Chapter 1
Regulation of the Legal Profession
Assessment—Give some thought to how you are going to assess understanding for this chapter.
Better yet, let’s make up your Chapter final right now. How about 10 multiple choice; 10 short
answer and 4 short (1 paragraph) essays? Once we know where we’re going, it will be easy to
get there! You’ll know what to be sure to explain because it is going to appear on your exam.
There are many new terms in this first chapter. That is a good place to focus your assessment – to
Power Point Presentation: There are about 32 content slides in this presentation. It is more
than one lecture, but not enough for two. An approach is to spend the first class on the history
and lawyer part, and cover the paralegal part in more depth in the second class. (You will have
started the first class with the Introductory stuff, anyway.)
Please check slides 14 and 31 to check for accuracy in your state.
Activity Suggestion: There is an in-class activity on the merits of the four different regulation
schemes that will take your students 30-45 minutes. This is a worthwhile activity that nicely
supplements these slides for the second class period. Alternatively, spend 20 minutes on an Ice-
Breaker collaborative activity (pg. 276) and then go into the Presentation.
Chapter Hypothetical: We set out the hypothetical at the beginning of the chapter but ask no
questions about it. Let’s read the chapter and see if the students can spot the ethical issue. Then,
at the end of the chapter (in Critical Thinking) we refer the student back to this hypothetical and
ask the questions. We also give the student the place to go to find an answer, or begin to
research to find the answer. In Chapter 1, the mis-calendared date hypothetical is answered in
the end-of-chapter case Hu v. Fang where the appellate court reversed the trial court’s judgment.
Lesson Objective: What are lawyers? (pg. 2)
Lecture Suggestion: It was not my first choice to start with an explanation of lawyers because I
don’t want to give the impression that paralegals are somehow second-class citizens. The text
of rules apply to both lawyers and paralegals. Also, most people know what a lawyer is (or they
think they do) but many do not know how one becomes a lawyer.
Lesson Objective: What education is required? What is the bar exam? (pg. 3)
If you are a lawyer, your students will be interested to hear your (brief) story about going to law
Activity Suggestion: If you have internet access, take your students to the MPRE practice exam
on line.
Challenge Assignment: If you have students who are looking for more, assign this Challenge
Assignment on the MPRE for homework.
Lesson Objective: Is there a moral character requirement? (pg. 4)
Lecture Suggestion: Your students will be interested to hear about people who wrote “fitness”
recommendations for you. Your students may need some help with the whole “Communist
influence” thing. They may not remember that part of American History. This is another place
where classroom debate would come in handy. How do your students feel about measuring
“bad” moral character?
Lesson Objective: What else is required? (pg. 5)
Lecture Suggestion: Let’s talk about the idea of an oath. Who else has to take an oath? the
President, other elected officials? And what does an oath mean? Bar membership is expensive.
What are the dues in your state? Proper titles are important for paralegals to understand.
Challenge Assignment: This is a good place for a research exercise. What is the occupation tax
on lawyers in your state? This is a pretty harmless one, too, because if they can’t find it, it’s not
like anyone is going to ask them about it later.
Video Alert: If you have adopted Cheeseman & Goldman’s Intro textbook, you can use their
Check Your Understanding (pg. 6) 1. b; 2. b
Lesson Objective: Where do lawyer rules of ethics come from? (pg. 7)
pg. 9)
Lesson Objective: Where are the other places where we will find ethics rules? (pg. 9)
Lecture Suggestion: We are about to embark on our internet hunt for our state law. This is a
Check Your Understanding (pg. 10) 1. a; 2. b
Lesson Objective: Find the law in my state (pg. 10)
Activity Suggestion: Time for an internet search! If your students are not members of the geek
squad, you will have to help them figure out different ways of searching (Boolean and otherwise)
as well as various, slightly different search terms. I use either Google or Yahoo for all of my test
searches. Please let me know if you are not finding answers within the first 20 hits in any of
Activity Suggestion: In class, have your students compare your state rule 8.3 and 1.6 against the
sample we provide in the Appendix. How close is your state’s rule to the Model? This is an
excellent time to emphasize that the Model should not be used for authority. A good topic for
discussion at this point is: Why would different states rewrite the Model Rules in different ways?
