Regulation

California, Texas, Florida, Washington, Indiana, Illinois, Pennsylvania, New York, Arkansas, Oregon, Minnesota, Connecticut…..They converged from all corners of the country to meet in Dallas, Texas on March 17-18, 2007, to obtain and to share information regarding implementation of regulation of the paralegal profession. All twenty-six attendees were there with one focus……to see that regulation and standards are implemented for the paralegal profession.

Presentations were made by NFPA representatives describing various forms of regulation, licensure, certification and registration, as well as the status of regulation efforts nationally. Understanding the legislative process, working with bar associations and lobbyists as well as the connection between PACE and regulation were other topics presented.

Wisconsin is seriously considering paralegal licensure by its petition for licensure pending on the Supreme Court’s list of Pending Rules and Petition. The State of Minnesota closely watches Wisconsin and will likely follow suit upon Wisconsin’s implementation of paralegal licensure.

North Carolina, a pioneer in paralegal regulation, presently has a voluntary paralegal certification program through the North Carolina State Bar Association that went into effect in 2004 and now requires successful completion of an examination.

Florida has worked diligently and appeared to be close to paralegal regulation through its legislature and bar association, but the paralegal organizations of Florida are still working toward coming together on agreement as to exactly what standards they wish to be implemented.

In June, 2006, the Ohio State Bar Association established a voluntary credential program for paralegals in Ohio which provides for certification requiring specific educational standards and experience, the completion of an examination and continuing legal education.

The New Mexico Supreme Court has established minimum standards for the use of the occupational title of “paralegal”.

California has enacted legislation that defines the occupational title of “paralegal”, sets standards for those people who use the title “paralegal” and defines and limits the functions that paralegals can perform. It differentiates “paralegals” from “legal document assistants.”

The State Bar of Texas adopted a voluntary specialty certification program for paralegals in 1974 which was structured after the voluntary specialty certification program for attorneys in Texas. After successful completion of a specialty certification examination, one may use the credential, “Board Certified Legal Assistant – [Area of Law].”

We were happy to report that Proposed Rule 2.2 is pending before the Indiana Supreme Court and will again be a topic for discussion at the ISBA Annual Meeting in October, 2007.

Internationally, the Ontario government recently passed legislation extending protection to consumers who hire independent paralegals. Paralegals will be required to receive training, carry liability insurance and report to a public body that can investigate complaints. This legislation is effective May 1, 2007.

It is very clear that the dedicated professional paralegals are determined to see that standards and criteria be agreed upon and implemented to allow the paralegal profession to be quantified and held to expectations and stated standards by the trained, educated professionals that make up the paralegal profession.

The Dallas Area Paralegal Association provided first class hosting for this conference in its selection of an excellent meeting facility at Esquire Depositions, providing sumptuous food, goodies, gifts and fabulous Texas hospitality. Our thanks go to DAPA for hosting this conference.

The Indiana Paralegal Association, Inc. has communicated to NFPA that it is ready and willing to host the next NFPA Paralegal Regulation Conference in 2008. Such a conference held at our central national location would attract many attendees.

On Wednesday, October 4, 2006, the Indiana State Bar Association Board of Governors unanimously passed a resolution for a favorable recommendation of support of proposed Rule 2.2 to the House of Delegates.

At the House of Delegates meeting on Friday, October 6, 2006, positive comments and some suggested changes were communicated to the assembly by a few of the Delegates.

It is our understanding that the ISBA intends to forward the comments made to the Supreme Court.

The Public Comment period for proposed Rule 2.2 Paralegals ended on April 3, 2006. Based on feedback received by the Indiana Paralegal Association, the Michiana Paralegal Association and the Northeast Indiana Paralegal Association, proposed Rule 2.2 received overwhelming support from paralegals, attorneys, state and local bar associations, judges, educators and others.

The Indiana Supreme Court Rules Committee referred Rule 2.2 Paralegals to the Supreme Court for its consideration. The Supreme Court has requested that Rule 2.2 Paralegals be included in the Indiana State Bar Association House of Delegate’s Agenda on October 6, 2006.

