Concise Guide to Paralegal Ethics

(Aspen Paralegal)
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Summary of Contents

Contents

Preface

1. Regulation of Lawyers and Paralegals

2. Unauthorized Practice of Law

3. Confidentiality

4. Conflicts of Interest

5. Advertising and Solicitation

6. Fees and Client Funds

7. Competence

8. Special Issues in Advocacy

9. Professionalism and Special Issues for Paralegals

Appendices

A. NALA Code of Ethics and Professional Responsibility

B. NFPA Model Code of Ethics and Professional Responsibility

Glossary

Index

p. ix
Contents

Preface

1. Regulation of Lawyers and Paralegals

A. Regulation of Lawyers

1. State Courts and Bar Associations

2. American Bar Association

3. State Statutes, Ethics Opinions, and Case Law

4. Sanctions and Remedies for Lawyer Misconduct

B. Regulation of Paralegals

1. A Brief History of the Paralegal Profession

2. Direct Regulation of Paralegals: Certification and

Licensing

Definitions of Terms

Regulation of Supervised Paralegals

The Regulation Debate

Nonlawyer Legal Service Providers

3. State Guidelines for the Utilization of Paralegal Services

4. Paralegal Association Codes of Ethics and Guidelines

5. Responsibility of Lawyers for Paralegal Conduct

Review Questions

Hypotheticals
 Discussion Questions and Projects

p. xi

p. xii

Selected Cases

Selected References

2. Unauthorized Practice of Law

A. Brief History of the Unauthorized Practice of Law

B. Trends in the Unauthorized Practice of Law

1. Nonlawyer Legal Service Providers and Related Trends

2. Multijurisdictional Practice Issues

C. The Practice of Law Defined

D. The Attorney’s Responsibility to Prevent the Unauthorized

Practice of Law

E. What Constitutes the Unauthorized Practice of Law

1. Making Court Appearances

Depositions

Pleadings

Exceptions

Administrative Agencies

2. Establishing the Attorney-Client Relationship

3. Giving Legal Advice

A Few Examples

Exceptions

Nonlawyer Legal Service Providers and Related Trends

F. Disclosure of Status as Paralegal and Job Titles

G. A Word about Paralegals as Independent Contractors

Review Questions

Hypotheticals
 Discussion Questions and Projects

Selected Cases

Selected References

3. Confidentiality

A. The Principle of Confidentiality

B. Attorney-Client Privilege

1. Defined Generally

2. Disclosure of Privileged Information

3. Matters Not Covered by the Privilege

p. xii

p. xiii

4. Inadvertent Disclosure of Privileged Material

5. Exceptions to and Waivers of the Privilege

6. The Privilege in the Corporate Setting

7. Court-Ordered Disclosure

C. The Work Product Rule

D. Ethics Rules of Confidentiality

E. Confidentiality and the Paralegal

1. Application of the Rule to Paralegals

2. Protecting Confidentiality in Daily Practice

3. Special Issues Relating to Technology

Review Questions

Hypotheticals

Discussion Questions and Projects

Selected Cases

Selected References
4. Conflicts of Interest

A. Introduction

B. Conflicts Involving Representation of Clients

1. Concurrent Representation

General Rules

Consents

Withdrawal to Avoid Conflicts

Imputed Disqualification in Concurrent Conflicts

Issue Conflicts and Other Indirect Concurrent Conflicts

Lawyer’s Professional Conflicts

Examples of Conflicts in Litigated Matters

Examples of Conflicts in Nonlitigated Matters

2. Successive Representation

General Rules

Defining “Substantial Relationship”

C. Other Conflicts Rules

1. Business Transactions with Clients

2. Publication, Literary, and Media Rights

3. Financial Assistance to Clients

4. A Lawyer’s Interest in Litigation

5. Gifts from Clients

6. Agreements with Clients Limiting Malpractice Liability

7. Payment of Attorney’s Fees by a Third Party

p. xiii

p. xiv

8. Relatives of Lawyers

9. Sexual Relations with Clients

D. Imputed Conflicts and Disqualification

1. General Rules
 2. Use of Screens

E. Conflicts Checks

Review Questions

Hypotheticals

Discussion Questions and Projects

Selected Cases

Selected References

5. Advertising and Solicitation

A. Advertising

1. The Advent and Evolution of Lawyer Advertising

2. The Current Ethics Rules

3. Current Issues and Trends in Lawyer Advertising

B. Solicitation

Review Questions

Hypotheticals

Discussion Questions and Projects

Selected Cases

Selected References

6. Fees and Client Funds

A. Fee Arrangements with Clients

1. Fixed Fees

2. Contingency Fees

3. Hourly Fees

B. Ethics Rules about Fees

C. Fee Arrangements

D. Court-Awarded Fees

E. Fee-Splitting and Referral Fees

F. Partnerships between Lawyers and Nonlawyers

 p. xiv

p. xv

G. Client Funds and Property

1. Client Trust Accounts

Interest on Lawyers’ Trust Accounts and Client Security

Funds

2. Client Property and Files

Review Questions

Hypotheticals

Discussion Questions and Projects

Selected Cases

Selected References

7. Competence

A. Introduction

B. Legal Education

C. Paralegal Education

D. A Definition of Competence

1. Knowledge

2. Professional Skills

3. Thoroughness and Preparation

4. Diligence and Promptness

5. Communication with Clients

E. Sanctions for Incompetence

F. Trends in Legal Malpractice

G. Factors Affecting Paralegal Competence

Review Questions

Hypotheticals

Discussion Questions and Projects

Selected Cases
 Selected References

8. Special Issues in Advocacy

A. Introduction

B. Unmeritorious Claims, Delay, and Discovery Abuse

C. Disruption in the Courtroom and Disobeying Court Orders

D. Candor and Honesty

E. Relationships and Communications with Judges

p. xv

p. xvi

F. Contact with Jurors

G. Contact with Parties and Represented Persons

H. Contact with Unrepresented Persons

I. Contact with Witnesses

J. Trial Publicity

K. Special Rules for Prosecutors

Review Questions

Hypotheticals

Discussion Questions and Projects

Selected Cases

Selected References

9. Professionalism and Special Issues for Paralegals

A. The State of Professionalism in the Legal Field

B. Professionalization of the Paralegal Occupation

1. Commitment to Public Service

2. Commitment to Education
 3. Commitment to the Highest Standards of Ethical Conduct

4. Commitment to Excellence

5. Commitment to the Paralegal Profession

6. Commitment to a Strong Work Ethic

7. Commitment to Acting with Integrity and Honor

8. Commitment to the Development of the Whole Person

9. Commitment to Exercising Good Judgment, Common

Sense, and Communication Skills

C. Current Issues in Professionalism

1. Regulation

2. Education

3. Utilization and Treatment

4. Exempt Status

5. Gender and Diversity

D. Pro Bono Work

Review Questions

Hypotheticals

Discussion Questions

Selected References

p. xvi

p. xvii

Appendices

A. NALA Code of Ethics and Professional Responsibility

B. NFPA Model Code of Ethics and Professional Responsibility

Glossary

Index

p. xvii
Preface

Approach

This book is written for paralegal students, working paralegals,

and lawyers who employ paralegals. It is intended for use primarily

as a text, but can be used as a reference manual by teachers and

those in practice.

