Licensure and Regulation of Paralegals in Colorado

Paralegal Committee Discusses Licensure and Regulation of Paralegals in Colorado
February 2002

Roundtable Discussion Regarding Paralegal Licensure/Regulation
Summary by Debra Hindin-King and Carol Werner, RP

On February 7, 2002 the Paralegal Committee of the Colorado Bar Association (“CBA Paralegals”) and the Rocky Mountain Paralegal Association/National Affairs Committee (“RMPA NAC”) co-hosted a roundtable discussion concerning the future of licensure and regulation of Paralegals in the state of Colorado.  Ms. Victoria K. Gibson, CLAS, co-chair of the CBA Paralegals, served as moderator for the discussion.  The seven panel members included Judge Robert H. Russell, II (Arapahoe County District Court), Kristen Karabensh, Esq. (MDC Holdings), Richard Laswell, Corporate, Securities & Municipal Finance Paralegal (Shughart, Thomson, Kilroy, P.C.), Brenda Mientka, CLAS, Director of Legal Affairs (USA.NET, Inc.), Goeff Morneau, Paralegal and Staffing Coordinator (Gibson Arnold & Associates), Bill Salvatore, Paralegal (Fowler, Schimberg & Flanagan), and Carol Werner, RP, Employment & Labor Paralegal (Littler Mendelson, PC)

The panelists had varying backgrounds and attitudes concerning regulation and licensure and discussed their views of regulation with 40 audience members.   This article summarizes the some of the opinions shared during the discussions as well as the results of a survey completed by the attendees.

The forum began with Ms. Gibson asking the panelists if paralegals in Colorado should be regulated and, if so, what type of scheme should be utilized.  The responses ranged from opposition to regulation; support of voluntary, as opposed to mandatory regulation; regulation only of paralegals who do not work under the supervision of an attorney; to advocacy of regulation and/or licensure.  When asked what mechanism would be best utilized to regulate paralegals, one panelist suggested that they be regulated by the Constitution of the State of Colorado, in the same fashion attorneys are regulated.  Another panelist stated that paralegals already are regulated by the attorneys they work for and by the laws and ethical guidelines under which attorneys utilize paralegals.

The panel considered what type of education should be required for licensure and who should be included in the definition of a paralegal.  Mr. Laswell stated that most definitions of a paralegal include some element of attorney involvement in the paralegal's work product.  Further, citing ethical guidelines adopted by the CBA for attorneys, Mr. Laswell stated that it is the attorneys’ responsibility to determine education and experience appropriate for non-lawyers utilized in their practice.  The panel briefly discussed the differences in the definitions of a paralegal that have been adopted by both national paralegal associations and the American Bar Association[1].  

Some members of the panel stated that positive effects of regulation could be an increased level of credence to our profession; better education of the public and attorneys with respect to a paralegal’s role; and an established base set of skills and education for the profession.

Potential downsides of regulation mentioned by the panel included additional costs to employ the paralegal (licensing fees, mandatory CLE costs, testing fees, liability insurance, etc.) could make employing a paralegal cost-prohibitive to a sole-practitioner or small firm and setting minimum standards could decrease the pool of available people to work in the profession. It was also pointed out that regulation will not ensure an individual is competent or ethical, or prevent anyone from committing the unauthorized practice of law.  Under Colorado statute, licensing is intended to be for the protection of the public, not the members of a profession, and licensing a profession is only to be considered when protection the public is determined to be necessary and there is no less restrictive way to accomplish that protection; however, paralegals are supervised by attorneys (who are directly responsible to the public [i.e., client] for the paralegal's work product and conduct) and do not provide services directly to the public; accordingly, if licensure were imposed, would-be paralegals may be unnecessarily restricted from entering the field when no further protection of the public is required.

If any regulation scheme is imposed, most likely, many current paralegals would benefit from some sort of grandfathering clause.  Panelists thought this could be both a positive and a negative.  Many paralegals who have been working at their profession for a substantial amount of time might not be required to jump through hoops to remain at their positions.  However, individuals who did not graduate from an ABA-approved program and have been paralegals less than the grandfathering period might have to either give up their title or go back to school.  It is reasonable that experienced individuals will be exempt from certain requirements; however, what criteria would be used to determine to whom this applies and why?  Another concern expressed was that grandfathering would allow some of the paralegals who are less than exemplary examples of our field to continue being paralegals.  This appears to be contrary to the goals of obtaining regulation.

Ms. Gibson asked Ms. Mientka and Ms. Werner why they choose to obtain voluntary designations.  Ms. Mientka explained that when she received the CLA designation in 1990, there were no standards in the industry.  She wanted to show people that she had achieved and held herself to higher standards as a paralegal.  Additionally, Ms. Mientka reported that she has received better employment benefits, including a raise and special recognition by her employer, because of her designation.  Ms. Werner stated that she earned the RP designation for personal reasons and not specifically for the betterment of the profession.  She wanted to hold herself to a higher standard and show this fact to others in her field.  Further, Ms. Werner added that a professional designation looks good on a resume and opened up opportunities for her to explain its significance to potential employers.  Ms. Karabensh, Ms. Mientka, and Ms. Werner stated their belief that a professional designation gives the appearance that the designee is ambitious, willing to improve himself/herself within the profession, and that he/she exceeds the minimum requirements. 