Lesson Objective: What is the authority of the ABA Model Rules? (pg. 10)
Lecture Suggestion: Here you have an opportunity to explain to your students that the Model
Rules written by the ABA are MODELS. Many lawyers, and many courts discuss the Model
Rules as if they were law. How do we reconcile this problem for the student? We explain that
some lawyers and judges don’t know the difference between the Model and the state codes.
point that the student needs to understand is that when they are doing research on a point of
ethics, they must use state (or federal) law and not the ABA’s Models.
Lesson Objective: What does an attorney disciplinary action look like? (pg. 12)
Lecture Suggestion: This fact pattern may be a little difficult to follow when you’re reading it,
so a diagram on the white board might be a good idea. Are disciplinary actions public in your
Lesson Objective: How are lawyers disciplined? (pg. 13)
Lecture Suggestion: Please alert your students to the term in the margin: integrated bar.
Disciplinary terms in your state may be different. Also, if you have any stories that you can tell
about lawyers who have been disciplined in your state, this would be a great time. Be sure that
Please alert your students to the term in the margin: reproval. If you would like to show
them what a private reproval might look like, on the website we provided a short case from Idaho
about Defendant A not returning $1600 to a client and being privately admonished.
Try to tie the “moral turpitude” discussion (top of page 14) back to the moral fitness
requirement for bar applicants.
Activity Suggestion: You could have your students research and retrieve the Standards for
Imposing Lawyer Sanctions in your state.
Activity Suggestion: Have your students research whether disbarred lawyers can be employed
as paralegals in your state.
Lesson Objective: What are paralegals? The definition of this term will vary from state to state.
Lecture Suggestion: Introduce your students to the different paralegal associations if you have
Check Your Understanding (pg. 15)
1. private reproval (admonishment or reprimand) is a published order that says the lawyer has
2. public reproval (admonishment or reprimand) is a similar order published with the lawyer’s
name that says the lawyer has done something wrong.
4. disbarment is an order that says that the lawyer is banned from practicing law
Lesson Objective: How are paralegals regulated? (pg. 18)
Lecture Suggestion: Walk through these duties but don’t linger. They are covered in each of
the subsequent chapters. Take up the challenge I offer in the book. Ask your students to think of
some other duties they think might exist that I have not listed. Invite them to email me at
deborlik@earthlink.net
Challenge Assignment: Ask students to access the website paralegalethics.net, read this DOL
letter and report back to the class.
Lesson Objective: What does it mean to be “regulated by the court?” (pg. 20)
Lecture Suggestion: Can we talk about that “right to work” argument here? The balance the
courts and legislatures talk about is the balance between an individual’s right to work, and the
Activity Suggestion: Don’t forget to watch the video suggested there in the margin and have
your students answer the questions, but don’t tell them if their answers are right or wrong! When
you complete the chapter on UPL, you can go through this exercise again and see if their answers
change.
If you decide to use it here, you need these notes from Chapter 2:
Video Alert: The first segment in the video series (#1 UPL Issue: When Friends Ask for Legal
Advice). Dante’s friend has a problem with his lease. Can Dante help his friend and never cross
the UPL line? I think so. My conservative friend, Tom Goldman, author of The Paralegal
Lesson Objective: Have paralegals considered self-regulation? (pg. 20)
Video Alert: If your school has adopted the Cheeseman & Goldman book, you can use Video
segment #2 here for an interview with an independent paralegal.
Activity Suggestion: This is a great place for a Socratic seminar or “fish bowl seminar” on the
question of “what’s the best way to regulate the paralegal profession?” If you don’t have any
experience with these two types of classroom discussion formats, here’s a primer: Divide the
class in half. One half sits in a circle; the other half forms a circle around the first circle. The
inner circle has a debate and the other half must be quiet and take notes to make comments at the
end. These comments can be about the subject of the debate, or directly on the positions various
students took.
Lesson Objective: What choices are available for regulating paralegals? (pg 20-26)
Lecture Suggestion: If you are in California, turn your students on to the Business &
Professions Code 6540 et seq and walk through it with them, especially the grandfather clause.
