The Paralegal Role and Responsibilities
According to the National Federation of Paralegal Associations ("NFPA"), there are as many as 350,000 paralegals in the United States, most of whom are employed by law firms or corporations. Many paralegals are employed by law firms where they support one or more attorneys and perform the wide variety of services that an attorney needs to practice law, within the limits established by the ABA. Paralegals typically perform such substantive legal work under the supervision of an attorney. In-house legal departments use paralegals to support the legal needs of the organization and assist in performing such substantive legal work as is permitted by the ABA guidelines.
Paralegals may not make independent legal judgment nor can they provide legal advice. Some states, however, allow paralegals to work independently of an attorney to provide limited legal advice and to offer other legal services, but even those states place restrictions on the practice of such paralegals. For example, the Virginia Code which governs non-lawyers in that state provides that paralegals may represent clients in administrative proceedings before the Virginia Employment Commission, the Department of Human Resource Management and the Department of Medical Assistance Services, as well as in proceedings in local general district and circuit courts, and before various quasi-judicial bodies. Such forums, however, do not include criminal matters, domestic relations matters and shall not pertain to cases of a certain degree of complexity.
Paralegals and attorneys work hand-in-hand. While the attorney is ultimately responsible for all work completed by a paralegal , the paralegal continues to expand his or her role in the delivery of legal services. In the past, the paralegal’s role was primarily administrative in nature with tasks such as drafting documents, preparing pleadings, organizing files, conducting research, organizing and maintaining files, communicating with the client, preparing and filing applications and notices and assisting the attorney in trial preparation. However, the growing complexity in the law and the recognition and acceptance among attorneys that paralegals offer a higher and better level of performance in a number of tasks have increased the extent to which paralegals contribute to the attorney’s service to his client.
Paralegals assist attorneys in virtually all stages of the delivery of legal services, from the formation of a client’s company to its ultimate dissolution. Paralegals draft contracts, by-laws, and other documents necessary for the initial formation of the company, prepare annual conforming documents, assist with compliance matters and draft and file intellectual property forms such as patents, copyrights and trademarks. Paralegals prepare and file various other documents such as application for the Federal Employers Liability Act, the Fair Labor Standards Act, and other similar applications and documents. In addition, paralegals conduct legal research, assist in the discovery process by obtaining documents, taking and transcribing depositions, witness preparation, and juror/private investigator background checks for trial matters.
Paralegals Preparing Legal Papers
When most people think of paralegals, they think of individuals who assist attorneys in preparing legal documents. While this is certainly one portion of the paralegal’s job, it is not the only one and it is not always "cut-and-dry." For example, it seems pretty obvious that a paralegal can assist you in preparing complaints, answers and motions. In fact, paralegals do significant amounts of work drafting all types of pleadings and motions, including motions for summary judgment and uncontested family law pleadings.
However, there are significant limits on the type of "legal document preparation" paralegals can do. Some jurisdictions have laws that prohibit paralegals from preparing certain types of documents, such as wills and trusts. Even in jurisdictions that allow general "document preparation," there are always exceptions. The ethics rules of the ABA Model Rules of Professional Conduct Rule 5.5(b) (which is the basis for most state ethics rules) establishes that "no lawyer shall assist in the preparation of any legal papers for fee to be paid by one other than the client." Therefore, a paralegal cannot draft a contract for you to sign with a vendor or supplier (or anyone other than a client). More complicated rules exist for a paralegal assisting in legal preparation by providing assistance to an unrepresented person about the selection and completion of a form or oral or written instruction; a paralegal may not give legal advice, even if the result of that advice is that a form or written instruction is completed.
This may seem limiting, but in practice I find that there are not usually many requests that fall into these categories; most requests for paralegals to draft documents fall well within our ethics scope. It is important to keep these limitations in mind, and to review your state’s paralegal statute and the ABA Model Rules of Professional Conduct Rule 5.4 (Professional Independence of a Lawyer), which bans non-lawyer providers from doing anything constituting "the substantive legal questions of the case."