In the 50 years since its inception, the paralegal occupation has

truly come into its own. Its growth in numbers, its expansion into all

areas of law practice and all sectors of the legal services industry,

and its general acceptance by the legal community and the public are

impressive. The occupation continues to evolve into a true

profession. One of the most critical aspects of any profession is its

adherence to an accepted code of ethics. Legal ethics is now taught

in virtually every paralegal program in the country. Because of the

diversity in paralegal education programs in terms of content, length,

and format, ethics is treated in a wide variety of ways in the

curriculum. Most programs have a separate course on ethics, and

other programs include ethics as a short segment in another required

course or teach ethics across the curriculum.

This text is a concise version of Ethics and Professional

Responsibility for Paralegals. This concise version covers all the

same subject matter as the full version, but in an abbreviated format

that can be adapted to short courses and to use in several different

courses.
 p. xix

p. xx

Organization and Coverage of the Concise Edition

The content of this book is comprehensive. It covers all the major

areas of legal ethics, placing special emphasis on how the rules

affect paralegals. It begins with a chapter on the regulation of

lawyers and paralegals, covering ethics codes, disciplinary processes

for lawyers, and the variety of ways in which paralegals are regulated

both directly and indirectly. Unauthorized practice of law is covered

in Chapter 2, including the definitions of the practice of law, detailed

descriptions of functions that only lawyers are permitted to perform,

and information on how UPL which is evolving in view of the growing

role of paralegals and nonlawyer legal service providers. Chapter 3

covers the duty of confidentiality and the attorney-client privilege,

including common issues that arise in these areas and ways to

prevent disclosure of confidential information, including recent

developments related to the use of technology.

Chapter 4 covers conflicts of interest, demonstrating how

conflicts rules apply to paralegals, including the use of screens and

conflicts checks. Rules regarding legal advertising and solicitation

are covered in Chapter 5. Chapter 6 is devoted to financial matters,

including billing and fees, fee agreements, statutory fee awards that

include compensation for paralegal work, fee splitting, referral fees,

partnerships between attorneys and nonlawyers, and handling client

funds. Chapter 7 defines competence specifically in relation to

paralegals and includes a discussion of malpractice. Special issues

confronted by litigation paralegals are covered in Chapter 8. Finally,

Chapter 9 examines professionalism, issues facing paralegals in

today’s law firm environment, and pro bono work.

 Key Features

Each chapter begins with an overview that lists the topics

covered in the chapter. The text of each chapter is divided topically.

Key terms are spelled out in italics when first introduced, with

definitions in the margins, and key concepts are noted in bold. At the

end of each chapter are a few hypothetical fact situations that

require students to apply the rules and concepts covered in the

chapter. These may be used in class discussion or for assignments.

Review questions that test each student’s memory and

understanding of the material and discussion questions that call for

in-depth analysis, legal research, or factual investigation are also

included. Selected references, including cases and ethics rules, are

found at the very end of each chapter.

Recognizing that every paralegal program teaches ethics in its

own way, the concise version has been designed for use in short

ethics courses or short segments of courses where there is not

enough time to use case

p. xx

p. xxi

analysis as a teaching method or to pursue in-depth analysis of the

ethics rules, including the history and evolution of those rules.

Hypotheticals were added in place of actual cases to provide a

method for students to test their understanding of the material by

synthesizing it and applying it in a new factual context. Discussion of

specific sections of the ABA Rules, ABA Guidelines for the Utilization

of Paralegal Services, and ethics opinions has been abbreviated, as

has coverage of trends.

Acknowledgments
 Many people must be thanked for their support and assistance:

the American Association for Paralegal Education, National

Association of Legal Assistants, National Federation of Paralegal

Associations, International Practice Management Association, and

the American Bar Association Standing Committee on Paralegals.

Special thanks go to the many students we have had the pleasure of

teaching and the paralegals who have shared their experiences with

us. Our deepest appreciation must be extended to the wonderful

people at Wolters Kluwer, especially Betsy Kenny, whose patience,

warmth, intelligence, and talents made this book possible.

We would like to thank the following copyright holders who kindly

granted their permission to reprint from the following materials.

National Association of Legal Assistants, Code of Ethics and

Professional Responsibility. Copyright © 1975, Revised 1979,

1988, 1995, 2007. Reprinted by permission of the National

Association of Legal Assistants.

National Federation of Paralegal Associations, Model Code of Ethics

and Professional Responsibility. Copyright © 1993, Revised,

1997, 2006. Reprinted by permission of the National Federation

of Paralegal Associations, Inc.

Therese A. Cannon

Sybil Taylor Aytch

August 2018

p. xxi
1

Regulation of Lawyers and

Paralegals

This chapter provides basic background on the regulation of

lawyers and paralegals. Paralegals who work under the

supervision of lawyers need to understand the rules governing

lawyer conduct and how those rules affect them. Also covered

are a brief history of the paralegal profession and an

explanation of how paralegals are regulated directly and

indirectly by the states in which they work. Included is an

overview of voluntary professional associations for paralegals

and certification programs. Chapter 1 covers:

• the inherent power of the courts over the practice of law

• the organized bar’s participation in lawyer regulation

• the role of the legislature and state statutes in governing the

conduct of lawyers

• the evolution of the paralegal profession

• professional associations for paralegals

• direct regulation of paralegals

• the distinctions among certification, licensing, and limited

licensing
 • the liability of paralegals and the lawyers who supervise them

• guidelines for the utilization of paralegal services

• ethics guidelines promulgated by paralegal associations

p. 1

p. 2

A. Regulation of Lawyers

1. State Courts and Bar Associations

Like other professions that affect the public interest, the legal

profession is subject to regulation by the states. Unlike other

regulated professions, however, the regulation of the legal profession

falls mainly to the judiciary rather than the legislature. Because of

the separation of powers and the role of lawyers in the court system,

the judiciary has historically asserted inherent authority over the

practice of law.

