The California Litigator
July 13, 2011
By Barbara Haubrich-Hass, ACP/CAS
A California paralegal is required to adhere to Business and Professions Code (hereinafter referred to as “B&P”) §§ 6450 through 6456. The purpose of this article is to review the legal requirements as outlined in B&P §§ 6450 through 6456.
Legal Definition of “Paralegal”
A paralegal is defined in B&P § 6450(a) as:
“A person who holds himself or herself out to be a paralegal, who is qualified by education, training, or work experience, who either contracts with or is employed by an attorney, law firm, corporation, governmental agency, or other entity, and who performs substantial legal work under the direction and supervision of an active member of the State Bar of California, or an attorney practicing law in the federal courts of this state, that has been specifically delegated by the attorney to him or her. …”
The terms “paralegal,” “legal assistant,” “attorney assistant,” “freelance paralegal,” “independent paralegal,” and “contract paralegal” mean the exact same thing for purposes of defining a paralegal. (B&P § 6455)
Required Qualifications of a Paralegal
A paralegal in California is required by law to meet certain minimum qualifications. This background is necessary to assure the public and the legal profession that the paralegal is qualified and require a minimum standard for paralegals to follow. A paralegal must possess at least one of the following:
- A certificate of completion or a degree from an approved paralegal program or post-secondary institution;
- A baccalaureate degree, combined with a minimum of one year of law-related experience under the supervision of a qualified attorney; or
- A high school diploma or general equivalency diploma, combined with a minimum of three years of law-related experience under the supervision of a qualified attorney. This qualification expired on December 31, 2003.
The attorney must be an active member of the State Bar of California for at least the preceding three years, or have practiced in the federal courts in California for at least the preceding three years. Where the educational prerequisite is met by a combination of schooling and experience, the paralegal must obtain a written declaration from the supervising attorney stating that the individual is qualified to perform paralegal services. (B&P §6450(c))
An individual employed by the state as a paralegal is exempt from these requirements. (B&P §6456)
A Paralegal is Not …
A paralegal is not a non-lawyer that provides legal services directly to the public, or a legal document assistant or unlawful detainer assistant. Paralegals, by definition, work for attorneys. They do not work for members of the public directly. (B&P § 6450(e))
Duties a Paralegal May Perform
In general, a paralegal is allowed to perform any task which is properly delegated and supervised by an attorney, as long as the attorney is ultimately responsible to the client and assumes complete professional responsibility for the work product. Paralegals may perform services for an attorney provided:
- The services performed do not require the exercise of independent professional legal judgment.
- The attorney maintains a direct relationship with the client and maintains control of all client matters.
- The attorney remains professionally responsible for all work on behalf of the client, including any actions taken or not taken by the paralegal; and,
- The services performed supplement, merge with and become the attorney’s work product.
Tasks Performed by a Paralegal Include
- Case planning, development, and management;
- Legal research;
- Interviewing clients;
- Fact gathering and retrieving information;
- Drafting and analyzing legal documents;
- Collecting, compiling, and utilizing technical information to make an independent decision and recommendation to the supervising attorney; and,
- Representing clients before a state or federal administrative agency if that representation is permitted by statute, court rule, or administrative rule or regulation. (B&P § 6450(a))
Duties a Paralegal Shall Not Perform
Paralegals shall not:
- Provide legal advice;
- Represent a client in court (with the exception of representing clients before a state or federal administrative agency if that representation is permitted by statute, court rule, or administrative rule or regulation);
- Select, explain, draft, or recommend the use of any legal document to or for any person other than the attorney who directs and supervises the paralegal;
- Act as a runner or capper (solicitation of business, commonly referred to as an ambulance chaser);
- Engage in conduct that constitutes the unlawful practice of law;
- Contract with, or be employed by, a person other than an attorney to perform paralegal services;
- Induce a person to make an investment, purchase a financial product or service, or enter a transaction from which income or profit may be derived; and,
- Establish the fees to charge a client for services. (B&P § 6450(b))
It Is Also Unlawful To
- Label or identify legal staff as a paralegal who do not meet this criteria. (B&P § 6452) Labeling a secretary or other administrative staff as a legal assistant or paralegal is unlawful;
- Identify a paralegal on any advertisement, letterhead, business card or sign, or elsewhere unless the paralegal has met the qualifications; and the identification on any of these mediums shall include the name of the law firm where the paralegal is employed or a statement that the paralegal is employed by a licensed attorney (B&P § 6452);
- It is unlawful for a paralegal to perform any services for a consumer except as performed under the direction and supervision of the attorney, law firm, corporation, other agency that employs or contracts with the paralegal. (B&P § 6451)
Note: I was asked if a fee agreement could be established by a paralegal if the paralegal was permitted to appear before an administrative court, such as the Social Security Administration. This paralegal felt that B&P §6450 did not apply to her because the court allowed her to appear at the hearings. I told this paralegal “no way.” B&P Code §6450 is very clear. Paralegals are not to establish the fees under any circumstance. It is a non-delegable duty of an attorney to establish the fee agreement with the client.
