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The Paralegal Contract
If the philosopher Jean-Jacques Rousseau were alive today, what would he have to say
about paralegals? Would he say paralegals are born free and everywhere they are in chains?
Perhaps not such a dramatic statement, yet at the heart of his central work, Du contrat social
ou Principes du droit politique, there is an underlying premise of freedom.
Here, The Paralegal Contract briefly describes the evolution of the independent paralegal
movement and the organizations that have emerged around paralegals, vying for control of the
paralegal profession through certifications, regulations and educational guidelines.
Ultimately, The Paralegal Contract encourages paralegals to act from a deeper center of
awareness, as opposed to the subservient support role that has been endorsed by paralegal
organizations and advanced by the ABA’s Standing Committee of Paralegals.
In many ways, law and its application has become separated from the higher principles of
equality and social justice, resulting in unhappiness among many members of the legal
profession, from paralegals to lawyers.
Much of the legal work being performed today is extrinsically motivated and revolves around
personal financial outcomes, rather than on the intrinsic motivation to deliver legal services to
those who need it the most – poor people with no access to justice.
With the present global economic crisis, the way law will be delivered and practiced is being
transformed, as consumers look for affordable solutions to legal problems that don’t involve
traditional aspects of law delivery. In effect, corporations and small business will continue to
slash their budgets and look for legal solutions through self-help resources, interactive legal
software, internet-based law solutions, alternative dispute resolution, and online mediation.
Paralegals have an opportunity to be at the forefront of this major transformation and shift,
while also challenging and expanding their present roles in the legal workplace.
Paralegals – A Brief History
There are two distinct paralegal groups that emerged around the same time – one was
the legal assistant who worked for a lawyer or law firm -- and the other was the independent
paralegal, which evolved out of the self-help law movement driven by the countercultural
movement of the 1960s.
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Both took rather different paths. For the most part, the legal assistant was not a mainstream
concept in the 1960s or 1970s, since most legal assistants worked behind the scenes and little
was known about their actual function in the law office. On the other hand, the self-help legal
movement was driven by a California based publisher known as Nolo Press, and by non-lawyers
who provided self-help legal services directly to consumers. Gradually, these self-help providers
became known as “independent paralegals,” and many of them operating self-help law clinics
were unjustly targeted and shut down, because they were competing with lawyers.
Thus, it was through controversy that independent paralegals gained media recognition and the
term “paralegal” stuck in the minds of consumers looking for affordable solutions to their legal
problems. It was also through consumer trust and an affinity towards paralegals that propelled
the name into mainstream consciousness.
It was much later that the term paralegal was incorporated into what was generally referred to
as the legal assistant working for a lawyer or law firm. Even magazines like the Legal Assistant
Today, years later changed their name to Paralegal Today.
The National Federation of Paralegal Associations (NFPA) is the only national organization that
incorporated the word paralegal in its name from its inception in 1974. It was founded by eight
local associations, some of which later changed their names to incorporate the term paralegal:
Atlanta Association of Legal Assistants (Georgia Association of
Paralegals); Minnesota Association of Legal Assistants (Minnesota
Paralegal Association), Rocky Mountain Legal Assistants Association
(Rocky Mountain Paralegal Association); and San Francisco Association
of Legal Assistants (San Francisco Paralegal Association).
One of the first proprietary schools for paralegals was the Paralegal Institute, Inc., which was
formed in 1972, in New York. The founder, Carl E. Person, is a Harvard Law School graduate and
attorney, who brought an antitrust action against the ABA in connection with its Guidelines and
Procedures for Approval of Legal Assistant Education Programs.
Person’s contention was that the ABA's paralegal school accreditation program violated
antitrust laws and that it was designed to eliminate competition and restrict entry into the
market for the recruitment, training and placement of paralegals. That it was unreasonable
when applied to proprietary schools such as the Paralegal Institute. Paralegal Institute, Inc. v.
American Bar Association, 475 F. Supp. 1123 (1979).
Little did Carl Person know that many years later the Department of Justice would bring an
antitrust lawsuit against the ABA for numerous violations and anticompetitive practices.
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The 1980s and 1990s saw the widespread expansion of paralegal educational programs and
paralegal organizations marketing memberships, certifications, while enacting a variety of
guidelines to oversee the paralegal field.
In 2000, Governor Gray Davis signed AB 1761, a bill that defined and regulated paralegals under
California law. It is important to note, however, that prior to the adoption of AB 1761, that it
was paralegals who were providing self-help law services directly to consumers and with the
passage of AB 1761, they were forced to trade in the designation “paralegal” or “independent
paralegal” for Legal Document Assistant (LDA). Yet, it was those pioneers who popularized the
term paralegal and put it on the map, along with the many independent paralegals working in
other states, such as New York, Florida and elsewhere.
This important point often gets blurred following the consolidation of the title paralegal by
national and local paralegal organizations. Even the ABA itself changed from “The Standing
Committee of Legal Assistants” to “The Standing Committee of Paralegals.” Younger paralegals
entering into the field, today, may be unaware of this blurring of the term paralegal.
What we now have is control over the title so that paralegals are placed into a one size fits all
definition of the profession, when historically it was not.
The Pioneers
The pioneers who propelled the paralegal self-help movement to the forefront were notably
different from the legal assistants who worked for lawyers and law firms. It was the latter group
that converged around NALA and the NFPA, where both organizations played a part in shaping
much of what we have in the way of restrictive ideology and of paralegals working under the
supervision of lawyers.
Yet both organizations have failed to advance independence on the part of paralegals and in
many respects, have become miniature extensions of the American Bar Association and its
relegation of paralegals to working under the supervision of lawyers, which is at the heart of
the ABA’s definition of a legal assistant or paralegal.
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 a lawyer is
responsible.
Despite those qualifications of education, training or work experience, paralegals now find
themselves micromanaged by a variety of organizations and inescapably locked into support
roles, while being controlled along each step of the way.
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Epilogue
The Paralegal Contract is about remaining true to the higher principles of equality and social
justice, rather than being defined by any one professional organization or regulatory body
desiring control over a group through its use of collective power, which is disadvantageous to
the paralegal striving towards inner recognition of independence.
The consolidation of the paralegal profession by paralegal organizations and the American Bar
Association has created a tragic situation where paralegals are prevented from realizing their
full potential and growth, as independent professionals. Thus, metaphorically, they have traded
their freedom for a form of paralegal servitude.
That even though paralegals must enter into social contracts with lawyers and the organizations
overseeing them, in doing so, they should not lose sight of their fundamental vision of freedom
and inner recognition of independence.
© 2011 Clifford C. Smith
No part of this work may be used or reprinted in whole or in part without first obtaining the express
written consent of the author.
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