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Maintaining the integrity of the paralegal profession in Montana

Thursday, May 17, 2018   (0 Comments)
Posted by: Shanni K. Berry
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As Chair of the Paralegal Section of the State Bar of Montana, I receive many questions related to paralegals. The questions come from current paralegals, aspiring paralegals, attorneys and law office administrators and all relate to the same topic — paralegals. What is a paralegal? How do you become a paralegal? What credentials should a paralegal possess? What duties does a paralegal perform? How much should a paralegal make? What should the billable hour requirement be? How much should we bill for a paralegal? While I am always willing to answer any questions you may have, this article may answer some of the most common questions.

Paralegals are not licensed in the State of Montana. Because of that, non-credentialed individuals may refer to themselves as a paralegal. This leads to confusion as to what a paralegal is.

What is a Paralegal?

This is how the American Bar Association defines a 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[1].

There are two very important distinctions in this definition: legal assistant and substantive.

1. A legal assistant is a paralegal. In this era of political correctness, some have replaced the word “secretary” with “assistant.” But, a legal assistant is a paralegal. Because of that, referring to a legal assistant can be very confusing. For clarity, stick to paralegal and legal secretary.

2. Substantive legal work. Substantive legal work is, well, substantive. Merriam Webster defines substantive as, “having substance: involving matters of major or practical importance to all concerned.” Basically, substantive legal work means in the absence of a paralegal, the work would be performed by an attorney.

In the 2009 Montana Legislature the Paralegal Section of the State Bar of Montana initiated legislation that resulted in the addition of paralegal language to the law regarding costs, including Mont. Code Ann. Sections 25-10-302 and -304, which allows a law office to include reasonable fees of a paralegal in the attorney fees awarded to the prevailing party. Mont. Code Ann Section 25-10-305 defines the word "paralegal" in that context:

25-10-305. Paralegal defined -- use of title. (1) As used in 25-10-304 and this section, "paralegal" means a person qualified through education, training, or work experience who is employed or retained to perform, under supervision by a licensed attorney, substantive legal work that:
(a) requires a substantial knowledge of legal concepts; and
(b) in the absence of the paralegal, would be performed by an attorney.
(2) An individual may use the title “paralegal” if the individual:
(a) has received an associate’s degree in paralegal studies from an accredited institution or a baccalaureate degree in paralegal studies from an accredited college or university;
(b)has received a baccalaureate degree in any discipline from an accredited college or university and has completed not less than 18 semester credits of course work offered by a qualified paralegal studies program;
(c) has received certification by the national association of legal assistants or the national federation of paralegal associations;
(d) has received a high school diploma or its equivalent, has performed not less than 4,800 hours of substantive legal work under the supervision of a licensed attorney documented by the certification of the attorney or attorneys under whom the work was done, and has completed at least 5 hours of approved continuing legal education in the area of legal ethics and professional responsibility; or
(e) has graduated from an accredited law school and has not been disbarred or suspended from the practice of law by any jurisdiction.
(3) A person may not practice as a paralegal except under the supervision of a licensed attorney and is prohibited from engaging in the unauthorized practice of law.

The costs associated with a case can become a crucial part of a law office's consideration of its ability to represent clients. The fact that attorney fees can be considered costs in civil cases, awarded by law, is not a small component of our system. A law office that employs a paralegal that meets the definition outlined in this statute can automatically include their costs with that of attorneys.

Paralegal Certification through National Association of Legal Assistants (NALA)

NALA provides national standards, training, and certification of paralegals, all of which provide a basis for people seeking to truly join the profession and perform substantive legal work. To take the six-hour exam (often compared to the bar exam), a person must meet NALA's specific criteria, including the following:

1. Graduation from a paralegal program that is any of the following: approved by the ABA; an associate degree program; a post-baccalaureate certificate program in paralegal studies; a bachelor's degree program in paralegal studies; ora paralegal program consisting of a minimum of 60 semester hours (900 clock hours or 90 quarter hours) of which at least 15 semester hours (225 clock hours or 22.5 quarter hours) are substantive legal courses.

2 A bachelor’s degree in any field plus one year’s experience as a paralegal. Successful completion of at least 15 semester hours (or 22.5 quarter hours or 225 clock hours or equivalent CEU hours) of substantive paralegal courses will be considered equivalent to one year’s experience as a paralegal.

3. A high school diploma or equivalent plus seven years’ experience as a paralegal under the supervision of a member of the Bar, plus evidence of a minimum of 20 hours of continuing legal education credit to have been completed within a two-year period prior to the examination date[2].