Legal Authority and Supervision
Despite their breadth of competencies, paralegals are subject to limitations in the tasks they may perform. Those restrictions differ somewhat depending on the state where the paralegal is employed and also generally depend on the company the attorney works for. For example, while one law firm may allow a paralegal to appear in court with a client or prospective client, requiring only a simple affidavit and a motion to waive appearance, another firm will not permit its paralegals to appear on behalf of clients at all.
Both the American Bar Association and the National Federation of Paralegal Associations have detailed "guidelines" regarding the services paralegals may provide. At the core of these guidelines are (1) the requirement that a paralegal have a supervising attorney who will ultimately sign off on any documents they prepare and (2) the restriction that paralegals cannot counsel clients or communicate with clients outside of the purview of the supervising attorney.
Benefits of Preparing Papers Using a Paralegal
The decision to have internal paralegals complete legal document drafting involves several factors, two of which are, the increased cost efficiency of the law firm, and the time savings with regard to the turnaround time on individual files. In terms of the former, the cost for my services is in the neighbourhood of $75/hr, as advertised on this website and via my business name, Paralegal Doc-Prep Service. This is more cost-effective than paying an attorney to complete that work at their current billable hourly rates. If a law firm solicits the legal document drafting services of an independent paralegal business, the fees charged for that work are still less expensive than what the firm would otherwise pay their own attorney on staff.
From a time savings perspective, I am usually able to work more quickly on a file because I am not simultaneously balancing other files. In a typical firm, an attorney can expect to have between 200-400 active files at any given time, depending on their area of practice. I prefer to work on one file at a time when completing a legal document draft, so the inability to work on multiple files simultaneously may be one drawback to hiring in-house staff to complete this kind of work. However, when I work for a firm as an independent contractor, I do expect to work on a file exclusively until it is completed and in a position to be forwarded to the attorney or law clerk for their action. It is also a benefit for you and your firm to have an independent paralegal available to you only during your actual requirements, as opposed to the expense of paying them a salary plus benefits.
Paralegal Training and Registration
While it can be said that there is no compulsory or professional requirement for someone to be called a paralegal (barring some restrictions in certain provinces like Ontario), the professional ideal for paralegals is that they are educated in legal concepts and have acquired certain skills that help lawyers and the justice system.
In Canada, there is a paralegal degree program offered at several colleges that gives you a diploma. It can be studied full time or part time via the Internet, but you will have to attend class for an on the work component. If you already have an undergraduate degree, you can complete a paralegal certificate program that takes less than a year of full time study. There are also paralegal certificate programs that do not require an undergraduate degree.
You can also specialize by taking extra courses in certain practice areas. These are legal courses like civil procedure, employment law, family law, immigration and refugee law, small claims court procedure, tax law and so on.
Once you have the education, you can join the Canadian Association of Legal Assistants and Paralegals. They used to have two divisions for paralegals (one for Ontario and one for the rest of the country), but they just combined them into a national body that calls itself Your Paralegal Interests. If you become a member, you can obtain their Paralegal Accreditation (P.Arb). This is more an interesting credential than one that gives you additional authority or privilege .
In Ontario, you can obtain a license as regulated paralegals, but to do so, you have to successfully write an entrance examination and pass a good character and financial eligibility test. You also have to meet ongoing education requirements, both with respect to substantive legal matters and the business of running a legal practice.
In some provinces, paralegals are not a formal distinct category of person in the justice system. For example, the Alberta Law Society refers to "lawyers" as referring to the combined categories of lawyers, paralegals, students-at-law and articling students.
Without wanting to be disrespectful, paralegals may be hired for their willingness to work for less money than lawyers, rather than their legal knowledge, skills or experience. There are certainly many people who are paralegals who lack the education, skills and/or experience to lawfully do what it is they are doing, but there are also plenty of paralegals who are doing a competent job.
It is difficult to get formal accreditation for doing legal work that doesn’t require a lawyer.
There is also another possible form of accreditation. In Ontario, a relatively new program exists whereby paralegals can become Accredited Legal Document Assistants. To become an ALDA, you have to have passed the lawyer licensing examinations and be in good standing with the Law Society of Upper Canada. To be engaged by a lawyer, you would also have to be retained by the lawyer, and billed to the client under the lawyer’s own name.