We are hopeful that the Indiana State Bar Association House of Delegates will confirm the support previously expressed by the Indiana State Bar Association Board of Governors and send a report of this support to the Supreme Court.

As you all probably know by now, the Indiana Supreme Court closed the public comment period for Rule 2.2 Paralegals on April 3, 2006. It is our understanding that Chief Justice Shepard has requested that the Indiana State Bar Association put Rule 2.2 on the agenda for the House of Delegates meeting at its October 4-6, 2006 Annual Meeting. We have confirmation that Rule 2.2 Paralegals is on the House of Delegates meeting agenda.

Cathy Canny, Edna Wallace and I were already slated to speak at the ISBA Annual Meeting on “Utilization of Paralegals…How Paralegals Are an Asset to Attorneys and Their Firms” for ethics CLE credit. Rest assured that we will devote a significant portion of our presentation to Rule 2.2.

Coincidentally, our seminar is scheduled just before the House of Delegates meets, so the seminar is in a very good timing position. If you know of any of the Delegates to the Annual Meeting, you may want to touch base with them and encourage their support of Rule 2.2.

We highly encourage all paralegals to take the time to attend the ISBA Annual Meeting being held at the Marriott Hotel in downtown Indianapolis on October 4-6, 2006. Paralegals can take advantage of up to 27 hours of CLE for only $95 if registered before September 20, 2006. Registration information is located on the ISBA website at www.inbar.org. Not only will you be able to attend some excellent CLE, but a strong paralegal presence at the meeting is important for success of Rule 2.2 and also to further positive relationships with ISBA attorney and judge members.

For the past two years we have periodically provided IPA’s membership with the status of proposed Rule 2.2 Paralegals. Most of the time we were on “hold” and there was no news to report. Well, do we have news to report now!

The Indiana Supreme Court has published proposed Rule 2.2 Paralegals for public comment. The proposal can be viewed at http://www.state.in.us/judiciary/rules/proposed/index.html. Comments will be accepted until April 3, 2006, at which time the Supreme Court will determine the adoption of Rule 2.2 Paralegals.

Proposed Rule 2.2 Paralegals is the missing piece of the puzzle. There is a statutory definition of paralegals contained in I.C. 1-1-4-6 and there are Guidelines 9.1 to 9.10 in the Rules of Professional Conduct which speak to the utilization of non-lawyer assistants. But there are no criteria as to what qualifications a paralegal should have. At the present time anyone in the State of Indiana can claim to be a “paralegal” with or without qualifications whatsoever.

Proposed Rule 2.2 Paralegals provides a means for paralegals to step up and be recognized by the Indiana Supreme Court for their education, paralegal work experience and continuing legal education. Although Rule 2.2 Paralegals is voluntary, it will bring the paralegal profession in Indiana to a new level and provide a professional identity, enhance the practice of law, and give the public and judiciary assurance that fees paid for paralegal services of “Indiana Registered Paralegals” (IRP’s) are for competent qualified paralegal services.

IPA has worked hand-in-hand with the Michiana Paralegal Association and the Northeast Indiana Paralegal Association for more than two (2) years to craft Rule 2.2 Paralegals and to demonstrate the unity and solidarity among the associations for proposed Rule 2.2 Paralegals. These associations and paralegals in the Evansville area worked with several bar associations including the Indiana State Bar Association, the Indianapolis Bar Association, the Evansville Bar Association and the St. Joseph County Bar Association to educate and obtain support for proposed Rule 2.2 Paralegals.

It is our hope that you will be excited about the prospects of becoming an “Indiana Registered Paralegal” (IRP).

In Indiana no form of paralegal regulation is currently in place. However, this is a topic that has been discussed for several years. Historically, anyone could call himself or herself a paralegal and begin working as a paralegal without any formal education and training whatsoever.

The paralegal profession has seen significant and progressive growth through the last twenty-five years and continues to mature and expand its duties. As a result, the days of a paralegal working without formal education are quickly declining. A national trend is developing in the paralegal profession which supports the need for certification. Certification will provide a more unified system for professional and ethical development and raise awareness of paralegal issues including the unauthorized practice of law.

