Category Archives: Human Resources

Paralegal vs. Legal Assistant vs. Junior Attorney – Know the Differences and Pick the Right Professional Before Hiring or Contracting

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It’s a good sign when the volume of legal work at a company increases to the point where another legal resource is needed, either permanently or temporarily. Most often a company will look for a generalist resource, such as a paralegal, a legal assistant, or a junior attorney, to handle a variety of tasks and free up time for senior attorneys and other specialists to focus on other work. However, many companies post a new position or reach out to a placement firm for a temporary resource without first thinking through which type of legal professional is best suited for the needs of the organization.

Paralegals and legal assistants are non-attorney legal professionals that can perform substantive legal work under the supervision of an attorney, and often form an integral part of an in-house legal department or law firm.  There are advantages and disadvantages to adding a paralegal, legal assistant, or junior attorney. Thinking through whether a paralegal, legal assistant, or junior attorney is the best role for your company’s needs can help maximize productivity for the person filling the role, and help ensure that the person is capable and ready for the work he or she will be tasked to perform. Just as important, understanding what attorney and non-attorney legal professionals can’t do, and how they should be classified from an employee perspective, can help protect your company (and any existing in-house attorneys) from ethical or business issues.

I’ll conclude with a note about contract managers, another role used by some companies to manage transactional work.

Differences at a Glance

At a high level, here are the differences between paralegals, legal assistants and junior attorneys:

Diving In

Let’s look at each of these roles in a little more detail.

Paralegals

Paralegals are non-attorney legal professionals with education, a certification, work experience, or other training which allows them to perform substantive legal work under an attorney’s guidance and supervision. Paralegal as a profession first appeared in the 1960s. Paralegals support the substantive work of attorneys by allowing attorneys to delegate work to them that attorneys would otherwise need to perform directly. Paralegals can play a critical role within legal departments given the breadth of work they can perform. Unless it involves the unauthorized practice of law (which I’ll address later in the article), paralegals can be delegated almost any project that an attorney would normally perform, as long as the paralegal is qualified to do it or willing to learn and the paralegal is supervised by an attorney. Paralegals at smaller departments may also handle administrative tasks for the legal team. There are a number of certification programs for paralegals, such as the National Federation of Paralegal Association (NFPA)’s Paralegal CORE Competency Exam (PCCE) and Paralegal Advanced Competency Exam (PACE) and the National Association of Legal Assistants (NALA)’s Certified Paralegal (CP) and Advanced Paralegal Certification (APC) credentials. There are also paralegal associate degree, bachelor degree, and master’s degree programs.

If a company needs a legal professional with the training, experience and ability to perform substantive legal work under the supervision of one of the company’s attorneys, and does not need an attorney for the role to provide legal advice/counsel or to represent the company, a paralegal may be a good option. For example, a paralegal may be best suited to help with a document review project, to draft and negotiate standard agreements, or to research a specific question or new law.

Legal Assistants

Legal assistants also perform substantive legal work under an attorney’s guidance and supervision. Legal assistants may be tasked with administrative activities such as filing, maintaining the legal calendar of important deadlines (e.g., trademark renewal deadlines), and managing legal department bills and expense reporting. Legal assistants may aspire to grow into a paralegal role. If a company needs a non-attorney legal professional who does not possess the training, education and experience of a paralegal but who has the ability to perform both substantive and administrative legal work under the supervision of an attorney, a legal assistant may be a good option. For example, a legal assistant may be best suited to help a small legal department which has administrative needs as well as other substantive work.

Many non-attorney legal professionals within corporations prefer the title “Paralegal” to “Legal Assistant,” as it is often perceived as a more professional and senior position than that of a legal assistant. Some in-house legal departments will use the title “Junior Paralegal” for a legal assistant who does not yet have the necessary experience, education, certification or training to be a full paralegal, but where the person or the company wants the individual contributor to have a paralegal title.

Paralegals and Legal Assistants as Non-Exempt Personnel

One very important note for US employers – the US Department of Labor (DOL) has stated that paralegals and legal assistants should be classified as non-exempt personnel in most circumstances. Under 29 CFR Part 541.301(e)(7), the Department of Labor stated that “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 field.” The DOL has issued opinion letters, such as FLSA2005-54 and FLSA2006-27, supporting this position. However, do not interpret this as meaning that paralegals and legal assistants are not professionals – they are (just not from a Fair Labor Standards Act perspective according to the DOL). It’s also important to note that the DOJ’s webpage on the Overtime Final Rule added a note in January 2018 stating that the DOL is “undertaking rulemaking” to revise the Overtime Final Rule, so employers with paralegals and legal professionals should watch this carefully.