Paralegal Ethics and the Do’s and Don’ts
A paralegal seeking to draft legal documents must remain ever cognizant of the ethical standards concerning the practice of law and the limits of that practice. The State Bar of California definition of a paralegal is set forth in the Business and Professions Code section 6450. That section provides that a paralegal performs substantial legal work under the supervision of an attorney. Paralegals are not attorneys; they may not perform legal tasks that constitute the unauthorized practice of law.
The requirement for paralegals to practice under the direction and supervision of an attorney means that paralegals can meet any of the technical legal requirements for drafting a legal document as long as they operate under the supervision or direction of an attorney. When drafting legal documents, paralegals must also adhere to the American Bar Association and State Bar of California guidelines for the practice of law. The American Bar Association Majorminority.com website states that "The American Bar Association Model Standards for Internship in Legal Work state that law students and lawyers with less than one year’s work experience may draft pleadings, motions, memoranda of law, other legal documents and letters."
Still, the American Bar Association guidelines require that individuals who sign legal work are competent to do so. The California State Bar guidelines similarly require that an attorney is responsible for the content of legal work, including a legal document, drafted by persons under their supervision. California State Bar Guidelines include the stipulation that attorneys should advise the paralegals they supervise to obtain additional training or education if the task being assigned to the paralegal is outside of the paralegal’s education or experience.
An attorney’s ethics are designed to protect clients. California rules for attorneys require that an attorney have the competency to provide representation. That competency requirement includes knowledge of the law and skill relevant to the legal matter at hand, as well as time necessary to provide competent representation. A paralegal who has the education, experience, and training to draft a legal document will therefore be working within the competency requirements of the supervising attorney.
Case Histories: Successfully Incorporating a Paralegal
In this section, we highlight a few real-world scenarios where paralegals have made a considerable impact either by drafting or playing an essential role in the process. Whether it was a merger that involved a sophisticated and detailed agreement, a non-profit organization drafting a handbook or a form of healthcare document that was self-explanatory and easy to understand, a paralegal brought the idea to fruition. What we commonly see is a speedy turnaround of the matter, improved team cohesion and communication and a boosted bottom line.
One case study involved a complex merger that had been stalled for almost a year. Legal counsel for both companies had a historic tradition of working together on various matters. But as the merger became more volatile over time, each side resisted any attempt to find common ground. After several months of intensive research on whether or not this merger would even be legal, the lawyers were clear that they needed a much more even-handed and straightforward drafting approach. The paralegals worked out the substantive details of the agreement and the lawyers accepted their drafts. The bottom line: With a new agreement in place, the merger was finalized within six months. The five-year annual legal bill for that account declined from a high of $540,000 to $420,000. Just as importantly, with the merger complete, the composition of the board changed to reflect the combination of the two companies. The synergies of the merger increased profitability and reduced both companies’ administrative costs .
Another paralegal-led project involved a healthcare system organization that has a reputation for being more difficult to access. When patients made it to appointments, medical providers were frustrated because of the increased difficulty of locating specific documents. The hospital staff had burned through more than 30 minutes just for permission purposes. A paralegal updated and streamlined all such documents, which significantly improved the efficiency of the patients’ process. With the hospital and staff’s approval, the paralegal was able to publish the revised protocol hospital-wide. Similarly, she updated forms and documents to reflect the laws and regulations that applied to all 10 of the hospital’s stakeholders. She also proposed using new procedures that would increase revenue and reduce overhead. Bottom line: In the first year of the reform, there was a 20% increase in revenue and a half a million-dollars increase in net income from the previous year.
Paralegals are on the front lines of the drafting process. They play a major role in drafting, editing and proofreading. They have the skills and legal knowledge to spot problems before they move to the next stage of the process, whether that is to outside counsel, a senior attorney or judges. Depending on where a paralegal is located in the country, some can appear at court hearings. In many instances, they are called to appear as notaries public or certified court reporters. Paralegals assist lawyers and law offices in streamlining processes and procedures so that things get done faster.