BILL ANALYSIS                                                                                                                                                                                                    



                                                                  AB 1761
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          Date of Hearing:  March 28, 2000

                          ASSEMBLY COMMITTEE ON JUDICIARY 
                              Sheila James Kuehl, Chair
            AB 1761 (Brewer and Rod Pacheco) - As Amended: March 20, 2000
          
          SUBJECT  :   PARALEGALS:  DEFINING THE PRACTICE AND PROFESSION

           KEY ISSUES  :

          1)SHOULD THE TITLE "PARALEGAL" BE RESERVED FOR INDIVIDUALS WHO  
            WORK UNDER THE SUPERVISION OF AN ATTORNEY, PROVIDE DEFINED  
            TYPES OF LEGAL SERVICES, AND MEET SPECIFIED EDUCATIONAL AND  
            EXPERIENTIAL CRITERIA?

          2)IN THE ABSENCE OF A CLEAR DEFINITION OF WHO MAY CALL  
            THEMSELVES PARALEGALS, ARE CONSUMERS AT RISK OF INCORRECTLY  
            AND HARMFULLY ATTRIBUTING GREATER EDUCATION, EXPERIENCE, AND  
            SKILL TO PERSONS WHO CALL THEMSELVES INDEPENDENT PARALEGALS  
            THAN TO PERSONS WHO CALL THEMSELVES LEGAL DOCUMENT ASSISTANTS  
            (LDAs)?  
           
          3)SHOULD INDIVIDUALS WHO HAVE BEEN DISBARRED OR SUSPENDED FROM  
            THE PRACTICE OF LAW BE PROHIBITED FROM ACTING AS A PARALEGAL,  
            UNDER THE SUPERVISION OF AN ATTORNEY?

          4)SHOULD CONSUMERS INJURED BY PARALEGALS OR PERSONS CLAIMING TO  
            BE PARALEGALS BE ENTITLED TO LESSER PROTECTIONS THAN CONSUMERS  
            INJURED BY LDAs OR PERSONS CLAIMING TO BE LDAs?

           SUMMARY  :  Seeks to define the paralegal profession and limit  
          those individuals who may call themselves paralegals.   
          Specifically,  this bill  :  

          1)Defines a paralegal as a person who either contracts with or  
            is employed by an attorney, law firm, corporation,  
            governmental agency, or other entity, and who performs tasks  
            at the direction and under the supervision of an active member  
            of the State Bar.  The term paralegal does not include a  
            nonlawyer who provides legal services directly to members of  
            the public, an LDA, or an unlawful detainer assistant.

          2)Specifies that the tasks performed by a paralegal are those  
            traditionally performed by an attorney, and include:  case  
            planning, development and management; legal research; client  








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            interviews; fact gathering; drafting and analyzing legal  
            documents; and collecting, compiling, and utilizing  
            information to make an independent decision and recommendation  
            to an attorney.  Paralegals shall not give legal advice,  
            represent clients in court, or set fees.

          3)Requires every person who is employed as, and uses the name  
            paralegal to satisfy at least one of the following criteria  
            related to education and experience:

             a)A certificate of completion of a paralegal program approved  
               by the American Bar Association.

             b)A certificate of completion of a paralegal program at an  
               accredited postsecondary institution which requires, as a  
               condition of that certificate, a minimum of 24 semester  
               hours of law-related courses.

             c)A baccalaureate degree or an advanced degree in any subject  
               and a written declaration from an active member of the  
               State Bar who has supervised the person for a minimum of  
               one year and who attests that the person is qualified to  
               perform paralegal tasks.

             d)A high school diploma or G.E.D., a minimum of three years  
               of law related experience under the supervision of an  
               active member of the State Bar, and a minimum of one year  
               of education provided by an active member of the State Bar  
               on the ethical responsibilities and duties of a paralegal.   
               However, satisfaction of this criteria shall only be  
               sufficient to qualify an individual to practice as a  
               paralegal if this experience and training is completed by  
               January 1, 2004 (grandfathering in persons who may have  
               been practicing as paralegals for years without having an  
               advanced degree).

