There is a running discourse today concerning whether attorneys who have been disbarred or suspended should be allowed to become paralegals. A handful of states have banned this, those being New Jersey, Rhode Island, South Carolina, and Wisconsin. West Virginia has also been attempting a total ban. Massachusetts has a partial ban lasting five years. Most other states simply restrict what a disbarred attorney can do as a paralegal (Bough & Cull, n.d.).
Despite so few states having a ban, there aren’t many vocal advocates for allowing disbarred or suspended attorneys to practice as paralegals. Some might reason that with so few formal requirements to become a paralegal, then there are surely few opportunities to create future harms. Paralegals are not held to the same standards as an attorney, after all. When a fairly drastic difference exists between the two job requirements, would it be fair to punish an individual for what they did as an attorney when they try to become a paralegal?
A primary case made against allowing people to assume paralegal roles after their disbarment or during suspension is its dissonance to the punishment. Proponents of this belief feel that allowing the individual to continue practicing law in any capacity is to dilute the weight of the disciplining. Disbarment is a punishment reserved for only the most serious criminal and ethical violations. Suspension, however, implies the individual needs only to be “temporarily disbarred” (Chron, 2020). To allow an individual to then transition into paralegal work calls into question whether these methods only have face value and aren’t actually preventing the person from practicing law (Bough & Cull).
So what is the difference between a paralegal and attorney? First, of course, is the licensing and education required. Attorneys must obtain their degree from an American Bar Association accredited law school as well as pass the bar exam. The state in which the individual is practicing will conduct a background screening and they also must pay annual fees to upkeep their license. Charity work might even be required in some states. Paralegals, on the other hand, have very little formal process required to assume the job title. Although some states do have certification programs for aspiring paralegals, it isn’t a requirement. Paralegals are unable to provide legal advice or draft new documents, but they are able to work under an attorney to prepare and develop existing documents based on information provided by clients (HG.org, 2020).
As far as any disciplinary counsel can concern itself, the only discernible difference between a paralegal and an attorney are whether the individual signs pleadings and appears in court (Bough & Cull). Otherwise, it is essentially impossible for the counsel to determine whether someone is inappropriately practicing law despite their disbarment. With such blurred lines, it is hard to determine how effective disbarment really is as a punishment since individuals are given such close proximity to practicing law as they did while serving as an attorney. Not to mention that for the average citizen onlookers, these lines are even further blurred which brings about a negative perception of the security of ethics in the field as a whole (Dolan, 2008).
The severity of an individual’s disbarment is believed to be automatic reason for permanent bans from any type of legal work by many. As earlier mentioned, states have gradually been picking up on this contradiction within the field. Making matters further complex in seeking a solution is that whether disbarred or suspended, it does not automatically mean that the individual will face restrictions or bans in each state they may be licensed to practice in. Though common for the disbarment or suspension to be implemented in all states in which someone is licensed, it isn’t a standard. There remains much fog for the field to clear out in order to set a solid ethical standard for professionals to meet.
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