WRITTEN EXAMINATION OPTIONS COMMITTEE MEMBERS:

Kris S. Pace, Chair
Kay D. Hanson

CHARGE

The Examination Options Committee was charged with researching options available for an examination to be given for the purpose of licensing legal assistants. 

FINDINGS

No other state requires legal assistants to be licensed.  Therefore, there are no examinations available for that specific purpose.  There are examinations available for the purpose of certification of legal assistants. They include the following:

1.The National Association of Legal Assistants ("NALA") examination.

The National Association of Legal Assistants (NALA) offers a certifying examination called the Certified Legal Assistant (CLA) exam.  NALA has been administering the exam since approximately 1976.  The structure of this exam is long-established. 

2.The National Federation of Paralegal Associations, Inc. ("NFPA") examination.

The National Federation of Paralegal Associations, Inc. (NFPA), began administering the Paralegal Advanced Certification Examination (PACE) in approximately 1996. 

Another option that could be considered would be a  test developed by the Legal Assistant LAD and administered by the Utah State Bar.  Darla Murphy, who oversees the registration, drafting, administering, and grading of the Utah State Bar Exam indicates that if the LAD were solely responsible for drafting and grading, and one exam was offered each year in November or December, the Bar could handle the registration and administration of an exam.  The Bar would expect the LAD to create a committee responsible for providing questions and model answers for multiple choice and essay questions as well as a separate committee or board to grade the exams.

RECOMMENDATIONS

It is the opinion of this subcommittee that having the Legal Assistant Division develop an examination, to be administered by the Utah State Bar, is not an option that should be considered.  The time and cost of this kind of endeavor outweighs any benefit that might exist.   We feel that using one of the certification examinations already in place would be more time and cost effective.

The examination offered by NFPA requires more stringent application requirements than the NALA exam and is specifically designed for the advanced legal assistant.  This test is very new and has been administered only a few times.  

The NALA exam is based on a foundation of twenty years of research and study.  There are more then 8,000 legal assistants across the United States who have earned the CLA designation.   NALA could be responsible for the examination, testing locations, grading and retake policies, eligibility requirements and maintenance of the CLA designation.  This would eliminate the burden of tracking CLE for licensed legal assistants from the Bar.

Therefore, it is the recommendation of this subcommittee that the Utah State Bar  use the NALA examination as the standard for the licensing of legal assistants in the state of Utah.  

It has been suggested that legal assistants should specialize in specific areas, such as family law, bankruptcy, business organizations, real estate, etc.   It is the opinion of this subcommittee, that this issue should be addressed at some point in the future, after the standard for licensing legal assistants has been established.

RULES AND DISCIPLINE COMMITTEE FINDINGS

COMMITTEE MEMBERS:

Kay Hanson, Co-Chair
Shelly Sisam, Co-Chair

CHARGE

The Rules and Discipline Committee was charged with recommending a model regarding potential changes and integration of the Utah Rules of Professional Conduct and a potential system of regulation/discipline of licensed legal assistants.

FINDINGS

The subcommittee reviewed materials from the ABA Standing Committee on Legal Assistants, the Utah State Bar, the National Association of Legal Assistants ("NALA") and the National Federation of Paralegal Associations ("NFPA").
In the Utah State Bar's Petition for Creation of a Legal Assistant Division of the Utah State Bar, it was noted that ". . . any legal assistant, whether a member of the LAD or not, would not be directly subject to discipline by the Bar since legal assistant status is dependent upon affiliation with an attorney, and since the affiliation confers no rights or privileges to the public.  The supervising attorney is subject to discipline for failure to adequately supervise legal assistants."  Two of the primary issues that would be addressed by the licensing of legal assistants are access to low cost legal services and protection of the public.  Without exploring the possibilities, at this time, that these issues will give rise to, the need to regulate and discipline legal assistants will arise.

Although the Committee did not address the issue,  it is important to note that a review and clarification of who will be considered legal assistants must occur.  Many people give legal advice in many forms.  Although each source must be addressed individually, and some, like family and friends, may never be resolved, legal advice is given by religious advisors, teachers, coworkers, counselors, computer networks, self-help books and software, court clerks, owners and employees of businesses, and employees of unions and government agencies.  Many laws regarding federal government agencies allow for people to be represented by a "representative" for administrative proceedings.  They do not require that the "representative" be an attorney until the case reaches the appeal stage.

One way of determining who should be considered a legal assistant is by creation of a definition.  In Taylor v. Chubb, 874 P.2d 806 (Okla. 1994), the Oklahoma Supreme Court referenced the definition of a legal assistant as promulgated by the American Bar Association, and specifically enumerated a list of duties that may be properly performed by a legal assistant under the supervision of an attorney as follows:

Another issue that should be addressed is whether or not the Rules of Professional Conduct,  which currently govern lawyers in the state of Utah, would need to be changed to require attorneys to only delegate legal assistant work to a licensed legal assistant.

RECOMMENDATION

It is the recommendation of this Committee, that although the supervising attorney would remain responsible for adequately supervising the legal assistant, a Model Code of Ethics and Professional Responsibility and Model Disciplinary Rules should be developed.  A proposal for a Code of Ethics and Professional Responsibility of the Legal Assistant Division of the Utah State Bar, and a Proposal for Disciplinary Rules are included as an addendum to this report.  The Code of Ethics and Professional Responsibility would act as a general guide to aid licensed legal assistants and attorneys in understanding their ethical responsibilities.  The Disciplinary Rules would establish a system of regulating the unauthorized practice of law, or the unethical conduct of licensed legal assistants.  Court rules, agency rules and statutes, as well as the Utah State Bar's Rules of Professional Conduct would still apply to licensed legal assistants.  Some research should be done with regard to the court rules and agency rules to see what changes, if any, would need to be made based on licensing.

It is also the recommendation of this Committee that a clarification be made as to who should be required to be a licensed legal assistant. Additionally, the Rules of Professional Conduct which govern lawyers in the state should be changed to require that attorneys hire only licensed legal assistants to perform the skills defined above.