The discussion then turned to the topic of disbarred attorneys working as paralegals.  Again, the responses varied from seeing no problem with the situation (because such former attorneys would be supervised in the new position) to firmly believing disbarred attorneys should not be allowed to call themselves paralegals (because they lack the appropriate training and may have ethical shortcomings, assuming they were disbarred for ethical reasons).  Short of employers being self-regulating with respect to not hiring disbarred attorneys, there is no mechanism in place to ensure the former attorneys do not hold themselves out as paralegals.  

At this point, the audience had an opportunity to present questions to the panel.  Regarding the topic of paralegal utilization, Judge Russell stated that he has supervised four paralegals in his career, two of which were interns.  Judge Russell indicated that he had a positive working experience with these individuals and spoke highly of the profession.  Judge Russell specifically used his interns to review pleadings filed with the Court to ensure the pleadings contained the necessary elements.  Because of the interns’ training, Judge Russell had a certain level of confidence in their work product.  Mr. Salvatore expressed his desire to see paralegals move into different venues, such as Social Security Administration, workers compensation, and guardian ad litem hearings.  Ms. Werner indicated her belief that paralegals must be responsible for educating their employers regarding their capabilities and an appropriate work flow model of billable v. non-billable work. 

In support of using paralegals appropriately for billable casework, there is case law supporting the award of paralegal fees in addition to attorney fees[2].   The court additionally mentioned in other cases awarding paralegal fees that the Certified Legal Assistant designation was an indication of an individual’s credentials as a paraprofessional whose fees should appropriately be awarded with the attorney’s fees[3].

The panel responded to questions concerning accountability.  There is no doubt that we are accountable to our supervising attorneys, however, the question becomes, what will be the public’s expectations of our responsibility?   If there is a malpractice issue, would responsibility fall to the supervising attorney or paralegal?

The model of physician/nurse is often brought up in these discussions.  Advocates state that the nursing profession has increased greatly due to its regulation, by increasing a nurse’s pay, respect in the field, and responsibility level.  Opponents to mandatory regulation of paralegals brought up issues concerning costly malpractice insurance, the fact that, although nurses are still supervised by doctors, the public has a high expectation, which may result in nurses being sued, and the issue of qualifications of appropriately grandfathering experienced individuals.   A nurse-turned-paralegal in the audience shared her unique perspective.  She was tired of seeing nurses being blamed by doctors and sued by doctors/patients, so she now uses her talents in the paralegal field.  She shared her concern that, if the paralegal field moves to mandatory regulation, there would be a similar result, and that the good and bad must be appropriately and accurately weighed. 

Several panelists brought up the fact that the public is generally unaware of the distinction between individuals working under the direct supervision of an attorney and those working without attorney supervision.  There was a concern that, in the public’s eye, paralegals who are regulated/licensed may not appear to be working under the direct supervision of an attorney.  Judge Russell told us that signs in the courthouse specifically state that the clerk’s office is not allowed to give legal advice and that such signs serve as a reminder to the court personnel, not just the public.  Even though the court personnel often do know the answer to someone’s question, they are not allowed to answer it if any sort of legal analysis is involved.  By enforcing this rule, the court avoids complaints from members of the public alleging incorrect advice was received and ensuing unauthorized practice of law issues. 

Regarding the issue of ABA-approved vs. non-ABA-approved schools, a panelist pointed out that it is an expensive process for the school to become and remain certified by the ABA.  These costs are passed to the students.  The decision to attend a school which has been approved by the ABA (and therefore is more expensive), is not an option all paralegal candidates are able to accept for various personal and economic reasons.  If the educational market in an area goes in the direction of not receiving the ABA approval, future paralegals may not have the choice to attend an ABA-approved program. 

All attendees at this program were given an opportunity to complete a short survey regarding their views on regulation.  Fifteen completed surveys were received.  Fourteen of the surveyed individuals were employed as traditional paralegals.  The survey results are as follows, the number following each response was the tally of votes it received:

Do you believe the paralegal profession should be formally regulated? Yes (2); No (4); Not Sure (9)

If so, should regulation apply to all types of paralegals? All Paralegals (7); Just Traditional Paralegals (0); Just Non-Traditional Paralegals (2); no answer (6)

If regulated, what form of regulation should be adopted? Licensure (Mandatory) (2); Certification (8); Registration (1); no answer (4)

If you favor certification or registration above, should that certification/registration be: Mandatory (5), Voluntary (6); no answer (4)

What entity (if any) should adopt/administer the regulation of paralegals? State Supreme Court (7); State Legislature/Regulatory Agency (2); Bar Association (2); Paralegal Organization (1); no answer (3)

Has tonight’s presentation influenced your opinion on paralegal regulation? More in favor of regulation (4); Less in favor of regulation (5); no influence (4); no answer (2)

The CBA Paralegals and RMPA NAC wish to thank the panelists who participated in this event and the CBA for allowing use of one of its CLE rooms.