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Advanced Florida Registered Paralegals proposal goes to Bar’s Rules Committee for study

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Review of a proposal under consideration by the Florida Commission on Access to Civil Justice to create a new category of Advanced Florida Registered Paralegals to provide limited legal assistance to some limited-represented litigants has been delegated for further study by the Bar Board of Governors.

President John Stewart announced at the board’s January 31 meeting in Tallahassee that he has referred the matter to the Bar’s Rules Committee to consider objections from the Bar’s Family Law, Real Property, Probate and Trust Law, Elder, and Public Interest Law sections.

The Board of Governors had circulated the proposal — being considered by Access Commission’s Civil Justice’s Referral and Assistance Committee — to Bar sections and committees for comments.

The proposal would create the “Advanced Florida Registered Paralegal” designation as part of the Florida Registered Paralegal Program created by Chapter 20 of the Rules Regulating The Florida Bar. Those advanced paralegals would be authorized – under the supervision of a lawyer – to assist clients who engage a law firm for limited representation help in family law, landlord/tenant, guardianship, wills, advance directives, or debt collection defense matters.

According to information provided to the board, “In assisting these clients, the Advanced Florida Registered Paralegal may help them fill out forms, provide general information, and assist the clients in navigating the court system. The Advanced Florida Registered Paralegal may not go to court with the limited representation client or act as the representative of the party. The Advanced Florida Registered Paralegal’s status must be disclosed to the client and the Advanced Florida Registered Paralegal may not advertise to provide legal services.”

Stewart noted the board had a preliminary discussion on the proposal at its December meeting, but that was before comments were received from the sections.

“We’re going to send it to the Rules Committee, which is going to hear a presentation from the Access Commission. . . and also hear from the three sections that provided comments which were largely about concerns with the program, and then [the Rules Committee] will report to us,” he said.

In its response to the Bar, the Family Law Section said the proposal could leave litigants with the impression they are getting sufficient help when in reality they aren’t; might lead to “mills” where Advanced Florida Registered Paralegals crank out paperwork and guidance about the court system; and might increase malpractice exposure for the supervising attorney if mistakes are made.

“Most self-represented individuals need assistance that exceed the mere filling out of paperwork. Finding forms, providing litigation ‘packets,’ and filling out paperwork already exists with paralegals, laypersons, and clerk employees having the authority to serve in these functions. Litigants need: 1) competent legal advice and representation in the courtroom by Florida Bar licensed attorneys, 2) advice and guidance on how to seek appropriate relief, understand the range of relief to which he or she may be entitled, and to otherwise move their case through the court system, 3) to know how to present evidence during a hearing, match the facts to the appropriate cause of action and statutory framework, and draft agreements and orders that resolve their legal issues. Filling out forms may create access to the legal system but does not by itself create access to justice. Access to justice only occurs when a litigant is able to meaningfully present his or her case to the court within the confines of a courtroom in accordance with the rules of evidence, the rules of procedure, and applicable statutory and case law. An AFRP cannot fulfill this function,” the Family Law Section said in its response.

The RPPTL section argued the rule changes conflict with existing unlicensed practice of law statutes and rules; mistakes could be costly to fix; the practice areas where advanced paralegals could offer services are vaguely defined; and the rules might encourage fraud, including allowing disbarred or out-of-state attorneys to practice. It also said the proposed rule change said Advanced Florida Registered Paralegals would be employed by or supervised by lawyers and that should be changed to employed and supervised by attorneys.

The section said wills, guardianships, landlord/tenant, and debt collection should be eliminated from the allowed practice areas and perhaps participation in Baker and Marchman act cases should be considered, and better definitions on allowed practice, approved documents, and other strictures should be imposed.

The Public Interest Law Section, in its response to the Bar, said it supports expanding legal access, but, “We’re concerned about the quality of services provided to individuals based on how the Advanced Florida Registered Paralegal program is proposed. Specifically, while the Advanced Florida Registered Paralegal must be supervised by an attorney, there is no requirement that the attorney supervising the paralegal have experience in the area of law that the Advanced Florida Registered Paralegal will be assisting clients with.”

Elder Law Section Chair Randy C. Bryan wrote, “To the extent the purpose/intent of the proposed rule is to allow a paralegal more autonomy – to provide advice without working in a law office under the supervision of an attorney – we would be strongly opposed as it would likely increase the challenges we currently face with unlicensed practice of law by non-attorneys.”

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