Paralegals Face Tougher Oversight

By Alana Roberts
Daily Business Review
November 26, 2007

Florida’s paralegal groups are at odds over a recent Florida Supreme Court decision that implements a voluntary registration program as a first step toward greater oversight of the profession.

The groups agree there’s a need for greater standardization of education, certification and experience criteria over the largely self-regulated paralegal profession. But the groups and The Florida Bar still vigorously disagree over how to Lisa Vessels                              proceed.

The dispute remains alive some two years after state Rep. Juan Zapata, R-Miami, proposed a bill to implement a regulatory scheme without the involvement of The Florida Bar.

The bill, which died without a vote, prompted Bar leaders to argue that paralegal regulation belongs with their organization and ultimately with the Florida Supreme Court. The Bar created the Special Committee to Study Paralegal Regulation and in August 2006 filed a petition with the top court to add a regulatory chapter that lays out the voluntary Florida Registered Paralegal Program. It was unanimously approved by the high court in a Nov. 15 order and takes effect March 1.

            Registered Paralegal Program Begins March 1

Daily Record
November 26, 2007

The Florida Supreme Court unanimously approved creation of the Florida Registered Paralegal Program, which provides for voluntary registration of paralegals who meet minimum educational, certification, or work experience criteria, and who agree to abide by an established code of ethics. The goal is to better serve the public by establishing high professional standards for a profession that has been largely self-regulated.

The program, which begins March 1, 2008, sets up a two-tier system for registering paralegals and also creates a disciplinary system and a Code of Ethics and Responsibility. Registration applications will be available at a future date.

The first tier encompasses paralegals as currently defined by a Bar rule (10-2.1). This rule describes a paralegal as someone qualified with education, training or work experience and who, under the supervision of a lawyer, performs delegated, substantive work for which the lawyer is responsible. Tier two paralegals would have to meet experience, education and continuing education criteria to become registered and then could hold themselves out as "Florida Registered Paralegals."

The new plan also has a grandfathering provision allowing paralegals who can show substantial experience, but who don’t meet the education or certification requirements, to become registered paralegals. That provision is limited to the first three years of the program.

The new rules do not establish "regulation" of paralegals. Primary responsibility for monitoring paralegals — whether they are Florida Registered Paralegals or not — still rests with lawyers who employ them and direct their substantive legal work.

"This responsibility cannot be delegated, and this voluntary registration program does not relieve the lawyer of that critical responsibility," the court said.

The Florida Bar special committee that proposed the program began meeting in 2005 after bills were introduced in the Legislature that proposed a regulatory system for paralegals. Those bills, backed by paralegal organizations, would have had regulation overseen by the Department of Business and Professional Regulation.

Florida Alliance of Paralegal Associations Inc. President Tana J. Stringfellow said her organization has diligently pursued meaningful regulation for paralegals for many years.

"It is through the efforts of many dedicated paralegals that this program has become a reality," she said.

First Circuit Judge Ross Goodman chaired the special committee, which also included paralegal professionals and public members. He said he is pleased with the Nov. 15 Florida Supreme Court ruling and credited paralegal organizations that have been working for so long to get a paralegal regulatory plan in place.

"This was an honest effort brought about by people who did not all agree on everything, but they agreed to try to work around their disagreements," said Goodman. "I think what we came up with was a really good start."

He also noted that while the plan is not mandatory now, it may be some day, depending on how the state’s paralegals embrace it.

Justices Urged to Amend Rules on Regulation of Paralegals

Jordana Mishory
Daily Business Review
September 22, 2006

A paralegal group is asking the Florida Supreme Court to hold oral arguments on The Florida Bar’s recent voluntary proposal for regulating paralegals. In response to the Bar’s proposal last month to the high court, the 200-member South Florida Paralegal Association asked the justices to amend the rules to create a mandatory regulation program. It would be overseen by an independent paralegal regulatory board consisting of attorneys, paralegals and the public. The board would be overseen by the Florida Supreme Court.

The paralegal group says the Bar’s proposal would be detrimental to legal consumers, would constitute a conflict of interest for the Bar, and would hamper the ability of paralegals to guide their own profession.

The justices will consider whether to adopt the Bar’s proposal or amend it based on public comments. Most comments submitted so far have been supportive of the Bar’s proposal.

The due date for comments was Sept. 15. However, anyone who still wishes to submit a comment must file a motion explaining why the comment is timely. The court can then approve or decline the comment.

The paralegal group’s move is the latest clash between paralegals and the Bar over how paralegals should be regulated. A system that more tightly regulates paralegals could reduce law firms’ control over these paraprofessionals, and could have had the effect of boosting pay for qualified paralegals by reducing the labor pool.

During the 2005 and 2006 legislative sessions, state Rep. Juan Zapata, R-Miami, submitted a bill with support from the paralegal community that would have made paralegals subject to state regulation and require continuing education. It would have placed paralegals under the purview of the state Department of Business and Professional Regulation.

