Excerpts from my Ll.M. thesis, for research purposes.
x x x.
Salaries.
In 2000, according to the US Bureau of Labor Statistics, supra, the median annual earnings of all lawyers was $88,280. The middle half of the occupation earned between $60,700 and $130,170. The lowest paid 10 percent earned less than $44,590; at least 10 percent earned more than $145,600. Median annual earnings in the industries employing the largest numbers of lawyers in 2000 are shown below:
Legal services $ 96,610
Federal Government 87,080
Fire, marine, and casualty insurance 82,170
Local government 66,280
State government 64,190
Lawyers who own their own practices usually earn less than do those who are partners in law firms.
Lawyers starting their own practice may need to work part time in other occupations to supplement their income until their practice is well established.
Most salaried lawyers are provided health and life insurance, and contributions are made on their behalf to retirement plans.
Lawyers who practice independently are covered only if they arrange and pay for such benefits themselves.
In California, it has been reported in 2000 that new associates were being offered by huge law firms a yearly salary of $150,000.00 with bonuses, but to get those bonuses they must bill 2,400 hours a year, roughly eight hours a day, six days a week.
To generate that many billable hours often meant 12-hour days at the office. It was also reported that summer clerks (law students) were being offered $2,000.00 a week, the equivalent of $104,000.00 a year. (Davan Maharaj, Los Angeles Times, May 24, 2000, page C1).
Multi-Disciplinary Law Practice
On June 8, 1999, after a series of public hearings and consultations, the ABA Commission on Multi Disciplinary Practice (MDP) recommended unanimously to the ABA House of Delegates that professional conduct rules be changed to permit lawyers to practice in firms that include other professionals.
The recommendation opened the way to both new forms of cooperation in client service delivery and to the explicit entry of major accountancy firms into the market for legal services. (Simon Chester, AABA Commission Says MDP's Need Ethics Rules Changes@, ABA Law Practice Management Magazine, July/August 1999. Cf. www.abanet.org/cpr/mdpfinalreport.html).
The commission aimed to strike a balance to enhance public access to legal services and preserve core values of the legal profession -- a balance that would make it virtually impossible for international consulting firms to offer legal services, yet will create a structure for Main Street lawyers to diversify their delivery of legal services by sharing fees with other professionals," says William E. Hornsby, Jr., staff counsel in the ABA's Division for Legal Services. (Id.).
Clients who appeared before the commission argued in favor of the change, as did some lawyers. The commission recognized the force of counterarguments that permitting lawyers to practice with nonlawyers could compromise fundamental professional values: independence of judgment, lawyer-client privilege and the avoidance of conflict of interest. However, it felt that any threat to compromise core professional values could be met by designing structural safeguards. Such safeguards would ensure that lawyers continue to be bound by ethics rules and that the multidisciplinary firms in which they practice meet special standards. Recommended safeguards included an annual compliance audit and formal undertakings to the highest professional regulators (in most U.S. states, the highest state court) that MDPs will respect legal ethics. (Id.).
The ABA-adopted MDP rules would not be effective, however, until adopted by the highest courts of the states. While the commission=s report was cogently argued, it set off a firestorm of criticism from those who saw the bar establishment abandoning the citadel of professionalism. (Id.).
In March 2002, the ABA Commission on Multi Disciplinary Practice (MDP) submitted its Final Report to the ABA House of Delegates for study and approval. (Cf. see: http://www.abanet.org/cpr/ethics2k.html). The ABA has thus set a major trend in national and global multidisciplinary law practice.
