Two North Carolina paralegals, Morag Black Polaski and Shawana Almendarez, have sued to challenge the prohibition against the unauthorized practice of law. It’s not that they want to play lawyer, but to engage in a business helping people fill out legal forms for a lesser expense than a lawyer would charge. They are claiming that the law violates their First Amendment rights.
The plaintiffs filed a complaint in federal court in North Carolina that said the state courts give unrepresented litigants online forms for summary ejectments, absolute divorces, and protective orders — forms that are “not complicated,” but that “can still be confusing.” They said that many residents cannot afford to hire a lawyer to guide them through filling out the forms, and that many who fall into the “missing middle” level of income are too poor to hire a lawyer but not poor enough to qualify for free legal help.
As every lawyer with a cousin knows, people struggle enormously with filling out forms that seem fairly simple to us, and often make what we consider dumb errors that end up causing dumber problems. Relatives call us and ask, and we shake our heads and walk them through it. But not everyone has a lawyer in the family to guide them through forms.
At the same time, few of these people are willing to dig deep into their pockets to seek legal advice, both as to the few minefields for the unwary buried in forms or as to why checking one box would be more beneficial than another. Much as they call it filling out forms, there is always an element of advice in filling in the right blanks in the right ways.
Since the people whom these paras seek to serve are not going to a lawyer anyway, and are most likely to risk making mistakes that will come back to bite them in the butt should they choose poorly, why not provide a less expensive source of guidance and, at the least, make it available to people who seek help?
As paralegals, Polaski and Almendarez said, they would like to provide just the advice these would-be clients might need at a lower price than licensed attorneys. The case has been assigned to U.S. District Judge Judge Terrence W. Boyle, a Ronald Reagan appointee, and names North Carolina Attorney General Josh Stein as the defendant.
The plaintiffs argued in their complaint that advice, regardless of the topic or the price, is protected speech under the First Amendment and that as such, the state may not prohibit it unless the restriction meets the highest level of constitutional scrutiny — that it is narrowly tailored to serve a compelling government interest. Plaintiffs contend that North Carolina’s restriction cannot meet this burden.
The problem with this argument, of course, is that by providing advice for a fee, this morphs into commercial speech, and in this instance the subset of professional speech subject to regulation for its competency before allowing it to be “sold” to the public. If the paras were doing this for free, they would be no different than the neighbor giving legal advice over the fence. But they want to turn this into a business, which makes this a different free speech problem.
Some new kid at Above the Law sees this as a no-brainer, without regard to the First Amendment issue.
Now, before you get on your soapbox about how paralegals and AI will make it so proper lawyers will be out of a job, you should know that these paralegals aren’t fighting for the right to hang a shingle or anything:
The plaintiffs filed a complaint in federal court in North Carolina that said the state courts give unrepresented litigants online forms for summary ejectments, absolute divorces, and protective orders — forms that are “not complicated,” but that “can still be confusing.”
I was on board with this before we even got to the free speech component of the suit. It isn’t like this is dangerous — you can give a guy a gun and qualified immunity after a few months of training but paralegals helping someone with a restraining order is where we draw the line? Come on, now.
Assuming this isn’t an ironic example of why some people are incompetent to make coherent legal arguments, it can very well be dangerous. Even assuming, arguendo, that these two paras with 20 years experience know what they’re doing, there will be others who may not. And yet they will have the imprimatur to sell their “advice,” and should they guide their “clients” poorly, whether out of neglect or ignorance, they can wreak havoc with people’s lives. True, the people involved may wreak just as much havoc on their own, but that’s their choice and they have a right to be wrong. Paras selling limited legal services do not.
There have been many efforts over the years to find less expensive alternatives for routine legal matters that really don’t require a lawyer, at least most of the time, almost all of which have either been rejected or failed. Is this an idea whose time has come? Is there a way to limit the purview of trained paralegals so they don’t overstep their bounds? Is there a way to hold them accountable, such as malpractice insurance, so their advice comes with sufficient risk for them to be diligent? Or does this open the public to bad legal advice, albeit at a lower price?
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I don’t see the problem with helping fill out forms, but I have a feeling that sooner or later their business will morph into something more. My PA has his own office but is loosely supervised by an MD. Perhaps the same type of affiliation wouldn’t be a bad idea for paralegals.
I was thinking in those lines too. EMS works under a physician’s license, and has a strict set of protocols outlining what they can do autonomously, what they can do after calling in, and what they just can’t do. Their calls are all reviewed by the physician, so there is regular oversight.
I’m not now, nor have I ever been, in a legal-adjacent job much less an actual lawyerly calling… so I might be missing something that makes this sort of thing a nonstarter.
Anyone with sufficient mathematical training can perform all kinds of complicated engineering calculations at a rate much cheaper than a PE. But it often takes a PE to know which calculations apply to any given scenario. So it is here.
Is the unauthorized practice of law about protecting the profession or is it about informing the client that they are (potentially) in danger?
If someone is competent enough to fill out a form for themselves, represent themselves, and even handle a trial themselves (as long as they are the litigant), why not assume for a moment that there’s some way (a form perhaps) that they can sign, to clearly indicate this person may not know their ass from their elbow, because they aren’t a lawyer? Therefore, you may be in trouble listening to them?
If it’s about protecting the client, that may work just as well.
If it’s about the profession, I have concerns with actual lawyers practicing outside their expertise. But I’ll save that for another Tuesday.
Sadly, there is a certain segment of our practice in which all the real work is paras filling out forms, unreviewed by the ostensibly supervising lawyer(s). I can see why paras feel like they should be able to cut out the parasitic middleman. Unfortunately, the model does often lead to ill consequences, and taking the licensed attorney out of the mix entirely would only serve to further limit the financial and regulatory remedies available to clients whose legal matters are mishandled.
