What every California attorney and paralegal needs to know about Business and Professions Code §§ 6450 - 6456

1. What every California attorney and paralegal needs to know about Business and Professions Code §§ 6450 - 6456

2. CONSUMER PROTECTION • Initial Assembly Bill 1761 was sponsored by the California Alliance of Paralegals to protect consumers from untrained unqualified individuals who hold themselves out as “paralegals” and provide poor services. • Governor Gray Davis signed Assembly Bill 1761 on September 13, 2000. • The Bill was codified in Business & Professions Code §§ 6450 – 6456 and became effective January 1, 2001. • The law defines qualifications and functions of paralegals practicing in California.

3. OVERVIEW • “Paralegal" means a person who holds himself or herself out to be a paralegal, who is qualified by education, training, or work experience, and who either contracts with or is employed by an attorney, law firm, corporation, governmental agency, or other entity, and who performs substantial specifically delegated legal work under the direction and supervision of an active member of the State Bar of California, as defined in Section 6060, or an attorney practicing law in the federal courts of this state (B&P Code § 6450(a)). • Definition distinguishes between those individuals who work directly for the public (Unlawful Detainer Assistant or Legal Document Assistants regulated under B&P Code Sections 6400, et seq.) and those who work under the supervision of an attorney (Paralegals).

4. The terms "paralegal," "legal assistant," "attorney assistant," "freelance paralegal," "independent paralegal," and "contract paralegal" are synonymous under this chapter (B&P Code § 6454). Individuals employed by the State of California as a paralegal, legal assistant, attorney assistant, freelance paralegal, independent, paralegal or similar title are exempt from these rules (B&P Code § 6456). A paralegal who otherwise meets the definition may represent clients before state of federal administrative agencies if that representation is permitted by statute, court rule, or administrative rule or regulation (B&P Code § 6450(a)).

5. EDUCATION AND EXPERIENCE REQUIREMENTS Pursuant to Section 6450 (c), a paralegal must possess at least one of the following: 1) A certificate of completion from a paralegal program approved by the American Bar Association; or 2) A certificate of completion from a paralegal program at, or a degree from, a postsecondary institution that requires the successful completion of a minimum of 24 semester, or equivalent, units in law-related courses and that has been accredited by a national or regional accrediting organization or approved by the Bureau for Private Postsecondary and Vocational Education; or

6. 3) A baccalaureate degree or an advanced degree in any subject, a minimum of one year of law-related experience under the supervision of an attorney who has been an active member of the State Bar of California for at least the preceding three years or who has practiced in the federal courts of this state for at least the preceding three years, and a written declaration from this attorney stating that the person is qualified to perform paralegal tasks; or 4) A high school diploma or general equivalency diploma, a minimum of three years of law-related experience under the supervision of an attorney who has been an active member of the State Bar of California for at least the preceding three years or who has practiced in the federal courts of this state for at least the preceding three years, and a written declaration from this attorney stating that the person is qualified to perform paralegal tasks.

7. SUNSET PROVISION • This experience and training outlined in paragraph four above shall be completed no later than December 31, 2003. There is no "grandfather" provision for those who already practice as paralegals but do not meet one of these requirements

8. MANDATORY Continuing Education Requirements • Four hours of general or specialized legal education, every two years; and • Four hours of legal ethics, every three years; NOTE: All continuing legal education courses shall meet the requirements of B&P Code § 6070. Per Section 6070 only courses offered by State Bar of California approved MCLE providers are recognized when considering MCLE credit hours earned. There is no mechanism for reporting or monitoring compliance with this requirement. Paralegals and their supervising attorneys must certify compliance, but the paralegals are responsible for maintaining records of the certifications. A sample compliance log for tracking continuing education units can be found online at www.caparalegal.org. .

9. What Paralegals May Do Tasks performed by a paralegal may include, but are not limited to the following: • Case planning; • Development; • Management; • Legal research; • Interviewing clients; • Fact gathering and retrieving information; • Drafting and analyzing legal documents; and • Collecting, compiling, and utilizing technical information to make an independent decision and recommendation to the supervising attorney.

10. What Paralegals May Not Do • Provide legal advice; • Represent a client in court; • Select, explain, draft, or recommend the use of any legal document to or for any person other than the supervising attorney; • Act as a runner or capper as defined in Sections 6151- 6152; • Engage in conduct that constitutes the unlawful practice of law; • Contract with, or be employed by, a natural 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 and/or profit, may be derived; or • Establish the fees to charge a client for paralegal services. (Does not apply to fees charged by a paralegal in a contract to provide paralegal services to an attorney, law firm, corporation, governmental agency, or other entity).

11. CONFIDENTIALITY Under Section 6453: • Paralegals are subject to the same duties of client confidentiality as attorneys (B&P Code § 6068(e)). • Paralegals are required "to preserve the attorney-client privilege." • Paralegals are not made directly subject to other ethical restrictions, such as those relating to conflicts of interest.

12. PENALTIES • Under Section 6451, 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, government agency, or other entity that employs or contracts with the paralegal. • Under Section 6452, it is unlawful for a person to identify himself or herself as a paralegal on any advertisement, letterhead, business card or sign, or elsewhere unless he or she has met the qualifications of 6450(c) and performs all services under the direction and supervision of an attorney. Business cards must have the name of the employing law firm or a statement that the paralegal is employed or retained by a lawyer.

13. An attorney who uses the services of a paralegal is liable for any harm caused as a result of the paralegal’s negligence, misconduct, or violation of this chapter. • Any person who violates Sections 6451 or 6452 is guilty of an infraction for the first violation, which is punishable by fines up to $2500 as to each consumer for the first offense. Second and subsequent violations can bring misdemeanor charges with fines and/or county jail up to one year. The law does provide for restitution to the victim. • Under Section 6455, any consumer injured by a violation of this chapter may file a complaint and seek redress in any municipal or superior court for injunctive relief, restitution, and damages. Attorney’s fees shall be awarded in this action to the prevailing plaintiff.

14. This law falls short of a typical regulatory scheme; for example, there are no requirements for: • Licensing; • Certification by a state agency; • Registration; • A governing body; • Competency testing, moral character check, an ethics code, reporting, or a disciplinary system. Penalties for violation and civil liability are the only enforcement mechanisms.

15. If you have questions about this presentation or B&P Code §§ 6450 – 6456, please contact The Los Angeles Paralegal Association at: P.O. Box 71708 Los Angeles, CA 90071 Telephone (310) 921-3094 Facsimile (310) 921-3095 Email: info@lapa.org Website: www.lapa.org