The highest court in each state and in the District of Columbia is

responsible for making rules related to admission to the practice of

law and to lawyers’ ethical conduct. The states’ highest courts also

create and oversee mechanisms for disciplining lawyers who violate

ethics codes. Most state legislatures have also passed statutes that

supplement the ethics rules adopted by the courts. Some states

consider legislative authority over the practice of law to be

concurrent with the judicial authority; others consider legislative

action to be only in aid of judicial action. In a few states, such as

California and New York, substantial authority over the practice of

law rests with the legislature. Sometimes the judiciary and the

legislature have conflicting ideas about matters affecting the

practice of law, and a court will be called on to strike down legislation

that attempts to govern lawyer conduct in some way. Several state

supreme courts have held unconstitutional legislation that would

have authorized nonlawyers to engage in conduct that might be

categorized as the practice of law. Local court rules also govern

attorneys’ conduct in matters before the courts.

In practice, many state supreme courts rely heavily on state bar

associations to carry out their responsibilities for regulating the

practice of law. These courts have delegated authority to the bar as a

way to relieve the burden of overseeing lawyer conduct, updating the

ethics rules, and disciplining lawyers.

Some state bar associations are integrated or unified, which

means that membership is compulsory. In a state with an integrated

bar, annual dues to renew the practitioner’s law license carry

automatic membership in the state bar. Some states have purely

voluntary state bar associations; funds to operate the admissions

and disciplinary functions in the state are derived from annual

licensing or registration fees. It is estimated that about 60 percent of

the lawyers in the U.S. are members of a voluntary bar association.

Integrated bars generally play a more active role in the admissions

and disciplinary functions of the court and in other matters relating

to the legal profession.

2. American Bar Association

All states except California pattern their codes of ethics on the

models of the American Bar Association (ABA). The ABA is a national

p. 2

p. 3
voluntary professional association of lawyers, and is the largest

professional association in the world with about 400,000 members—

more than a quarter of the lawyers in the country. Over 100 years old,

the ABA is the chief national professional association for lawyers.

The ABA carries a strong voice in matters affecting the substantive

law, the judiciary, and the administration of justice. Among the ABA’s

many contributions to the profession is the promulgation of model

codes of ethics.

The ABA first published the Canons of Professional Ethics in

1908. These Canons were patterned after the first code of ethics for

lawyers adopted in 1887 by the Alabama State Bar Association. Prior

to the adoption of state codes, lawyer conduct was governed largely

by common law and some statutes. The 1908 Canons consisted of

32 statements of very general principles about attorney conduct,

mainly conduct in the courtroom. Many states adopted these ABA

Canons through court rule or statute.

In 1969, the ABA published a new code, the Model Code of

Professional Responsibility , designed as a prototype for states to use

in developing their own codes. The Model Code was adopted in whole

or in part by every state. After six years of study, debate, drafting, and

redrafting, a new code, the Model Rules of Professional Conduct, was

adopted by the ABA in 1983.

The current version of the Model Rules is cited throughout this

book. Since adopted in 1983, several sections of the Model Rules

have been revised to keep pace with changes in practice and new

ethical challenges. For example, recent changes have been made in

the area of electronic communications and records. The relevant

ethics rules in your jurisdiction should always be consulted for the

current and accurate rules governing lawyer and paralegal conduct.

As of this writing, California is the only state that has not adopted its

own version of the Model Rules. California has its own code, which is

based on neither the Model Code nor the Model Rules. States

generally make some modifications of the ABA Rules when they

adopt the rules, so it is important for paralegals to consult the

specific state rules that are applicable where they are working and

not to rely on the ABA Model Rules.

3. State Statutes, Ethics Opinions,

and Case Law

Although the state codes of ethics contain most of the rules with

which we are concerned in this text, statutes also govern attorney

conduct. For example, some states have statutes that prohibit

attorneys from engaging in certain conduct in their professional

capacity as lawyers and provide for criminal and civil penalties. As

we will see in Chapter 2, most states have laws that make the

unauthorized practice of law a crime, usually a misdemeanor.

p. 3

p. 4

Not binding on attorneys but often consulted when ethical issues

arise are ethics advisory opinions issued by state and local bar

associations and the ABA. Bar associations have ethics committees

that consider ethical dilemmas posed to them by attorney-members.

The committees write opinions that are published in bar journals and

on bar websites to give additional guidance to other attorneys facing

similar dilemmas. Courts sometimes cite these advisory opinions as

persuasive authority. Some state and ABA advisory opinions that are

important to paralegals are cited in this text.

Of course, disciplinary cases and court decisions involving lawyer

malpractice, disqualification, and breach of lawyers’ duties contribute

to the body of law that governs lawyer conduct.

4. Sanctions and Remedies for Lawyer Misconduct

 Four main formal sanctions for ethical misconduct can be

imposed on lawyers by the state’s highest court or other disciplinary

body. The most severe sanction is disbarment, in which a lawyer’s

license to practice law is revoked. Disbarment is only imposed for the

most egregious violations or when there is a long-term pattern of

serious unethical conduct. Although disbarment is in theory

“permanent,” most admitting authorities do occasionally readmit a

disbarred lawyer after some period of time if the lawyer can

demonstrate complete rehabilitation.

The second most severe sanction is suspension , under which the

attorney is deprived of the right to practice law for a specified period

of time. Some disciplinary authorities also have the option of

imposing probation , under which the disciplined attorney may

continue to practice on the condition that certain requirements are

met, such as restitution to injured clients, passing an ethics

examination, attending ethics “school,” or participating in counseling.

Sometimes a suspension is stayed but the attorney remains on

probation for some period, during which the disciplinary body may

reinstitute the suspension if further ethical violations come to light.

The mildest sanction is a reprimand , sometimes called a reproval.

This action represents a slap on the hand, a warning that the conduct

at issue will not be tolerated. Reprimands may be made public

(placed in the public record and published in a bar journal or legal

newspaper or on a bar or court website) or private (confidentially

communicated in writing to the attorney). In either case, the

reprimand becomes part of the attorney’s record. A reprimand is

considered further in determining the appropriate sanction if other

violations occur.

In setting the appropriate sanction, the disciplinary body

considers the nature and severity of the offense and whether the

attorney has a record of prior misconduct. Other aggravating and

mitigating
 p. 4

p. 5

factors may be taken into account, such as the extent to which the

lawyer cooperates in the investigation and appreciates the

seriousness of the matter, the lawyer’s reputation and contributions

to the community through public service and professional activities,

the circumstances surrounding the offense and the extent to which

these make the lawyer more or less culpable for the conduct, and

whether the offense was a one-time incident and is unlikely to be

repeated or was a pattern of misconduct over time. Whether the

lawyer shows remorse and willingness to remedy the problems that

may have led to the conduct is also critical in determining the

sanction.

