By Diana P. Wade – February 2000
The Addition of AB 1761
After years of hiding as an underground movement, Independent Paralegals (now known as Legal Document Assistants) are recognized as a separate and distinct profession with education requirements, registration, and consumer protection. This is not a new concept in California. On January 1, 2000 Senate Bill (SB) 1418 became effective, creating a brand new profession for individuals providing legal services directly to the public.
All should have been right with the world. But no – the traditional paralegals wanted more.
Effective January 1, 2001, an IP in California may not use the title “paralegal.” The California Alliance of Paralegal Associations (CAPA) introduced Assembly Bill (AB) 1761, which was bad legislation, because they wanted to reserve the title “paralegal” to those who only work for attorneys without a regulatory scheme.
AB 1761 was thinly veiled as an additional consumer protection bill. CAPA wanted to close a loophole that allowed LDAs to call themselves independent paralegals. Don’t be fooled; this law does not protect the public. The LDA law effective January 1, 2000, did that.
A few traditional paralegals thought this new legislation would be a defining moment for paralegals. AB 1761 was marketed to be consistent with a definition that 26 other states had adopted, based on the ABA’s definition of a paralegal, which reads, “A legal assistant or paralegal is a person qualified by education, training, or work experience who is employed or retained by a lawyer, law office, corporation, governmental agency, or other entity who performs specifically delegated substantive legal work for which a lawyer is responsible.”
The ones who had AB 1761 literally forced upon them are the traditional paralegals and freelance paralegals, all of whom work for attorneys.
AB 1761 and LDAs
Beginning January 1, 2001, the law further defines “paralegals” to exclude LDAs: “A paralegal does not [Emphasis added] include a nonlawyer who provides legal services directly to members of the public or a legal document assistant or unlawful detainer assistant as defined in Section 6400.”
The above language separates LDAs from the traditional paralegals that work for attorneys. Unless they work for attorneys, LDAs may not hold themselves out as paralegals. Unless they work for attorneys, LDAs may not advertise that they are paralegals.
(An LDA may use the title “paralegal” if he or she contracts with an attorney provided the attorney directly supervises the work and is ultimately responsible for the work product. In other words, the attorney, not the LDA, has the client relationship.)
The “paralegal definition” bill, AB 1761, is redundant. CAPA touts it as a consumer protection bill. Who does it protect? The only reason CAPA introduced AB 1761 was to protect its turf. CAPA sold the bill to other paralegals in California by making it appear that LDAs didn’t have enough regulation. All they really wanted was to prevent an LDA from using the title “independent paralegal.”
The Good, the Bad, and the Ugly
The good news is that paralegals will be associated as those individuals working for or contracting with licensed California attorneys. Since Legal Document Assistants work with the public, the line has been drawn that distinguishes LDAs from paralegals. This is a good thing.
The bad news is the compliance headache. One of the eligibility requirements is:
“A baccalaureate degree or an advanced degree in any subject, a minimum of one year of law-related experience under the supervision of an attorney who has been an active member of the State Bar of California for at least the preceding three years or who has practiced in the federal courts of this state for at least the preceding three years, and a written declaration from this attorney stating that the person is qualified to perform paralegal tasks.” (Business & Professions Code Section 6450(a)(3))
What is “law-related experience”? Can a file clerk use the title? What about a legal secretary? What if one employer will not state the person is qualified to another employer?
It also states the supervising attorney must be “an active member of the State Bar of California for at least the preceding three years.” Does this mean attorneys that have practiced less than three years can’t hire or supervise paralegals until they have been practicing in California three years? What about the person that moves to California from a different state? Carolyn Yellis, President of CAPA and the major player in AB 1761, says, “It’s pretty simple.” (California Legal Pro, Winter 2000). She says they have nothing to worry about because out-of-state paralegals can work in California without violating the law as long as they work for a California attorney and qualify as a paralegal in their own state. Gee, it doesn’t look simple to me. Where does it say that?
What about the continuing education requirements? B&PC Section 6450(a)(d) states all continuing legal education courses “shall meet the requirements of Section 6070.” Section 6070 mandates that legal education activities must be approved by the State Bar or offered by a State Bar approved provider. Since the State Bar has literally stopped requiring attorneys to comply with this requirement, how will it approve new programs for paralegals? How can it develop and/or approve courses that are relevant to paralegals. Most ethics classes offered by the State Bar are written for attorneys and deal with trust fund accounting. This would also mean double education requirements for continuing education for RP and CLA designations since these units are not State Bar approved. Imagine the nightmare for the legal education providers out of state.
Disbarred attorneys can be paralegals. Disbarred attorneys may not be Legal Document Assistants. There I said it. Where is the consumer protection here? Carolyn Yellis also said that rogue paralegals (meaning LDA’s/Independent Paralegals) “are giving us a bad name. It’s time we did something to elevate the profession.” A rogue paralegal with an ABA certificate may not have broken any laws, whereas a suspended or disbarred attorney has broken the trust of the consumer or performed some other egregious act. This does not help the legal profession as a whole by allowing suspended or disbarred attorneys to continue providing legal services. Furthermore it doesn’t matter who “supervises” the work. The bad egg is the bad egg. If paralegals envision an expansion to their roles with this new law, they have been lead down the wrong path. This does not expand the paralegal profession because consumer protection can be accomplished only by regulating qualified nonlawyer professionals.
Furthermore there is a contradiction in this law. Section 6450(a) defines a “Paralegal” as “a person who either contracts with or is employed by an attorney…Tasks performed by a paralegal include…representing clients before a state or federal administrative agency if that representation is permitted by statute, court rule, or administrative rule or regulation.” This really means a paralegal can represent a client in an agency hearing provided the paralegal works for an attorney. Federal Administrative Agency law has many areas in which a non-attorney can represent clients. The Social Security Administration specifically states that non-attorneys may perform these tasks. If this person is otherwise qualified by the statute to perform paralegal tasks, why not exempt them from this law? Consider this; you are either an attorney or a non-attorney under Federal Agency Law. Do you have more confidence in the “paralegal” representing you or in the social worker? It only makes sense to expand the paralegal profession by expanding the availability of legal services a qualified professional may perform.
California is once again on the cutting edge of legislation recognizing the need to validate those individuals that prepare legal paperwork directly for the consumer by creating a new profession (LDA) out of a fringe group called “Independent Paralegals”. The consumer is now empowered to hire competent professionals to prepare routine paperwork. Even though AB 1761 has eliminated the original concept of “independent” paralegals, the new profession of Legal Document Assistants is stronger and more visible than ever before. Hopefully the confusion the legal profession seems to have over the use of the title “paralegal” has ended and the traditional paralegals will continue to move forward in expanding their roles. Regulation is the only way to expand the paralegal profession and AB 1761 is a nightmare. AB 1761 did nothing to expand the paralegal profession. All it did was keep paralegals joined at the hip with the attorney for whom they work.