Issues Related to Licensure and
Governmental Regulation of Paralegals
In July, 1998, the New Jersey Supreme Court Committee on
Paralegal Education and Regulation issued a report which sets forth
several recommendations concerning the attorneys' use of paralegals in
the delivery of legal services. The report sets forth a system of
licensure for paralegals. It is apparent from the report that the
purpose of the licensing procedure is to identify individuals who meet a
set of educational requirements and who pass a written examination on
the subject of ethics and to qualify them to work as paralegals under
the supervision of licensed attorneys. The duties and responsibilities
of licensed paralegals would be no different than they are today; and,
absent a licensed paralegal, any employee may perform these duties
although they may not use the title "paralegal." Further, the
licensure requirements establish rules and regulations concerning the
employer/employee relationship of attorneys with assistants.
NALA has prepared a statement to be submitted to the court
which states that the association cannot support the proposed system of
licensure for several reasons. Among these reasons:
1. There is no demonstrated public need to regulate
2. This procedure would increase the cost of
paralegals to employers.
3. This procedure would increase the cost of legal
services to the public.
4. This procedure does not allow for the growth of the
paralegal profession nor does it encourage the utilization of
paralegals in the delivery of legal services.
Click here to see the statement itself.
The issues of licensure of a profession are very complicated
and rest on two factors: 1) a personís fundamental right to engage in
his or her chosen profession; and 2) protection of the health, welfare
and safety of the public. Often, in todayís discussions concerning
paralegal licensure, the needs of members of the profession are confused
with the needs of the public. Some view licensure as the same as
establishment of professional standards - this is a misstatement. This
article will present the issue of licensure from a legislatureís point
of view and will address the questions of what licensure is, why it is
created, and the criteria for licensure used by legislatures to evaluate
There are at least 12 states which include information in the
statutes about what is required in order to establish a licensing
procedure. The states and statutes reviewed for this article are as
||Title 2, Div. 2, Part 1,
Chapter 1.5, Article 8. Legislative oversight of state board
formation and licensed professional practice. Secs. 9148.4,
||Ch. 12, Article 9A. Sunrise
||24-34-104.1 General assembly
sunrise review of new regulation of occupations and professions
||Title III. 11.62 Legislative
review of proposed regulation of unregulated functions.
||Title 26. Ch. 57 Review of
licensing statutes, boards and commissions. Sec. 3105.
||Title 43. Ch. 1A. Occupational
regulation legislation review
||Title 54.1, Subtitle 1, Chapter
1. Sec. 54.1-100-54.1-311.
||Division 1, Title 4, Ch. 26H
Hawaii Regulatory licensing reform act
||Title 18. Ch. 18.118 Regulation
of business professions
||Title 32, Ch. 1-A, Subchapter
II. Sunrise review procedures. Sec. 60-J-60L
||Criteria for evaluating need to
draft a regulatory legislative proposal of the State of
Wisconsin Dept.of Regulation & Licensing
See also Revised Statutes of Nebraska Annotated, Chapter 71.
Public Health and Welfare; Article 62. Nebraska Regulation of Health
Professions Act. Although this statute deals specifically with the
regulation of health professionals, its review is instructive.
Several of the above listed statutes included definitions of
licensure, as follows:
Georgia: 43-1A-3. (6) "License,"
"licensing," or "licensure" means authorization
to engage in a business or profession which would otherwise be
unlawful in the state in the absence of authorization. A license is
granted to those individuals who meet prerequisite qualifications to
perform prescribed business or professional tasks, who use a
particular title, or who perform those tasks and use a particular
South Dakota: Chapter 36-1A-4 For the purposes of this
chapter, licensure is a process by which a board grants to an
individual, who has met certain prerequisite qualifications, the
right to perform prescribed professional and occupational tasks and
to use the title of the profession or occupation.
Washington: RCW 18.118.020 (7) "License,"
"licensing," and "licensure" mean permission to
engage in a business profession which would otherwise be unlawful in
the state in the absence of the permission. A license is granted to
those individuals who meet prerequisite qualifications to perform
prescribed professional tasks and for the use of a particular title.
In summary, licensure grants a practitioner the legal right to
work in his or her chosen occupation, by law, and restricts this right
to only those persons who hold a license. Licensure is a mandatory legal
condition for employment, generally enacted by legislation and
administered by state agencies.
Why License an Occupation - Legislative Intent
The driving force behind a legislature to take action to
license a profession is the health, welfare, and safety of the public.
Consider the following statements of intent from the statutes:
Colorado 24-34-104.1(1) the general assembly finds that
regulation should be imposed only on an occupation or profession
only when necessary for the protection of the public interest.