In addition to direct discipline by the court or state bar, a lawyer

may be prosecuted criminally for violations of statutes governing

attorney conduct or conduct that may relate to an attorney’s

practice, such as laws prohibiting solicitation of clients in hospitals

and jails and laws limiting the methods that can be used to collect

debts. Civil legal malpractice lawsuits brought by former clients also

constitute a major incentive for conforming to ethical requirements

and standards of practice. (See Chapter 7 for more on legal

malpractice.) The courts also exercise contempt power to sanction

lawyers appearing before them who engage in improper conduct that

affects the administration of justice and the smooth functioning of

the courts. (See Chapter 8, Special Issues in Advocacy.) The courts

also play a major role in deciding on matters in the area of conflicts

of interest because they rule on motions to disqualify counsel, which

are usually brought by the opposing counsel who claims that a

lawyer or law firm has a conflict of interest that jeopardizes client

confidentiality. (See Chapter 4, Conflicts of Interest.) It should be

noted that disciplinary action may be taken not only against lawyers

who are directly involved with the conduct of paralegals, but also
against those who have supervisory or managerial authority or are

partners in a law firm. Under the rules in most states, a law firm itself

may also be held responsible for ethical misconduct, depending on

the nature of the violation and the surrounding circumstances and

actions by the firm. (See ABA Model Rule 5.3, discussed below.)

B. Regulation of Paralegals

1. A Brief History of the Paralegal Profession

The use of specially educated and trained nonlawyers to assist

lawyers in the delivery of legal services is a relatively new

phenomenon in the history of American law. The concept is only

about 50 years old.

p. 5

p. 6

The paralegal field’s beginnings can be traced directly back to the

late 1960s, when the rapidly rising cost of legal services, combined

with the lack of access to legal services for low- and middle-income

Americans, caused the federal government, consumer groups, and

the organized bar to take a close look at the way legal services were

being delivered. Many innovations were instituted, including legal aid

clinics, storefront law offices, and prepaid legal plans. Private law

firms became aware of the need to manage their operations more

efficiently. The concept of using the services of trained nonlawyers to

perform certain legal functions was introduced. In 1967, the ABA

endorsed the concept of the paralegal, and in 1968, established its

first committee on paralegals, which has since become the Standing

Committee on Paralegals.
 During the late 1960s and early 1970s, the ABA and several state

and local bar associations conducted studies on the use of

paralegals. Although many studies showed initial attorney resistance

to the idea of paralegals, the actual use of paralegals rose. The first

formal paralegal training programs were established in the early

1970s. Only 11 paralegal education programs were offered in 1971,

and there are more than 1,000 today. In 1974, the ABA adopted

guidelines for paralegal programs, and in 1975, began to approve

paralegal programs. There were nine paralegal programs approved

that year, and there are now about 300 approved programs.

In the mid-1970s, the first professional paralegal associations

were formed. Dozens of groups cropped up locally. The National

Federation of Paralegal Associations (NFPA) and the National

Association of Legal Assistants (NALA) were established. Paralegal

educators formed their own organization, the American Association

for Paralegal Education (AAfPE). In the 1980s, a group of paralegal

supervisors and managers started the Legal Assistant Management

Association, which was more recently known as the International

Paralegal Management Association but has since changed its name

to the International Practice Management Association (IPMA). NALS ,

which was an association for legal secretaries formed in 1929, seeks

to serve all legal professionals, including paralegals. Finally, the

American Alliance of Paralegals, Inc. (AAPI ) is the newest national

group for paralegals.

In 1976, the first voluntary certification program was established

by NALA, called the Certified Legal Assistant (CLA) program. It was

also at about this time that the U.S. Bureau of Labor Statistics

predicted that a paralegal career would be one of the fastest-growing

occupations. Job opportunities expanded dramatically in the 1980s,

especially in large private law firms, and paralegals started to work

as independent contractors.

In the 1990s, NALA developed advanced specialist examinations

in a variety of areas, which are taken by paralegals who have already

earned the Certified Paralegal (CP) designation. NALA also offers an

Advanced Certified Credential in specialty areas. More than 22,000

paralegals have participated in NALA’s certification programs. NFPA

offers

p. 6

p. 7

two certifications: the Paralegal Advanced Competency Examination

(PACE), designed for experienced paralegals who may use the

designation Registered Paralegal (RP) upon passing the

examination, which has been passed by more than 600 paralegals;

and the Paralegal CORE Competency Examination (PCCE) leading to

the CORE Registered Paralegal (CRP) designation, which more than

300 paralegals have earned. In 2004, NALS, the Association for

Legal Professionals (formerly the National Association of Legal

Secretaries) launched the Professional Paralegal (PP) certification

examination program. AAPI, although smaller than the other national

groups, also has a paralegal certification program.

IPMA, representing supervisors of paralegals and practice support

professionals mainly in large law firms and corporate law

departments, has about 500 members and has local chapters in

major cities across the United States and in Canada.

2. Direct Regulation of Paralegals: Certification and

Licensing

Definitions of Terms

Certification of an occupation is usually a form of voluntary

recognition of an individual who has met specifications of the

granting agency or organization. NALA’s CLA program and the

NFPA’s RP are forms of certification. Licensing is a mandatory form

of regulation by which a government agency grants permission to an

individual to engage in an occupation and to use a particular title.

Only a person who is so licensed may engage in this occupation.

There is no licensing of paralegals at the present time in the United

States. Attorneys are “licensed” by the state in which they practice.

Typically, both licensing and certification require applicants to pass

an examination and meet specified requirements regarding

education and moral character.

The term paralegal is used in this book as it is now the most

accepted term for the profession. All of the professional entities

involved in the paralegal profession use this title as opposed to legal

assistant. In part, this usage has come about because lawyers in

many firms started to give the title “legal assistant” to their legal

secretaries.

The ABA adopted a definition of paralegal/legal assistant in 1997,

which reads: “A paralegal is a person, qualified by education, training

or work experience, who is employed or retained by a lawyer, law

office, corporation, governmental agency or other entity and who

performs specifically delegated substantive legal work for which a

lawyer is responsible.” Although states, bar associations, and

paralegal organizations deviate slightly from the ABA definition, they

generally subscribe to the basic

p. 7

p. 8

ideas set forth in this definition: (1) paralegals meet certain

qualifications, (2) paralegals work for lawyers who delegate work to

them, (3) paralegals do substantive legal work, and (4) the lawyer is

responsible for their work.

Regulation of Supervised Paralegals

 Throughout the history of the paralegal profession, the need for

certification or licensing has been raised and debated. Gradually,

some minimal forms of regulation have been adopted.

Early in the profession’s development, Oregon had a voluntary

certification program, which was abolished after a few years

because of low participation. Texas adopted a voluntary certification

program for paralegals in 1994. Texas administers its program

through its Board of Legal Specialization. Certification examinations

are given in a number of areas, including family law, civil trial

practice, criminal law, and personal injury practice. Certification, valid

for five years, is renewable upon demonstrated participation in

continuing education, employment by a Texas attorney, and

substantial involvement in a specialty area. Since 2004, the North

Carolina and Ohio bar associations established voluntary

certification programs for paralegals, and the Florida Supreme Court

adopted rules for a Registered Paralegal Program, which is based on

a paralegal’s having specified educational credentials or work

experience and passing one of the major certification exams of NALA

or NFPA. Nearly 10,000 paralegals are certified by those three states.