Why Paralegals and Legal Assistants are Different

Many view paralegals and legal assistants as interchangeable titles and roles. For example, the American Bar Association uses the same definition for both paralegals and legal assistants. Both paralegals and legal assistants can perform substantive legal work under an attorney’s supervision. However, I think it’s more accurate to view them as two different points on the spectrum of non-attorney legal professionals. Here are some of the key differences I see between the roles:

  • Paralegals often perform (and expect to be tasked with) more and higher-level substantive work than legal assistants.
  • Legal assistants are more likely to be tasked with administrative legal responsibilities than paralegals in the same department.
  • Paralegals are more likely to have completed a certification, education, or other training programs demonstrating a higher level of skill and experience to provide supporting substantive legal work, and are required to maintain paralegal certifications through continuing paralegal education.
  • Paralegals, especially those with a certification, tend to expect a higher compensation rate/salary than non-certified paralegals or legal assistants.

What Paralegals and Legal Assistants Can’t Do

Paralegals and legal assistants can do many things, but cannot provide legal advice or opinions, sign documents or pleadings, engage in other prohibited tasks such as establishing attorney-client relationships, or engage in the unauthorized practice of law. This is a critically important point – paralegals cannot, and should not be permitted to, perform substantive legal work except under an attorney’s supervision, and should not do anything (directly or indirectly) that could be considered the unauthorized practice of law. For in-house paralegals, this can be very tricky as others will undoubtedly come to the paralegal asking for an opinion or advice.  Rank-and-file employees often feel anyone in Legal should be able to give them an answer on a legal question. It’s up to the paralegal to let them know that they need to defer to the attorney on legal advice or opinions, and to ensure their work is being supervised by an attorney. The voluntary codes of paralegal ethics, such as the NALA Code of Ethics and Professional Responsibility and the NFPA Model Code of Ethics and Professional Responsibility and Guidelines for Enforcement, clearly state that paralegals cannot engage in the unauthorized practice of law, perform duties that only attorneys can perform, or take actions that only an attorney can take.

In Minnesota, like most US states, the unauthorized practice of law is illegal. Minn. Stat. § 481.02 prohibits a non-attorney from acting as an attorney or giving legal advice or services. In many states, the unauthorized practice of law is a felony. An attorney responsible for supervising the work of a paralegal or legal assistant who engages in the unauthorized practice of law will also find themselves in violation of Rule 5.5 of the Minnesota Rules of Professional Conduct which prohibits attorneys from assisting others from the unauthorized practice of law.

This is one of the reasons why the first in-house legal hire at most companies is an attorney. It is generally not recommended that a company’s first legal hire be a paralegal or legal assistant, as many of the substantive legal tasks to be performed by the first legal hire at a company require legal supervision, and outside counsel may not be willing to supervise the work of a non-attorney employed by the corporation due to ethical concerns. An attorney who fails to properly supervise the work of non-attorney legal professionals reporting to that attorney is putting his or her legal reputation, license to practice law, and company at risk.

Junior Attorneys

As licensed attorneys, junior attorneys offer a company the ability to do more than paralegals or legal assistants. Not only can they perform substantive work, but they can provide legal advice and opinions, represent the company in court, and otherwise engage in the practice of law. However, junior attorneys are usually considerably more expensive than either paralegals or legal assistants. If a company is hiring its first legal professional and does not need a more senior attorney as its first attorney (e.g., the company has a strong relationship with outside counsel that is acting in a quasi-General Counsel capacity), or needs a legal professional who can perform substantive legal work, provide legal advice and counsel and represent the company, and the company can afford the higher compensation an attorney typically requires, a junior attorney may be a good option.

Contract Managers

There is one other role used by some companies with respect to contracts – the contract manager. A contract manager is a person who is tasked with negotiating, administering and interpreting a company’s contracts (both standard and non-standard). Contract managers can be non-attorneys, or non-practicing attorneys. Contract managers often act in a project manager role to help ensure a company is meeting its requirements with respect to deliverables and other contractual obligations under its agreements. Like paralegals, there are professional associations governing contract managers, including the International Association for Contract & Commercial Management (IACCM) and the National Contract Management Association (NCMA), as well as contract manager certification programs including the NCMA’s Certified Federal Contract Manager (CFCM), Certified Commercial Contract Manager (CCCM), and Certified Professional Contract Manager (CPCM) designations which require a certain amount of continuing education. In some cases, a company’s procurement department will have contract managers who negotiate procurement and other agreements to take load off of the company’s legal team. Some companies choose to establish an in-house legal function by hiring a contract manager as their first legal professional.