Florida. 11.62. (2) It is the intent of the legislature:
(a) That no profession or occupation be subject to
regulation by the state unless the regulation is necessary to
protect the public health, safety, or welfare from significant and
discernible harm or damage and that the police power of the state be
exercised only to the extent necessary for that purpose; and
(b) That no profession or occupation be regulated by the
state in a manner that unnecessarily restricts entry into the
practice of the profession or occupation or inversely affects the
availability of the professional or occupational services to the
Hawaii Code Annotated 26H-2, 26H-5 and 26H-6
26H-2 Policy: The legislature hereby adopts the following
policies regarding the regulation of certain professions and
(1) The regulation and licensing of profession and
vocations shall be undertaken only when reasonably necessary to
protect the health, safety, or welfare of consumers of the services;
the purpose of regulation shall be the protection of the public
welfare and not that of the regulated profession or vocation;
Vermont Sec.3105 Criteria and standards. (a) A profession
or occupation shall be regulated by the state only when:
1. It can be determined that the unregulated practice
of the profession or occupation can clearly harm or endanger the
health, safety, or welfare of the public, and the potential for
the harm is recognizable and not remote or speculative;
2. The public can reasonably be expected to benefit
from an assurance of initial and continuing professional
3. The public cannot be effectively protected by other
Virginia. 54.1.100 Regulations of professions and
The right of every person to engage in any lawful
profession, trade or occupation of his choice is clearly protected
by both the Commonwealth of the Va. Code Ann.@54.1-100 (1998) United
States and the Constitution of the Commonwealth of Virginia. The
Commonwealth cannot abridge such rights except as a reasonable
exercise of its police powers when it clearly found that such
abridgment is necessary for the preservation of the health, safety
and welfare of the public. No regulation shall be imposed upon any
profession or occupation except for the exclusive purpose of
protecting the public interest when:
1. The unregulated practice of the profession or
occupation can harm or endanger the health, safety or welfare of
the public, and the potential for harm is recognizable and not
remote or dependent upon tenuous argument;
2. The practice of the profession or occupation has
inherent qualities peculiar to it that distinguish it from
ordinary work and labor;
3. The practice of the profession or occupation
requires specialized skill or training and the public needs, and
will benefit by, assurances of initial and continuing
professional and occupational ability; and
4. The public is not effectively protected by other
These statements demonstrate the legislaturesí views toward
protection of the public as well as the use of licensing as a last
resort. For example, the Florida and Virginia statutes both refer to the
police powers of the state - strong language demonstrating how reluctant
a state may be to license an occupation.
Criteria to Determine Whether an Occupation Should be Licensed
Each of the statutes defined some criteria against which
applications for licensure are measured. The criteria are quite similar
from statute to statute. The following from the State of Wisconsin is
typical of this criteria and the information needed to substantiate
Criterion 1. Regulation should address the single purpose
of promoting the general welfare of the consumer of services.
1. Has the public been harmed because this profession/service
entity has not been regulated?
2. What constitutes harm? Please list examples.
3.To what extent has the public's economic well-being been
harmed? Is the harm wide-spread or isolated? Please explain.
4. Is potential harm recognizable or remote?
5. To what can the harm be attributed?
a) Lack of knowledge
b) Lack of skills
c) Lack of ethics
6. Can potential users of the service be expected to possess
the knowledge needed to properly evaluate the quality of the
service? If no, why not?
Criterion 2. The functions and responsibilities of
individuals working in the occupation shall require independent
judgment and action based on a substantive body of skill and
The questions to be raised in regard to this criterion have to
do with autonomy and accountability.
1. What is the extent of autonomy of work?
2. Is there a high degree of independent judgment required?
3. How much skill and experience is required in making these
4. Do practitioners customarily work on their own or under
5. If supervised, by whom, how frequently, where, and for what
6. If the person is infrequently, or unsupervised, to whom is
he/she accountable? To whom is the supervisor accountable?
Criterion 3. The public cannot be effectively protected by
means other than regulation.
1. Can existing problems be handled through strategies on the
part of the applicant group?
a. Has the occupational group established a code of ethics?
To what extent has it been accepted and enforced?
b. Has the group established complaint handling procedures
for resolving disputes between practitioners and the consumer?
How effective has this been?
c. Has a non-governmental certification program been
established to assist the public in identifying qualified
2. Could the use of existing laws or existing standards solve
a. Use of unfair and deceptive trade practice laws.
b. Use of civil laws such as injunctions, cease and desist
c. Use of criminal laws such as prohibition against cheating,
false pretense, deceptive advertising, etc.