          4)Authorizes an LDA who has registered a business name that  
            includes the term paralegal to continue to use that business  
            name until the LDA is required to renew his or her LDA  
            registration.  This provision only applies to LDAs who have so  
            registered prior to January 1, 2001.   

          5)Prohibits a person who has been disbarred or suspended from  
            the practice of law to use the title paralegal during the  
            period of disbarment.  








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          6)Prohibits a paralegal from performing any services for a  
            consumer except as directed by the attorney, law firm,  
            corporation, government agency, or other entity that employs  
            or contracts with the paralegal.  Violation of this provision  
            is a misdemeanor punishable by a fine of $2,500 for each  
            violation, imprisonment in the county jail for up to one year,  
            or both fine and imprisonment.

          7)Makes it unlawful for a person to advertise or identify him or  
            herself as a paralegal (including on business cards,  
            letterhead, signs or elsewhere) unless he or she meets the  
            definition of paralegal, and performs only the services  
            authorized by this bill. Violation of this provision is a  
            misdemeanor punishable by a fine of $2,500 for each violation,  
            imprisonment in the county jail for up to one year, or both  
            fine and imprisonment.

          8)Gives a consumer injured by a person acting in violation of  
            the provisions of this measure the right to seek redress in  
            court, including an injunction, restitution, and damages.

           EXISTING LAW  :

          1)Prohibits any person who is not an active member of the State  
            Bar from practicing law in California.  (Business and  
            Professions Code section 6125.  All further references are to  
            this code unless otherwise noted.)

          2)Makes it a misdemeanor for any person who is not an active  
            member of the bar to practice law, or to advertise, or hold  
            him or herself out as a practicing lawyer or as entitled to  
            practice law.  (Section 6126.)

          3)Defines a legal document assistant (LDA), as any person who  
            provides or assists in providing, for compensation, self-help  
            services, as defined, to the public.  (Section 6400

          4)Prohibits LDAs from providing self-help services to any person  
            unless the LDA is registered in the county in which services  
            are being provided.  (Section 6400.)

          5)Prohibits LDAs from providing any kind of advice, explanation,  
            opinion, or recommendation to a consumer about legal rights,  
            remedies, defenses, options, selection of forms, or  








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            strategies.  (Section 6400.)

          6)Requires an applicant for registration as an LDA to have  
            satisfied certain educational and practice criteria.  (Section  
            6402.1.)

          7)Gives any person injured by the unlawful act of an LDA the  
            right to file a complaint and seek redress in any municipal or  
            superior court for injunctive relief, restitution, and  
            damages.  Attorney's fees shall be awarded to a prevailing  
            plaintiff.  (Section 6412.1.)

           FISCAL EFFECT  :   Unknown

           COMMENTS  :   In support of the need for this measure, the author  
          makes the following comments:

            Currently, the terms 'paralegal' and 'legal assistant' are  
            not regulated in California in any way.  Anyone who wishes  
            to can award himself the title and begin doing business,  
            without having completing legitimate paralegal training  
            courses at accredited postsecondary educational  
            institutions. . . .Because the traditional definition of a  
            paralegal means supervision by an attorney, consumers are  
            wrongly led to believe the individual calling himself a  
            paralegal is conferring with an attorney on their cases.

            AB 1761 enhances consumer protection by making it illegal to  
            falsely advertise legal expertise by using the title  
            'paralegal' or 'legal assistant' unless the individual works  
            under the supervision and license of an attorney and meets  
            specified educational requirements.

           Effect on the Practice of "Independent Paralegals"  .  Opponents  
          of the bill argue that by limiting the class of people that may  
          call themselves paralegals, the bill is taking away from  
          consumers the option to use the services of someone other than  
          an attorney.  "Independent paralegals must be allowed to earn an  
          honest living within the limits of the law.  Passing AB 1761  
          serves to cause greater hardship to low to moderate-income  
          consumers who must represent themselves and rely on non-lawyer's  
          assistance for help and will increase the unemployment rate by  
          causing many paralegals to close the doors of their businesses  
          for good."  