Like other non-attorneys in the United States, contract managers cannot provide legal advice or opinions. However, it is an unsettled question whether a contract manager who does not have a legal degree and negotiates agreements, including risk management terms, on behalf of a company without attorney supervision is engaging in the unauthorized practice of law. Companies should consider whether to ensure contract managers are part of the Legal department and are supervised by attorneys just as paralegals must be, or alternatively require candidates for a contract manager position to hold a JD degree – the attorney would be acting not as an attorney for the corporation but in a “quasi-legal” role, and would remain subject to the Model Rules of Professional Responsibility governing attorneys, which would help avoid issues regarding the unauthorized practice of law.

Eric Lambert has spent most of his legal career working in-house as a proactive problem-solver and business partner. He is a corporate generalist who specializes in transactional agreements, technology/software/e-commerce, privacy, marketing and practical risk management. Any opinions in this post are his own. This post does not constitute, nor should it be construed as, legal advice. He is a technophile and Internet evangelist/enthusiast. In his spare time Eric dabbles in voice-over work and implementing and integrating connected home technologies.

Can Ad Targeting Equal Discrimination? What Companies Need to Know About Targeted Ad Discrimination and the Facebook Targeted Ads Lawsuit

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Federal and state laws have long prohibited discrimination in employment, housing and credit-related marketing and advertising. Title VII of the Civil Rights Act prohibits employment discrimination based on ethnicity, national origin, and other protected characteristics, which includes prohibiting discriminatory practices in the marketing and advertising of employment opportunities based on their content or target audience. The Age Discrimination in Employment Act prohibits discriminatory employment practices related to people who are 40 or older. Title VIII of the Civil Rights Act (the Fair Housing Act) prohibits housing discrimination, including discriminatory practices in the marketing and advertising of housing opportunities. The Equal Credit Opportunity Act prohibits discrimination in credit transactions, including discriminatory practices in the marketing and advertising of credit opportunities. There are many state laws which provide similar protections to their citizens, such as the Minnesota Human Rights Act and the California Fair Employment and Housing Act.

Targeted advertising is an advertising method which allows online advertisers to target their advertising to a specific audience of potential purchasers/consumers based on certain audience traits or other criteria. This allows companies to realize a higher return on ad spend (ROAS) by ensuring advertising dollars spent through pay-per-click (PPC) or cost-per-impression (CPI) models are directed towards the most relevant, and presumably receptive, audience for the company’s ads. For example, if the target audience for your product or service is millennials, there is little value to having online advertising delivered to Generation X or Baby Boomers, as the number of purchases/leads you generate from that audience will not justify the ad spend on them.  If you use an online, untargeted banner advertisement, it will be displayed to every website visitor whether or not in your target demographic. Targeting your ad spend to millennials will increase the return on your advertising dollars by ensuring it’s seen by the audience most likely to be interested in your advertisement, generating sales, leads, or applicants for your company in a cost-effective manner.

Targeted Ad Discrimination

Social media platforms such as Facebook offer targeted advertising to advertisers on their platform. Facebook allows you to target your advertising audience based on a number of different characteristics, such as age, location (e.g., ZIP code), gender, ethnicity, education level, and interests. For most products and services, this is extremely valuable. But for advertisers of employment, housing and credit opportunities, using targeted advertising to limit or restrict the target audience in a protected class or group can create unintended liability under federal and state laws, which I call “targeted ad discrimination.” This is a new, and real, risk for the significant numbers of employers, housing providers, and credit companies that use online targeted advertising to market their opportunities, goods, and services.

The potential for targeted ad discrimination has not gone unnoticed by the Federal Trade Commission.  In its January 2016 report “Big Data: A Tool For Inclusion or Exclusion?“, the FTC noted that “[i]n some cases, the Department of Justice has cited a creditor’s advertising choices as evidence of discrimination” and that “whether a practice is unlawful under equal opportunity laws is a case-specific inquiry, and as such, companies should proceed with caution when their practices could result in disparate treatment or have a demonstrable disparate impact based on protected characteristics.”

