American Bar Association and Paralegals

The American Bar Association defines a paralegal as “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 and who performs specifically delegated substantive legal work for which a lawyer is responsible.”

The ABA endorsed paralegals’ use in 1967, establishing its committee on paralegals in 1968. It believes that there should be a variety of ways available for a person to demonstrate competence as a paralegal, and although in 1975 the ABA began approving paralegal educational programs that meet its standards for paralegal education, it has not established criteria or standards of any sort for qualification as a paralegal and does not offer any type of paralegal certification examination.

In 2004, the ABA revised the model guidelines for using paralegals and legal assistants it initially adopted in 1991.  The ABA’s model guidelines for utilization of paralegal services have now been adopted by the states of Indiana, New Hampshire, North Dakota, Pennsylvania, Rhode Island, South Carolina, South Dakota, Texas, Utah, Virginia, Washington, and West Virginia.  The ABA guidelines, or a modified version, have also been adopted by the state bar associations in Colorado, Connecticut, Michigan, Missouri, New Mexico, New York, and North Carolina.

The ABA considers any task normally performed by a lawyer, as long as the lawyer supervises the work, allowable and appropriate tasks or functions for assignment or delegation to a paralegal except those specifically prohibited by law.  For example, paralegals can review and organize client files, conduct factual and legal research, prepare documents for legal transactions, draft pleadings and discovery notices, interview clients and witnesses, and assist at closings and trials.  They are specifically prohibited from rendering legal advice, signing pleadings, appearing in court to represent a client, and establishing the attorney-client relationship.

A major area of concern in using paralegals is avoiding the unauthorized practice of law.  Recognition that paralegals may not represent clients in court or sign pleadings is pretty well understood throughout the profession.

However, unauthorized practice of law issues and the prohibited activities become more difficult determinations in areas such as establishing the attorney-client relationship or setting fees.  Just how much a paralegal may do in these areas is far more subjective than signing a pleading or making a court appearance and requires careful evaluation and even periodic re-evaluation.  For example, what may the paralegal tell a prospective client who calls inquiring about an attorney’s customary billing rates or basis for billing?  It is common among firms handling personal injury cases for prospective clients to initially discuss their prospective case with a paralegal before the attorney devotes time or attention to a decision of whether to accept or decline representation of the client.  Does this cross the line anywhere regarding establishing the attorney’s relationship with the client or setting fees?  How about the situation where the paralegal prepares and presents a contingent fee agreement to a prospective client for signature?

The expanding roles and utilization of paralegals will bring with it ever increasing attention of the ABA in all aspects of the paralegal profession.