Practice of Law vs. Unlawful Practice of Law
The practice of law focuses on the attorney and involves giving legal advice to clients, drafting legal documents, and representing a client in legal negotiations and court proceedings, such as a lawsuit, and is applied to the professional services and conduct of the attorney. The rules for an attorney regarding the practice of law and unauthorized practice of law are contained in the California Rules of Professional Conduct. The conduct of a paralegal, however, connects to the attorney. For this reason, it is very important for a paralegal to understand the California Rules of Professional Conduct. The bottom line for a paralegal is that if an attorney is prohibited from a certain activity, so is the paralegal.
Continuing Education Requirements
Every two years, a paralegal is required to certify completion of:
- Four hours of mandatory continuing legal education in legal ethics; and,
- Four hours of mandatory continuing legal education in either general law or in an area of specialized law. (B&P § 6450(d))
Certification of these continuing education requirements shall be made with the paralegal’s supervising attorney. The paralegal shall be responsible for keeping a record of the paralegal’s certifications. (B&P § 6450(d))
If the paralegal has an advanced certification, there are additional mandatory continuing legal education requirements to be met through the certifying organization.
The ethical rules that apply to attorneys also apply to paralegals. There is a duty upon all California lawyers to supervise the work of non-lawyer employees and agents. The supervising attorney must ensure that the paralegal's work and conduct complies with the Rules of Professional Conduct and B&P Sections 6450 through 6456. Some courts have imposed liability on lawyers for both failure to supervise non-lawyer assistants and for failure to rectify a non-lawyer's misconduct.
Consequences for Unethical Conduct
The consequences of unethical conduct by an attorney or paralegal include both criminal and civil causes of action for violation of the law.
- Any consumer injured by a violation of Business and Professions Code §§ 6450 - 6456 may file a complaint and seek compensation in superior court for injunctive relief, restitution, and damages. Attorney’s fees shall be awarded to the prevailing plaintiff. (B&P § 6455(b))
- Any person who violates Section 6451 (performance of services) or 6452 (identification in marketing material) is guilty of an infraction for the first violation, which is punishable upon conviction by a fine of up to $2,500.00 as to each consumer the violation occurs.
- A person guilty of a misdemeanor for the second and each subsequent violation, which is punishable upon conviction by a fine of $2,500.00 as to each consumer the violation occurs, or imprisonment in a county jail for not more than one year, or by both that fine and imprisonment.
- Any person convicted of a violation of this section shall be ordered by the court to pay restitution to the victim.
For an attorney, the consequences are even more severe. Everything that a paralegal does attaches to the attorney (B&P § 6452(b)). Furthermore, disciplinary action for violations of the California Rules of Professional Conduct and the California State Bar Act ranges from private reproval to disbarment. Other consequences are applied by the court on a case-by-case basis for the use of paralegals and paralegal fees. Business and Professions Code § 6450 has been applied in California courts to deny or disallow paralegal fees because the paralegal failed to meet the requirements of §6450.
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DISCLAIMER: Barbara Haubrich-Hass, ACP/CAS, is not an attorney. Any information derived from The California Litigator, and any other statements contained herein, are for information purposes only, and should not be construed as legal advice or a recommendation on a legal matter. The information from The California Litigator is not guaranteed to be correct, complete, or current. Barbara makes no warranty, express or implied, about the accuracy or reliability of the information provided within this e-zine/article, or to any other website to which this e-zine/article may be linked.
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DISCLAIMER: Barbara Haubrich-Hass, ACP/CAS, is not an attorney. Any information derived from The California Litigator, and any other statements contained herein, are for information purposes only, and should not be construed as legal advice or a recommendation on a legal matter. The information from The California Litigator is not guaranteed to be correct, complete, or current. Barbara makes no warranty, express or implied, about the accuracy or reliability of the information provided within this website, or to any other website to which this website or articles may be linked.
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Barbara Haubrich-Hass, ACP/CAS
The California Litigator