Criterion 4. Benefits of regulation should outweigh
potentially adverse effects.
1. What are the potential benefits?
a. How will regulation help the public identify qualified
b. How will regulation assure that practitioners are
c. What assurance will the public have that the individuals
credentialed by the state have maintained their competence?
d. How will complaints of the public against the
practitioners be handled?
e. Will licensure increase the availability of services and
f. What is the impact of this action on consumer choice? Are
choices increased, or maintained, or limited?
2. What are the potential adverse effects?
a. Will the occupational group control the supply of
b. Will regulation act as an entry barrier?
c. Will regulation prevent the optimal utilization of
d. Will regulation increase the cost of services to the
consumer? Consider: license fees, bonding costs, record keeping.
e. Will stringent and/or additional educational requirements
increase the cost of entry into the occupation and subsequently
increase the cost of the services?
f. Will regulation decrease availability of practitioners?
Do the benefits more than compensate for potentially adverse
How do legislatures look at this information.
Attached to this article is a chart furnished by the
California Department of Consumer Affairs which is used to rank the need
for regulation, from low to high, based on the information provided to
substantiate each criterion. The chart lists each criterion and gives
examples of findings that would lead to a conclusion of a low need, or a
high need. This chart is quite informative of the views and concern of
the legislature concerning governmental regulation of a profession. Note
that in the first criterion the legislature is not persuaded at all by a
request which only demonstrates that licensure procedure is sought only
by the profession, not the public. This leads us to a more general
discussion of licensure and the needs of the paralegal profession.
Licensure and the Regulated Profession - What does this mean?
Licensure allows one to demonstrate proficiency for entry into
a profession, with such minimal competency defined legislatively.
Because the license is the same thing as a permission to gain employment
in a certain occupation, there is tremendous pressure to develop the
licensing program to address or define the lowest level of professional
competence. In addition, among the statutes reviewed for this article,
many differentiate the forms of regulation, from registration to
certification to licensure. The statutes further state that the form of
regulation chosen must be the least restrictive, consistent with the
public interest. Not only, then, are legislatures pressured to define
the lowest level of competence, they are encouraged to use the least
restrictive form of regulation, if regulation is determined to be
A license merely controls entry into a profession, it does not
establish professional standards, nor is that its purpose. This is an
important distinction to keep in mind. It requires careful consideration
of the purpose of a licensure program before deciding if it is in the
best interest of the profession. In fact, because licensure programs are
created to serve the public, the rules and regulations which drive the
licensure process are developed with the needs of the public in mind,
not the needs of the profession. In instances where these needs may
compete, the public will be served. Closely related to this point is the
fact that licensure programs are the responsibility of government or the
agency overseeing the process, not the profession. A licensure program
may or may not include the involvement or even the interests of members
of the profession.
The requirements and procedures for obtaining a license vary
from state to state. Therefore, unless some sort of reciprocity
agreement has been created between states, it may not be easy for a
professional licensed in one state to obtain a license in another. This
fact is among the reasons this issue has nationwide implications for the
A licensing procedure - a statute - does not ensure competence
or ethical performance. For example, NALA's files are full of newspaper
articles describing cases in which individuals are charged with the
unauthorized practice of law and where states are considering
legislation to toughen UPL penalties. There is no reason to believe the
licensure of legal assistants would have any effect on the practices of
Options - Protecting the Title: Legal Assistant or Paralegal
Some view licensing as the only means available to a
profession to protect the title. However, a licensing procedure is not
always necessary to accomplish this. Many states have taken some sort of
action to define the terms "paralegal" and "legal
assistant" through case law, supreme court rule, model guidelines
for utilization of legal assistants adopted by the states, or ethical
opinions. These documents form the basis for challenging oneís use of
the term incorrectly.
In 1996, the Supreme Court in the State of South Carolina
heard a case in which one of the issues was whether the defendant had a
first amendment right to advertise himself as a paralegal (State v.
Robinson, Opinion Number 24391; filed March 18, 1996). The defendant
was operating a business which consisted of the delivery of legal
services without attorney supervision. The defendant contended that
advertising himself as a paralegal is not false since there are no
regulations requiring any qualifications to be a paralegal in the state.
The Supreme Court found the following:
This court has addressed the function of a paralegal In
re: Easler, 275 S.C. 400, 272 S.E.2d 32 (1980):
Paralegals are routinely employed by licensed
attorneys to assist in the preparation of legal documents such
as deeds and mortgages. The activities of a paralegal do not
constitute the practice law as long as they are limited to work
of a preparatory nature, such as legal research, investigation,
or the composition of legal documents, which enable the licensed
attorney-employer to carry a given matter to a conclusion
through his own examination, approval or additional effort.