A few states have taken steps toward the regulation of

paralegals. In 1992, South Dakota’s Superior Court adopted rules

governing the use of the title legal assistant/ paralegal. And in 1999,

Maine adopted a statute that defines “paralegal” and “legal assistant”

and restricts the use of the title to those persons. Anyone who does

not fit the definition, which requires the person to work under lawyer

supervision, may be fined. Both Florida and Arizona limit the use of

the title “paralegal” and similar titles by Supreme Court Rule to

persons working under lawyer supervision.

In 2000, California enacted a statute that defines who may use

the title “paralegal” (and comparable titles) and sets qualifications

and continuing education requirements. The statute requires

paralegals to be supervised by lawyers and distinguishes them from

“legal document assistants,” a title used in other state legislation for

nonlawyer legal service providers who do not work for lawyers. This

statute is not enforceable through any particular state agency and no

registration or licensing is involved. Criminal penalties are available,

however, for anyone using the title while providing legal services

directly to the public. Arizona, Florida, and New Mexico have court

rules limiting the use of the title “paralegal” as well.

The ABA has issued policy statements that reject the notion that

paralegals should be licensed, indicating that the public is protected

by the extensive ethical and disciplinary requirements to which

lawyers are

p. 8

p. 9

subject. IPMA also adheres to the position that licensing of

paralegals who work under lawyer supervision is unnecessary for the

protection of the public and would unduly interfere with a lawyer’s

prerogative to hire the best-qualified person for the job. NALA is also

against mandatory licensing, mainly on the basis that there is no

need for it to protect the public. NFPA has historically promoted

regulation as a means to enhance and expand the role of the

paralegal.

The Regulation Debate

Arguments favoring licensing of paralegals who work under

lawyer supervision center mainly on the benefits to the paralegal

occupation, in terms of establishing it as a separate and

autonomous but allied legal career, one with its own identity and a

concomitant increase in societal status and rewards.

Proponents believe regulation would:

• provide appropriate public recognition for paralegals as important

members of the legal services delivery team

• ensure high standards and quality of work by paralegals

• expand the use of paralegals, thereby expanding access to legal

services and lowering costs

• provide assurance to clients and employers of paralegals of their

qualifications

• encourage needed standardization in paralegal education

Some proponents favor regulation only if it permits paralegals to

expand their role by permitting them to engage in work that they are

not currently permitted to do under state statutes and case law.

The primary arguments against licensing of traditional paralegals

contend that licensing would:

• not benefit the public because attorney-employers are already fully

accountable to clients

• increase the cost of employing paralegals and therefore increase

the cost of legal services

• stifle the development of the profession

• inappropriately limit entry into the profession

• unnecessarily standardize paralegal education

• restrict the movement of paralegals into new areas of practice or

duties

One important concern cited by opponents is the practical

difficulty of determining exactly what legal tasks and functions could

be assigned exclusively to paralegals through this regulatory

process.

p. 9

p. 10
Another random document with
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 DANCE ON STILTS AT THE GIRLS’ UNYAGO, NIUCHI

Newala, too, suffers from the distance of its water-supply—at least

the Newala of to-day does; there was once another Newala in a lovely
valley at the foot of the plateau. I visited it and found scarcely a trace
of houses, only a Christian cemetery, with the graves of several
missionaries and their converts, remaining as a monument of its
former glories. But the surroundings are wonderfully beautiful. A
thick grove of splendid mango-trees closes in the weather-worn
crosses and headstones; behind them, combining the useful and the
agreeable, is a whole plantation of lemon-trees covered with ripe
fruit; not the small African kind, but a much larger and also juicier
imported variety, which drops into the hands of the passing traveller,
without calling for any exertion on his part. Old Newala is now under
the jurisdiction of the native pastor, Daudi, at Chingulungulu, who,
as I am on very friendly terms with him, allows me, as a matter of
course, the use of this lemon-grove during my stay at Newala.
 FEET MUTILATED BY THE RAVAGES OF THE “JIGGER”
(Sarcopsylla penetrans)