| The ABA Commission justified its Final Report and recommendations by stressing the intense competition within the US economy and the over-all effects of the complex effects of globalization on the US legal profession: The forces of change are bearing down on society and the legal profession with an unprecedented intensity. They include: continued client interest in more efficient and less costly legal services; client dissatisfaction with the delays and outcomes in the legal system as they affect both dispute resolution and transactions; advances in technology and telecommunications; globalization; new competition through services such as computerized self-help legal software, legal advice sites on the Internet, and the wide-reaching, stepped-up activities of banks, investment companies, and financial planners providing products that embody a significant amount of legal engineering; and the strategy of Big Five professional services firms and their smaller-size counterparts that has resulted in thousands of lawyers providing services to the public while denying their accountability to the lawyer regulatory system. The Commission believes that the legal profession must take a proactive role in regard to these events in order to best serve the public interest and maintain its crucial role in the maintenance of a democratic society. Amending the Model Rules in accordance with the Commission's Recommendation is the most progressive, preservative, and practical way to accomplish these goals. The Recommendation recognizes the realties of a changing marketplace, opens up new avenues of service to clients, responds to the suggestions of consumer advocates, and provides new opportunities for lawyers@. (ABANet website [Commission on Multidisciplinary Practice], supra). The Final Report, as recently published in the ABA website, recommended the following controversial amendments to the existing ABA Model Rules of Professional Conduct: A1. Lawyers should be permitted to share fees and join with nonlawyer professionals in a practice that delivers both legal and nonlegal professional services (Multidisciplinary Practice), provided that the lawyers have the control and authority necessary to assure lawyer independence in the rendering of legal services. "Nonlawyer professionals" means members of recognized professions or other disciplines that are governed by ethical standards. A2. This Recommendation must be implemented in a manner that protects the public and preserves the core values of the legal profession, including competence, independence of professional judgment, protection of confidential client information, loyalty to the client through the avoidance of conflicts of interest, and pro bono publico obligations. A3. Regulatory authorities should enforce existing rules and adopt such additional enforcement procedures as are needed to implement these principles and to protect the public interest. A4. The prohibition on nonlawyers delivering legal services and the obligations of all lawyers to observe the rules of professional conduct should not be altered. A5. Passive investment in a Multidisciplinary Practice should not be permitted@. (id.). At present, Model Rule 5.4 of the ABA Model Rules of Professional Conduct prohibits a lawyer or law firm from sharing legal fees with a nonlawyer or forming a partnership with a nonlawyer if any of the activities of the partnership consist of the practice of law. The Recommendation, which is based upon an extensive public record, would change that policy to permit lawyers to share fees and join with nonlawyers in a practice that delivers both legal and nonlegal professional services("Multidisciplinary Practice" or "MDP") provided that the lawyers have the control and authority necessary to assure lawyer independence in the rendering of legal services. (Id.). Under the Commission's recommendation, in a small-size MDP, such as one established by a lawyer, social worker, and certified financial planner to provide professional services to elderly clients and their families, the lawyer member might or might not hold a majority ownership interest. The partnership or shareholder agreement might specifically affirm that decisions relating to the provision of legal services to the MDP's clients lie exclusively in the lawyer's province. Neither the percentage of ownership interest nor any particular wording in the partnership or shareholder agreement will conclusively determine either control or authority. The control and authority principle looks to substance not form. (Id.). In a large-size MDP, such as one including several hundred professionals in different disciplines, formal structures are certain to be needed. At a minimum, they should include: (1) structuring the MDP so that the lawyers who are delivering legal services to the MDP's clients are organized and supervised separately from the MDP's other units (e.g., business, technology, or environmental consulting services); and (2) establishing a chain-of-command in which these lawyers report to a lawyer-supervisor whose responsibilities include hiring and firing, fixing the lawyers' compensation and terms of service, making decisions with respect to professional issues such as staffing of legal matters and the allocation of lawyer and paraprofessional resources, and advising on issues of professional responsibility. (Id.). Law firms and professional services firms, both large and small, have for generations referred clients to one another and these referral arrangements have benefited both individual clients and the public. These relationships have facilitated the coordinated delivery of legal services without jeopardizing the lawyers' independence and without putting at risk other core values of the profession. Such relationships, provided that they are not masking a fee sharing or partnership arrangement with respect to the control and management of the law firm, do not appear to violate the Model Rules, according to the ABA Commission. (Id.). A preferential referral arrangement between a