On November 15, 2003, the Indiana Paralegal Association, Inc., Northeast Indiana Paralegal Association and Michiana Paralegal Association (members of the Alliance of Paralegal Associations in Indiana) submitted a proposal for paralegal certification for review and consideration to the Supreme Court Rules Committee.

After receipt of this proposal, The Indiana Supreme Rules Committee appointed a sub-committee to work with the associations on the proposal, and asked Edna Wallace, Cathy Canny and me to work with this subcommittee. We monitored the progress of 2.2 after every monthly meeting of the Rules Committee, following the Committee’s thought processes, questions and revisions. The version of 2.2 now before the Committee has changed slightly from our original proposal, but based upon what we last knew, it is still something we can live with and be proud of. The Rules Committee is scheduled to meet with the Supreme Court on this proposal in early September.

By way of background, we wanted give you some history as to how we have come to his point.

1993 – Indianapolis Bar Association was a pioneer in having paralegals as members of the Bar Association. The IBA Paralegal Committee was formed, and the Paralegal Executive Committee was asked to draft rules relating to paralegals. The committee did so, and these were submitted to the Indiana Supreme Court, which then became Guidelines 9.1 through 9.10 of the Indiana Rules of Professional Conduct, Use of Legal Assistants. IBA’s paralegal committee has always been a leader and active in paralegal issues. Edna Wallace and Cathy Canny have been proud to serve as Chair of IBA’s Paralegal Committee several times over the years.

In 1990-91, The Indiana Paralegal Association drafted and proposed to the legislature language on the definition of a paralegal, which was passed in 1993. The statutory definition is contained in I.C. 1-1-4-6 Attorney's fees as including paralegal's fees

Several years ago, the Indiana State Bar Association (“ISBA”) recognized the need for minimum paralegal standards when it established its paralegal membership requirements. In order to be an ISBA member, paralegals must meet certain educational and/or experiential requirements, be of good moral character, and continue their legal education. The minimum standards now a requirement for ISBA paralegal membership were supported by a nationwide study available at the time of the Bar’s consideration. Paralegal membership in ISBA is in its third year under this criteria.

The Alliance believes the ISBA, while applauded for its membership standards, is not the proper entity to regulate paralegal standards. That responsibility is more properly before the Indiana Supreme Court which regulates standards for attorneys and judges. In fact, the Indiana State Bar Association agrees, and has testified before the Rules Committee that it supports proposed Rule 2.2. Other bar associations in Indiana that have evidenced their support of this Rule in writing are the St. Joseph County Bar Association and Evansville Bar Association.

The standards established in proposed Rule 2.2 are similar to those for ISBA paralegal membership. Proposed Rule 2.2 also incorporates Indiana’s statutory definition of paralegals and the ethical requirements established in the Guidelines. The proposal would permit paralegals who meet those standards to identify themselves as Indiana “Registered” Paralegals. Such a program would be strictly voluntary. It would not set radical new standards, but would draw from and unite current statutory, judicial, and bar association standards into one cohesive standard for voluntary registration.

Attorneys would not be required to utilize registered paralegals, and registration would not be required of paralegals. It would, however, establish a standard for paralegals to aspire to. It would also provide assurance to the judiciary that registered paralegal fee petitions are made by paralegals who meet the state’s voluntary professional standards. The program would also be easily administered, as attorneys would remain responsible for paralegals’ work product, and must attest to their paralegal’s qualifications for registration. Paralegals’ CLE hours could be tracked in the same way attorneys’ CLE hours are tracked. And any administrative costs should be amply covered by paralegal application fees.

A number of other states including Wisconsin, North Carolina, New Mexico, Texas, Florida, Arizona and California, have regulation in place or are considering paralegal regulation.

It has been the goal of the Alliance associations to formulate a plan that will be acceptable and beneficial to attorneys, paralegals and the public. It is imperative that those who are currently qualified and practicing as paralegals in the State of Indiana not be displaced or excluded.

