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
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 paralegals.
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
The issues of licensure of a profession are
very complicated and rest on two factors: 1) a
person’s fundamental right to engage in his or her
chosen profession; and 2) protection of the health,
welfare and safety of the public. Often, in today’s
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 legislature’s 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 licensing proposals.
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 follows:
||Title 2, Div.
2, Part 1, Chapter 1.5, Article 8. Legislative
oversight of state board formation and
licensed professional practice. Secs. 9148.4,
Article 9A. Sunrise Act. Secs.12-9A-1-12-9A-6.
General assembly sunrise review of new
regulation of occupations and professions
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
Subtitle 1, Chapter 1. Sec. 54.1-100-54.1-311.
Title 4, Ch. 26H Hawaii Regulatory licensing
||Title 18. Ch.
18.118 Regulation of business professions
||Title 32, Ch.
1-A, Subchapter II. Sunrise review procedures.
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
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 title.
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
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
(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 public.
Hawaii Code Annotated 26H-2, 26H-5 and
26H-2 Policy: The legislature hereby
adopts the following policies regarding the
regulation of certain professions and vocations:
(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 abilities; and
3. The public cannot be effectively
protected by other means.
Virginia. 54.1.100 Regulations of
professions and occupations.
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
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
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 means.
These statements demonstrate the
legislatures’ 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
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
2. What constitutes harm? Please list
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
1. What is the extent of autonomy of work?
2. Is there a high degree of independent
3. How much skill and experience is required in
making these judgments?
4. Do practitioners customarily work on their
own or under supervision?
5. If supervised, by whom, how frequently,
where, and for what purpose?
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
Criterion 4. Benefits of regulation
should outweigh potentially adverse effects.
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 practitioners?
2. Could the use of existing laws or existing
standards solve problems?
a. Use of unfair and deceptive trade practice
b. Use of civil laws such as injunctions,
cease and desist orders, etc.
c. Use of criminal laws such as prohibition
against cheating, false pretense, deceptive
1. What are the potential benefits?
a. How will regulation help the public
identify qualified services?
b. How will regulation assure that
practitioners are competent?
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 decrease costs?
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 practitioners?
b. Will regulation act as an entry barrier?
c. Will regulation prevent the optimal
utilization of personnel?
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
Do the benefits more than compensate for
potentially adverse effects?
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
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 needed.
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 paralegal profession.
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 one’s
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
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.
Robinson’s advertisement as a paralegal is false
since his work product is admittedly not subject to
the supervision of a licensed attorney.
Further, the ad’s 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 people’s 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 Court’s
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 individual’s 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 For
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
|High need for
practice of this occupation will harm or
endanger the public health, safety, and
sought only by practitioners. Evidence of harm
lacking or remote. Most effects secondary or
tertiary. Little evidence that regulation
would correct inequities.
public 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
protections available to the consumer are
regulated groups control access to
practitioners. Existing remedies are in place
and effective. Clients are generally groups or
organizations with adequate resources to seek
clients access practitioners directly. Current
remedies are ineffective or nonexistent.
alternatives to regulation will adequately
protect the public
alternatives considered. Practice unregulated
in most other states. Current system for
handling abuses adequate.
search of alternatives find them lacking.
Practice regulated elsewhere. Current system
ineffective or nonexistent.
will mitigate existing problems
or no evidence of public benefit from
regulation. Case not demonstrated that
regulation precludes harm. Net benefit does
not indicate need for regulation.
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.
operate independently, making decisions of
operate 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 consequence.
have little or no supervision. Decisions made
by practitioners are of consequence, directly
affecting important consumer concerns.
and tasks of the occupation are clearly
of competent practice unclear or very
subjective. Consensus does not exist regarding
appropriate functions and measures of
occupational functions are clearly defined,
with quantifiable measures of successful
practice. High degree of agreement regarding
appropriate functions and measures of
occupation is clearly distinguishable from
other occupations that are already regulated
degree of overlap with currently regulated
occupations. Little information given
regarding the relationships among similar
occupational functions clearly different from
those of currently regulated occupations.
Similar non-regulated groups do not perform
critical functions included in his
occupation requires possession of knowledges,
skills and abilities that are both teachable
knowledge 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
knowledge 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
impact of regulation is justified
impact not fully considered. Dollar and
staffing cost estimates inaccurate or poorly
analysis of all costs indicate net benefit of
regulation is in the public interest