Unauthorized Practice of Law by Paralegals

There is a significant disparity between the populations of New York and other states in terms of their access to and need for legal counsel in civil proceedings. (Findlaw). Despite the fact that the practicing bar has made great progress toward closing the gap by providing free services and lowering legal costs, a sizable portion of people are still unable to obtain legal representation in civil cases. (Findlaw). Findings by the New York State Bar Association (NYSBA) as dictated by its Ad Hoc Committee of Non Lawyer Practice indicated that incorporating well trained and educated assistants lays ground for provision of affordable legal services to the public while preserving the legal counsel attorney's time to attend to matters that call for his independent practice (Findlaw).

To facilitate delivery of top quality, Findlaw proposes adoption of customer-friendly legal services to the public; paralegals work under close supervision of the attorneys, who take full responsibility for any representation. The code of ethics guiding the functions of the paralegals does not require them to practice law. Traditional paralegals are not supposed to exercise law.

When paralegals decline to serve under their supervisory counsel, problems may chip in. This study will analyze the scope of practice by paralegals, their unauthorized practices, and how regulations can influence their operations.

Scope of Practice

Irrespective of the varied views of the industry, paralegals work in a way that is similar to the attorneys with respect to depth and substance of their work and their work is critical to ensuring the firms they work for conduct their business efficiently within the confines of the legal doctrine (Hudson and Chivers 4). Paralegals can take any industry-specific role within the numerous areas pertaining to law.

Some paralegals can spend a better part of their day privately cracking the legal language presented in contract documents or pursuing case law details. Others take their time meeting tens of clients assisting them in paperwork naturalization or examining possible personal injury cases (Hudson and Chivers 7). Others may juggle between helping a litigator in a heated courtroom proceeding, before going back to the office to put together evidence for a different partner working on an entirely different case (Hudson and Chivers 8).

The potential of paralegals is unlimited. Hudson and Chivers state that any style of work in law a client desires to achieve, there is a paralegal job suitable for the niche (10). Whether they are offering service face-to-face or to a client or offering legal assistance to a partner in a closed meeting, they are expected to bear excellent communication skills, be strong writers, and good at resolving conflict and negotiations (Hudson and Chivers 13).

A paralegal's scope of work is defined by the state. In almost all states, it is a requirement that paralegals have to work under the supervision of an authorized legal counsel or attorney and are required by law to maintain ethical standards and confidentiality (Hudson and Chivers 13). Regardless of the fact that paralegals work in the government department, legal firms, a non-profit organization, and corporations, some decide to work on a freelance basis. This offers them an opportunity to contract out their services to legal counsels and business entities that want legal assistance services (Hudson and Chivers 13). Paralegals are not allowed by any state to give legal opinions or advice, give a legal representation of a client in a court of law, admit a new client into the practice, and set legal fees (Hudson and Chivers 14). These are tasks that should be undertaken by a licensed lawyer.

Unauthorized Legal Practice Guidelines in New York

Just like other jurisdictions in the United States, New York has put in place regulatory measures to control nonlawyer practice. New York's code of conduct bars paralegals from offering legal advice, appearing in courts for legal representation, and conducting themselves as licensed lawyers (Committee on Professional Responsibility 5). As requirement by the judiciary rule of New York section 478, "it is illegal for any natural individual to exercise or present themselves as an attorney-at-law for any other entity rather themselves in a law court with the state, or to conduct themselves as a licensed lawyer to the public(Committee on Professional Responsibility 5). Section 484 of the same law gives further practice directives to nonlawyers. It prohibits them from asking or receiving, directly or indirectly, any form of compensation for representation of a person rather than themselves as a lawyer in a court, or for making any preparations of legal documents such as wills, deed, and mortgages(Committee on Professional Responsibility 5).

They are however given some exemptions. Societal officers who are advancing advocacy against animal cruelty and law students who have been in for at least two law school semesters or are graduates and did not pass their bar examinations and are serving under a program the Supreme Court appellant wing has approved can provide legal service(Committee on Professional Responsibility 6). Some other exemptions issued by the court are as a result of the interpretation of these statutes. For instance, in the adjudication of the Sharon B case, the court allowed for a non-lawyer representation for officers working for a nonprofit organization for the prevention of child abuse (Committee on Professional Responsibility 6). Paralegals are not permitted by the court in the practice of the law to publish and sell legal items that assist customers to navigate through legal challenges.

Attorneys are prohibited by New York's Code of Responsibility from helping or sharing fees with paralegals (Committee on Professional Responsibility 6). The Disciplinary Rule prohibits lawyers (DR) 3-103 from getting into partnerships with nonlawyers if the purpose of the partnership is to practice law (Committee on Professional Responsibility 6).