With the definition contained in IC 1-1-4-6, and the Guidelines for attorneys in utilizing paralegals there is still a missing link. We have a statutory definition for paralegals at IC. 1-1-4-6, we have Guidelines 9.1-9.10 in the Rules of Professional Conduct that speak to the utilization of paralegals, but we have no standards or criteria whatsoever set for those persons who wish to practice as paralegals. The missing link in Indiana is something that would set out the minimum criteria for a paralegal in the State of Indiana. Proposed Rule 2.2 was submitted to the Supreme Court Rules Committee to establish these standards for the paralegal profession in Indiana and to offer the courts, employers and the public a certain level of confidence that a paralegal has met certain minimum standards.

We are very excited by the paralegal and bar association support of proposed Rule 2.2. We hope you share our enthusiasm and we would be happy to answer any questions you might have about the Rule.

There are few people around these days who can remember when a lawyer got to be a lawyer by serving an apprenticeship under another lawyer for a period of time. When the apprenticeship period was over, voila! a lawyer was born and a new shingle was hung. OJT was the principal “law school” for attorneys.

Then, in the early 1930’s the Indiana legislature empowered the Indiana Supreme Court with oversight over the practice of law. Things changed. Law school was required as well as successful completion of the Bar Exam. Today, the public could not imagine any other means to becoming a lawyer than by one attending law school and passing the Bar Exam.

The paralegal profession, a much younger profession, is in a sense heading down a similar road. At the present time there is no regulation whatsoever in Indiana for persons in the paralegal profession. Anyone, with or without paralegal training, can represent themselves to be a “paralegal.”

In 1993 IPA was instrumental in the enactment of I.C. 1-1-4-6 which defined a paralegal in Indiana as follows:

I.C. 1-1-4-6 Attorney’s fees as including paralegal’s fees

Sec. 6 (a) As used in this section, “paralegal” means a person who is: qualified through education, training, or work experience; and employed by a lawyer, law office, governmental agency, or other entity; to work under the direction of an attorney in a capacity that involves the performance of substantive legal work that usually requires a sufficient knowledge of legal concepts and would be performed by the attorney in the absence of the paralegal.

A reference to the Indiana Code to attorney’s fees includes paralegal’s fees.

In 1994, through efforts of paralegal members of the Indianapolis Bar Association, the Indiana Supreme Court adopted Guidelines 9.1 – 9.10 for inclusion in the Rules of Professional Conduct. Those Guidelines give direction to attorneys for the utilization of paralegals in the practice of law.

What exists now is a three part puzzle with two of the pieces in place:

(1) a paralegal definition and

(2) guidelines for utilization of paralegals.

But one piece is still missing…..

(3) the criteria for becoming a paralegal and standards for continuing to be a paralegal.

The Alliance of Indiana Paralegal Associations (comprised of Indiana Paralegal Association, Michiana Paralegal Association and Northeast Indiana Paralegal Association) has worked together at the direction of all of its collective members across the state to craft a proposal of voluntary regulation of the Indiana paralegal profession. The proposal was submitted to the Indiana Supreme Court Rules Committee in November of 2003. Proposed Rule 2.2 Paralegals of the Rules of Admission and Discipline sets minimum educational standards and other criteria for those persons who represent themselves to be paralegals. A grandparent period exists to allow those persons with significant work experience, but who do not meet the educational requirements, to become registered. Please refer to the November, 2003 issue of the Precedent for a summary of the contents of the proposed Rule 2.2.

Three members of the Alliance of Indiana Paralegal Associations (Cathy Canny, Edna Wallace and Janet Logan) have worked very closely with the Supreme Court Rules Committee on the issue of voluntary paralegal regulation over the last two years. As of the publication of this issue of the Precedent, we are waiting to hear from the Rules Committee as to its revisions and recommendation to the Indiana Supreme Court concerning proposed Rule 2.2. When we have received reportable information from the Rules Committee, it will be communicated by publication of an article in the Precedent to the membership.