The water-supply of New Newala is in the bottom of the valley,

some 1,600 feet lower down. The way is not only long and fatiguing,
but the water, when we get it, is thoroughly bad. We are suffering not
only from this, but from the fact that the arrangements at Newala are
nothing short of luxurious. We have a separate kitchen—a hut built
against the boma palisade on the right of the baraza, the interior of
which is not visible from our usual position. Our two cooks were not
long in finding this out, and they consequently do—or rather neglect
to do—what they please. In any case they do not seem to be very
particular about the boiling of our drinking-water—at least I can
attribute to no other cause certain attacks of a dysenteric nature,
from which both Knudsen and I have suffered for some time. If a
man like Omari has to be left unwatched for a moment, he is capable
of anything. Besides this complaint, we are inconvenienced by the
state of our nails, which have become as hard as glass, and crack on
the slightest provocation, and I have the additional infliction of
pimples all over me. As if all this were not enough, we have also, for
the last week been waging war against the jigger, who has found his
Eldorado in the hot sand of the Makonde plateau. Our men are seen
all day long—whenever their chronic colds and the dysentery likewise
raging among them permit—occupied in removing this scourge of
Africa from their feet and trying to prevent the disastrous
consequences of its presence. It is quite common to see natives of
this place with one or two toes missing; many have lost all their toes,
or even the whole front part of the foot, so that a well-formed leg
ends in a shapeless stump. These ravages are caused by the female of
Sarcopsylla penetrans, which bores its way under the skin and there
develops an egg-sac the size of a pea. In all books on the subject, it is
stated that one’s attention is called to the presence of this parasite by
an intolerable itching. This agrees very well with my experience, so
far as the softer parts of the sole, the spaces between and under the
toes, and the side of the foot are concerned, but if the creature
penetrates through the harder parts of the heel or ball of the foot, it
may escape even the most careful search till it has reached maturity.
Then there is no time to be lost, if the horrible ulceration, of which
we see cases by the dozen every day, is to be prevented. It is much
easier, by the way, to discover the insect on the white skin of a
European than on that of a native, on which the dark speck scarcely
shows. The four or five jiggers which, in spite of the fact that I
constantly wore high laced boots, chose my feet to settle in, were
taken out for me by the all-accomplished Knudsen, after which I
thought it advisable to wash out the cavities with corrosive
sublimate. The natives have a different sort of disinfectant—they fill
the hole with scraped roots. In a tiny Makua village on the slope of
the plateau south of Newala, we saw an old woman who had filled all
the spaces under her toe-nails with powdered roots by way of
prophylactic treatment. What will be the result, if any, who can say?
The rest of the many trifling ills which trouble our existence are
really more comic than serious. In the absence of anything else to
smoke, Knudsen and I at last opened a box of cigars procured from
the Indian store-keeper at Lindi, and tried them, with the most
distressing results. Whether they contain opium or some other
narcotic, neither of us can say, but after the tenth puff we were both
“off,” three-quarters stupefied and unspeakably wretched. Slowly we
recovered—and what happened next? Half-an-hour later we were
once more smoking these poisonous concoctions—so insatiable is the
craving for tobacco in the tropics.
Even my present attacks of fever scarcely deserve to be taken
seriously. I have had no less than three here at Newala, all of which
have run their course in an incredibly short time. In the early
afternoon, I am busy with my old natives, asking questions and
making notes. The strong midday coffee has stimulated my spirits to
an extraordinary degree, the brain is active and vigorous, and work
progresses rapidly, while a pleasant warmth pervades the whole
body. Suddenly this gives place to a violent chill, forcing me to put on
my overcoat, though it is only half-past three and the afternoon sun
is at its hottest. Now the brain no longer works with such acuteness
and logical precision; more especially does it fail me in trying to
establish the syntax of the difficult Makua language on which I have
ventured, as if I had not enough to do without it. Under the
circumstances it seems advisable to take my temperature, and I do
so, to save trouble, without leaving my seat, and while going on with
my work. On examination, I find it to be 101·48°. My tutors are
abruptly dismissed and my bed set up in the baraza; a few minutes
later I am in it and treating myself internally with hot water and
lemon-juice.
Three hours later, the thermometer marks nearly 104°, and I make
them carry me back into the tent, bed and all, as I am now perspiring
heavily, and exposure to the cold wind just beginning to blow might
mean a fatal chill. I lie still for a little while, and then find, to my
great relief, that the temperature is not rising, but rather falling. This
is about 7.30 p.m. At 8 p.m. I find, to my unbounded astonishment,
that it has fallen below 98·6°, and I feel perfectly well. I read for an
hour or two, and could very well enjoy a smoke, if I had the
wherewithal—Indian cigars being out of the question.
Having no medical training, I am at a loss to account for this state
of things. It is impossible that these transitory attacks of high fever
should be malarial; it seems more probable that they are due to a
kind of sunstroke. On consulting my note-book, I become more and
more inclined to think this is the case, for these attacks regularly
follow extreme fatigue and long exposure to strong sunshine. They at
least have the advantage of being only short interruptions to my
work, as on the following morning I am always quite fresh and fit.
My treasure of a cook is suffering from an enormous hydrocele which
makes it difficult for him to get up, and Moritz is obliged to keep in
the dark on account of his inflamed eyes. Knudsen’s cook, a raw boy
from somewhere in the bush, knows still less of cooking than Omari;
consequently Nils Knudsen himself has been promoted to the vacant
post. Finding that we had come to the end of our supplies, he began
by sending to Chingulungulu for the four sucking-pigs which we had
bought from Matola and temporarily left in his charge; and when
they came up, neatly packed in a large crate, he callously slaughtered
the biggest of them. The first joint we were thoughtless enough to
entrust for roasting to Knudsen’s mshenzi cook, and it was
consequently uneatable; but we made the rest of the animal into a
jelly which we ate with great relish after weeks of underfeeding,
consuming incredible helpings of it at both midday and evening
meals. The only drawback is a certain want of variety in the tinned
vegetables. Dr. Jäger, to whom the Geographical Commission
entrusted the provisioning of the expeditions—mine as well as his
own—because he had more time on his hands than the rest of us,
seems to have laid in a huge stock of Teltow turnips,[46] an article of
food which is all very well for occasional use, but which quickly palls
when set before one every day; and we seem to have no other tins
left. There is no help for it—we must put up with the turnips; but I
am certain that, once I am home again, I shall not touch them for ten
years to come.
Amid all these minor evils, which, after all, go to make up the
genuine flavour of Africa, there is at least one cheering touch:
Knudsen has, with the dexterity of a skilled mechanic, repaired my 9
× 12 cm. camera, at least so far that I can use it with a little care.
How, in the absence of finger-nails, he was able to accomplish such a
ticklish piece of work, having no tool but a clumsy screw-driver for
taking to pieces and putting together again the complicated
mechanism of the instantaneous shutter, is still a mystery to me; but
he did it successfully. The loss of his finger-nails shows him in a light
contrasting curiously enough with the intelligence evinced by the
above operation; though, after all, it is scarcely surprising after his
ten years’ residence in the bush. One day, at Lindi, he had occasion
to wash a dog, which must have been in need of very thorough
cleansing, for the bottle handed to our friend for the purpose had an
extremely strong smell. Having performed his task in the most
conscientious manner, he perceived with some surprise that the dog
did not appear much the better for it, and was further surprised by
finding his own nails ulcerating away in the course of the next few
days. “How was I to know that carbolic acid has to be diluted?” he
mutters indignantly, from time to time, with a troubled gaze at his
mutilated finger-tips.
 Since we came to Newala we have been making excursions in all
directions through the surrounding country, in accordance with old
habit, and also because the akida Sefu did not get together the tribal
elders from whom I wanted information so speedily as he had
promised. There is, however, no harm done, as, even if seen only
from the outside, the country and people are interesting enough.
The Makonde plateau is like a large rectangular table rounded off
at the corners. Measured from the Indian Ocean to Newala, it is
about seventy-five miles long, and between the Rovuma and the
Lukuledi it averages fifty miles in breadth, so that its superficial area
is about two-thirds of that of the kingdom of Saxony. The surface,
however, is not level, but uniformly inclined from its south-western
edge to the ocean. From the upper edge, on which Newala lies, the
eye ranges for many miles east and north-east, without encountering
any obstacle, over the Makonde bush. It is a green sea, from which
here and there thick clouds of smoke rise, to show that it, too, is
inhabited by men who carry on their tillage like so many other
primitive peoples, by cutting down and burning the bush, and
manuring with the ashes. Even in the radiant light of a tropical day
such a fire is a grand sight.
Much less effective is the impression produced just now by the
great western plain as seen from the edge of the plateau. As often as
time permits, I stroll along this edge, sometimes in one direction,
sometimes in another, in the hope of finding the air clear enough to
let me enjoy the view; but I have always been disappointed.
Wherever one looks, clouds of smoke rise from the burning bush,
and the air is full of smoke and vapour. It is a pity, for under more
favourable circumstances the panorama of the whole country up to
the distant Majeje hills must be truly magnificent. It is of little use
taking photographs now, and an outline sketch gives a very poor idea
of the scenery. In one of these excursions I went out of my way to
make a personal attempt on the Makonde bush. The present edge of
the plateau is the result of a far-reaching process of destruction
through erosion and denudation. The Makonde strata are
everywhere cut into by ravines, which, though short, are hundreds of
yards in depth. In consequence of the loose stratification of these
beds, not only are the walls of these ravines nearly vertical, but their
upper end is closed by an equally steep escarpment, so that the
western edge of the Makonde plateau is hemmed in by a series of
deep, basin-like valleys. In order to get from one side of such a ravine
to the other, I cut my way through the bush with a dozen of my men.
It was a very open part, with more grass than scrub, but even so the
short stretch of less than two hundred yards was very hard work; at
the end of it the men’s calicoes were in rags and they themselves
bleeding from hundreds of scratches, while even our strong khaki
suits had not escaped scatheless.