Rationale for Effectiveness of Unauthorized Practice of Law Regulations

The regulations tend to create a limited monopoly for attorneys. Laypersons may interpret the motif behind the regulations to be self-interests. However, promoters of the rules have come up with a number of benign defenses for their effectiveness (Committee on Professional Responsibility 7).

They protect the public from representation by unqualified entities within the nonlawyer practice. Due to the complex nature of the legal system and maintaining a healthy lawyer-client relationship, the public is assured of the mandatory responsibility and competence provided the practice of law is within the confines of those who are subject to the regulations that are compulsory to the legal profession members (Committee on Professional Responsibility 7). Those who advocate for the rules emphasize that for one to practice, they need to bear the minimum expertise levels that are achieved through extensive training (Committee on Professional Responsibility 7).

Limitation of paralegal practice is also subject ethical regulations. Lawyers are subject to special ethical guidelines that are not applicable to nonlawyers(Committee on Professional Responsibility 8). These include provisions such as Code of Professional Responsibility are obligatory to attorneys giving an assurance to clients of minimum ethics levels and stress on the sense of fiduciary responsibility on the attorney. Attorneys undergo integrity screening before admission to the bar (Committee on Professional Responsibility 8).

The regulations subject lawyers to discipline with respect to their activities. Matters of nonlawyers are not governed by the same legal competencies and integrity as those of attorneys (Committee on Professional Responsibility 8). Since paralegals are not subject to these rules, there are no guarantee disciplinary sanctions in the event of unethical behavior (Committee on Professional Responsibility 8).

Recommendations

It is essential for an attorney to delegate some of their tasks to paralegals and indeed a number of the responsibilities are well delegable (Standing Committee on Paralegals 1). However, of concern is the improper delegation of duties that may render the lawyer's responsibility profane in the light of the applicable regulations guiding professional conduct. It is fundamentally vital that tasks being delegated to the paralegals be suitable under the conditions and agreeable under the applicable laws, regulations or relevant authority (Standing Committee on Paralegals 1).

Supervision of paralegals by lawyers should be paramount and adequate. It is critically important that a lawyer should maintain sufficient control of any representation and make sure that any activity or work done by the paralegal is sufficiently supervised (Standing Committee on Paralegals 1). As a result, this will enhance the protection of the integrity of the attorney, safeguard the relationship between the attorneys and their clients, and eliminate the possibility of a paralegal committing unauthorized practice (Standing Committee on Paralegals 1).

Due to the fact that there are conflicts of interest which pose a lot of risks for international law firms, the firms are supposed to invest in spiraling conflict management system to ensure that there is peace within the firm. A complicated system brings down the risks that the international law firms do not perceive early enough to enable the client to solicit another council on time.

Table 1

Examples of companies of paralegals in New York conducting unauthorized practice of law

Adirondack Paralegal Association

Central District Association, Inc.

Long Island Paralegal Association Inc.

Manhattan Paralegal Association, Inc.

Onondaga County Bar Association Legal Assistants Committee

Oswego County Bar Association Legal Assistance Affiliate Members

Source: The Empire State Alliance of Paralegal Associations "Position Statement on the Unauthorized Practice of Law in New York State." The Empire State Alliance of Paralegal Associations, 1 Jan. 2003.

Conclusion

Paralegals play an important in the legal arena. With their education and experience, they can facilitate the operations of attorneys by offering the necessary assistance under the lawyer's supervision (Braithwaite 313). However, at some point, the paralegals may assume private practice, and this may lead them to engage in affairs outside their scope, for instance, representation of a client in a court of law (Braithwaite 314). They, therefore, require regulations that ensure they remain within the limits of their responsibility in a bid to maintain the integrity of the legal profession and protect customers from unqualified representation.

Works Cited

Braithwaite, John. "Paralegals changing lenses." Restorative Justice, vol. 3, no. 3, Feb. 2015, pp. 311-324.

Committee on Professional Responsibility. "Prohibitions on Nonlawyer Practice." 4 Jan. 1995, pp. 5-8

Findlaw. "FindLaw's New York District Court case and opinions." Findlaw, Findlaw, 10 June 2002, caselaw.findlaw.com/ny-district-court/1192917.html.

Hudson, Clarence, and Barrie Chivers. Paralegals: meeting the unmet needs of the poor. 1981.

Standing Committee on Paralegals. "ABA MODEL GUIDELINES FOR THE UTILIZATION OF PARALEGALS." American Bar Association, 2013.