This is a good place to re-tell some American History. In the years after the slaves were freed
(13th Amendment), many whites still did not want them to have the rights that the Constitution
guaranteed to them. Many southern states enacted laws (black codes) to prevent black men from
voting. (The 15th amendment—gave black men the right to vote. Women would not get their
suffrage rights until 1920 with the passage of the 19th Amendment!). One of the methods used
was a “literacy test.” This tested not just the person’s ability to read but also their knowledge of
American government and history. Most black men could not pass this test (because they had
Challenge Assignment: (pg. 24) www.calda.org
Check Your Understanding (pg. 26) a-d are true; technically, e is not true in that no states
“license” paralegals
Activity Suggestion: If you don’t have a lot of time, use Collaborative Assignment #1 in the
book. “Arrange the class into teams of no more than five students. Each team takes a different
form of regulation (certification, licensing, registration) and creates a list of what that regulation
form would look like in your state.”
Activity Suggestion: This is Collaborative Assignment #3 in the text and it takes quite a bit of
time. You may want to work on this for several class periods. It is called the “Rule of Four” and
1. You need a class that’s big enough to have four teams of at least three people each.
3. Now give the four reasons for regulating any profession:
a. The unregulated practice of the profession can harm or endanger the health, safety or
4. Four reasons typically mentioned for NOT regulating paralegals:
a. There is no demonstrated public need to regulate paralegals;
5. Four considerations regarding harm to the public
a. Has the public been harmed because this profession/service entity has not been
regulated?
b. What constitutes harm?
c. To what extent has the public’s economic well-being been harmed? Is the harm
widespread or isolated?
d. To what can the harm be attributed? (There are four of them!)
6. Four kinds of regulating schemes:
a. Licensing—legal permission to do an act or perform a skill
b. Registration—gives an authority information
1. Uncontested divorces where there has been a recent Court Order or separation agreement
drafted by a lawyer which disposes of property, support, custody, and access issues
3. Few minor criminal matters identified in the Cory report (i.e., vagrancy, defacing coins)
1. Small claims court, excluding appeals from applications for criminal pardons,
3. Landlord and tenant matters before a tribunal,
4. Process serving.
Requirements for paralegals would be:
1. approved program with field practice
3. pass a licensing exam
4. grandfather clause
In case of public harm:
1. Complaint process to be put into place
3. Insurance
4. Contribute to a fund
Penalties could be:
1. Private reproval
3. Fines
Hawaii certification plan:
Lawyers can’t hire an uncertified paralegal.
Certified means:
2. Pass the CLA exam or
4. Grandfather clause for working paralegals
Apply for certification
Disbarred or suspended lawyers may apply for certification.
Arizona certification plan for legal document preparers
Supreme Court is in charge of certification plan – they create a committee
1. Testing
3. Continuing education
4. Code of conduct
No disbarred lawyers.
California uses a registration statute for Unlawful Detainer Assistants
Unlawful Detainer Assistant means any individual who for compensation renders assistance or
1. An Unlawful Detainer Assistant must file and register in the county in which the
2. Must appear in person with a photo i.d.
3. Post bond for $25,000.00 by a corporate surety qualified to do business in this state. In
lieu of the bond, a registrant may deposit $25,000.00 in cash with the County Clerk.
4. Swear under penalty of perjury that you haven’t committed UPL or fraud.
California’s Title Use Statute for Paralegals
6450. (a) “Paralegal” means 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, as defined in Section 6060, or an attorney practicing law in the
federal courts of this state, that has been specifically delegated by the attorney to
Introduction to Worksheet:
Each regulation scheme has four characteristics…what would each look like?
There are four general categories:
Education and continuing education
Testing
Work experience
Background
What kind of education?
Grandfather clause
B.A.
What kind of testing?
Ethics
Civil Procedure
Courts and Calendaring
American Government
Who should regulate?
Regulation Worksheet
A. The type of regulation you are considering is (just circle the one you’ve been assigned and
describe it briefly)
1. Licensing
3. Registration
B. List the reasons for wanting to regulate paralegals in Wyoming:
1.
3.
4.
C. If you answer “no” to the following questions, justify your answers with facts or logical
argument.
2. Regulation would increase the cost of paralegals to employers.
4. Regulation inhibits the growth of the profession.
D. The entity in charge of regulating will be ___________________________.
E. Requirements for paralegals to be ______________ (insert your form of regulation) would
be:
1.
2.
3.
4.
F. If education is a requirement, what education will be required?
2.
4.
G. If testing is a requirement, what will be tested?
H. In case of public harm:
1.
3.
4.
I. Penalties could be (in order of severity):
1.
3.
4.