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          This bill, however, does not prevent "independent paralegals"  
          from continuing to serve the public.  The bill simply recognizes  
          that use of the term paralegal needs to be more appropriately  
          regulated to define those individuals working at the direction  
          and under the supervision of an attorney.  

          Consumers may in fact be deceived by the title "paralegal,"  
          thinking they are utilizing the services of an individual who is  
          supervised by an attorney or who has received a certain degree  
          of training.  Under the current state of the law, anyone can  
          call themselves an independent paralegal.  The types of services  
          someone working without an attorney's supervision may provide  
          are limited by the LDA statutes, but what they choose to call  
          themselves is not.  This bill would close that loophole.  

          Furthermore, it is highly likely that a consumer would attribute  
          greater education, skill, and experience to individuals who call  
          themselves paralegals than they would to individuals who,  
          consistent with the terminology of existing law, refers to  
          themselves as legal document assistants.  This bill seeks to  
          erase that artificial barrier, and provide a clearer title that  
          will provide consumers with a greater understanding of the type  
          and level of service they can expect to receive when seeking  
          assistance with a legal matter.

          One opponent to this measure argues that simply because an  
          individual who has received a certificate from an accredited  
          paralegal program chooses not to work under the supervision of  
          an attorney, but rather to provide self-help services, "does not  
          negate the fact they have earned a particular certificate or  
          degree.  Is a lawyer who chooses not to practice, but maintains  
          his status as an attorney, no longer a lawyer because he chooses  
          not to practice law?"

           Effect on Consumers Trying to Find Assistance  .  Many opponents  
          of the measure argue that by preventing individuals who provide  
          self-help service from using the title "paralegal," consumers  
          will not know how to access the type of self-help assistance  
          they require.  Opponents note:  

            The word 'paralegal' has come to be the title generally  
            recognized and accepted by the general public signifying  
            self-help assistance.  When looking for self-help assistance  
            the consumer customarily goes to the paralegal  
            classification in the yellow pages or in other advertising  








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            media.  If AB 1761 is allowed to become law the consumer  
            will no longer find paralegals listed in any advertising and  
            will have no idea what classification to look under to find  
            assistance.  By prohibiting the use of the publicly  
            recognized title 'paralegal,' the consumer will be unable to  
            find the assistance they seek.

          In responding to this charge, Assemblymember Brewer notes that  
          "as it is with most services that advertise in the yellow pages,  
          cross references can be utilized to point the inquiry to another  
          section.  For example, if a person is looking for a 'paralegal'  
          in the yellow pages, that section could state 'See Legal  
          Document Assistant' or 'See Legal Services'."

           Adequacy of Educational Criteria  .  Opponents argue that by  
          allowing individuals who have neither a certificate of  
          completion of a paralegal program approved by the ABA, nor a  
          certification of completion of a paralegal program at an  
          accredited postsecondary institution to call themselves  
          paralegals, while not allowing individuals who have paralegal  
          certification but who choose not to work under the supervision  
          of an attorney to do so, this bill is unfair.  At the very  
          least, several opponents suggest eliminating the category of  
          persons who have only a high school diploma or G.E.D. (See page  
          3, lines 17-26.)  The National Federation of Paralegal  
          Associations also suggests that, for those who currently  
          practice as a paralegal but have a baccalaureate or advanced  
          degree and law-related experience, completion of a paralegal  
          program be required within a specified time period.

           ISSUE #1:  ARE THE EDUCATION AND EXPERIENCE CRITERIA ESTABLISHED  
          BY THIS BILL SATISFACTORY  ?

           Law-Related Experience  .  The bill requires all individuals  
          seeking to call themselves, and perform as, paralegals to meet  
          one of four possible education or experience categories.  Among  
          those categories, the bill provides that a person may be a  
          paralegal upon completion of a baccalaureate or advanced degree  
          in any subject with a declaration by an active member of the  
          State Bar who has supervised the person for a minimum of one  
          year and who attests that the person is qualified to perform  
          legal tasks.  What the bill fails to specify, however, is that  
          the one-year of experience under the supervision of the member  
          of the State Bar be law-related experience.  Making it clear  
          that the individual received law-related experience would be  








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          consistent with both the education and experience requirements  
          for LDAs (requiring one year of law-related experience), as well  
          as the required three years of law-related experience for  
          persons who have only a high school diploma or G.E.D. and seek  
          to practice as a paralegal.

