Attorney Mark Dubois ()

The field of paralegal enterprise is getting a lot of attention today. A recent report by a Connecticut Bar Association committee on the “problem” of law schools included a suggestion that some of what folks call the justice gap — the lack of access on the part of many to resources necessary to meet their basic legal needs, could be met by empowering paralegals to offer direct-to-the public service.

And there is a move on the part of court administrators in some states to solve some of their self-represented party problems by pairing them with concierges who will lead them through the legal thicket and, in some instances, stand with them in the well of the court to act as a translator/communicator between the judge and the judged.

Some enterprising folks in other common-law regimes (England, Canada) have allowed enterprising lawyers to offer low-cost services in Costco-like megastores by (wo)manning kiosks offering wills, trusts, incorporations and such with them.

Finally, I just read about a survey that pegged paralegal salaries in big-city, big-firm environments from $37 to $80 per hour. When many law schools are telling their 3L’s to expect to make less than the low end of that scale upon graduation, that is some serious earning power. When you add in the fact that many of these people are not encumbered with crippling student debt, we are talking about a pretty good career path. And it is such a recognized career now that I just read about a newly-admitted lawyer who was rejected for a paralegal position because he was not qualified.

Of course, not all is rosy. I read recently about a case where a litigant in a family matter got a do-over on appeal after he showed how the concierge paralegal provided by the court had actually assumed the role of lawyer in the case, moving from guide to advocate. The court held that this was a due process deprivation. Courts, and presumably their staff, are supposed to be neutral. (I wonder if the result would have been different if both parties had a concierge guide cum lawyer.)

And there have been more than a few cases where paralegals have stolen money (and even identities) from unwitting supervising attorneys who stopped supervising.

When the legislature recently expanded the scope of licensure for various classes of nurse-practitioners, more than one person noted that it was a short step from that to licensing paralegals to provide the same level of hands-on care. Many lawyers do not welcome the idea of these professionals, who used to exclusively work for them, now being in competition with them for the low-hanging fruit of bread-and-butter, commoditized legal services. As the legal services pie shrinks, they get pretty angry about having to share it with non-lawyers.

Of course, any movement to license direct services by paralegals will have to deal with the issue of what some call the “last one in” phenomenon—what do we do with the generations of those who already work in the field but do not have certificates, diplomas, or degrees? Some want robust regulation of newcomers, but rebel at any suggestion that they take any sort of test to prove their qualifications to be grandfathered.

There is also the problem of continuing education. Most paralegal licensing regimes require it. But we in the Land of Steady Habits have steadfastly resisted any suggestion that lawyers need any post-admission schooling, regardless of how many decades it may have been since they last sat in a classroom. Can you envision a regime where paralegals would be required to keep current on the law while their lawyer competition is not?

What about confidentiality and privilege? If paralegals are going to be dealing directly with the public, is everything that is said between client and professional fair game for later discovery? Would we need a statutory privilege to protect this communication?

Finally, an issue I have pondered over (to little result) is the issue of malpractice. It seems to me that paralegals, like any other professionals, should have some liability when they get something wrong. As it exists now, under vicarious liability theories, the lawyers who employ them are responsible, both for legal and ethical misbehavior (read Rule 5.3).

When I was in charge of the unauthorized practice of law, we sometimes wrestled with this question. At one point, when asked to articulate the performance standard to be applied to those engaged in the unauthorized practice of law, I came up with something akin to “the level of care and competence of someone who had no idea what they were doing.” Of course, most paralegals know what they are doing, and would have to hew to the standards of care applicable to their profession, but how do you differentiate that from the standard applicable to a lawyer? If folks get something done by a paralegal, must they, a fortiori, expect that the services they get will not be of the same quality as provided be a lawyer?

Fascinating issues all. With no simple answers.

Mark Dubois, the former chief disciplinary counsel in Connecticut, is now an attorney at the New London firm of Geraghty & Bonnano. He is also president of the Connecticut Bar Association. The views expressed here are his own and not those of the CBA.