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Non-Lawyers Offering Legal Assistance Will Be Investigated in Virginia

The Virginia State Bar's standing committee on unauthorized practice of law stopped conducting undercover investigations years ago out of concern that the practice might violate ethical constraints against deceit and misrepresentation.

Now the Bar's legal ethics committee has issued a formal opinion clearing the way for investigators once again to engage in sting operations when there is no other feasible way to investigate a complaint that a non-lawyer is practicing law.

"This has been an issue for a long time because of situations in which people are engaging in the unlicensed practice of law and the witnesses aren't willing to come forward, and there are other evidentiary problems," said Barbara Balogh, assistant ethics counsel for the Virginia State Bar.

That situation has been cropping up lately in investigations of non-lawyers holding themselves out as immigration attorneys, with victims who don't want to come forward for fear of attracting the attention of immigration authorities, Balogh said.

The committee's opinion, adopted in June, posits the hypothetical example of a paralegal who worked with a trust and estates solo practitioner in a small town until the attorney's death. Through word of mouth, the paralegal offers assistance in preparing wills and advanced medical directives using forms from the deceased attorney's practice. Because the paralegal does not advertise those services, there's no overt evidence of wrongdoing.

Under the scenario, a court clerk files a complaint with the Bar alleging that the paralegal has been preparing wills and other documents, and that problems have been discovered in those documents years after they were filed. The evidence is based on hearsay, and no one involved can or will provide information as to what the paralegal has been doing. The committee also believes that the paralegal is still providing these services, to the detriment of the public.

A simple solution would be to send investigators in posing as clients who want to do business with the suspect. But there's a problem: The Virginia State Bar's rules of professional conduct prohibit attorneys from "engaging in conduct involving dishonesty, fraud, deceit or misrepresentation." A sting operation might conceivably run afoul of that proscription.

The new ethics opinion sweeps that concern away, declaring that it is ethical for a Bar investigator or volunteer lawyer to go undercover to look into complaints of unauthorized practice of law when witnesses won't cooperate or there's no substantive evidence, and when there is significant harm to clients, as long as there is no other reasonable alternative to collecting the necessary evidence.

Law enforcement agents regularly engage in covert investigations, and the Virginia State used to do the same until officials began to worry that bar attorneys might not enjoy the same privilege, Balogh said. Rather than risk ethics violations, the bar pulled the plug on its covert investigations.

Similar questions had been circulating in the late 1990s. In 2000, the Oregon Supreme Court ruled that a lawyer who had directed law enforcement officers in an undercover operation had violated ethics rules by directing the officers to misrepresent themselves.

Even with the protection of the new opinion allowing such investigations, Balogh expects stings to be used rarely.

"It's not something that will be used in everyday cases," she said. "It will only be used in those cases where we are up against a wall."

Virginia State Bar officials surveyed the ethics policies of other state bars around the country as part of their review, focusing closely on the Florida Bar's rules. That state's standing committee on unlicensed practice of law used to run undercover investigations but in 2000 it, too, stopped because of ethics concerns, said Lori Holcomb, the attorney in charge of the panel.

"We started looking at it and asked, 'Is this is a problem?' " she said.

In 2006, the Florida Bar set out a series of prerequisites that must be met before staff attorneys or volunteers may go undercover. Since then, the bar has conducted only two covert investigations.

"We do it as a last resort," Holcomb said.

Most complaints can be investigated by interviewing victims or the non-lawyer accused of practicing law, she noted. Still, but as in Virginia, immigration fraud cases tend to be some of the more difficult to investigate.

The number of immigration fraud complaints received by the Virginia State Bar has remained fairly steady in recent years, Balogh said, although she couldn't provide hard numbers. What's changed is that the circumstances have grown more egregious.

"We see non-lawyers who hold out that they provide immigration services and their victims pay them thousands of dollars," she said. "These are the people who can least afford to lose that money, and we've seen a huge amount of financial damage done."

The ability to go undercover to investigate these claims is just one more resource the Bar now has to protect the public, Balogh said.

Source: Law.com

Lawyers, Paralegals to Swear Identical Oaths of Office

Lawyers and paralegals in Ontario will now swear virtually identical oaths of office after a majority of law society benchers turned down oaths with separate preambles that one bencher called “demeaning.”

Paralegal Bencher Paul Dray, chairman of the paralegal standing committee, told Convocation that his committee was against different language used in the preambles.

“What they were proposing was that for barristers and solicitors it’s an ‘honour and a privilege,’ but for paralegals it isn’t an honour and a privilege,” he said.