In the meantime, we have been monitoring the progress of other states as the move toward paralegal regulation approaches. The following is a listing which, at this time may not be all inclusive, of the states having a paralegal definition, states having paralegal utilization and standards criteria, and states in which there is pending paralegal regulation.

It is hoped that Indiana will be among those in the vanguard of paralegal regulation.

Janet S. Logan, C.P.

Indiana Paralegal Association

Regulation Committee Chair

Career oriented publications and materials have for years touted the paralegal profession as the fastest growing and most promising segment of the workforce. There are some of us who have watched and been on that wave almost from the beginning.

We have observed and experienced the changes that have taken place over time. Through the years, paralegals have evolved from talented administrative staff to top notch, educated, skilled professionals possessing substantive legal knowledge. Now, through demonstration of education, skills and abilities, paralegals are utilized in highly complex legal matters and given extremely challenging responsibilities.

Even though the profession has morphed itself to a higher level, states in general, including Indiana, require no regulation of persons practicing as paralegals. Anyone, with or without education and skills, can call himself or herself a “paralegal.” Indiana has a statutory definition of paralegals (I.C. 1-1-4-6) relating to the recoverability of fees. However, there are absolutely no standards or criteria in place to determine who may or may not practice as a “paralegal.”

Guideline 9 of the Indiana Supreme Court Rules of Admission and Discipline sets out guidelines that supervising attorneys should follow when utilizing paralegals and designates the employing attorney as ultimately responsible for the paralegal’s work.

For years the paralegal associations of Indiana have watched the trends around the country and stayed abreast of the implementation of rules and legislation which have been occurring in other states. The Indiana Alliance has conferred and reached a consensus of position and philosophy with representatives of all of the Indiana paralegal associations.

Although Indiana has a statutory definition of paralegals, and Guidelines for utilization, there was still a missing link – a minimum criteria of qualifications in the form of regulation or certification.

With encouragement, support and input from many attorneys and judges, the paralegal associations of Indiana joined together and created and agreed upon a proposal submitted November 15, 2003, to the Indiana Supreme Court Rules Committee as proposed Rule 2.2 – Paralegals to be added to the Rules of Admission and Discipline which would set forth the minimum criteria of qualifications.

At the Rules Committee’s February, 2004 meeting, paralegal representatives were given the opportunity to give testimony and to answer questions in support of the paralegal regulation proposal. During the course of that meeting, the Rules Committee appointed a sub-committee who then appointed Cathy Canny, Janet Logan and Edna Wallace as the paralegal participants.

By the end of April, 2004, a refined draft of the proposal was submitted which set forth education standards and criteria with which paralegals must comply in order to receive certification by the Indiana Supreme Court and be permitted to use the credential of C.I.P. (Certified Indiana Paralegal) or a similar credential after their names.

This certification is not mandatory, and anyone presently working as a paralegal will be able to continue to do so. Attorneys are still free to employ whomever they wish. However, certification will be highly important as to identification, career advancement, employment selection, and to the judiciary who must approve fee petitions.

Below is a summary of the criteria proposed in proposed Rule 2.2. The Indiana Alliance appreciates the feedback, questions and suggestions received from all members of the participating Indiana paralegal associations.

At the March 2 meeting of the Indianapolis Bar Association (IBA) Board of Managers, the support of IBA was requested by its Paralegal Executive Committee. It appears that the support will be forthcoming.

We’ve come a long way in a very short time and we express our gratitude to the Indiana State Bar Association, the Indianapolis Bar Association the St. Joseph County Bar Association and the Evansville Bar Association for their support of proposed Rule 2.2 and the paralegal profession.

(a) A Bachelor’s degree with a minimum of twelve (12) hours of undergraduate study of law or paralegal studies from an institutionally accredited paralegal program; or

(b) A Bachelor’s degree and a paralegal certificate from an institutionally accredited paralegal program; or

(d) An Associate’s degree in paralegal studies or a certification in paralegal studies from an institutionally accredited paralegal program plus at least two (2) years paralegal experience; or

(e) Paralegal Advanced Competency Exam (PACE as offered by the National Federation of Paralegal Associations) or CLA/CP certification (as offered by the National Association of Legal Assistants) accreditation and is in good standing.

