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I just read a great blog at The Estrin Report, written by fellow paralegal, Chere Estrin, called “Still Thinking about Licensing Paralegals? Hogwash.  Old School Thinking.”

I am still on the fence about licensing paralegals.  There are many good reasons to do so but there are almost as many bad reasons.  In Ms. Estrin’s blog, (you can read the entire blog here) she makes the point that: “Licensing may establish minimum qualifications, but that won’t necessarily help you land the job. Attorneys will still rely on your resume to identify specific skills and work experience when they’re considering you for a position.”

Ms. Estrin believes the paralegal field will “follow similar suit to nursing practitioners and physician assistants, as shown below:

  • The Attorney Practitioner: BA/BS degree; graduate school; 1 or 2 years of law school; able to perform previous attorney assignments: perhaps take a deposition; assess a case; prepare certain documents; appear in front of a judge;  (in King County, Seattle, this has been done with paralegals for years on default judgments and more).
  • The Certified Paralegal: BA/BS; paralegal certificate; required number of years in the field; plus sits for certification exam.
  • The Paralegal: BA/BS degree plus paralegal certificate.
  • The Paralegal Assistant: An AA degree plus paralegal certificate.
  • The Paralegal Clerk: Either an AA degree, no paralegal certificate or paralegal certificate and no college degree. Cannot move up unless an AA degree and paralegal certificate are reached.”

She further believes the “field will stratify according to entry requirements, education, years of experience and expertise which will in turn limit the types of duties a paralegal of certain ranks will be allowed to do. Right now, there is only entry-level, mid-level, senior level and paralegal manager in most firms. Paralegals are paid according to years in the field, modeled after the associate program. They are not paid for performance. Right now, a 10 year paralegal can be performing at the two-year level but paid at the 10 year market level.” I don’t entirely agree with this last sentence, but I do agree that the majority of paralegals are paid based on their years of experience, (but in the area I work in, their knowledge is also considered for their salary.)

I do agree that paralegals should be required to attain more education, sophisticated assignments and years in the field before they can even be considered for certification, let alone licensing.

So, to license or not license paralegals. Who will pay for this licensing, the paralegal or the attorney they work with/for and who will monitor the licensing?  The State Bar? I wonder how my fellow paralegals and even the attorneys we work for feel about licensing paralegals.  Please let me know by completing the quick survey below.  It will only take a second or two and then back to work you go!  Many thanks.

 

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As reported in the California Bar Journal this month, the California Supreme Court made history last month when it granted posthumous State Bar admission to Hong Yen Chang, who was denied a law license 125 years ago due to federal and state laws denying citizenship and employment to Chinese Americans.

Hong Yen Chang
Hong Yen Chang – Courtesy of the Ah Tye Family

Chang overcame numerous obstacles to become licensed to practice in New York in 1888, but when he moved to California two years later, the high court here rejected his application.

Hong Yen Chang, a native of China, came to this country in 1872 as part of an educational program to teach Chinese youth about the West.

Chang graduated from the Philips Academy in Andover, Massachusetts, in 1879 and earned his undergraduate degree at Yale.

He went on to graduate from Columbia Law School in 1886. He applied for admission to the New York Bar, but despite a “high marking” and unanimous recommendation from the bar examiners, he was turned down by the state supreme court in 1887 because he was not a citizen.

That same year, a New York judge issued Chang a certificate of naturalization.  After the New York Legislature passed a law allowing him to reapply for bar admission, Chang was admitted in 1888, becoming the only regularly admitted Chinese lawyer in this country.

Since then, the anti-Chinese exclusionary laws and policies that led to his rejection have been renounced.

“Even if we cannot undo history, we can acknowledge it and, in doing so, accord a full measure of recognition to Chang’s path-breaking efforts to become the first lawyer of Chinese descent in the United States,” the court wrote in its unanimous March 16 opinion.

Chang’s descendants and the Asian Pacific American Law Students Association at the University of California Davis School of Law spearheaded the effort to right the historic wrong.