Id. at 400, 272 S.E.2d at 32-33. While
there are no regulations dealing specifically with paralegals,
requiring a paralegal to work under the supervision of a licensed
attorney ensures control over his or her activities by making the
supervising attorney responsible. See Rule 5.3 of the Rules
of Professional Conduct, Rule 407 SACR (supervising attorney is
responsible for work of nonlawyer employees). Accordingly, to
legitimately provide services as a paralegal, one must work in
conjunction with a licensed attorney. Robinsonís advertisement as
a paralegal is false since his work product is admittedly not
subject to the supervision of a licensed attorney.
Further, the adís statement, "If your civil rights
have been violated - call me," is an unlawful solicitation. It
is unlawful for one who is not a licensed attorney to solicit the
cause of another person. S.C. Code Ann. Sec. 40-5-310 (Supp. 1994).
We find Robinson should be enjoined from advertising himself as a
paralegal or soliciting the representation of others.
Is the New Jersey Situation Unique?
New Jersey is not the only state to have considered this
matter. The Minnesota legislature, in 1991, asked the Supreme Court to
appoint a committee to study the feasibility of the delivery of legal
services by those who would be called specialized legal assistants. The
study was to include consideration of a licensure procedure. In March,
1994, the committee issued its report and discussed the following
concerning the licensure of the specialized legal assistants as
The Minnesota statutes provided that no regulation shall
be imposed upon any occupation unless retained for the safety and
well-being of the citizens of the state. This statute indicates that
the purpose of a professional license requirement is to protect the
citizens of the state by limiting entry into a profession to those
people who demonstrated that they possess at least a minimum level
of skill and knowledge related to the practice of the profession.
License requirements are intended to protect the service consuming
public from harm that can be caused by unqualified practitioners.
The report concluded that licensing legal assistants does
not fit into the analytical framework created by this statute
because the practice of law is already a regulated profession.
Further, the license requirement would increase the cost of licensed
peopleís services by limiting the number of people who can perform
a task. The committee also identified the fact that a licensure
mechanism for legal assistants would require the creation of a
regulatory system similar to that for lawyers, with the same expense
and complexity. Creating this would only be justified if it would
result in significantly cheaper costs to the consumers of legal
services without unacceptable risk. It is not apparent to the
committee how independent licensure would achieve these goals. The
cost of doing business alone would be no different than those costs
of lawyers and the fees charged by nonlawyers to remain in business
would be unaffordable for many people.
Even in a situation in which nonlawyers would deliver legal
services directly to the public, the report did not find any benefit in
creating a licensure or regulatory scheme for these individuals.
As demonstrated in this short summary, licensing procedures
are complicated, designed with the public in mind, and with regard to
professions, allow a licensed person to do something - perform some
function that cannot be performed by an unlicensed person. There are
many ways in which an occupation can establish standards for itself.
Those professions that do not offer services or products
directly to the public often embrace a certification procedure.
Certification programs are generally conducted by professional
associations and are widely recognized by courts and state and federal
agencies as valid programs which identify competent professionals. The
fact that certification programs are voluntary, not mandatory, does not
lessen the impact of these programs. Certification programs must operate
under specific rules and requirements designed to insure the fairness
and objectivity of the programs as well as the reliability and validity
of the examination itself. It is generally agreed throughout the
literature that certification programs are more flexible, more
responsive to the career field, and establish standards for a profession
that licensing programs are unable to do. Like licensing programs,
certification programs generally include an element of discipline of
certified individuals who do not adhere to professional standards. In
short, certification programs have all the perceived benefits in terms
of professional standards - and none of the governmental red tape.
NALA is supportive of the recommendation that the New Jersey
Supreme Court establish guidelines that attorneys may use in the
utilization of legal assistants. In addition to providing this guidance,
the Court rule may also be helpful in governing the use of the phrases
"paralegal" and "legal assistant" as found in the
South Carolina case. Bar associations in several states have taken the
lead in developing these guidelines and many have worked with state
legal assistant organizations. Guidelines for the utilization of legal
assistants have been established in the following states. Those states
whose guidelines are adopted as a Supreme Court Rule or by a Supreme
Court case are indicated with an (*). Those states whose guidelines are
those of state legal assistant organizations are indicated with an (**):
Model guidelines have also been developed by the American Bar
Association and the National Association Legal Assistants. As with the
discussion concerning professional certification and licensure,
guidelines and Supreme Court rules are an attractive way to deal with
the issues of professional regulation because they may be drafted and
amended by those involved in the legal profession - not by the
government or a legislature. Further, guidelines and Supreme Court rules
are more directly related to a Supreme Courtís jurisdiction over those
licensed to practice law than attempting to govern those who are not
licensed and are, essentially, members of another profession.