           Ongoing Education in Ethical Responsibilities  .   With regard to  
          individuals who do not have an advanced degree or a certificate  
          of completion of a paralegal program, the bill requires, in  
          addition to three years of law-related experience, "a minimum of  
          one year of education provided by an active member of the State  
          Bar of California on the ethical responsibilities and duties of  
          a paralegal."  Although the precise meaning of this requirement  
          is unclear (i.e. what qualifies as a year of education?), it  
          raises an interesting question for the Committee's consideration  
          about the need for continuing legal education for all paralegals  
          on the issue of legal ethics.  Paralegals will be performing  
          legal research, will have direct contact with clients, will be  
          engaged in fact gathering, case management, and recommending  
          approaches to their attorney supervisors.  Continuing legal  
          education in ethical issues, as is required for attorneys, would  
          seem to be a necessary addition to paralegal training.  Such  
          continuing legal education invariably touches on issues of  
          conflict of interests, appropriate and inappropriate  
          relationships with clients, the unauthorized practice of law,  
          and similar subjects which could only serve to enhance a  
          paralegal's training.

           AMENDMENT #1  :  The Committee may therefore wish to amend the  
          bill in the following ways to address the concerns noted above:

          1) Amend page 3, lines 12-16 to read as follows:

            (3)  A baccalaureate degree or an advanced degree in any  
            subject  ,   and   a minimun of one year of law-related experience  
            under the supervision of an active member of the State Bar  
            of California,  and a written declaration from  an active  
            member of the State Bar of California who has supervised the  
            person for a minimum of one year,   this  attorney stating that  
            the person is qualified to perform paralegal tasks.

          2)  Amend page 3, lines 22-25 by deleting "and a minimum of one  
          year of education provided by an active member of the State Bar  
          of California on the ethical responsibilities and duties of a  
          paralegal"








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          3) On page 3, between lines 27 and 28 insert:

            (d) All paralegals shall be required to certify completion  
            every three years of four hours of mandatory continuing  
            legal education in legal ethics.  All continuing legal  
            education courses shall meet the requirements of Section  
            6070 of this Code.

           ISSUE #2:  IS THE PROHIBITION ON PARALEGALS PROVIDING LEGAL  
          SERVICES DIRECTLY TO MEMBERS OF THE PUBLIC INCONSISTENT WITH  
          OTHER STATE AND FEDERAL LAWS  ?  Opponents of this bill, including  
          the National Federation of Paralegal Associations (NFPA), argue  
          that "several state and federal statutes permit the  
          representation of persons by non-lawyers in various venues  
          (i.e., worker's compensation, social security hearings, Medicaid  
          hearings, etc.)."  This point is well-taken.  Paralegals should  
          not, per se, be prohibited from providing such services.

           AMENDMENT #2  .  In order to address this concern, the Committee  
          may wish to amend the bill at page 3, line 2, to specify that  
          use of the title paralegal does not prevent an individual from  
          providing legal services directly to members of the public where  
          such activities are specifically allowed by statute, case law,  
          or regulation, or court rule.  
           
          ISSUE #3:  SHOULD PERSONS WHO HAVE BEEN DISBARRED OR SUSPENDED  
          FROM THE PRACTICE OF LAW BE PROHIBITED FROM WORKING AS A  
          PARALEGAL  ?  In an attempt to be consistent with the requirements  
          and prohibitions of the legal document assistant laws, this bill  
          provides that no person who has been disbarred or suspended from  
          the practice of law for disciplinary reasons shall be entitled  
          to practice as a paralegal.  However, because of the different  
          nature of the paralegal and legal document assistant practice,  
          the Committee may decide it is inappropriate to carry over the  
          prohibition for disbarred or suspended attorneys.  Paralegals,  
          by definition, are required to work at the direction and under  
          the supervision of an active member of the State Bar.   
          Paralegals may not give legal advice or set fees.  A paralegal  
          may not be in charge of the client trust fund, or be in a  
          position to harm a client in the manner that led to the  
          disbarment or suspension in the first place.    