So, state-sanctioned notarios? What could go wrong?
Would replacing attorneys with paralegals really generate significant savings for clients? Consider:
Average pay for a paralegal in my state (N.C.) is $52,300. This is what entry-level prosecutors and public defenders are paid here.
Employer match for federal employment tax would run $270 per month.
Cost for a bare-bones office space would run at least $750 per month.
Phone and internet would likely cost $200 per month.
Providing standard group health insurance for a single paralegal would run $1500 per month.
Billing 2000 hours a year is considered standard, so this paralegal is expected to spend 38.5 hours per week assisting clients.
The cost of that paralegal $84,936 annually. The cost of an hour of that paralegal’s time with a client is $42.47 per hour.
That per hour rate seems great bargain compared to published hourly rates for lawyers.
It does not take into account that the paralegal has no supervisor or someone to answer the phone. The paralegal can only spend 18 minutes per day doing something not billable to a client. There is no provision for billing or accounts receivable. There is no provision for paid vacation for the paralegal. There is no provision for access to online legal research or tech support.
I suspect that once those costs were factored in, the cost of the paralegal’s time would be higher.
I don’t have any philosophical objections to paralegals practicing independently. I am skeptical that the model will reduce the end cost to the client by all that much.
Your costing does not reflect current trends in self-employment.
The paralegals could easily work from home. In Canada, working from home means that I can deduct a certain amount of my mortgage, heating, Internet, phone, etc…
Working hours are flexible, so evenings and weekends could be used. Zero commute times.
I’m an IT Consultant/Programmer, so I would automate as much of the work as possible. Website hosting is about $120 per year.
We can already enter and file tax returns online. Why not simple forms?
A paralegal with experience with specific forms would be much faster and cheaper than most lawyers.
In (parts of) Canada legal assistants and paralegals are the same thing. They need a degree but that’s from a standard trade college sort of thing.
I’ve known a legal assistant and her husband who ran a court doc prep service out of their home. They mostly handled desk divorces, and because of the nature of service they also did court runner jobs and served documents to opposing parties, not just family law but other bits and pieces as well. They were fairly profitable for a few years as a sideline income until she decided to go to law school instead of letting her lawyer charge 600 bucks an hour for her work. She now practices family law. But I digest.
When it comes to self reps filing docs, getting assistance navigating the system from a small business designed to do so seems relatively harmless. Courts tend to give stupid amounts of patience and leniency to self reps anyway.
I’d like to caveat this with the fact that I have since reached out to my friend who clarified that she only took uncontested applications and focused merely on the document prep work, That it’s a grey line, but she focused on procedural work, before ending with
“I still don’t think those paralegals in North Carolina should be allowed to do it. Then why did I go to law school!?”
So that’s that, I guess.
In Ontario 🇨🇦, the issues were resolved by giving the Law Society of Ontario the power to licence and regulate paralegals as well as lawyers. No doubt there is a regulation somewhere that attempts to delineate what lawyers can do and what paralegals can do.
Regarding costs, it was my impression that many paralegals were charging a flat fee (rather than an hourly rate) for things like an uncontested divorce.
There seem to be a lot of licensed paralegals and relatively minor concerns about competence. But I am not directly involved so my knowledge is limited.
It’s fine, so long as the paras aren’t holding themselves out as lawyers or the equivalent. While there are some marginally-better consumer protections on the lawyer side, I don’t see those outweighing the consumer benefits of having more options here – or the First Amendment considerations.
And note that providing advice for a fee isn’t commercial speech. Regulation of such speech may be subject to strict scrutiny; there’s a bit of a circuit split on that, since SCOTUS punted in the NIFLA case.
“Nothing in this blog constitutes legal advice. This is free. Legal advice you have to pay for.”
I used to do my mother’s taxes for her, and listed my phone number on the return as the person to call for questions, but not as the “paid preparer”. She would feed me very well and house me for the two days it took to do them, which some might call providing compensation for the services.
Right now, I do the taxes for an aunt, and have also done them for another aunt on occasion. They both give me a Home Depot gift card, in spite of my protestations that I am family, and don’t want or need remuneration.
Sometimes the line between advice and paid services is blurry.
Any idiot can prepare taxes for money. You just apply for a PTIN and away you go!
No license required!
“Even assuming, arguendo, that these two paras with 20 years experience know what they’re doing, there will be others who may not. And yet they will have the imprimatur to sell their “advice,” and should they guide their “clients” poorly, whether out of neglect or ignorance, they can wreak havoc with people’s lives.”
Ah.. sounds like a lawyer too, you never know what you’re going to get!
The gods of free market efficiency and deregulation below the equator in the last few decades have seen pharmacists and nurses take over from Doctors, midwives take over from obstetricians, and your dentist rushes from room to room keeping an eye on the assistants actually doing the work… The fightback from the professionals has been amusing to watch!
There are forms, and there are “forms”. Are the legal forms envisioned by the plaintiffs to complete more or less complicated than the US Federal and State tax forms that trained staffers at tax return companies complete for paying clients? If about the same or less complicated, then I see no difficulty with trained paralegal staff completing legal forms.
No, paralegals should not be allowed to fill out forms without the supervision of an attorney. This is a well-intentioned and understandable but fatally flawed idea. Aside from the variable quality of the legal advice, which others have sufficiently covered, if paralegals are not subject to the close supervision of an attorney, there is no attorney-client relationship. Is there any level of confidentiality? Should a paralegal be made to testify against a “client” without recourse?
If you read the ethics violations that actual trained lawyers commit in the bar journal of any state, you might think, “How did they ever think they would get away with that?” Are paralegals going to somehow be more rigorous than attorneys with law school debt, and bar licenses to lose? Certainly not. Not all of them. Leave Chesterton’s fence where it is.