Is Mandatory State Licensing for Paralegals a Good Idea?

To regulate or not to regulate? It seems there is no shortage of opinions when it comes to the paralegal licensing regulation debate. And valid arguments can be made on both sides about whether state-level licensing or certification should be required like it is in so many other professions – from nursing to accounting.

Legal support services have always been self-regulated in the sense that paralegals take it upon themselves to earn professional credentials voluntarily, and the attorneys that hire them are responsible for screening out job candidates they don’t feel meet the criteria to work along side of them.

As it stands, certification at the state level is almost always offered through the state’s paralegal professional association, not the state bar association and not thraalsough a state government licensing authority of any kind – and, it is always voluntary. Even in the handful of states of states where certification is available through the bar or some other authority, for most paralegals in most roles it is completely voluntary and usually completely unnecessary.

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Before we present the arguments on both sides of the debate, let’s take a look at why the possibility of licensing regulations has become such a hotly debated issue in the first place.

A paralegal’s job is no joke. They have serious responsibilities that have serious ramifications. Sure, the buck ultimately stops with the lawyer because paralegals must work under their direct supervision and guidance, but an incompetent paralegal can still cause a lot of problems.

Direct client interaction… Paralegals spend a considerable amount of time interacting with clients, often serving as the face of the law firm. An ABA Business Law Section survey revealed that 95 percent of attorneys reported that their paralegals communicate with their clients at least weekly through email or written correspondence, while 93 percent reported their paralegals talk on the phone and 70 percent meet with their clients face to face at least once a week.

In fact, it is not uncommon for paralegals to have more frequent contact with clients than the attorneys themselves. Paralegals who provide clients with inaccurate or false information or those who overstep their boundaries with clients can jeopardize the reputation of the attorney and the firm, causing serious problems that could impact the client-attorney relationship… and the bottom line.

Handling important documents… And while paralegals do often spend a considerable amount of time on clerical duties, these duties carry a lot of weight. For example, in the corporate environment, paralegals draft and prepare corporate charter documents, including amendments and merger documents. In business, paralegals draft documents for corporate and partnership dissolutions, loan documents, and UCC filings. And in real estate, they are called upon to handle everything from draft leases to title searches to mortgage releases. In civil or criminal litigation, the success of a case being brought before a court can hinge on the timeliness and accuracy of filings.

Mistakes made on these types of documents could be catastrophic, and repercussions could range from lost or delayed business mergers and real estate deals to law firms losing important clients—and their reputation in the process.

In short, law firms, corporations and court systems cannot afford to have less-than-fully-qualified paralegals working for them. Which brings us to the conversation about the possibility of regulation through state licensure…

Couldn’t some established mandatory educational minimums and perhaps even a licensing exam go a long way to ensure law firms and the courts that a paralegal is fully prepared for what the job entails? … Or would licensing regulations be just a costly and unnecessary barrier to the profession that adds more complication and expense than it’s worth? And herein lies the debate.

The Push for State Licensure in the Paralegal Profession: Why State Licensure Would Promote Higher Standards

You’re a proponent of the mandatory credentialing of paralegals at the state level. You believe that state licensing will allow paralegals to distinguish themselves from other legal support professionals, display a level of competence to employers, clients, and the courts, and establish minimum requirements to practice.

Lawyers use paralegals to increase profits, lower billing rates for their clients, and free up their time so they can focus on their cases. While the work of a paralegal may differ slightly from one state to the next or from one firm to the next, the common thread is that they perform substantive legal work under the supervision of an attorney. Since lawyers must meet strict state guidelines to provide legal services, including passing the bar and holding state licensure, wouldn’t it make sense for paralegals to be held to a minimum standard too?

One of the biggest contentions on this side of the debate is that because there are no barriers that restrict entry into the paralegal profession, the difference in the level of knowledge from one paralegal to the next can be significant. For example, a paralegal can enter the profession with little more than a high school education and a certificate in paralegal studies. On the other hand, many paralegals choose to go the extra mile and earn an associate’s or bachelor’s degree in paralegal studies, or even a graduate degree in legal studies with a focus on a specific area of law.