“Our committee felt very strongly that it was an honour and a privilege to be a member of this society, to have the responsibility to the public, and the same responsibility. We understand the difference between lawyers and paralegals — that’s very clear. But not our duties and responsibilities to the public.”

The professional development and competence committee addressed the oath issue at its Feb. 12 meeting, according to a report issued at May Convocation. Some members felt there should be separate oaths for lawyers and paralegals, and it was suggested that, “it might be appropriate to maintain the oath’s historic language.”

The group created a pair of oaths — one for barristers and solicitors, one for paralegals — that the report said “reflects the professional and legal distinction between lawyers and paralegals, while the remaining paragraphs reflect the common duties and responsibilities owed to clients, the judiciary, the public, and the profession.”

The oaths proposed by the committee were identical, with the exception of their preambles. The barristers and solicitors oath started off with, “I accept the honour and privilege, duty and responsibility of practicing law as a barrister and solicitor in Ontario.”

The paralegals oath, however, began with, “I undertake to perform all of the duties and fulfil all of the obligations required of a paralegal in the province of Ontario.”

The report stated, “The purpose of an oath is to remind those taking it of these standards and duties and the commitment they are making. From a regulatory perspective, the oaths should mirror each other so that it is clear that lawyer and paralegal duties are the same, within their respective spheres.”

Bencher Alan Silverstein, chairman of the oath working group, told Convocation that the different preambles in the proposed oaths aimed to “recognize that there are differences — historically, there would be differences — between lawyers and paralegals.”

Bencher Judith Potter urged Convocation to adopt a different oath for lawyers, saying she has spoken to lawyers who are “appalled” by the prospect of members of their profession swearing the same oath as paralegals.

“To be a lawyer is to be a member of a profession requiring graduation from a professional school at a university,” she said. “In my view, paralegals are a vocation, not a profession, and therefore should not be swearing the identical oath sworn by lawyers.”

Bencher Susan McGrath, vice-chairwoman of the paralegal standing committee, said, “When I read the two versions of the oath . . . I personally felt that the oath for paralegals seemed to be somewhat demeaning, given the fact that they have the same professional duties and obligations, and I’m sure that paralegals feel the honour and the privilege of being members of this society.”

The paralegal standing committee issued a report stating, “the committee regarded the different first sentences as an unnecessary distinction given the important role of paralegals in providing legal services to Ontarians and thus enhancing access to justice.”

The committee proposed a preamble more in line with the barristers and solicitors oath, reading, “I accept the honour and privilege, duty and responsibility of providing legal services as a paralegal in the province of Ontario.”

After an hour of debate among benchers, that proposal passed by a vote of 37-5. A sentence reading, “I shall seek to improve the administration of justice,” was added to both oaths following a motion from Bencher Tom Heintzman.

Controversy over the oath dates back to the Law Society of Upper Canada’s May 2008 annual general meeting, when members passed a non-binding motion for benchers’ consideration.

It called for a change to the oath, with amendments to the law society’s bylaws to replace the term “licensee” with “lawyers” or “barristers and solicitors.” It also asked that lawyers in good standing be called “members” by the LSUC.

Wording in the oath was changed in April 2007, when the law society passed an omnibus motion amending its bylaws in response to the beginning of paralegal regulation, which commenced May 1, 2007. The LSUC said the term “licensee” was inserted throughout the Law Society Act at that time — at the provincial government’s behest through the Access to Justice Act — as a generic term referring to both lawyers and paralegals.

The law society also said it continued to use the term “members” when referring to lawyers and paralegals for corporate, rather than regulatory, purposes.

The issue came to Convocation in November 2008, when the ad hoc committee first proposed a new oath of office. But most benchers were unsatisfied with what the committee came up with, and sent it back to the drawing board. The committee was initially expected to submit another proposal to Convocation the following month.

Source: Law Times

Paralegal Professionals Benefit From Legislation

Toronto: Ontario broke new ground two years ago when it became the first jurisdiction in North America to license and regulate paralegals. Today, more than 2,300 paralegals are licensed and insured, providing consumers throughout the province with more choice, protection and improved access to justice.

The Law Society of Upper Canada developed and implemented the new regulatory system at the request of the Ontario Attorney General, and following extensive consultations with paralegals, lawyers, judges, legal associations, schools and colleges, and the public.

"The regulation of paralegals in Ontario is precedent-setting," Attorney General Chris Bentley said, following the tabling in the legislature of a two-year report on the implementation of paralegal regulation.