Zapata’s bill also would have prohibited law firms from billing clients for work done by those not falling under the legislation’s definition in guardianship cases and in cases where fees were awarded by the court.

The Bar, which has been hostile to previous attempts to have the state agency involved in the legal profession, balked at the legislation and set up a committee to study the issue. Bar leaders argued that the rules governing paralegals should be created by the judiciary rather than the Legislature. Zapata eventually dropped his bill.

The Bar’s proposal calls for paralegals to be split into two tiers — those who voluntarily submit to continuing education and certification standards and those who do not.

Under the proposal, Tier 1 paralegals would consist of people with education, training or work experience who work under the direction and supervision of a member of The Florida Bar. People in Tier 2 would be those who have received additional training and certification. They would be designated as "Florida Registered Paralegals."

According to the Bar’s petition to the Supreme Court, Tier 2 is intended to "set a high standard for individuals working as paralegals so that the employing attorneys and the attorneys’ clients may rely on the paralegals’ experience and qualifications."

But the South Florida paralegal group argues all paralegals should have to meet this higher Tier 2 standard. Otherwise, the group says, lawyers and law firms could call anyone a Tier 1 paralegal. That would reduce the confidence that legal consumers would have in paralegals, and also diminish the prestige of the paralegal profession.

Under the paralegal group’s proposal, lawyers could only bill clients for the work done by a certified paralegal in cases where the court or an arbitrator awarded fees.

But the South Florida paralegal group’s attorney Kenneth Kukec said the billing issue isn’t the main issue. "Some lawyers mistakenly see this as a pocketbook issue in terms of their ability to bill time for whomever they see fit," Kukec said. "The paralegal association has no horse in the race in how the lawyers bill their time."

Mark Workman, president of the South Florida Paralegal Association, said the Bar’s plan simply creates a registry program for the paralegal profession without enforcing any minimum standard for what constitutes a paralegal. Workman said those in Tier 1 should not be considered paralegals.

His group recommends that people should only be allowed to work as Tier 1 paralegals for a year or two, then be required to meet the Tier 2 education and training standards.

The paralegal association also objects to the idea of the Bar overseeing paralegal regulation. The group said that placing the regulation of the paralegals under Bar authority would "take away from the paralegals any ability to shape the future direction of their profession."

Law firms "are going to be looking after their own interests," Workman, a paralegal at Gunster Yoakley & Stewart in Miami, said in an interview. "The regulation is to protect the public and keep integrity in the profession."

Kukec, of Kenneth J. Kukec, P.A., in Miami, said, "The paralegal profession is one of the fastest growing throughout the country and to have paralegals unregulated makes as much sense as having the nursing profession unregulated."

But Bar president Henry Coxe III said that having the Bar regulate paralegals is essentially the same as having the Supreme Court regulating them, because the Bar is a formal arm of the high court. Coxe, however, supported the paralegal group’s call for oral arguments on the issue.

Not all paralegal groups have opposed the Bar’s proposal. Paralegal Association of Florida president Johnna Phillips previously called the Bar’s proposal a "good compromise." Phillips did not return calls for comment for this article.

Most of the comments submitted to the Supreme Court concerning the Bar’s voluntary regulation proposal were one-page letters in support of the program.

Workman said more paralegals haven’t submitted comments to the Supreme Court criticizing the Bar’s proposals because they fear reprisal from their lawyer-bosses.

But Coxe said he couldn’t imagine anyone not submitting a comment for fear of reprisal.

There are no exact figures of how many paralegals practice in Florida. However, there are nearly 3,400 certified paralegals who have passed the exams administered by the National Association of Legal Assistants.

                  Panel Wants Bar Section for Paralegals
                  Lawmaker Advocates Mandatory Membership

By Gary Blankenship
Senior Editor and
Mark D. Killian
Managing Editor
The Florida Bar News
December 1, 2005

A special committee studying the possibility of regulating paralegals has voted to recommend that the Board of Governors of The Florida Bar create a new paralegal section, with voluntary membership. But a state representative who serves on the committee called that inadequate and has reintroduced a bill for mandatory regulation of paralegals.

The panel also appointed a subcommittee to determine membership standards for the section and the composition of the initial governing body.

The November 11 decision to seek a voluntary section came on an 8-6 vote after extensive discussion, and with six members of the panel absent.

That recommendation "disappointed" Rep. Juan Zapata, R-Miami, who – along with another representative and two senators – had introduced legislation last year setting up a state paralegal regulatory board, but didn’t push the bills after the Bar agreed to create the Special Committee to Study Paralegal Regulation and report back before the 2006 legislative session.

Zapata said making membership in a paralegal section voluntary "would defeat the whole purpose" and said the committee "missed a great opportunity" to bring about meaningful change.

