Paralegal Division

Recommendations

The Licensing Committee recommends as follows:

Mandatory licensing for all legal assistants is appropriate. All persons who take the title "Legal Assistant," "Paralegal" or "Lawyer's Assistant" or otherwise, are performing the basic duties of a legal assistant, and should be licensed. As lawyers, administrative agencies, courts and corporations expand direct service duties to be performed by legal assistants a mandatory licensing requirement will serve to protect the public.

2. General Supervision.

A general supervision standard should be applied to the attorney/legal assistant relationship as opposed to the existing direct supervision standard.

3. Examination.

A written examination is a fair and adequate test of competency. There is an existing standard that is a voluntary certification by NALA. In Utah there are 97 legal assistants who have successfully met the NALA standard. It is the recommendation of this committee that the NALA Certified Legal Assistant (CLA) examination is the most reliable standard for competency and that it sets a basic standard of competency of legal assistants. Gaining access to this examination, will need to be negotiated with NALA.

The Committee determined that by use of the existing examination, the licensing transition would be smoother and easier. This is based on the fact that ninety-seven (97) legal assistants would already be eligible, and that there would be no need to create a process of establishing an examination, putting together a committee to review completed examinations, training personnel to administer the examination, etc.

4. Due Process.

Consideration be given with regard to Due Process issues. No states have licensed legal assistants and therefore no model exists. The initial research of the licensing committee shows strong potential exists for a harmonious balance between licensing and due process rights. However, it recommends four areas in need of further review before it can be said with certainty that licensing does not abridge due process rights:

Continuing education, pro bono work, malpractice insurance requirements, and proficiency tests are not fully mapped out.

A comparison of due process with the public benefit to be gained by licensing will provide a clearer answer to the question whether or not due process is served.

Specific focus on Grandfather Clause exceptions to ensure each section maintains the goal of competence without sacrificing due process.

Notice requirements.

Equal protection rights under the Fourteenth Amendment.

5. Grandfathering.

If the Bar determines that it is appropriate to have the minimum standard for licensing be a current CLA certification, educational requirements have already been established by NALA's qualifications to sit for the exam. Grandfathering could be a relatively short period of time. It is suggested that two to three years would be sufficient to allow legal assistants time to prepare for and take the CLA exam. The existing CLA's in Utah may immediately apply for licensure.

If the Bar determines it will write its own licensing examination for legal assistants, it is suggested that certain qualifications be met prior to the legal assistant taking such an examination which should include:

Successful completion of an ABA-APPROVED program of education and training for legal assistants, and current employment as a legal assistant clerk under the direct supervision of a duly licensed Utah attorney; OR

Successful completion of an institutionally accredited legal assistants' program that consists of a minimum of sixty (60) semester hours (or equivalent quarter hours) of which fifteen (15) are substantive legal courses, and current employment as a legal assistant clerk under the direct supervision of a duly licensed Utah attorney; OR

Successful completion of an institutionally accredited legal assistants' program that consists of sixteen (16) semester hours of substantive legal courses, plus forty-five (45) semester hours (or equivalent quarter hours) of general college curriculum, and at least one (1) full year of employment experience as a legal assistant clerk under the direct supervision of a duly licensed Utah attorney;

(All applicants meeting qualifications 1, 2 or 3 must submit a certified copy of the school's transcript or curriculum showing all courses completed. No home study, video or correspondence courses will be accepted.); OR

A minimum of five (5) continuous years of full time employment experience as a legal assistant clerk under the direct supervision of a duly licensed attorney, which experience complies with the definition of a legal assistant as defined below, and current employment as a legal assistant clerk and completion of sixteen (16) CLE hours in the last two (2) years. (All applicants meeting this qualification must submit affidavits of the applicant's supervising attorney(s), certifying the minimum of five (5) continuous years of full time legal assistant clerk experience and proof of CLE attendance.); OR

A baccalaureate or higher degree in any field and at least two (2) full years of employment experience as a legal assistant clerk under the direct supervision of a duly licensed Utah attorney, and current employment as a legal assistant clerk. (All applicants meeting this qualification must submit proof of completion of a baccalaureate or higher degree and submit affidavits of the applicant's supervising attorney(s), certifying the minimum of two (2) continuous years of full time legal assistant experience.)