The law firm of Munger, Tolles & Olson, working pro bono, filed a petition with the court late last year.

“I thought it was important to start addressing a stain on California’s judicial history and make amends to the Chinese people,” Munger partner and former State Bar President Jeffrey Bleich told the Los Angeles Times.

The state Senate called for Chang’s admission to the bar via a unanimous resolution and the State Bar of California granted Chang honorary membership “in repudiation of the discrimination against Asians that unjustly formed the basis for barring his admission to the bar in 1890.”

UC Davis Law Professor Gabriel Chin told the San Francisco Chronicle, that the case showed both the rewards of a long fight for justice and the drawbacks of having to wait more than a century for it.

Chin also told the newspaper that it was fitting that Monday’s ruling came from “perhaps the most diverse state Supreme Court in the country.” Chief Justice Tani Cantil-Sakauye and Justices Ming Chin and Goodwin Liu are of Asian descent and Justice Mariano-Florentino Cuéllar was born in Mexico.

Rachelle Chong, Chang’s grandniece and one of four family members who’ve become California lawyers, told the  San Jose Mercury News the family is “thrilled” the state Supreme Court reversed its own 1890 ruling. She, along with a cousin working on a book about Chang, discovered the old Supreme Court ruling while in law school in the early 1990s. Chong was the first Asian-American to serve on the Federal Communications Commission and the California Public Utilities Commission.

“We feel we were the only family left to try to clear up this historic wrong,” she told the paper.

I was very pleased to read this and just had to share it.  Reading about Mr. Chang’s history was absolutely fascinating and I am awestruck by his tenacity.  His family tree of descendants is now filled with lawyers and this must make him proud; that all he went through in his lifetime paved the way for his family.

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According to an article in the ABA Journal, The State Bar of California is firing back after its former executive director claimed in a lawsuit that he was fired for exposing “egregious improprieties.”

The bar says the lawsuit by fired executive director Joe Dunn is “baseless” and his claims of being a whistleblower are

Senator Joe Dunn 2

Senator Joe Dunn 2 (Photo credit: Wikipedia)

“bewildering” because it was his job to manage the bar’s operations and employees.

Dunn claimed in his lawsuit (PDF) that he was told of his firing Nov. 7, just days after he and seven other anonymous complainants filed whistleblower notices with the bar. The bar publicly announced Dunn’s departure last Thursday, and Dunn filed his suit a few hours later.

The state bar emphasizes different points in the timeline of events.

“The lawsuit filed by Mr. Dunn is baseless,” the statement says, “and falsely suggests that the termination decision was motivated by the receipt of letters from [Dunn’s] attorney Mark Geragos stating that unnamed whistleblowers had complaints regarding state bar officials and operations.”

“At no time prior to Nov. 13 was Joe Dunn ever identified as a whistleblower, and he never brought any such claims to the board,” the statement says. “Indeed, it’s bewildering to hear Mr. Dunn claim he is a whistleblower since as the executive who is head of the entire organization he is responsible for managing operations and the over 500 employees, and he only belatedly raised claims after he was given notice of termination of his employment agreement, and after a settlement discussion with his counsel at the Girardi & Keese firm reached an impasse on Nov. 12.” Dunn was never identified as a whistleblower during those discussions, the bar said.

Many accusations by both Dunn and the Bar have been made.  You can check out the first article in the ABA Journal here and the subsequent article here.  Go to this link, for more on the current article in the ABA Journal.

 

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The California Bar Journal reported that due to budget cuts, the state’s trial courts have been devastated. To see where the closures have occurred in your county and which parts of the state have been hit the hardest, click on this link.  On the Interactive Map, if you run your mouse over the counties, it will show you how many courtrooms were closed.  Also, you can take a poll on how you and your clients have been affected by the budget cuts.

I know for our county, we are seeing longer lines at the clerk’s office, less people behind the counter to assist the public, and many documents now have to be dropped for filing.

