Independent Paralegals

Independent Paralegals

What Can a Paralegal Do Without an Attorney?

The American Bar Association defines a paralegal as

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 a lawyer is responsible.

Using that definition, the answer to “ What can a paralegal do without an attorney? ” is “ Nothing ”.  The thing to remember is that the American Bar Association is an organization of attorneys that is, at least to some degree, out to protect the turf of attorneys.

The definition given by the National Federation of Paralegal Associations is somewhat different:

A person qualified through education, training or work experience to perform substantive legal work that requires knowledge of legal concepts and is customarily, but not exclusively, (emphasis added) performed by a lawyer. This person may be retained or employed by a lawyer, law office, governmental agency or other entity or may be authorized by administrative, statutory or court authority to perform this work.

The NFPA’s definition specifically recognizes that not all work done by all paralegals needs to be assigned by or approved by an attorney; in other words, it allows for independent paralegals.

What is an Independent Paralegal?

 An independent paralegal performs work without attorney supervision. While that work may deal with the law, in order to avoid unauthorized practice of law, it should be clerical rather than legally substantive.  An independent paralegal is not to be confused with a freelance paralegal.  While both are self-employed (or not employees of attorneys), a freelance paralegal works for attorneys, not the general public.  An independent paralegal works for the general public.

Can a Paralegal Give Legal Advice?

 Paralegals cannot give legal advice.  Giving legal advice is a quick way to get in trouble with the state Bar over unauthorized practice of law.  It can be tricky line to walk, particularly for those who offer services directly to the public.

Do States Regulate Independent Paralegals?

 Some state do, though the practitioners regulated may not use the term “paralegal” .  Louisiana has a long history of civil law notaries.  While becoming a notary in most states is a matter of completing an application, passing a background check and purchasing a bond (or having it purchased for you by your employer), in Louisiana non-attorney notaries have to pass an extensive and difficult examination–so difficult that only 5% pass on the first try and less than 30% of test-takers on any administration date pass.   Louisiana notaries are licensed by the state and are allowed by law to draft and execute a variety of notarial documents including but not limited to wills and contracts.  They are allowed to give advice about what types of documents to use to meet the client’s needs and to use information from the client to complete the documents.  While many Louisiana notaries spend a lot of time transferring car titles, they also draft simple wills, draft and execute building contracts or bills of sale or simply notarize documents brought to them by clients.

California licenses Legal Document Assistants.  Many of these professions used to use the term “independent paralegal” but California law now requires that those using the title “paralegal” practice under the supervision of an attorney.  Legal Document Assistants are authorized to help clients prepare legal documents, but may only do so under the direction of the client or via an instruction list prepared by an attorney.  For example, if a client wants to file a suit in small claims court, the Legal Document Assistant may not represent the client.  The Legal Document Assistant may have a stack of fill-in-the-blank forms prepared by an attorney which he completes with information given to him by the client. The Legal Documents Assistant may not opine on the merits of the case, or give advice about whether the case belongs in one court or another.

How a Paralegal May Engage in Advocacy

 When most people think of the legal field, they think of someone speaking for a client–advocating the client’s position.  In most traditional paralegal positions paralegals do not speak for their clients.  However, there are a large number of boards, tribunals and agencies that specifically allow citizens to have non-attorney representatives with them. One characteristic of these boards is that proceedings before them are not considered adversarial.  Rather, the board or tribunal is acting in a ministerial capacity, simply determining if the person appearing before it has met certain requirements.

For example, one forum in which non-attorneys are allowed to directly represent clients is in preparing Social Security Disability applications and in appealing adverse initial decisions. Social Security Disability benefits are awarded to applicant who meet certain criteria.  The representative can assist the applicant to make sure the application contains all the necessary information, or if the application is initially denied, the representative can prepare the appeal. Social Security law specifically allows payment of representatives and sets their fees.

Parents of children with special needs may engage the services of an advocate to attend IEP meetings in which the school system and the parents are supposed to work jointly to develop appropriate educational goals for the student and to determine what services are necessary to meet those goals.  The law requires that school systems provide an appropriate education for the child, and that if the school system is unable to do so, that it pay some other entity to do so.  As such parents and schools can be at odds about whether some services are necessary or parents may not realize what can be done.  An advocate can help parents get the services they need without having to resort to litigation (at which time they need to hire an attorney).

Another answer to the question “ How a paralegal may engage in advocacy? ” is that a paralegal may use the skills and knowledge developed as a paralegal to work as a lobbyist or for a politician. Such a position would allow advocacy for the positions taken by the client (if a lobbyist) or by the person (if employed by a politician).

While most paralegals work under the direction of an attorney who takes responsibility for their work, and while the answer to “ Can paralegals give legal advice? ” is definitely negative, the answer to “ What can a paralegal do without an attorney? ” is broad, especially when considering people with the education skills and experience of a paralegal rather than just the title.