J. Below, write the preamble for your new law.
More Stuff: On the website where you will find cases and whatnot you might need, is the
Answers to End of Chapter 1 Review Questions
Critical Thinking
1. This is a good place to discuss the difference between moral “fault” and legal “fault.”
The appellate court in Hu v. Fang decided that the paralegal’s calendaring error was
imputable to the lawyer for purposes of excusing the error. The lawyer would have to
pay for the costs of the motion to set aside the default. The paralegal?
Assignments
2. In this movie, the trial is over so we pick up the story at the beginning of jury
deliberations. The defendant is Mexican-American. The initial vote is 11-1 for guilty but
the lone dissenting juror (who initially casts his vote “for the sake of discussion”) hangs
in there to convince all of the others. What we see unfold is really the story of the
3. Should low cost public schools for lawyers and paralegals be mandatory for all states?
There is a guarantee of education, but does it include college and graduation school?
Colloborative Assignments (pg. 29)
1. This is a fun class project that can be done in an hour.
2. This project can be done with 5-10 minutes prep time and 10 minutes of share-out time.
3. This project is much like the one above but much more detailed and can take up to 4
hours.
Review Questions (pg. 29)
These questions are part “reading comprehension questions” (to give you an idea of what your
students take away from the reading) and “lecture retention questions” (to give you an idea of
Notes about the Cases for Consideration
Case #1: Reich v. Page & Addison (pg. 30)
I don’t know why the judge wrote the opinion like this. It makes the case choppy and not very
fun to read, but it is an important issue and students should be aware of it and the more recent
DOJ regulations.
Questions About Case #1
1. Why do you think the people on this jury accepted legal assisting as a profession, not
merely an occupation?
2. Overtime pay is thought of inside out. What does “exempt” mean? What is “nonexempt?”
3. What could some “primary duties” of the paralegal be?
4. What are some collateral tasks?
5. What is “discretion and independent judgment?” How might those things be
demonstrated in the law office?
6. How would you determine if you should be paid overtime?
7. Are there sacrifices you can think of that come with being paid overtime?
(7) Paralegals. Paralegals and legal assistants generally do not
qualify as exempt learned professionals because an advanced specialized
academic degree is not a standard prerequisite for entry into the
Case #2: Hu v. Fang (pg. 32)
Before reading this case, your students need to understand the word “imputed” or it will be
difficult to understand the problem. It is a Key Term on page 19.
What do you think could have been going on in the mind of the trial judge? Why not impute the
mistake of the paralegal to the lawyer? If the lawyer’s secretary had mis-calendared the date,
would this have been an issue? How about if it was the automatic calendaring software the
attorney purchased but set up improperly?
1. How does your reading of this case answer the hypothetical at the beginning of this
chapter?
2. What does this case tell you about Mary Rose’s calendaring error?
3. What do you think an appropriate penalty for the lawyer should be?
4. What should an appropriate penalty for the paralegal be?
5. Why did the appellate court say the trial court was obligated to set aside the default?
6. What does it mean that the paralegal’s calendaring error was “imputed” to the lawyer?
Case #3: People v. Myers (pg. 34)
Questions About Case #3
1. Do you think Attorney Myers received the appropriate penalty?
2. Do you think the penalty would have been more or less harsh if she was not an
experienced lawyer?
3. Should the penalty have been more harsh because she never made answered the
complaint or made an appearance in court to defend herself?
Answer: The court says that not appearing exacerbated her error. This is because by not
4. Even after a bench warrant was issued for Myers, she still did not make an appearance.
Should her punishment have been more harsh because of that?
5. Should the court have made it a part of its order that Myers seek counseling for alcohol
addiction?
Activity Suggestion: This would be a good place for a “demonstration line–up” activity. This is
where students decide how strongly they feel about an issue and then line up with other students
in order of the strength of their convictions. You may want to describe this as students who
think that lawyers really should not be disciplined for activities outside of their practice line up
In the News (pg. 35)
I included this in the text to bring the “practice” of ethics closer in time to the student. Dickie
Scruggs was not only famous and rich, but revered, really, in his community. How do your
students feel about the jailing of these famous lawyers? How do they feel about scandal in the
legal profession?
Video Case Study (pg. 36)
You are probably going to disagree with me on this one, but that’s okay. I wrote this video script
to make the point that asking questions and inviting the use of common sense are not UPL.
(Gasp!) It cannot be UPL to read the lease because UPL requires “giving advice.” It cannot be