NATIVE PATH THROUGH THE MAKONDE BUSH, NEAR

MAHUTA

I see increasing reason to believe that the view formed some time
back as to the origin of the Makonde bush is the correct one. I have
no doubt that it is not a natural product, but the result of human
occupation. Those parts of the high country where man—as a very
slight amount of practice enables the eye to perceive at once—has not
yet penetrated with axe and hoe, are still occupied by a splendid
timber forest quite able to sustain a comparison with our mixed
forests in Germany. But wherever man has once built his hut or tilled
his field, this horrible bush springs up. Every phase of this process
may be seen in the course of a couple of hours’ walk along the main
road. From the bush to right or left, one hears the sound of the axe—
not from one spot only, but from several directions at once. A few
steps further on, we can see what is taking place. The brush has been
cut down and piled up in heaps to the height of a yard or more,
between which the trunks of the large trees stand up like the last
pillars of a magnificent ruined building. These, too, present a
melancholy spectacle: the destructive Makonde have ringed them—
cut a broad strip of bark all round to ensure their dying off—and also
piled up pyramids of brush round them. Father and son, mother and
son-in-law, are chopping away perseveringly in the background—too
busy, almost, to look round at the white stranger, who usually excites
so much interest. If you pass by the same place a week later, the piles
of brushwood have disappeared and a thick layer of ashes has taken
the place of the green forest. The large trees stretch their
smouldering trunks and branches in dumb accusation to heaven—if
they have not already fallen and been more or less reduced to ashes,
perhaps only showing as a white stripe on the dark ground.
This work of destruction is carried out by the Makonde alike on the
virgin forest and on the bush which has sprung up on sites already
cultivated and deserted. In the second case they are saved the trouble
of burning the large trees, these being entirely absent in the
secondary bush.
After burning this piece of forest ground and loosening it with the
hoe, the native sows his corn and plants his vegetables. All over the
country, he goes in for bed-culture, which requires, and, in fact,
receives, the most careful attention. Weeds are nowhere tolerated in
the south of German East Africa. The crops may fail on the plains,
where droughts are frequent, but never on the plateau with its
abundant rains and heavy dews. Its fortunate inhabitants even have
the satisfaction of seeing the proud Wayao and Wamakua working
for them as labourers, driven by hunger to serve where they were
accustomed to rule.
But the light, sandy soil is soon exhausted, and would yield no
harvest the second year if cultivated twice running. This fact has
been familiar to the native for ages; consequently he provides in
time, and, while his crop is growing, prepares the next plot with axe
and firebrand. Next year he plants this with his various crops and
lets the first piece lie fallow. For a short time it remains waste and
desolate; then nature steps in to repair the destruction wrought by
man; a thousand new growths spring out of the exhausted soil, and
even the old stumps put forth fresh shoots. Next year the new growth
is up to one’s knees, and in a few years more it is that terrible,
impenetrable bush, which maintains its position till the black
occupier of the land has made the round of all the available sites and
come back to his starting point.
The Makonde are, body and soul, so to speak, one with this bush.
According to my Yao informants, indeed, their name means nothing
else but “bush people.” Their own tradition says that they have been
settled up here for a very long time, but to my surprise they laid great
stress on an original immigration. Their old homes were in the
south-east, near Mikindani and the mouth of the Rovuma, whence
their peaceful forefathers were driven by the continual raids of the
Sakalavas from Madagascar and the warlike Shirazis[47] of the coast,
to take refuge on the almost inaccessible plateau. I have studied
African ethnology for twenty years, but the fact that changes of
population in this apparently quiet and peaceable corner of the earth
could have been occasioned by outside enterprises taking place on
the high seas, was completely new to me. It is, no doubt, however,
correct.
The charming tribal legend of the Makonde—besides informing us
of other interesting matters—explains why they have to live in the
thickest of the bush and a long way from the edge of the plateau,
instead of making their permanent homes beside the purling brooks
and springs of the low country.
“The place where the tribe originated is Mahuta, on the southern
side of the plateau towards the Rovuma, where of old time there was
nothing but thick bush. Out of this bush came a man who never
washed himself or shaved his head, and who ate and drank but little.
He went out and made a human figure from the wood of a tree
growing in the open country, which he took home to his abode in the
bush and there set it upright. In the night this image came to life and
was a woman. The man and woman went down together to the
Rovuma to wash themselves. Here the woman gave birth to a still-
born child. They left that place and passed over the high land into the
valley of the Mbemkuru, where the woman had another child, which
was also born dead. Then they returned to the high bush country of
Mahuta, where the third child was born, which lived and grew up. In
course of time, the couple had many more children, and called
themselves Wamatanda. These were the ancestral stock of the
Makonde, also called Wamakonde,[48] i.e., aborigines. Their
forefather, the man from the bush, gave his children the command to
bury their dead upright, in memory of the mother of their race who
was cut out of wood and awoke to life when standing upright. He also
warned them against settling in the valleys and near large streams,
for sickness and death dwelt there. They were to make it a rule to
have their huts at least an hour’s walk from the nearest watering-
place; then their children would thrive and escape illness.”
The explanation of the name Makonde given by my informants is
somewhat different from that contained in the above legend, which I
extract from a little book (small, but packed with information), by
Pater Adams, entitled Lindi und sein Hinterland. Otherwise, my
results agree exactly with the statements of the legend. Washing?
Hapana—there is no such thing. Why should they do so? As it is, the
supply of water scarcely suffices for cooking and drinking; other
people do not wash, so why should the Makonde distinguish himself
by such needless eccentricity? As for shaving the head, the short,
woolly crop scarcely needs it,[49] so the second ancestral precept is
likewise easy enough to follow. Beyond this, however, there is
nothing ridiculous in the ancestor’s advice. I have obtained from
various local artists a fairly large number of figures carved in wood,
ranging from fifteen to twenty-three inches in height, and
representing women belonging to the great group of the Mavia,
Makonde, and Matambwe tribes. The carving is remarkably well
done and renders the female type with great accuracy, especially the
keloid ornamentation, to be described later on. As to the object and
meaning of their works the sculptors either could or (more probably)
would tell me nothing, and I was forced to content myself with the
scanty information vouchsafed by one man, who said that the figures
were merely intended to represent the nembo—the artificial
deformations of pelele, ear-discs, and keloids. The legend recorded
by Pater Adams places these figures in a new light. They must surely
be more than mere dolls; and we may even venture to assume that
they are—though the majority of present-day Makonde are probably
unaware of the fact—representations of the tribal ancestress.
 The references in the legend to the descent from Mahuta to the
Rovuma, and to a journey across the highlands into the Mbekuru
valley, undoubtedly indicate the previous history of the tribe, the
travels of the ancestral pair typifying the migrations of their
descendants. The descent to the neighbouring Rovuma valley, with
its extraordinary fertility and great abundance of game, is intelligible
at a glance—but the crossing of the Lukuledi depression, the ascent
to the Rondo Plateau and the descent to the Mbemkuru, also lie
within the bounds of probability, for all these districts have exactly
the same character as the extreme south. Now, however, comes a
point of especial interest for our bacteriological age. The primitive
Makonde did not enjoy their lives in the marshy river-valleys.
Disease raged among them, and many died. It was only after they
had returned to their original home near Mahuta, that the health
conditions of these people improved. We are very apt to think of the
African as a stupid person whose ignorance of nature is only equalled
by his fear of it, and who looks on all mishaps as caused by evil
spirits and malignant natural powers. It is much more correct to
assume in this case that the people very early learnt to distinguish
districts infested with malaria from those where it is absent.
This knowledge is crystallized in the
ancestral warning against settling in the
valleys and near the great waters, the
dwelling-places of disease and death. At the
same time, for security against the hostile
Mavia south of the Rovuma, it was enacted
that every settlement must be not less than a
certain distance from the southern edge of the
plateau. Such in fact is their mode of life at the
present day. It is not such a bad one, and
certainly they are both safer and more
comfortable than the Makua, the recent
intruders from the south, who have made USUAL METHOD OF
good their footing on the western edge of the CLOSING HUT-DOOR
plateau, extending over a fairly wide belt of
country. Neither Makua nor Makonde show in their dwellings
anything of the size and comeliness of the Yao houses in the plain,
especially at Masasi, Chingulungulu and Zuza’s. Jumbe Chauro, a
Makonde hamlet not far from Newala, on the road to Mahuta, is the
most important settlement of the tribe I have yet seen, and has fairly
spacious huts. But how slovenly is their construction compared with
the palatial residences of the elephant-hunters living in the plain.
The roofs are still more untidy than in the general run of huts during
the dry season, the walls show here and there the scanty beginnings
or the lamentable remains of the mud plastering, and the interior is a
veritable dog-kennel; dirt, dust and disorder everywhere. A few huts
only show any attempt at division into rooms, and this consists
merely of very roughly-made bamboo partitions. In one point alone
have I noticed any indication of progress—in the method of fastening
the door. Houses all over the south are secured in a simple but
ingenious manner. The door consists of a set of stout pieces of wood
or bamboo, tied with bark-string to two cross-pieces, and moving in
two grooves round one of the door-posts, so as to open inwards. If
the owner wishes to leave home, he takes two logs as thick as a man’s
upper arm and about a yard long. One of these is placed obliquely
against the middle of the door from the inside, so as to form an angle
of from 60° to 75° with the ground. He then places the second piece
horizontally across the first, pressing it downward with all his might.
It is kept in place by two strong posts planted in the ground a few
inches inside the door. This fastening is absolutely safe, but of course
cannot be applied to both doors at once, otherwise how could the
owner leave or enter his house? I have not yet succeeded in finding
out how the back door is fastened.