Individuals, currently working as legal assistants, who do not fall into one of the above categories should be allowed to continue working, without a license, for a period of two to three years during which time they must take necessary steps to meet the above qualifications and successfully pass the examination.

Individuals, moving into the state of Utah, who do not meet one of the above categories, should be allowed to work performing legal assistant duties as a legal assistant clerk, without a license, for a period of two to three years during which time they must take necessary steps to meet the above qualifications and successfully pass the examination.

6. Admissions.

A legal assistant shall make application to the Utah State Bar Legal Assistant Division to sit for the written examination, and submit to an investigation consisting of a criminal history check, a prior disciplinary check (in the case of a disciplined lawyer wishing to practice as a legal assistant), and a Character and Fitness Committee review. Upon successful completion of the review by the Character and Fitness Committee, and after meeting the requirements as set out in the application, the applicant will submit to the required examination. Two Character and Fitness Committee member's signatures shall be required on the application before the candidate is eligible to take the Legal Assistant Examination. If questions arise as to the character or fitness of the applicant, the Committee shall hold a hearing for further inquiry into the applicant's character and fitness. After successful completion of the required examination, the applicant will be sworn in as a licensed legal assistant with the Legal Assistant Division of the Utah State Bar.

7. Swearing-In of Licensed Legal Assistants.

Licensed Legal Assistants should be sworn-in at a ceremony/event to be sponsored by the Legal Assistant Division of the Utah State Bar, or by the Utah State Bar.

8. Inactive Status of Licensed Legal Assistants.

Licensed legal assistants, who leave the state of Utah, take time off from being a legal assistant, or who work in non-traditional legal assistant areas, such as teaching, should be granted an "in-active" membership status.

9. CLE.

Mandatory CLE hours for licensed legal assistants to maintain a competency level. NALA has mandatory CLE in order for a CLA Legal Assistant to re-certify. The number of annual CLE hours required by NALA is equivalent to ten (10) hours per year. This committee would recommend NALA's requirements be used, plus one hour per year MCLE of Ethics.

10. Expanded Duties.

While the LAD would be happy to conduct a study to provide a ground level recommendation, a group or committee of the Bar comprised of lawyers, legal assistants, representatives of the courts, etc., would be an appropriate vehicle for thorough study of this area. Representation from the Access to JusticeTask Force is essential on a committee charged with studying expanded duties of legal assistants.

LICENSING BENEFITS

By allowing an attorney to delegate some discretionary matters, with appropriate training, to a licensed legal assistant, there is expansion of legal services at lower cost. Immediately it would be expected that attorneys, agencies, and courts would begin looking at areas where licensed legal assistants could perform tasks to increase availability of competent, economical legal services to their client base.

By authorizing supervising attorneys to tap fully into the resource of licensed legal assistants, the Bar would be expanding access to justice by authorizing attorneys to specifically train legal assistants to practice limited law under the lawyer's general supervision. By licensing legal assistants, competent, supervised and expanded services may be made available to those on the low end of the economic scale who otherwise would not have access to services.

The plan of licensing all legal assistants and paralegals across areas of work or specialization will expand the entire system of the delivery of legal services to provide competent, low cost, and effective legal services to all users of those services, not just those in the poverty area. Nearly all users of legal services struggle to afford counsel. Corporations, governmental agencies, insurance companies, courts and individuals can benefit economically through increased competency once lawyers have permission to expand the duties of their legal assistants beyond direct supervision.

Some opponents to the regulation of legal assistants hold that the mere process of regulating a group of people or occupation inherently restricts its growth. We hold that this need not be, nor is it the underlying plan. The underlying reason for looking at licensing legal assistants in the state of Utah is to expand, not restrict, the delivery of competent legal services.

By licensing, we hope that the legal services community, including the courts and administrative agencies, will look toward innovative and expanded areas for licensed legal assistants to the benefit of all persons and entities requiring legal services and access to justice.