lawyer and a nonlawyer professional should not by itself result in any ethical or professional rule violation by the lawyer, according to the Commission. However, the Commission recognizes that what may appear ethically acceptable in form may be otherwise in substance. The Commission believes that the prohibition against the sharing of fees covers not only the actual division of fees but also includes indirect sharing of fees by certain sharing of economic benefits (other than normal compensation and related employee benefits) with nonlawyers through the practice of law. (Id.). Where such interdependence exists, the law firm and the professional services firm should be treated as a single entity. Under the current rules, the lawyers might be subject to discipline for violation of Rule 5.4, among others. Under rules promulgated pursuant to the Commission's Recommendation, the lawyers would be subject to discipline if they did not have the control and authority necessary to assure lawyer independence of professional judgment. The lawyers also would be subject to discipline if they did not comply with their jurisdiction's rule on imputation of conflicts. The lawyers should treat the clients of both firms as if they were the clients of a single law firm. In order to help determine whether compliance is taking place, the states may want to require that arrangements between lawyers and nonlawyers be wholly transparent, that documents relating to the arrangements be filed with the appropriate regulatory authorities of any and all affected jurisdictions, and that these records be open to public inspection. (id.). The Commission notes that there would be powerful incentives for MDPs to establish organizational structures to enable the lawyer members to adhere to the control and authority principle mandated in the Recommendation. In addition to subjecting the lawyers in the MDP to possible disciplinary sanctions, failure to establish these structures might, for example, ultimately lead to the imposition of civil liability if the lawyers failed to exercise independent judgment on a client's behalf, undertook a representation in violation of their obligation to provide conflict-free representation, failed to take reasonable and effective measures to assure confidentiality of client information, endangered the protection of the attorney-client privilege or committed any of a number of other possible violations of the rules of professional conduct or standards of practice. Moreover, the fact that a lawyer is not part of a separately organized unit supervised by another lawyer could be sufficient evidence under certain circumstances of a lack of compliance with the control and authority requirement, thereby creating a situation in which the lawyer is subject to discipline for aiding in the unauthorized practice of law by an entity that is not qualified to deliver legal services under the rule. An entity holding itself out as authorized to deliver legal services that fails to conform to the control and authority principle, additionally risks being subject to civil liability for false advertising and unfair competition.(id.). The Commission acknowledges that, in addition to auditors, other nonlawyer professionals may also be subject to different rules governing the disclosure of client information to a third party (e.g., the disclosure obligations of mental health professionals in cases of suspected child abuse). Thus, there may be other situations in which an MDP should not be permitted to provide both legal services and some other form of services to the same client. Just as a lawyer who works jointly on a client matter with a professional services firm must now do, a lawyer in an MDP would have to make reasonable efforts to ensure that a client to whom legal services are being rendered sufficiently understands that the lawyer and the nonlawyer professional in the MDP may have different obligations with respect to the disclosure of client information and that the courts may treat the client's communications to the lawyer and nonlawyer differently. Furthermore, the Commission's Recommendation does not relieve a lawyer in an MDP from the obligation to ensure that the MDP implements safeguards to assure that a nonlawyer who assists a lawyer in the delivery of legal services will act in a manner consistent with the lawyer's professional obligations. (Id.). A lawyer in an MDP would also have to take measures to protect against a potential impairment of the attorney-client privilege arising from the possibility that a client of the MDP would not be properly informed as to the separate functions performed by the MDP or that the members or employees of the MDP would not treat legal matters in a manner appropriate to the preservation of the privilege. Furthermore, the lawyer would bear the affirmative responsibility to assure (1) that the communications the lawyer and client intend to be protected by the attorney-client privilege satisfy the jurisdiction's applicable requirements, and (2) that the client understands that all other communications are not privileged. Finally, the lawyer would have to take measures to ensure that confidential information obtained from a client in the course of legal representation is not accessible, absent client consent, to members of the MDP not engaged in such representation. (Id.). | |
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Unauthorized Practice of Law
It seems that in the United States, just like in the Philippines and other developed and developing countries, the modern multidisciplinary character and the current complexity and huge volume of the present body of laws, jurisprudence, and administrative issuances and regulations, have caused the emergence of professionals, specialists and other service providers from disciplines outside of the legal profession who directly or indirectly compete with the services of the legal profession, hence, courting the possibility of legal actions either from the Bar or the Supreme Courts of the states concerned.
