BILL ANALYSIS
AB 1761
Page 1
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