The NALA exam includes two parts: the knowledge exam and the skills exam. The knowledge exam must be successfully completed to sit for the skills exam. The knowledge exam consists of:

n United States Legal System: Sources of Law; Judicial System; Remedies; Administrative Law

n Civil Litigation: Jurisdiction; Federal Rules of Civil Procedure

n Contracts: Formation, Rights, and Duties; Enforcement and Defenses

n Corporate/Commercial Law: Business Organizations; Rights and Responsibilities; Transactions   

n Criminal Law and Procedure: Criminal Law; Criminal Procedure

n Estate Planning and Probate: Estates and Trusts; Wills

n Real Estate and Property: Property Rights and Ownership; Transactions

n Torts: Intentional Torts; Negligence; Strict Liability

n Professional and Ethical Responsibility: American Bar Association (ABA) Model Rules of Prof. Conduct; Unauthorized Practice of Law

The Skills Exam consists of:

n Writing: Grammar, Spelling, and Punctuation; Clarity of Expression

n Critical Thinking: Reading and Comprehension; Analysis of Information; Decision Making[3]

NALA offers study materials as well as practice test for preparing for the examination. The Montana Association of Legal Assistants, is the local chapter of NALA. MALA offers a 1.5-day certified paralegal review course every fall as well as scholarships for the exam. The certified paralegal exam is $275. NALA membership dues are $140 annually and MALA membership dues are $25 annually.

State Bar of Montana—Paralegal Section

Another way to demonstrate to your employer and your employer’s clients that you are qualified to call yourself a paralegal in Montana is to join the Paralegal Section of the State Bar of Montana. Membership dues are $85 annually. Just like sitting for the certified paralegal exam, there are stringent requirements to be a member. If you don't currently meet the requirements, work toward fulfilling them. Once you have attained this goal, you will have another credential and you can assist our profession in many ways.

Help Us All Maintain the Integrity of the Paralegal Profession

As a law office administrator, you want educated and skilled paralegals and you want to retain them. A competitive salary/compensation and benefits package will help ensure that. NALA conducts a National Compensation and Utilization Survey Report (Survey)[4] every two years. The 2016 Survey found that the average compensation (salary, bonuses & overtime) for paralegals in 2016 was $61,671. The average compensation for paralegals in 2016 in the Rocky Mountain region was $60,212. The average salary for a paralegal in 2016 was $57,668 per year or $27.73 per hour. The average salary for a paralegal in the Rocky Mountain region in 2016 was $56,257 or $27.05 per hour. (Upon my certification in 2007, my salary was $52,000 annually and I also received bonuses.)

Law office administrators need to understand and implement how a paralegal position differs from a legal secretary position. Obviously, given the descriptions set out above of the training and duties of a paralegal, there are substantial differences. Recognize that while a legal secretary should be able to handle all incoming communication (in person, on the telephone, or through written communication), file management, scheduling, and document completion, a paralegal does substantive legal work. While the goals of efficiency and professionalism apply to both, the use of these two positions should be vastly different.

Failure to recognize these distinctions in hiring practices will only create confusion and waste time. That is, the law office administrator will waste a lot of time with hiring procedures – none of which will facilitate the law office’s goals – if there is not a clear picture of the duties that must be fulfilled. The applicants will waste time applying for positions that are not accurately described. Don’t advertise a paralegal position when you have no intention of having the person provide substantive legal work.

Consider the benefits of hiring a capable certified paralegal. Like attorneys, paralegals are hired often with an annual billable hour requirement in a contractual arrangement. (Make sure the work will flow from the attorneys.) In my experience, 1,500 hours per year was both reasonable and achievable. Consider the allowable cost of $125 per hour times 1,500 hours of paralegal work ($187,500) and the commensurate margin of profit.

Also, encourage the certification of your current employees. Hard-working employees seeking additional education and credentials is a sign of dedication, open-mindedness, and initiative in the workplace. And, remember the benefit to the law office and the individual of the law office paying for both the certification exam and membership dues.

Additional benefits to a law office hiring certified paralegals include the requirement that they are bound by the NALA Code of Ethics and Professional Responsibility[5]. Violation of this Code may result in suspension of the certification credentials. Members of the Paralegal Section of the State Bar of Montana are bound by the Rules of Professional Conduct[6].

Also, NALA requires 50 CLE hours per five years (5 must relate to ethics), MALA requires 10 CLE hours per year (3 within three years must relate to ethics) and members of the Paralegal Section requires 10 CLE hours per year (1 must relate to ethics). These requirements overlap.

As of July 16, 2017, there were less than 100 certified paralegals in the State of Montana[7]. As credentialed paralegals, we can educate regarding those credentials, then negotiate a salary that is commensurate with our worth. Remember that you will never get what you don't ask for. Negotiate a contract establishing a billable hour requirement (with a bonus for hours exceeded), salary, payment by the law office of CLE’s, paralegal section and association dues, and benefits.

Together we can maintain the integrity of the paralegal profession in Montana.

Shanni K. Barry has an associate of science degree in paralegal studies, was certified as a paralegal by NALA in 2007, and has worked in the legal profession for over 15 years.  She is a member of MALA and is the Chair of the Paralegal Section of the State Bar of Montana.