Examples of such competitors are accountants, financial advisors, brokers, adjusters, insurance agents, registered paralegals or legal assistants, title verifiers, contractors, social workers, labor leaders, and private detectives.
In addition, Americans can buy anytime cheaply priced do-it-yourself legal softwares in US computer retail stores competitively developed by private computer programmers and aggressively advertised and sold by information technology distributors.
Further, the Internet revolution since the early 1990s has given birth to a multitude of legal websites created and maintained by large and medium US law firms, as well as law-related chat groups, message boards, and electronic communities sponsored free of charge by major Internet service providers, from which Americans (and people from other countries) may speedily download free digital or electronic copies of the full texts of relevant and current legal materials, lectures, articles, research, advice, decisions, laws, and administrative regulations.
Laws on unauthorized practice have been around in various forms since the 1920s in the US, but enforcement dipped in the 1970s. In recent years there has been a revival of sorts, and states have also strengthened their regulations. In January 1996 the U.S. District Court for the Northern District of Texas ruled that Iowa - based Parsons Technology, which manufactured Quicker Family Lawyer had engaged in the unauthorized practice of law in Texas by selling the popular interactive software.
Quicker was not alone. Other law software manufacturers intended for lay people were also being summoned by the Texas Unauthorized Practice of Law Committee for practising law without a license.
But critics were saying that Ado-it-yourself law software merely helped consumers unable or unwilling to hire lawyers, and that limiting such option was not in the best interests of the public.
A number of analysts traced the recent spate of unauthorized practice cases to frustration and fear over increased competition from business whose concerns traditionally were distinct from law practice -- specifically, accounting firms. The ABA addressed some of the issues raised by the cases of unauthorized practice of law from years ago when it commissioned a panel to make recommendations regarding non-lawyer practice. (Debra Baker, “New Push for Young Mobile: European Style Cross-Border Practice May Be the Next Big Wave Here", ABA Journal, June 1999, pages 55-57, and July 1999, page 18).
The panel recommended expanding the permissible activities assigned to traditional paralegal personnel so long as they remained accountable to lawyers, considering the possibilities of non-lawyer representation of individuals in administrative proceedings, examining ethics rules and policies to ensure they promote the delivery of affordable services and access to justice, and permitting non-lawyers to provide assistance and representation as allowed under statutes or local rules as long as they were subject to review by the proper authorities. (Id.).
Paralegals or Legal Assistants
While some paralegals train on the job, employers increasingly prefer graduates of postsecondary paralegal education programs, especially graduates of 4‑year paralegal programs or college graduates who have completed paralegal certificate programs. Paralegals are projected to grow faster than average, as they increasingly perform many legal tasks formerly carried out by lawyers. Stiff competition is expected, as the number of graduates of paralegal training programs and others seeking to enter the profession outpaces job growth. (cf. www.bls.gov).
While lawyers assume ultimate responsibility for legal work, they often delegate many of their tasks to paralegals. In fact, paralegals B also called legal assistants B continue to assume a growing range of tasks in the US legal offices and perform many of the same tasks as lawyers, and oftentimes competing with the lawyers in the legal market. Nevertheless, they are still explicitly prohibited from carrying out duties which are considered to be the practice of law, such as setting legal fees, giving legal advice, and presenting cases in court. (Id.).
One of a paralegal's most important tasks is helping lawyers prepare for closings, hearings, trials, and corporate meetings. Paralegals investigate the facts of cases and ensure that all relevant information is considered. They also identify appropriate laws, judicial decisions, legal articles, and other materials that are relevant to assigned cases. After they analyze and organize the information, paralegals may prepare written reports that attorneys use in determining how cases should be handled. Should attorneys decide to file lawsuits on behalf of clients, paralegals may help prepare the legal arguments, draft pleadings and motions to be filed with the court, obtain affidavits, and assist attorneys during trials. Paralegals also organize and track files of all important case documents and make them available and easily accessible to attorneys. (Id.).
