Plight of the paralegal

The word ‘plight’ is defined as: ‘A dangerous, difficult, or otherwise unfortunate situation’ (www.lexico.com, accessed 10-8-2022). The latter describes the position of paralegals in South Africa (SA) perfectly.

While SA is considered in many ways as a third world country, it is not, and particularly in the justice and legal systems, most certainly not. Yet the status and recognition of a paralegal as a worthy legal professional, is non-existent. The ‘missing middle’ is not even a term that can be used, they are just ‘missing’ from the justice and legal system altogether.

Yes, there are paralegals in SA, literally thousands of them. Ranging from junior to senior. They are specialists in the various fields of conveyancing, criminal law, civil law, community matters, social justice, debt collecting, and the like. Many are office managers, and, in many cases, the paralegal practically runs the practice for the legal practitioner.

Prior to the Legal Practice Act 28 of 2014 (the LPA) paralegals used to do what candidate legal practitioners do now, namely manage the files in court, handle clients, and paralegals were part of the team during the trial. Paralegals did research, wrote legal briefs and reports and were often the person who also trained the ‘articled’ attorney. They showed them the ropes, managed files, conducted client interviews, and drafted affidavits for eventual practice after they were admitted.

I have met many a legal practitioner who without their paralegal(s) would not have managed to achieve and attain what they have. Overnight, paralegals were instantly reduced to a position of no recognition and status at all.

With the introduction of court appearance rights being given to candidate legal practitioners, and allowing them to represent clients for fees, two actions occurred:

• One, is that paralegals were suddenly more ‘expensive’ than candidate legal practitioners, resulting in many paralegals either being dispensed with, or their previous workload being changed to secretarial or clerical work.
• The second seemed that the quality of legal work ‘dropped’.

Candidate legal practitioners are inexperienced when they leave university, they have no practical knowledge or experience and are then introduced to the public and courts.

I have, sadly, seen a great amount of elitism and ego coming from many candidate legal practitioners, who often treat the paralegals – who have been doing their work for years and have vast experience and knowledge – as if they are of lower rank and not seeing them as legal professionals. Many candidate legal practitioners have been supported, coached, and guided through their ‘new role’ by exactly the person who used to do it before them, namely the paralegal.

I have been told more than once that when paralegals seek work they are asked why they should be hired ‘when I can get two candidate attorneys for one paralegal’. I fail to understand the reasoning for allowing candidate legal practitioners to have the rights and the ‘power’ removed from the paralegals. The negative result is in my opinion quite evident.

On an interesting note, a Diploma in Law takes four years to complete, as does an LLB degree. The two are very similar in content. In the one you walk away and become a candidate legal practitioner and eventually a legal practitioner. The other you walk away with a Legal Professional Diploma that allows you to become part of the legal support staff, a secretary, or maybe an office manager in a law firm (once you have some experience).

Many paralegals become paralegals because they have the desire to be in the legal world, to be actively involved and too often they want to ‘make a difference’ in the social justice sector, or in their community, or just in justice overall. However, most struggle today to gain employment.

So many paralegals become despondent and walk away from the profession. Others realise the only way they can realise their dream is to study an LLB. Most of their previous years of study do not have credits that will apply, and they must, in a literal sense, start all over again, at double the cost and time. Understandably, many drop out weary, disappointed and in debt.

The LPA has been the death knoll for paralegals, the Department of Higher Education is the other ‘guilty’ party contributing to the ‘plight of the paralegal’. Google the word ‘paralegal’ or ‘legal diploma courses available in South Africa’ and you will find there are a many. Yet, there is no recognised paralegal position, nor is it regulated or even clearly categorised in SA.

You will see posts advertised for paralegals, you will also see the exact same position advertised elsewhere as a legal secretary or a legal administrative clerk. Add the many studies you can do for a ‘paralegal’ and you will be fooled into thinking there is an actual paralegal position in the legal profession. There is not. There is the ‘melting pot’ with many titles.

What then is a paralegal?

The Merriam-Webster dictionary defines ‘paralegal’ as, ‘relating to, or being a paraprofessional who assists a lawyer’ (my italics) (www.merriam-webster.com, accessed 10-8-2022).

The Collins dictionary defines ‘paralegal’ as ‘someone who helps lawyers with their work but is not yet completely qualified as a lawyer’ (my italics) (www.collinsdictionary.com, accessed 10-8-2022).

The duties of a paralegal may include ‘support[ing] other legal professionals, working in a variety of law firms and private, public sector and not-for-profit organisations. Paralegal duties would typically involve preparing legal documents, research, admin, providing quotes to clients, interviewing clients and witnesses, giving clients legal information, going to court and handling a case load of clients’ (www.law.ac.uk, accessed 10-8-2022).

Remember the television series Suits (2011 – 2019) where, the now Duchess of Sussex, Meghan Markle, played the part of a paralegal? While in the United States they may not do any attorney work (in many other countries they can) they are senior to a candidate legal practitioner and the heart of the law firm.

Many countries have strong and dedicated paralegal regulations. Some countries, such as Canada, even allow paralegals to have their own practices (within guidelines of course).

A few years ago, I had the privilege of being invited to attend the Annual Conference of the Pan African Lawyers Union, which was held in KwaZulu-Natal. I met legal professionals from all over Africa. I was in awe to hear that most have official recognition for paralegals and that many have specific roles and functions in the judiciary, in firms and in court rooms. They also are utilised to perform vital functions at police stations, in communities, etcetera.

In 2017, I attended the Black Lawyers Association’s 40th Conference and Annual General Meeting. I had had some discussions with the guest speaker, the Deputy Minister of Justice and Constitutional Development, John Jeffery, who referred to the National Forum on the Legal Profession having ‘dumped’ paralegals. He made a statement in his speech that night and stated that the biggest ‘mistake’ made regarding the LPA was to leave the paralegals out of it. And he was right.

I wonder how many people in the legal profession are aware that in the initial draft of the LPA, not only were paralegals included, they (paralegals) were also going to be allocated a seat on the Legal Practice Council. As the LPA was hashed and argued out over many years to follow, the paralegals were totally removed and dealt with in a few sentences that promised them their ‘own’ Act. Four years later little has been done in this regard.

Many people, including myself, have our views as to why paralegals were removed from the LPA.

Under the LPA, much paralegal work is now ‘illegal’, also causing a situation that the paralegals will not be able to get their own ‘Act’ – well not one of any worth. Why? Because the LPA would first need to be amended for this to happen. The only capacity the current LPA allows for the paralegals to have an Act and become recognised and regulated, is to render them no more than simple ‘glorified’ office staff and/or community paralegals.

Many have conveyed this same sentiment to me. In the process of removing the paralegals from the LPA, those responsible for this ensured that paralegals wings were permanently clipped and removed from the previous status they enjoyed, let alone giving them any more position or ‘powers’.

After years of my attempting to address this with the role players, my correspondence has been met with either resistance or silence. It seems that paralegals will need to carve out their own space and challenge their right space.

Nanandi-Simone Albers is the Founder of the
Paralegal Association of South Africa (PALSA).

This article was first published in De Rebus in 2022 (September) DR 4.