Supreme Court of New Jersey: Administrative Determinations Report of the Committee on Paralegal Education and Regulation -- May 18, 1999
As a part of the decision of In re Opinion No. 24 of the Committee on the Unauthorized Practice of Law, 128 N.J. 114 (1992), the Supreme Court established a committee "to study the practice of paralegals and make recommendations" to the Court. 128 N.J. at 135. The Committee on Paralegal Education and Regulation met for the first time in June of 1993. After extensive investigation and discussions, the Committee filed its report with the Court in June of 1998. In July, the Court released the report to the public and invited comments. Interested parties who responded included members of the public, legislators, attorneys, paralegals, and professional associations. Due to the high level of interest in the subject, the comment period was extended from October 1998 to January 1999.
The Court has received and reviewed the Committee's report and the comments it generated. Nine summary statements described the crux of the Committee's recommendations. The Court's administrative determinations follow the Committee's framework.
Preliminarily, the Court wishes to thank the Committee for its thoughtful and thorough analysis and insights. More than 100 comments to the Committee's report were received. Those commenting included bar associations, paralegal associations and organizations, educational institutions, law firms, sole practitioners, paralegals, legislators, and other professional organizations. Numerous responses were also received from students, recent graduates, and faculty of various paralegal programs. The diversity of opinions articulated in the comments demonstrated that the Committee's report had identified and addressed important and complex issues. Although the Court has elected to take a different approach than that of the Committee, the scope and detail of the Committee's work and the comments it generated have been of great value in the Court's deliberative process.
I. Goals and Direction
Recommendation 1: Paralegals in New Jersey should function under the governance and direction of the Supreme Court.
The Court remains of the view that many of the tasks conducted by paralegals involve the practice of law. Those tasks, therefore, properly come within the scope of the Court's constitutional authority over the practice of law in New Jersey.
Recommendation 2: The Supreme Court, pursuant to its constitutional authority over the practice of law, should establish a regulatory scheme to govern the practice of paralegals.
The Committee recommended that the Court establish a licensing system for all paralegals. Recognizing that paralegals have come to their positions through various educational and experiential routes, the Committee recommended that a multi-tiered licensing system be created. Plenary licensure would be available to those who completed an American Bar Association-approved paralegal program and restricted licensure would be available for paralegals trained in in law firms. A "grandfather" clause was also included in the recommendation.
Some paralegals and paralegal associations endorsed the Committee's recommendations as enhancing the professionalism of the profession and the degree of respect accorded to paralegals. Other paralegal organizations, the American Bar Association, and the New Jersey State Bar Association viewed the regulatory proposal as unnecessary. The ABA noted that its review of paralegal educational programs was not intended to serve as a formal accreditation service. The NJSBA urged the Court to forego establishing a regulatory system within the Judiciary. In lieu thereof, the Association urged that the Court focus on the responsibility of lawyers to oversee the work of paralegals.
In reviewing the Committee's discussion of this recommendation and the comments it generated, the Court accepted the underlying premise; that is, that its regulation of paralegals should be conducted in a form that best serves the needs of the public, the bar, and the Judiciary. Pending future evaluations of the profession, the Court has concluded that direct oversight of paralegals is best accomplished through attorney supervision rather than through a Court-directed licensing system. As noted below, the Court agrees that the obligations attorneys have as paralegal supervisors need to be set forth in greater detail.
Recommendation 3: Persons who seek to be practicing paralegals in New Jersey should be required to demonstrate compliance with minimum hour and course content requirements of paralegal programs offered by American Bar Association-approved paralegal educational programs.
Although the Court would encourage those who seek to become paralegals to engage in a broad-based educational program such as that recommended by the American Bar Association, it recognizes that there are many paths available to develop the skills necessary to perform with competence as a paralegal. The paralegal community and the organized bar should work together to identify and promote educational programs that will enhance the performance of current and future paralegals.
II. Standards for Paralegals
Recommendation 4: The...rules [proposed by the Committee] for licensing the practice of paralegals in New Jersey should be adopted by the Supreme Court.
Because the Court views the supervision of paralegals as the responsibility of attorneys, it has declined to adopt this Recommendation, which proposed specific Rule amendments for a Court-directed licensing system.
Recommendation 5: The within Code of Professional Conduct for paralegals should be adopted by the Supreme Court to be administered by the Committee and others in conjunction with the proposed regulatory scheme.
The Court supports in principle the creation and adoption of a Code of Professional Conduct for Paralegals. The Court prefers, however, that the Code be adopted through the efforts of paralegals and attorneys and their respective associations. Such a Code would be akin to the Code of Professionalism for attorneys. The Committee's proposed Code can be used as a starting point for the consideration of this issue. To that end, the Court is referring the issue of a Code of Professional Conduct to the New Jersey State Bar Association with a request that the NJSBA work with paralegal associations and organizations to recast the Code. It is anticipated that the results will take form as specific guidelines for paralegals and the attorneys who are responsible for their conduct.
III. Ethics and Performance Standards for Lawyers
Recommendation 6: The Supreme Court should modify The Rules of Professional Conduct as recommended [by the Committee] to incorporate ethics and performance standards governing New Jersey lawyers in using the services of paralegals.
The Court agrees that the Rules of Professional Conduct should be modified to describe more comprehensively the obligations imposed on attorneys by their use of paralegals. The supervision attorneys must provide for both employee-paralegals and independent contractors must be detailed in the RPCs. The Committee's Standards and proposed amendments to the Rules of Professional Conduct are being referred to the Court's Professional Responsibility Rules Committee (PRRC) for its consideration and report. When preparing amendments to the RPCs that are consistent with the Court's disposition of the Committee's recommendations, the PRRC should invite the participation of representatives from the Committee on Paralegal Education and Regulation, the New Jersey State Bar Association, and paralegal associations and organizations.
IV. Organization and Management
Recommendation 7: The Standing Committee on Paralegal Education and Regulation should be continued and reconstituted. The Committee should be charged with the responsibility of developing and administering standards and rules governing paralegals in conformity with this report and subject to the Supreme Court's approval.
Recommendation 8: Operating standards, guidelines and rules should be developed and administered by the Committee subject to the Supreme Court's approval.
Recommendation 9: An administrative office should be established charged with the operational responsibility for licensing individuals as paralegals pursuant to the rules governing licensure and conduct of paralegals, subject to the Committee's direction and the Supreme Court's oversight.
In light of its determination not to create a Court-directed paralegal licensing and regulation system, the Court has declined to adopt the foregoing Recommendations. The Court would, however, encourage the consideration of these proposals as a part of the development of an appropriate credentialing system by paralegals, attorneys, and their respective professional associations. Although such a system would not include Supreme Court certification of paralegals, it would provide a means of recognizing qualified paralegals. That recognition would inure to the benefit of both the certified paralegals and the attorneys who would be seeking their services. The Court encourages the paralegal associations and organizations to work on this issue with the New Jersey State Bar Association and other interested entities.
The Court has concluded that paralegal oversight is best conducted by the supervising attorneys who are responsible for all legal work done by paralegals. That responsibility applies whether the paralegals are employees or independent contractors.. To implement that determination, the Court is directing the Professional Responsibility Rules Committee to prepare amendments to the Rules of Professional Conduct that will denominate, in greater detail, the obligations of supervising attorneys.
Finally, the Court wishes to thank again all the members of the Committee -- with particular thanks to its Chair, Appellate Division Judge Howard Kestin -- for their willingness to undertake this difficult and complex assignment. The Court's consideration of the issues was significantly aided by the care with which the Committee presented its views and recommendations.