The Facebook Lawsuit

In November 2016, a class action lawsuit was brought in the Northern District of California against Facebook alleging targeted ad discrimination, following a ProPublica article that highlighted the ability to use Facebook’s targeted advertising to exclude users by “ethnic affinity.” The plaintiffs in Mobley et. al. v. Facebook, Inc., Case No. 5:16-cv-06440 (N.D.Cal.) allege that Facebook’s targeted advertising tools, which leverage the consumer profiles of its users created by Facebook, create a “pattern or practice” of facilitating discrimination against protected classes by employers and by providers of housing and credit by enabling them to target advertisements only to specific Facebook user groups or to exclude specific user groups from an advertisement’s audience, which has the result of targeting advertisements based on protected characteristics such as age, gender, ethnic background, or national origin.

Facebook has countered that targeted advertising allows brands to direct relevant advertising to audiences and that its advertising policies prohibit use of its targeted advertising tool for illegal purposes, and announced shortly after the lawsuit was filed that it would make changes intended to prevent the use of “ethnic affinity” marketing for housing, employment, and credit-related ads. It argues that it is shielded from liability under the Communications Decency Act, which protects online service providers for liability for third party content on their service. Facebook’s motion to dismiss is pending but on hold at the moment while the parties engage in mediation. ProPublica reported in November 2017 that it was still able to post rental housing ads on Facebook that they claim discriminated against ethnic groups. It remains to be seen whether Facebook will bear any liability for providing a targeted advertising solution that has the ability to be misused by its customers in violation of state and federal laws.

Advertisers Themselves May Face Liability, Too

In response to the uproar over potential interference with the 2016 US election, Facebook recently introduced new ad transparency features.  One aspect of these transparency features allows anyone to see information about the groups to which a Facebook ad is targeted. For example, by clicking on “Why am I seeing this?” on an advertisement in my Facebook feed for a Shark IONFlex™ vacuum, I was able to see the ad is targeted to “Member(s) of a family based household” who are “ages 18 to 64 who live in the United States.”)  While this may be OK for an ad for a vacuum, it could cause problems for a housing, employment, or credit-related ad.

According to Joel O’Malley (a shareholder at Nilan Johnson Lewis, a Minneapolis firm specializing in defense-side employment law), the plaintiffs’ firm that filed suit against Facebook has begun leveraging Facebook’s ad transparency features to examine the targeting criteria for employment, housing and credit-related Facebook ads, and sending letters to companies advertising on Facebook threatening class action lawsuits for discrimination in employment, housing, or credit advertising due to exclusions or limitations in their targeted advertising based on age, ethnicity, gender, or other protected characteristics. It is very likely that other class action firms may “smell blood in the water” and start sending similar letters or filing actions against companies for targeted ad discrimination through Facebook. It is also likely that other targeted advertising platforms and tools may face similar scrutiny, and the users of those tools may face similar letters or actions alleging targeted ad discrimination. It is also possible the FTC will take an increased interest in targeted ad discrimination.

What Companies Should Do

  • Don’t wait to receive a letter or claim. Companies that use online advertising for employment, housing, or credit-related purposes should review their use of targeted advertising and the content of their targeted ads, and ensure targeted ads are composed and posted in a manner that does not give rise to a targeted ad discrimination claim. For example, ensure there are no age or ethnicity restrictions on job postings.
  • Educate relevant internal stakeholders about targeted ad discrimination and the importance of being careful when using targeted advertising with certain types of advertisements, and what they should do if they receive a communication from a law firm regarding targeted ad discrimination.
  • Consider engaging an employment law defense firm, or reach out to your existing employment law defense firm, to assist with a review of your company’s job postings to determine whether you are at risk and what steps can be taken to mitigate any discovered risk. For example, Nilan Johnson Lewis has developed an audit tool for its corporate clients to assess each employer’s unique level of risk.

Eric Lambert has spent most of his legal career working in-house as a proactive problem-solver and business partner. He is a corporate generalist who specializes in transactional agreements, technology/software/e-commerce, privacy, marketing and practical risk management. Any opinions in this post are his own. This post does not constitute, nor should it be construed as, legal advice. He is a technophile and Internet evangelist/enthusiast. In his spare time Eric dabbles in voice-over work and implementing and integrating connected home technologies.