"The Law Society met the challenge of regulating paralegals with great professionalism. The process of achieving regulation has been open and efficient and all partners involved in the process are to be commended for their efforts."

Ontario's licensed paralegals can represent clients in small claims court, before administrative tribunals, and in the Ontario Court of Justice for matters under the Provincial Offences Act.

With the advent of paralegal regulation, several colleges and schools have obtained accreditation from the Law Society for their training programs. It is anticipated that these programs will produce an additional 200 to 300 paralegal candidates each year.

Following the tabling of the two-year review of paralegal regulation, the Treasurer of the Law Society of Upper Canada, W. A. Derry Millar, said, "We believe the Ontario government's commitment to the regulation of paralegals is visionary. Thanks to regulation, licensed paralegals are now held to the same high standard of professional conduct as lawyers, must pass a licensing examination, and carry liability insurance. They are now providing a range of important legal services within a recognized, regulated profession."

Paul Dray, a licensed paralegal and Chair of the Law Society's Paralegal Standing Committee noted, "The regulatory system is self-funding and has won the support of paralegals, lawyers, judges, and the public. We are extremely pleased with the progress made over the first two years of regulation and look forward to continuing to improve the services that licensed paralegals provide to consumers.

Source: The Weekly Voice

Regulation of Paralegals Within the Legal Community

by Edwina Bernita Robinson

Regulation of the Paralegal industry continues to be a hot topic and one of much debate in the legal community, even amongst Paralegals.  What would regulation really mean to the Paralegal industry?  Well, as discussed at the Regulation Conference in Indianapolis, Indiana, hosted by the Indiana Paralegal Association (IPA) in April, in could possibly mean anything we want.  Whether you are a fan of regulation or not, it is definitely something that must be discussed, if we are to take ourselves seriously in this career, and especially if we expect others to take seriously.  Think of any job or career that you expect a person considered to be a “professional” to have.  Nurses, CPA’s, Licensed Contractors, and even Court Reporters all have something Paralegals do not…regulation.  These “professionals” have a means by which to prove they are qualified to do the job they are hired to do and are deserving of the title they use.

In the legal industry, this type of consideration is not given to Paralegals.  So much so, that it is inappropriate to capitalize the “p” in Paralegals because it is not a proper noun.  Paralegals, legal assistants, legal secretaries and the like are often grouped together. Some firms have Paralegals while other firms have legal assistants. Some firms place their own criteria on who they will hire to serve in a Paralegal position, some firms apply the title liberally as they see fit.  Is this a fair method by which to base your career and also your life?  Should a Paralegal with 10 years of experience be placed in the same category as a secretary?  Whether they should or not, they often are.  Because the state of Georgia (my home state) does not place any guidelines or regulation on who can use the title, firms and companies of all sizes can determine for themselves, who gets to be a Paralegal.

While there are voluntary certification exams Paralegals can take to bring distinction to their position and afford them a title that is not bestowed on everyone, these exams are not recognized by the state of Georgia, nor many Georgia employers, as a significant process in recognizing the professionalism of a Paralegal.  For far too long, Paralegals have been seen as those that cannot go to law school, or those waiting to go to law school.  While this could very well be the case for some who choose to work as a Paralegal, the greater percentage of Paralegals, enter into a career field that they choose to continue, as would an attorney or a doctor.

Regardless of your personal feelings about regulation, it is necessary to understand your own value.  Your education, your experience and your professionalism are things that are not shared by every person who calls themselves a Paralegal.  Isn’t that worth something to you?  This doesn’t mean that the state needs to set guidelines for the specific type of work Paralegals are allowed to do or delineate duties amongst Paralegals or Attorneys, but the state and Paralegals themselves must start some where.  Something as simple as deciding who can use the title, “Paralegal,” or if that is even the preferred title at all will take Paralegals a long way.  The first step is to unify the industry. If all Paralegals in the state of Georgia are united under one title, recognized by the state, we can then begin to make the more important decisions.  Applying a professional title to our trade, will give us more respect and recognition in our workplace, but we have to start somewhere.

If you are interested in learning more about regulation within our field please contact either myself at GAP_CLE@live.com or Tenitra Adams at Tenitra.Adams@ogletreedeakins.com.

Edwina Bernita Robinson is a corporate paralegal at Sutherland, Asbill & Brennan in Atlanta, Georgia and serves on the Board of the Georgia Association of Paralegals as well as the Gate City Bar Association, Paralegal Section.