THE CREATION AND PROPOSED FUTURE OF
 THE LEGAL ASSISTANT DIVISION
 OF THE UTAH STATE BAR

  by Kay D. Hanson, CLAS
  

In March of 1996 the Utah Supreme Court approved a petition to establish the Legal Assistant Division of the Utah State Bar ("LAD").  How did this happen?  It wasn't easy!

The Legal Assistants Association of Utah ("LAAU"), established by a small  group of legal assistants (also referred to as paralegals) in 1979, began  discussions with the Bar Commissioners at the Utah State Bar ("the Bar") in the 1990's, regarding the possibility of affiliate status for legal assistants.   Members of LAAU and the Bar worked together to draft recommendations for  membership qualifications and ethical standards which were formally presented to the Bar in July of 1994.  In October of 1994, the Bar approved the creation of a  legal assistant division and a Petition for the Creation of a Legal Assistant  Division of the Utah State Bar was presented to the Utah Supreme Court. 

The Petition expressed the Bar's growing concerns regarding the lack of availability of affordable legal services in an increasingly large segment of the public.  The Bar's concerns were consistent with the conclusions of the ABA's Report on Non Lawyer Activity in Law-Related Situations (August,  1995).  That report anticipated that this segment of the public would turn  to other means and the problem would ultimately result in an increase in the  number of individuals engaging in the unauthorized practice of law.  The Bar believed that the creation of a legal assistant division of the Bar was one  method by which the public could be assured that legal services would be  performed at the lowest price while also assuring quality of work because legal  assistants would be supervised by lawyers responsible for the ultimate work  product.

The Petition set forth a definition of a "legal assistant" and the structure  of the division.  The Bar proposed that legal assistant members of the division  undergo an application process that would require an initial and annual  certification of continuous sponsorship of a legal assistant by an employer who  is a member of the Bar; a certification by the attorney and legal assistant that the legal assistant would undertake no legal work outside the attorney's supervision; an assumption of responsibility by the attorney for the compliance of the legal assistant with all applicable rules of the Bar; the legal  assistant's parallel commitment that the attorney and legal assistant would  notify the Bar of any change of employment. (The legal assistant's authority to function as a member of the division would terminate concurrent with employment by the sponsor unless sponsorship is accepted by another employer-member of the  Bar); and an appropriate fee.

Finally, under this proposal, any legal assistant, whether a member of the  division or not, would not be directly subject to discipline by the Bar since  legal assistant status is dependent upon affiliation with an attorney who is  subject to discipline for failure to adequately supervise legal assistants.

The petition was approved by the Utah Supreme Court in March of 1996 and in  July of 1996 the LAD was established.  The requirements for membership were not  at all what was proposed by LAAU.  However, it was a step forward.  Now that  there was a LAD, the leadership of the division could attempt to improve those  requirements which is how the LAD spent its first year.

In June of 1997, the Access to Justice Task Force, created by the Bar to study ways of making it easier for individuals to get legal help,  issued a preliminary report which recommended exploring, and if appropriate, adopting  licensure of legal assistants, enabling them to provide limited legal services and advice to improve access to justice.  This preliminary report was approved by the Bar in September of 1997.  The Bar also approved the formation of a LAD subcommittee ("Licensing Committee") to explore and draft a licensure proposal.  The Access to Justice Task Force Report can be found at "www.utahbar.org."

In October of 1997 the LAD organized the Licensing Committee to prepare a  licensing model and examine related issues. [The LAD did not then, and does not presently, support licensure of legal assistants.]  However, because this issue has been studied, researched and discussed for years, the LAD  believed that it should be directly involved with whatever proposal was  submitted to the Bar.  Legal assistants from various practice fields along with a representative from the Bar held regular meetings to discuss the licensing  model and submitted its proposed licensing model to the Bar on April 6, 1998.

The Licensing Committee determined that licensing is not a solution to the Unauthorized Practice of Law ("UPL").  If anything, the issue of UPL may be greater if licensing occurs without thorough review and education/training of  all effected persons.  The licensing model includes issues like mandatory licensing for all who take the tile of "legal assistant", "paralegal", etc. who are performing the basic duties of a legal assistant ( This issue was discussed at length during the Licensing Committee meetings and it was decided  that if legal assistants are licensed, it should include everyone in order to protect the public and avoid confusion.); the application of a general supervision standard for the attorney/legal assistant relationship as  opposed to the existing direct supervision standard; a written examination to set a basic standard; and grand fathering.  The licensing proposal can be read in its entirety on the Bar's web site.

The LAD was informed that the Bar approved the licensing model with the exception of the definition of "general supervision" vs. "direct supervision".  

In the meantime, the LAD went about the everyday tasks of running the  division. Committees were formed such as the Education Committee, which organizes and presents CLE seminars; the Membership Committee; the Marketing  Committee; the Ethics Committee, etc.   Further information about the LAD  committees can be found on the web site.

In an effort to focus the LAD's energies effectively, a Long Range Planning Committee was created to set goals for the future of the division.  The Long  Range Plan was submitted to the Bar for approval in May of 1998.  In order to create a level of professionalism and competency for those calling themselves  legal assistants, the Long Range Plan recommended the adoption of  standards for  membership and ethical behavior as well as guidelines for the utilization of  legal assistants.  The full text of the Long Range Plan is also on the web site.

The Executive Committee of the LAD met with its liaison with the Bar in October of 1998 to discuss issues such as implementation of the LAD's  Long Range Plan and what steps should be taken with regard to the licensing proposal.   Areas of concern with regard to licensing which the LAD wanted to  research further, include, among other things: general supervision vs. direct supervision; mandatory licensing vs. voluntary licensing; expanded duties and/or  specialty areas and monitoring the progress and debate over licensure in other states.  The Bar's liaison agreed with the LAD's suggestions.  Because of the time that will be involved in the above research it was recommended to the Bar that the LAD's Long Range Plan be implemented immediately.

At the Bar's December meeting, the LAD's Long Range Plan was approved.  The changes will be made to the structure of the division in July, 1999 when individual memberships are renewed.  These changes include new membership requirements and standards of ethical behavior.

Guidelines for the utilization of legal assistants were also adopted by the Bar.

With regard to licensing, the LAD Board believes that more research and time must be spent before any steps are taken in that direction and  the Board of the LAD will not take a position, one way or the other, without hearing from its members.  The LAD Board understands the need for access to justice and supports the Bar in its efforts to fill that need.  However, the LAD Board is not convinced, at this point in time, that licensing is the solution.  Unfortunately, the LAD Board also recognizes that there will always be  individuals, calling themselves legal assistants, who are not qualified and do  not feel the need to follow any ethical standards.  As a result of this, at some point in time, the Bar, or perhaps the State of Utah, will take steps to protect the public.  The LAD intends to be directly involved in whatever occurs.

The LAD believes that the new structure of the division gives its members the  professional recognition they have earned through education and hard work over the years.  Everyone who has participated in the creation of the division should  be proud of their accomplishments.

The LAD was created for the advancement of legal assistants in the legal  profession.  However, it is only as good as its members make it.  Member and attorney involvement are essential to the forward movement experienced by this division thus far.  Although it is not known at this time what direction will be  taken with regard to the regulation of legal assistants in the State of Utah, the LAD will continue to work directly with the Bar and attempt to do what its  members direct.   The Board of the LAD welcomes and encourages comments and suggestions.