"I have decided that based on the outcome of that meeting — and in my view the lack of satisfactory progress on the issue — I’ve gone ahead and filed the bill," said Zapata.

Zapata, however, said he is still hopeful the Board of Governors will override the committee’s recommendation and make section membership mandatory for anyone who wants to call themselves a paralegal.

"We just wanted clarification of who can call themselves paralegals," Zapata said, noting that he still believes the best place for paralegal regulation is within the structure of the Bar because paralegal work was has become such an important component of the legal system.
"I think that is where the paralegals want to be and the lawyers would be most comfortable it be," Zapata said. "That is why I was so disappointed to see the committee’s direction was not positive."

Committee member John Hume, a former member of the Bar Board of Governors, made the motion to recommend to the board the creation of a voluntary paralegal section.

Committee Chair Ross Goodman said the close vote is deceptive.

"Some of the six were opposed to any regulation at all and some of the six were opposed because they wanted regulation to be mandatory," he said.

But he said the recommendation is not a middle road so much as a first step.

"We were given a short time frame to work with," Goodman said. "There are a lot of complex issues that need to be addressed. This committee, with the time frame we had and the resources we had, was not equipped to deal with them. . . .

"Once that section is set up, then you’re going to have the mechanism to address each of those issues over a long period of time and collect the data that’s necessary."

Those issues include, he said, that if paralegals are required to be certified, what are the proper certification standards, and what kind of disciplinary system would be needed. Other issues include what to do if lawyers use employees as paralegals but give them other titles such as legal assistants or document preparers, could lawyers charge fees for paralegal work only if those paralegals were regulated or admitted to a mandatory section, and what to do if a lawyer charges for paralegal labor for work that is really part of the lawyer’s overhead. Goodman said the latter issue was raised by an administrative law judge who testified at the committee’s public hearing in October.

"If we met for two months straight without a break, we might be able to get resolution on these issues," Goodman said. "This way, we’ve got the organization in a section that can address the problems and take them on in an orderly, rational, and thoughtful approach."

Debate at the committee meeting included arguments that membership should be mandatory, that paralegals are different because their services are used by attorneys and not rendered directly to the public, that a section could lead to certification through the Bar’s Board of Legal Specialization and Education, and that creating a section would lend credibility to the paralegal profession.

The committee also voted 9-1, with three abstentions, to set up a subcommittee of two lawyers and two paralegals to study who would qualify for section membership and the composition of the initial governing body. Hume was named to chair that panel, and other members are attorney Susan Demers who is a paralegal educator and paralegals Karen McLead and Tana Stringfellow.
The subcommittee is set to circulate its recommendations to the full committee by December 7 and the committee will meet again on December 9. Goodman said if the committee doesn’t finish its work at that meeting, it will when it meets again at the Bar's Midyear Meeting in Miami.

The committee, before taking its vote, discussed a letter from Julius Zschau, chair of the Real Property, Probate and Trust Law Section. Zschau said the section opposed mandatory regulation of paralegals, saying lawyers train their staff appropriately, and even those who have taken paralegal courses in college may need additional specialized instruction. He also said that Bar rules appropriately govern the use of paralegals.

"We would oppose a mandatory system of regulation which would limit who we may employ and how we may bill the services of those employees within the restrictions of the Rules Regulating the Florida Bar," Zschau wrote. ". . . Regulations, which establish a cumbersome and expensive bureaucracy, increase the cost of legal services, restrict the attorney’s ability to manage his or her own staff and are counterproductive and anticompetitive."

Zapata said he thinks the committee looked at the issue of paralegal regulation "through the lens of fear and maintaining the status quo." He noted it was paralegal organizations themselves who initiated the study of regulation as way for paralegals who have obtained "through their work, experience, and training" a higher standard of professionalism to set themselves apart from others who would just call themselves paralegals.

"I remain optimistic that the Board of Governors and the Bar will grab this bull by the horns and get something [done] that is right for everybody," Rep. Zapata said.

Zapata refiled the same bill that the senators and representatives drafted last year. (HB 395)

The bill, called the Paralegal Profession Act, defines a paralegal as someone "who is employed or retained by a licensed attorney, law office, governmental agency, or other entity, and who performs substantive legal work for which a licensed attorney is responsible that, absent the paralegal, the licensed attorney would perform."

Alternatively, according to the bill, the paralegal is "[a] person who is . . . authorized by local, state, or federal statute, rules of court, or administrative rules to perform substantive legal work without the supervision of a licensed attorney."

The bill prohibits disbarred attorneys and felons from being paralegals, creates a 15-member paralegal board (with 10 paralegals, three educators, one lawyer, and one public member), sets training and education standards, and would make it a third degree felony to hold yourself out as a paralegal without meeting the requirements of the board or falling within one of the exemptions. The bill does not grant a paralegal license.

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