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Business of Law
About-face
April 5, 2006
By Jessica M. Walker
The Florida Bar has derailed a Republican-sponsored bill that would have placed paralegals under the o versight of the state Department of Business and Professional Regulation.
State Rep. Juan Zapata, R-Miami, has withdrawn his proposed Paralegal Professional Act, which paralegal groups favored but the Bar strongly opposed. Instead, Zapata has signed on to a Bar proposal to create a voluntary regulatory system controlled by the Bar — an approach the lawmaker only recently had said would not work.
The Bar model would establish two tiers of paralegals — one that would be subject to criteria for training, experience, and credentialing, and one that would not. Law firms could continue to use both types to handle paralegal work and could bill clients hourly for either type of paralegal. The Bar long has opposed any moves to have the executive branch, rather than the Florida Supreme Court, oversee the legal profession.
The Bar proposal was crafted by the Bar’s Special Committee to Study Paralegal Regulation, and approved by the panel last month. The Bar board of governors will consider the regulatory proposal at its meeting in Miami on Friday. If the board approves it, the proposal will go to the Florida Supreme Court for final approval.
Paralegal groups long have argued that paralegal practice badly needs mandatory defined standards for practitioners and a mandatory oversight body to weed out unqualified practitioners and police the unlicensed practice of law.
Zapata’s bill, which he said was designed to protect consumers, would have defined who can be a paralegal and would prohibit law firms from billing clients hourly rates for paralegals who did not meet the bill’s definition of a qualified paralegal. That would have precluded law firms charging clients directly for the work of legal secretaries, among others, though it would have grandfathered in current paralegals. The bill could have had the effect of boosting pay for qualified paralegals by reducing the labor pool.
The Bar responded by proposing a voluntary regulatory framework — a two-tiered system that groups paralegals into registered and nonregistered categories. Tier 1 paralegals would not be subject to mandatory criteria, while registered paralegals under Tier 2 would have to meet stringent experience, educational, credentialing and continuing education requirements.
Zapata said that while the Bar’s proposal is not what paralegals want, the system is a good starting point for change and would make specially trained paralegals more marketable. Law firms “can still call anyone a paralegal,” Zapata said. “But this creates a mechanism for these issues to be discussed. Once the structure’s in place, it will allow for a lot of these issues to be addressed.”
 Among paralegal groups, reaction to Zapata’s withdrawal of the bill and to the Bar’s proposal ranged from lukewarm support to disappointment. “We’ve been trying to get a base set of educational standards in place before someone uses the title paralegal,” said Mark Workman, a Gunster Yoakley & Stewart paralegal who is president of the South Florida Paralegal Association. “I don’t think [the Bar’s proposal] addresses this.”
But Johnna A. Phillips, president of the Paralegal Association of Florida, who served on the Bar committee, called the Bar proposal “a good compromise” that her association is supporting. “We have some members who are a little disappointed that it was not mandatory. But we have some members that felt that the Bar would never embrace a mandatory system.”
Workman, however, has written a letter to the Bar expressing his group’s concerns about the Bar proposal, and has asked to address the Bar board of governors at this Friday’s meeting in Miami. But without the leverage that Rep. Zapata’s bill created, Workman said, he’s not hopeful that the Bar will change its position.
Florida Bar president Alan Bookman and president-elect Frank Angones did not return calls for comment. But Bookman told the Daily Business Review last week that paralegal groups had embraced the Bar’s proposal.
Billing critical
There are no official numbers of how many paralegals are practicing in Florida. There are more than 3,300 certified paralegals in Florida who have passed the certified legal assistant/certified paralegal exam, which is administered by the National Association of Legal Assistants. 
But many other people are doing paralegal work, including graduates of two-year or four-year paralegal programs and others who have not received any specialized training. Most large and midsize law firms employ people who do paralegal work, and even many solo practitioners use paralegals. Work may include client intake, document and case preparation, and legal research.
The South Florida Paralegal Association and other paralegal groups around the state have lobbied for many years in favor of a mandatory regulatory body that would establish minimum requirements for who can practice as a paralegal in Florida. They claimed that the Bar has thwarted their efforts.
Under Zapata’s bill, which the paralegal groups favored, a paralegal would have had to meet certain educational requirements. They either would have had to graduate from specified paralegal programs or from a baccalaureate program. Those with a baccalaureate program also would have needed two years of in-house training. Paralegals also would have had to participate in continuing education and would have had to comply with a yet-to-be-written code of ethics.
But attorneys balked at the push for mandatory regulation, at least partly because it would define whose time attorneys could bill clients for. Zapata’s bill included a clause that would preclude attorneys from billing clients for hours worked by secretaries and other legal staffers who did not meet the training and experience requirements of the bill.
Bar leaders said the bill lacked a “workable” definition of paralegal, established an overly restrictive standard for grandfathering existing paralegals, and didn’t adequately address the knotty unlicensed practice of law issue.
In contrast the Bar’s proposed voluntary regulatory system expressly states that it would not affect an attorney’s ability to bill for employee time because fees are based on “the nature of the services rendered and not the title of the person rendering the service.”
The Bar’s proposed system for Tier 2 paralegals includes an educational minimum combined with certification through specified organizations. But it allows paralegals to be grandfathered in as Tier 2 practitioners if they lack the Tier 2 educational or certification requirements but have been working as a paralegal for five of the past eight years.
Mellowed toward Bar
In January, when the Daily Business Review first reported on the debate over paralegal regulation, Rep. Zapata, an investor and mortgage broker, blasted the idea of a voluntary system, arguing that “it’s setting you up for failure.” He also assailed Bar officials for criticizing his bill after not offering input when he asked for it.
Since then, Zapata apparently has mellowed toward the Bar. “Working with the folks in The Florida Bar was an interesting process,” he said. “Their leadership was instrumental in getting a solution. I always felt it was better to address this through the Bar than through legislation.”
Zapata acknowledged that paralegal groups are not necessarily happy. “I’m not going to say that they don’t have legitimate concerns,” Zapata said. “But the paralegals aren’t going to get everything they want.”
With Zapata’s bill dead for now, paralegal groups recognize that their only option is to work with the Bar for voluntary regulation of their profession. “We understand that this is totally in [the Bar’s] hands,” Workman said. “It still needs to be approved by the Supreme Court, and we intend on following it through and will continue to address our concerns.”
Workman believes that the Bar’s proposal could be tweaked to satisfy his members. In particular, he argued that there should be a time limit on how long a paralegal in Tier 1 could practice before having to meet the Tier 2 requirements for training and credentialing. Ideally, he would like the requirements for Tier 2 paralegals to be the standard for all paralegals.
“It would be conceptually more feasible for the profession to work as one,” he said. “The ultimate goal is to reach a minimum standard, and I see no reason to abandon that direction.”
Jessica M. Walker can be reached at jmwalker@alm.com or at (305) 347-6649.
State Rep. Juan Zapata photo by Mark Foley
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