           AMENDMENT #3  :  The Committee may therefore wish to amend the  
          bill at page 3, lines 38-40, through page 4, line 2, to delete  








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          this prohibition.

           ISSUE #4:  SHOULD CONSUMERS WHO ARE INJURED BY PERSONS ACTING AS  
          A PARALEGAL IN VIOLATION OF THIS BILL'S REQUIREMENTS BE ENTITLED  
          TO THE SAME TYPES OF DAMAGES AVAILABLE IN A CIVIL ACTION TO  
          CONSUMERS INJURED BY PERSONS ACTING AS A LEGAL DOCUMENT  
          ASSISTANT IN VIOLATION OF THE LDA STATUTES  ?  Pursuant to Section  
          6412.1 of the Business and Professions Code, a consumer who is  
          injured by a person acting as an LDA in violation of the LDA  
          statutes may seek redress in any municipal or superior court for  
          injunctive relief, restitution, and damages.  Attorney's fees  
          shall be awarded to the prevailing plaintiff.  This bill  
          similarly provides that a consumer injured by a violation of  
          this bill's provisions may seek redress in any municipal or  
          superior court for injunctive relief, restitution, and damages.   
          The bill, however, deviates from the LDA statute at this point,  
          not providing for the award of attorney's fees to a consumer who  
          a court finds to have been injured by a person acting as a  
          paralegal in violation of this bill's requirements and  
          specifications (although the original version of this bill did  
          in fact contain such a provision).

          The author has failed to provide any rationale for this  
          distinction, and Committee counsel have been unable to discern  
          any public policy reason why an individual who suffers harm at  
          the hands of a person purporting to be a paralegal should be  
          entitled to a smaller array of damages than an individual  
          suffering harm at the hands of an LDA.

           AMENDMENT #4  :  The Committee may therefore wish to amend the  
          bill at page 4, lines 23-24 to clarify that, consistent with the  
          LDA statute, attorney's fees shall be awarded to the prevailing  
          plaintiff.
           
          TECHNICAL AMENDMENT  .  AB 2810 by Assemblymember Robert Pacheco  
          amends the legal document assistant statute to provide that  
          legal document assistants need not register (and post a bond) in  
          every county in which they do business.  Rather, AB 2810  
          requires LDAs to register and post a bond in the county in which  
          they have their principal place of business.  This bill, AB  
          1761, allows a legal document assistant who has registered a  
          business name that includes the word paralegal, prior to January  
          1, 2001,  in the county in which services are being provided  , to  
          continue to use the term in his or her business name until he or  
          she is required to renew that registration.  Should both bills  








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          be enacted, these two provisions would be inconsistent.  

           AMENDMENT #5  :  The Committee may therefore wish to amend this  
          bill to add appropriate double-jointing language to prevent this  
          inconsistency. 

           Related Pending Legislation  .  AB 2810 (Robert Pacheco),  
          providing that a legal document assistant is not required to  
          register in every county in which he or she provides services,  
          but only in that county that serves as his or her principal  
          place of business.  

          SB 1927 (Haynes), allowing legal document assistants to provide  
          services to the public without satisfying the registration or  
          bonding requirements if the legal document assistant's practice  
          is limited to small claims court matters.
           
          Related Prior Legislation  .  SB 1418 (Rosenthal), 1998 Stats. Ch.  
          1079, defining legal document assistants, and requiring legal  
          document assistants to register with the county and post a bond  
          in order to provide services to the public. 
           

          REGISTERED SUPPORT / OPPOSITION  :   

           Support  

          California Alliance of Paralegal Associations (sponsor)
                                                                                   2 Individuals

           Opposition  

          Professional Paralegal Association for the Consumer
          CA Association of Legal Document Assistants
          National Federation of Paralegal Associations
          San Francisco Paralegal Association
          More than 20 Individuals
           

          Analysis Prepared by  :    Donna S. Hershkowitz / JUD. / (916)  
          319-2334