Further, simply completing a program in paralegal studies doesn’t really provide much information to an employer or client. Some paralegals may graduate at the head of the class, while others may have skated by with a steady C average.

While the American Bar Association (ABA) has attempted to define educational standards by offering a voluntary approval process for paralegal programs, there is still a lack of universally agreed upon criteria for what constitutes a quality paralegal program. Recent estimates reveal that just 22 percent of all paralegal programs in the U.S. hold ABA approval, with many institutions choosing to forgo the expensive – and some would argue, restrictive – approval process. Further, the ABA does not approve online programs, even though distance education has become widely accepted in nearly every industry, from healthcare to accounting, and despite the fact that most of the country’s most respected institutions now offer online programs that are just as rigorous as their campus-based options.

While virtually any educational option out there for entry-level paralegals may provide the bare bones foundation needed to enter the profession, state licensure would ensure that paralegals have attained, and are able to demonstrate, the level of knowledge needed to successfully handle the rigors of the job. In other state-regulated professions, earning state licensure generally involves qualifying through education and/or experience, passing an exam, and maintaining the license through continuing education.

And in all other licensed professions, there is at least some measure of consistency state to state when it comes to meeting the qualifications for licensure. Whether we’re talking physician assistants and nurses, teachers and therapists, accountants and financial planners, or electricians and plumbers, most states have similar or identical educational minimums and often offer some version of the exact same licensing exam. This has given licensed professionals the freedom of professional mobility, allowing them to relocate or otherwise take work in other states. At the same time, it offers employers the assurance that a job candidate that has been licensed in another part of the country is just as qualified as a local licensee. As businesses continue to look for opportunities to break into new markets and as people more often relocate to areas with more job opportunities, this kind of state-to-state uniformity has proven to be the only practical solution.

Some paralegals in support of regulation also argue that state certification/licensure would go a long way in distinguishing them from other legal professionals like legal secretaries and file clerks. They argue that because they assist in the delivery of complex legal services that are above and beyond that of other legal support professionals, they should hold a mandatory credential that displays this higher level of competence.

Finally, it is becoming more and more common for paralegals to work on a freelance basis and offer their services as independent contractors instead of working for attorneys directly. Since most states define the role of the paralegal as being adjunct to an attorney, without a license or other type of credential it can be argued that performing services without attorney oversight amounts to the unauthorized practice of law. In fact, California, Arizona and Washington State have already begun to require state authorization for anybody offering legal document services independent of an attorney, and more states are expected to follow suit.

Pushing Back: Why Some View State Licensure for Paralegals as Impractical and Unnecessary

You’re an opponent of state licensing for paralegals. You argue that the industry is already self-regulated. Since paralegals work under the supervision of licensed lawyers, the implementation of mandatory credentials will do little more than burden the state with unnecessary costs and discourage individuals from entering the profession.

Opponents to state licensure for paralegals have plenty to say, and plenty of strong arguments to back up their position.

Thanks to voluntary certification through nongovernmental professional associations like NALA: The Paralegal Association, the National Federation of Paralegal Associations (NFPA), and NALS: The Association for Legal Professionals, paralegals have plenty of options for setting themselves apart from their colleagues and demonstrating their advanced level of knowledge and commitment to continuing education.

All three of these organizations offer paralegals the option of basic certification and advanced certification; either general advanced certification or advanced certification in a specific area of law.

In most states, the role and practice parameters of a paralegal are already defined, either through state law, the state bar association or through paralegal professional associations. And, as licensing opponents would argue, these definitions are already mostly consistent from state to state. In virtually all cases, paralegals, by definition, are only allowed to perform substantive legal tasks while under the direction and supervision of a state-licensed attorney. And, thanks to clear definitions laid out by national organizations like NALA and the NFPA, today’s paralegals enjoy a strong identity and a clear scope of practice that is consistent throughout the country. While the role of the paralegal may have been muddy decades ago, the contemporary paralegal role is quite clear.