 

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State Bar of California
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At its July 22 – 24, 2010 meeting, the Board of Governors considered a Commission request that the Board adopt all of the Commission’s proposed new and amended rules. Board consideration of this request followed the conclusion of a comprehensive public comment distribution of all of the Commission’s proposed rules that ended on June 15, 2010.   The Commission requested Board adoption of sixty-eight proposed rules.  Of these sixty-eight proposed rules, sixty were adopted and one proposed rule, Rule 8.3 (re reporting misconduct), was not adopted.  For the remaining seven rules, the Board authorized an additional 30-day public comment period to seek input on changes made to those rules after the comment period that ended on June 15, 2010.  The comments are due on August 23, 2010.  You can see the seven rules for review and how to comment here.

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In Ontario, Canada, paralegals are licensed by the Law Society of Upper Canada, giving paralegals an independent status in this jurisdiction and are licensed and regulated the same way that lawyers are.  The Province of Ontario, Canada, recently became the first jurisdiction in North America to provide for the licensing of independent paralegals. This change now allows paralegals to act as legal agents who have the ability to represent on many matters, including all Provincial Offences, work for Provincial Tribunals and Boards, as well as Summary Criminal Cases. They are not “law clerks” in the province of Ontario, Canada but rather are considered officers of the court, a formal part of the legal system.

In researching this, I found that paralegals can represent clients in the Ontario Small Claims Court, Landlord and Tenant Board, Worker’s Safety and Insurance Board and for Summary Criminal Cases.  There is of course, a licensing procedure before a paralegal can represent a client.  To read more about paralegal licensing and regulations, click here.

In California, paralegals can represent clients in Workers Compensation (California Bar Committee on Professional Responsibility formal opinion 1988-103) but only a law firm can allow its paralegals to represent clients at workers compensation hearings if there is supervision and the client consents to nonlawyer representation.

Part of the opinion states that a lawyer or law firm contemplating entering into such an arrangement should remember that an attorney stands in a fiduciary relationship with the client. (Krusesky v. Baugh (1982) 138 Cal.App.3d 562, 567.) When acting as a fiduciary, the law imposes upon a member the strictest duty of prudent conduct as well as an obligation to perform his or her duties to the best of the attorney’s ability. (Clark v. State Bar (1952) 39 Cal.2d 161, 167; and cf. Bus. & Prof. Code, sec. 6067; Rule of Professional Conduct 6-101(A).)  However, an attorney does not have to bear the entire burden of attending to every detail of the practice, but may be justified in relying to some extent on non-attorney employees. (Moore v. State Bar (1964) 62 Cal.2d 74, 80; Vaughn v. State Bar (1972) 6 Cal.3d 847, 857.)

The attorney who delegates responsibilities to his or her employees must keep in mind that he or she, as the attorney, has the duty to adequately supervise the employee. In fact, the attorney will be subject to discipline if the lawyer fails to adequately supervise the employee. (Chefsky v. State Bar (1984) 36 Cal.3d 116, 123; Palomo v. State Bar (1984) 36 Cal.3d 785, 795; Gassman v. State Bar (1976) 18 Cal.3d 125.)

Paralegals may represent clients before the Labor Board (California Labor Code, sections 5501, 5700) California Labor Code section 5501 states that nonlawyer representation is allowed but the appeals board must be notified in writing that the representative is not an attorney licensed by the State Bar of California.

Paralegals can also represent clients before California Unemployment Appeals Board (California Unemployment Insurance Code § 1957 (1956)  The codes states that a nonlawyer may represent any individual claiming benefits in any proceedings before the Appeals Board.  No agent or counsel shall charge or receive for such services more than an amount approved by the appeals board.  Violations for this provision shall be fined no less than $50 and no more than $1,000 or be imprisoned not more than six months or both.
As a paralegal looking to branch out, I am considering the options above.  I would love to hear from other paralegals, in California and elsewhere, on the types of representations they have done and why they loved it or would never do again.  I would also love to hear from paralegals who are also considering branching out into representing clients in some way.  


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