The issues of professional regulation through creation of a
statute, through self-regulatory mechanisms or through Supreme Court
rule are complex matters. The decision to embrace one scheme over
another rests on what is best for the profession from a global
perspective based on research and knowledge, and not on individual
experience. Critical in the decision process is the perception of the
future growth and development of the career field. Throughout the United
States, the utilization of legal assistants has become accepted,
acceptable, important and, indeed, necessary to the efficient practice
of law. Any system of regulation should be based on this recognition and
acceptance of the legal assistant profession and provide for its
One final observation - why does this matter? The profession
continues to debate the issue of licensure, often to the detriment of
the growth of our career field. Within these debates, the issues of the
perceived need for professional recognition are confused with the
purposes of governmental regulation. The issue of an individualís
responsibility to advance himself within his chosen career field is
confused with the perception of licensing as a mechanism which will
ensure job opportunities. The issue of protecting the profession is
confused with the issue of protecting the public. This confusion of
issues has led us into non-productive, time wasting debates. Let us be
smart about our direction and the growth of our profession - let us
choose a path for the career field that is definable and achievable,
controlled by our profession with its growth as the driving force.
Vicki Voisin, CLAS
President, National Association
of Legal Assistants
December 14, 1998
Criteria Rating Form
This is an example of legislative analysis of each criterion
for establishing a licensing process from the California Dept. of
Consumer Affairs. The chart lists each criterion to be met to establish
a licensing procedure, and gives examples of findings that would lead to
a conclusion of a low need, or high need.
Little need for regulation
|High need for regulation
|Unregulated practice of
this occupation will harm or endanger the public health, safety,
||Regulation sought only
by practitioners. Evidence of harm lacking or remote. Most
effects secondary or tertiary. Little evidence that regulation
would correct inequities.
demand. Patterns of repeated and severe harm, caused directly by
incompetent practice. Suggested regulatory pattern deals
effectively with inequity. Elements of protection from
fraudulent activity and effective practice are included.
available to the consumer are insufficient
||Other regulated groups
control access to practitioners. Existing remedies are in place
and effective. Clients are generally groups or organizations
with adequate resources to seek protection.
access practitioners directly. Current remedies are ineffective
|No alternatives to
regulation will adequately protect the public
considered. Practice unregulated in most other states. Current
system for handling abuses adequate.
||Exhaustive search of
alternatives find them lacking. Practice regulated elsewhere.
Current system ineffective or nonexistent.
mitigate existing problems
||Little or no evidence
of public benefit from regulation. Case not demonstrated that
regulation precludes harm. Net benefit does not indicate need
||Little or no doubt that
regulation will ensure consumer protection. Greatest protection
provided to those who are least able to protect themselves.
Regulation likely to eliminate current existing problems.
independently, making decisions of consequence
under the supervision of another, regulated profession or under
the auspices of an organization which may be held responsible
for services provided. Decisions made by practitioners are of
little or no supervision. Decisions made by practitioners are of
consequence, directly affecting important consumer concerns.
|Functions and tasks of
the occupation are clearly defined
||Definition of competent
practice unclear or very subjective. Consensus does not exist
regarding appropriate functions and measures of competence.
functions are clearly defined, with quantifiable measures of
successful practice. High degree of agreement regarding
appropriate functions and measures of competence.
|The occupation is
clearly distinguishable from other occupations that are already
||High degree of overlap
with currently regulated occupations. Little information given
regarding the relationships among similar occupations.
functions clearly different from those of currently regulated
occupations. Similar non-regulated groups do not perform
critical functions included in his occupationís practice.
|The occupation requires
possession of knowledges, skills and abilities that are both
teachable and testable
undefined. Preparatory programs limited in scope and
availability. Low degree of required knowledge or training.
Current standard sufficient to measure competence without
regulation. Required skills objectively determined; not
teachable and/or not testable.
clearly defined. Measures of competence both objective and
testable. Incompetent practice defined by lack of knowledge,
skill or ability. No current standard effectively used to
protect public interest.
|Economic impact of
regulation is justified
||Economic impact not
fully considered. Dollar and staffing cost estimates inaccurate
or poorly done.
||Full analysis of all
costs indicate net benefit of regulation is in the public