasonably burdensome compared with the benefit they incur on the public.

We think it pertinent to observe that it is easy enough for men who dedicate their efforts in a specialized field for a long period of time, with their attentions finely focused on its niceties, to sometimes become unduly obsessed with reaching toward perfection, and to lose sight of reasonableness and practicalities in operation. This can result in failure to evaluate the trouble and expense imposed, and the rights of individuals to enjoy freedom in the use of their property, as compared to the minimal harm to be guarded against and the advantage to be gained.

Thus, while Utah has established the necessary police power to regulate a profession such as the legal assistant/paralegal profession, to pass the third portion of the Mathews v. Eldridge test, the government's interest must outweigh administrative burdens.

In summary, legal assistants/paralegals have a constitutionally protected interest in the right to practice their profession. To assure due process rights are met, the license regulation must have broad Grandfather Clause exceptions and provide sufficient notice of the proposed changes. Furthermore, comparisons of the burden of licensure itself with the state's interest are not yet conclusive. To fully determine whether a licence statute would violate legal assistants/paralegals Fourteenth Amendment due process rights, additional review is necessary.

RECOMMENDATION

This initial investigation shows strong potential exists for a harmonious balance between licensing and due process rights. However, four areas need further review before it can be said with certainty that licensing does not abridge these rights. The first area needing review concerns administration of the license regulation. Issues such as continuing education, pro bono work, malpractice insurance requirements, and proficiency tests are not fully mapped out. A comparison of this area to the public benefit gained by licensing will provide a clearer answer to whether due process is served. The second area needing review concerns Grandfather Clause exceptions. This preliminary investigation discovered numerous cases that argue each aspect typical to Grandfather Clauses. A specific focus on this area is necessary to ensure each section in our clause maintains the goal of competence without sacrificing due process. The third area needing review concerns notice which has not been presented for review at this time. The final area needing review concerns equal protection rights under the Fourteenth Amendment. An examination of these rights will scrutinize types of classification and discrimination that the due process review only lightly touched.