Paralegals in the Practice
Submitted by: Timothy J. Heinson of Heinson Law Firm and adjunct faculty with the PCC Paralegal Program, with assistance from Gerald Brask, JD, Department Chair of the PCC Paralegal Program and Steven B. Taylor, JD, adjunct faculty with the PCC Paralegal Program.
Lawyers of a certain age may have only a passing familiarity with the concept of a “paralegal.” After all, Perry Mason didn’t have a “paralegal.” Della Street may have stumbled over the odd corpse and hid a witness or two but she mostly took dictation and was the quintessential 1950’s “secretary” down to her high heels. Lawyers who began practicing in the 1980s and earlier may not recall any “paralegals” back then, just associates and secretaries. So it may come as a surprise that paralegal education programs have been in existence in Oregon for more than 40 years. Portland Community College, which has the largest program in Oregon, began in 1974, with the first paralegal (then “legal assistant”) graduating in 1976. The program at PCC has grown significantly, with 80 graduates last year and a similar number expected this year. Paralegal schools throughout Oregon graduate approximately 120 new paralegals each year.
What exactly is a “paralegal?” The term does not appear in the Oregon Rules of Professional Conduct (ORPC), the primary source of rules regarding their use. Rather, the ORPC employs the term “nonlawyer.” The American Bar Association provides a generally accepted definition:
“A legal assistant or paralegal is a person, qualified by education, training or work experience who is employed or retained by a lawyer, law office, corporation, governmental agency or other entity and who performs specifically delegated substantive legal work for which the lawyer is responsible.”
In response to industry demands, paralegal training and education has become increasingly professional. The ABA approved standards for the approval of legal assistant programs in 1974 and began approving programs nationwide the following year. PCC became the first ABA Approved Paralegal Program in Oregon in 2010, followed by Pioneer Pacific College. The scope of paralegal education has expanded over the years, again in response to industry demands. In addition to the traditional introductory courses and staples such as criminal law and litigation, schools now offer specialized courses in such subjects as Estate Planning, Elder Law, Bankruptcy, Workers Compensation, Immigration Law and E-Discovery.
With all of that training and education, what can paralegals do in the real world? So long as the paralegal is properly supervised by the employing lawyer, a paralegal can perform a wide variety of tasks, including requesting and reviewing discovery, drafting documents and pleadings, legal research, interviewing clients and witnesses, communicating with clients and attorneys, and assisting with trial preparation. In fact, it might be easier to answer that question by defining what a paralegal cannot do. The primary issue is the unauthorized practice of law (UPL). ORS 9.160 forbids the practice of law by anyone who is not an active member of the Oregon State Bar. In Oregon, the ORPC provides the requirements for the ethical practice of law. The key rule regarding the use of paralegals is ORPC 5.3(a), which provides:
“With respect to a nonlawyer employed or retained, supervised or directed by a lawyer:
(a) a lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts to ensure that the person’s conduct is compatible with the professional obligations of the lawyer;”
ORPC 5.5(a) provides:
“A lawyer shall not practice law in a jurisdiction in violation of the regulation of the legal profession in that jurisdiction, or assist another in doing so.” (Emphasis added).
There are three primary areas of concern. First, a paralegal is not allowed to establish an attorney-client relationship. Unlike Danny DeVito’s “paralawyer” in The Rainmaker, a paralegal is not allowed to recruit clients for the lawyer or enter into fee agreements. The second area of concern is the giving of legal advice. The Oregon Supreme Court, in Oregon State Bar v Security Escrows, Inc., 233 Or 80, 89 (1962), held that the primary issue in UPL is the application of specialized knowledge to a specific client. Providing general information or relaying the lawyer’s advice is acceptable. Advising clients regarding legal rights and responsibilities, interpreting the law, or evaluating potential outcomes is not. In In re Morin, 319 Or 547 (1994), for instance, a paralegal employed by a lawyer conducted informational meetings regarding estate planning. He then met with individual clients, reviewed will and trust documents, and advised them whether the client needed to establish a trust. The court held that the informational meetings were appropriate but the advice to the individual clients was UPL. The final area of concern for UPL is the setting of fees. Although a paralegal can relay to a client what a fee agreement says, the paralegal cannot exercise discretion in advising the client what fees would apply in a certain case. The paralegal’s fees and tasks must also be clearly identified on any bill sent to the client.
Why would you want to use paralegals in your practice? One answer is economics. As attorney fee rates increase, so do the number of potential clients who are unwilling or unable to pay them. According to the 2012 OSB Economic Survey, the average hourly billing rate in Oregon is $242 (up from $213 in 2007). Sophisticated consumers of legal services are using billing codes and guidelines detailing which services they will pay as “lawyer” tasks or “paralegal” tasks. Those of us doing insurance defense work are familiar with these guidelines. The bottom line is that insurance companies and other corporate employers of lawyers are increasingly interested in the utilization of paralegals. Every attorney must make an independent judgment as to whether a particular task requires a lawyer to perform it. The lawyer is, of course, free to perform the task but will likely be paid at a paralegal rate.
Aside from these gray areas, there are large areas of practice clearly suitable for paralegal work. Paralegals can provide services at a lower cost to both clients and the firm, thereby increasing profitability. They can free up lawyer time, allowing lawyers to work on more complex legal issues and allowing an increase in the firm’s caseload. Services that may be otherwise be performed at no charge or a reduced rate by a lawyer can be performed at a lower cost and potentially be billable. Paralegals are also an invaluable contact point for clients and opposing counsel, again increasing lawyer productivity.
The trend toward higher attorney fees and public concern regarding access to the legal system is also creating a movement toward broadening the scope of nonlawyer legal services. The Washington Supreme Court, in 2012, established the Limited License Legal Technician (LLLT) Board to set requirements for nonlawyers who meet certain educational requirements to advise and assist clients on specific areas of law. The first practice area is domestic relations, and the LLLT Board is expected to begin accepting applications in 2015. The OSB has established a Task Force on Limited License Legal Technicians to study the issue. Lowering overall legal costs through the use of paralegals may have an impact on this movement.
Most paralegal programs provide students with credit opportunities through internships with law firms. This provides students with hands-on experience which enhances their college training. Firms also have an opportunity to determine if this fir is right before making hiring decisions.
We no longer live in Perry Mason’s world. He worked an hour a week, including trial, and never had to deal with billing guidelines. The proper use of paralegals in your practice can provide an opportunity for you to “practice law” and increase profitability. After all, isn’t that why we went to law school?
(Questions about establishing student enrollment or internships with the PCC Paralegal Program may be directed to email@example.com, 971-722-5212).