It should also be mentioned that many courts and paralegal organizations believe that any mandatory regulation of paralegals may hinder the growth of the profession. For example, NALA opposes mandatory regulation, instead encouraging voluntary self-regulation through its national certification program.

A common concern among proponents of paralegal licensing is that some independent paralegals that don’t work under the direction of an attorney are already providing legal services beyond the scope of their defined role, and that without some regulatory body in place, there has been no enforcement of rules concerning what they can and cannot do, and no real consequence for stepping over the line. But opponents would counter that argument by saying the legal document preparation services and other tasks that paralegals know how to perform are relatively limited so, in reality, there really is no serious threat to the public.

Finally, many opponents to licensure argue that the very nature of what is expected of paralegals requires them to have a higher level of education and expertise than in years past, and as a result, attorneys are setting a higher bar for employment. Lawyers need to be able to put their trust in the paralegals they employ. This has effectively forced paralegals to take it upon themselves to meet high standards if they want to land a job, which makes legislating higher educational standards completely unnecessary. The ABA even notes that California, Florida, Texas, and Arizona are among an increasing number of states with law firms that now frequently prefer the paralegals they hire to hold a four-year degree.

Just a Handful of States Offer Some Form of Certification or Licensure Through the State Bar Or Other Authority

To date, any type of credentialing at the national or state level remains completely voluntary. The only gray points that exist are in a few states (California, Arizona and Washington) where paralegals that choose to offer certain services independently, would be required to be registered, certified or licensed. The operative word here is choose, in that there is no legal obligation to go through a credentialing process unless the paralegal chooses to offer expanded services or work independently.

Before examining the regulation of paralegals at the state level, it’s important to define the different forms of regulation: certification, licensing, and registration.

Licensure, the most restrictive form of credentialing, protects the title, the role, and the profession, as well as the safety and welfare of the public. When a state requires a license for a certain profession, only those holding a state license can practice and hold the title. Licensure is mandatory and is enacted and backed by legislation and enforced by a state government licensing authority.

Certification is a voluntary form of credentialing that exists in most professions, whether or not the profession in licensed. It should be noted that some states use the term ‘certification’ to denote official practice privileges for certain professions, in which case it effectively means the same thing as ‘licensing,’ but this isn’t very common. Certification through nongovernmental agencies (whether public or private), allows professionals in an industry or profession to earn a designation that demonstrates a level of expertise or knowledge above the minimum usually required to practice.

Registration is the most simple of all regulatory options and usually means that an individual has registered with the appropriate state agency for the right to hold a title. Registration may be voluntary or mandatory, and education and training requirements may be part of registration.

The state bar associations in Ohio, North Carolina, and Florida offers paralegals the option of earning state certification through the state bar association. The Texas bar association has taken certification one step further by offering certification in one or more of six areas of law. In Indiana, paralegals can voluntarily register through the state bar association, and once accepted, use the credential “IRP” (Indiana Registered Paralegal) provided they meet specified education and experience requirements. The certification and registration options available in these states do not come with the ability to perform expanded functions or the freedom to work without attorney oversight, however.

In California, Arizona and Washington, there is some level of expanded independence that results from the credentialing process…

In California, independent paralegals that choose to offer legal document preparation services must be registered as Legal Document Assistants (LDA) through the California Association of Legal Document Assistants, while in Arizona, paralegals who choose to offer legal document services independently must earn the Legal Document Preparer (LDP) certification through the Board of Legal Document Preparers.

Washington State has by far the most progressive rules, both in terms of the regulatory environment and in terms of the services paralegals can offer when properly credentialed. Paralegals who choose to earn the Limited License Legal Technician (LLLT) designation through the Washington State Bar Association by meeting certain requirements (associate’s degree through an ABA-approved program with specified credit hours in specific courses, plus exams) can actually advise and assist clients on matters that fall within certain practice areas.

In any and all other states where voluntary certification is offered, it’s available through the state paralegal associations and does not come with any expanded practice privileges.