In addition to this preparatory work, paralegals also perform a number of other vital functions. For example, they help draft contracts, mortgages, separation agreements, and trust instruments. They also may assist in preparing tax returns and planning estates. Some paralegals coordinate the activities of other law office employees and maintain financial office records. Various additional tasks may differ, depending on the employer. (Id.).
Paralegals are found in all types of organizations, but most are employed by law firms, corporate legal departments, and various government offices. In these organizations, they may work in all areas of the law, including litigation, personal injury, corporate law, criminal law, employee benefits, intellectual property, labor law, bankruptcy, immigration, family law, and real estate. Within specialties, functions often are broken down further so that paralegals may deal with a specific area. (Id.).
Paralegals and legal assistants held about 188,000 jobs in 2000. Private law firms employed the vast majority; most of the remainder worked for corporate legal departments and various levels of government. Within the Federal Government, the U.S. Department of Justice is the largest employer, followed by the U.S. Departments of Treasury and Defense, and the Federal Deposit Insurance Corporation. Other employers include State and local governments, publicly funded legal‑service centers, banks, real estate development companies, and insurance companies. A small number of paralegals own their own businesses and work as freelance legal assistants, contracting their services to attorneys or corporate legal departments.
There are several ways to become a paralegal. Employers usually require formal paralegal training obtained through associate or bachelor's degree programs or through a certification program. Increasingly, employers prefer graduates of 4‑year paralegal programs or college graduates who have completed paralegal certificate programs. Some employers prefer to train paralegals on the job, hiring college graduates with no legal experience or promoting experienced legal secretaries. Other entrants have experience in a technical field that is useful to law firms, such as a background in tax preparation for tax and estate practice, or nursing or health administration for personal injury practice. (Id.).
Over 800 formal paralegal training programs are offered by 4‑year colleges and universities, law schools, community and junior colleges, business schools, and proprietary schools. There are currently 247 programs approved by the American Bar Association (ABA). Although this approval is neither required nor sought by many programs, graduation from an ABA‑approved program can enhance one's employment opportunities. The requirements for admission to these programs vary. Some require certain college courses or a bachelor's degree; others accept high school graduates or those with legal experience; and a few schools require standardized tests and personal interviews. (Id.).
Paralegal programs include 2‑year associate's degree programs, 4‑year bachelor's degree programs, and certificate programs that take only a few months to complete. Many certificate programs only require a high school diploma or GED for admission, but they usually are designed for students who already hold an associate or baccalaureate degree. Programs typically include courses on law and legal research techniques, in addition to courses covering specialized areas of law, such as real estate, estate planning and probate, litigation, family law, contracts, and criminal law. Many employers prefer applicants with specialized training. (Id.).
The quality of paralegal training programs varies; the better programs usually include job placement. Programs increasingly include courses introducing students to the legal applications of computers. Many paralegal training programs include an internship in which students gain practical experience by working for several months in a private law firm, office of a public defender or attorney general, bank, corporate legal department, legal‑aid organization, or government agency. Experience gained in internships is an asset when seeking a job after graduation. Prospective students should examine the experiences of recent graduates before enrolling in those programs. (Id.).
Although most employers do not require certification, earning a voluntary certificate from a professional society may offer advantages in the labor market. The National Association of Legal Assistants, for example, has established standards for certification requiring various combinations of education and experience. Paralegals who meet these standards are eligible to take a 2‑day examination, given three times each year at several regional testing centers. Those who pass this examination may use the designation Certified Legal Assistant (CLA). In addition, the Paralegal Advanced Competency Exam, established in 1996 and administered through the National Federation of Paralegal Associations, offers professional recognition to paralegals with a bachelor's degree and at least 2 years of experience. Those who pass this examination may use the designation Registered Paralegal (RP). (id.).