To be eligible to apply for an educational requirements waiver, a person must have:

(a) Paralegal work experience consisting of not less than 70% of substantive legal work performed for a minimum of Five (5) years in the previous Ten (10) years in the employ of an attorney, law office, corporation, governmental agency, or other entity, while performing specifically delegated substantive legal work for which an attorney is ultimately responsible, and absent such paralegal, the attorney would perform the task. Time spent performing work of a clerical or non-billable nature is specifically excluded; and

(b) Confirmation in writing by sworn affidavit of supervising attorneys who employed such person as a paralegal or legal intern setting forth the period of time so employed and duties performed; and

1. Persons who have been suspended or disbarred from the practice of law in any state; or

2. Persons who have been convicted of a felony, or its equivalent, or of unauthorized practice of law in any state or jurisdiction; or

3. Persons who are currently under suspension, termination or revocation of a certification, registration or license to practice by a professional organization, court, disciplinary board, or agency in any jurisdiction

Paralegals must obtain a minimum of 6 hours of continuing legal education including 1 hour in Ethics annually.

Historically, anyone could call himself or herself a paralegal and begin working as a paralegal without any formal education and training. The paralegal profession has seen significant and progressive growth through the last twenty-five years and continues to mature and expand its duties. As a result, the days of a paralegal working without formal education are quickly declining. A national trend is developing in the paralegal profession which supports the need for certification. Certification will provide a more unified system for professional and ethical development and raise awareness of paralegal issues including the unauthorized practice of law.

Paralegals across the state of Indiana support the criteria (published in the Precedent in October, 2003) contained in a proposal of Admission and Discipline Rule 2.2 Paralegals submitted by Indiana Paralegal Association, Northeast Indiana Paralegal Association and Michiana Paralegal Association to the Supreme Court Rules Committee on November 15, 2003. If adopted by the Supreme Court, Rule 2.2 Paralegals will create a voluntary certification credential known as “Certified Indiana Paralegal” (CIP).

We have continued to work with the Supreme Court Rules Committee over the past year and we are hopeful that the Rules Committee will send Rule 2.2 Paralegals to the Supreme Court with a “Do Pass” recommendation.

As many of you are aware, IPA, at the direction of its membership, has for the last few years taken a proactive approach to regulation. IPA formed an Ad Hoc Regulation Committee in 1999, which later was voted by the IPA Board of Directors to be an official IPA Regulation Committee, to address this issue. The Committee has been active since that time and, after input from our members, has drafted guidelines, or recommendations, that it proposes should be adopted, or incorporated into regulation criteria. The areas discussed include character and fitness criteria, qualifications, education, experience, and CLE requirements. As the issues regarding regulation evolve, these guidelines and recommendations have been and will be reviewed and refined.

In Indiana no form of regulation is currently in place. IPA is making every attempt to formulate a plan that will be acceptable and beneficial to attorneys and paralegals alike. IPA does not want, or intend, to exclude those who are currently qualified and practicing as paralegals in the state of Indiana.

The Indiana State Bar Association (ISBA) has approved paralegal membership in ISBA and there are certain criteria for that membership. IPA has been working in the last few years to educate judges, attorneys and the public about the role of paralegals and why regulation is important.

The Regulation Committee for 2003-2004 has been conferring and meeting regularly. It has carefully monitored the status of regulation and/or licensure in other states.

The following summarizes the criteria for paralegals in the State of Indiana as they have been written and refined by the Regulation Committee. The Regulation Committee would like your opinion on these criteria. Please review these criteria and return your comments by November 20, 2003, to the Regulation Committee Chair, Janet S. Logan, C.P. at jlogan@kdlegal.com. This is your Committee and we look forward to hearing from you as our work continues.

to work under the direction of an attorney in a capacity that involves the performance of substantive legal work that usually requires a sufficient knowledge of legal concepts and would be performed by the attorney in the absence of the paralegal.

(b) A reference in the Indiana Code to attorney’s fees includes paralegal’s fees.