MAKONDE LOCK AND KEY AT JUMBE CHAURO

 This is the general way of closing a house. The Makonde at Jumbe
Chauro, however, have a much more complicated, solid and original
one. Here, too, the door is as already described, except that there is
only one post on the inside, standing by itself about six inches from
one side of the doorway. Opposite this post is a hole in the wall just
large enough to admit a man’s arm. The door is closed inside by a
large wooden bolt passing through a hole in this post and pressing
with its free end against the door. The other end has three holes into
which fit three pegs running in vertical grooves inside the post. The
door is opened with a wooden key about a foot long, somewhat
curved and sloped off at the butt; the other end has three pegs
corresponding to the holes, in the bolt, so that, when it is thrust
through the hole in the wall and inserted into the rectangular
opening in the post, the pegs can be lifted and the bolt drawn out.[50]

MODE OF INSERTING THE KEY

With no small pride first one householder and then a second

showed me on the spot the action of this greatest invention of the
Makonde Highlands. To both with an admiring exclamation of
“Vizuri sana!” (“Very fine!”). I expressed the wish to take back these
marvels with me to Ulaya, to show the Wazungu what clever fellows
the Makonde are. Scarcely five minutes after my return to camp at
Newala, the two men came up sweating under the weight of two
heavy logs which they laid down at my feet, handing over at the same
time the keys of the fallen fortress. Arguing, logically enough, that if
the key was wanted, the lock would be wanted with it, they had taken
their axes and chopped down the posts—as it never occurred to them
to dig them out of the ground and so bring them intact. Thus I have
two badly damaged specimens, and the owners, instead of praise,
come in for a blowing-up.
The Makua huts in the environs of Newala are especially
miserable; their more than slovenly construction reminds one of the
temporary erections of the Makua at Hatia’s, though the people here
have not been concerned in a war. It must therefore be due to
congenital idleness, or else to the absence of a powerful chief. Even
the baraza at Mlipa’s, a short hour’s walk south-east of Newala,
shares in this general neglect. While public buildings in this country
are usually looked after more or less carefully, this is in evident
danger of being blown over by the first strong easterly gale. The only
attractive object in this whole district is the grave of the late chief
Mlipa. I visited it in the morning, while the sun was still trying with
partial success to break through the rolling mists, and the circular
grove of tall euphorbias, which, with a broken pot, is all that marks
the old king’s resting-place, impressed one with a touch of pathos.
Even my very materially-minded carriers seemed to feel something
of the sort, for instead of their usual ribald songs, they chanted
solemnly, as we marched on through the dense green of the Makonde
bush:—
 “We shall arrive with the great master; we stand in a row and have
no fear about getting our food and our money from the Serkali (the
Government). We are not afraid; we are going along with the great
master, the lion; we are going down to the coast and back.”
With regard to the characteristic features of the various tribes here
on the western edge of the plateau, I can arrive at no other
conclusion than the one already come to in the plain, viz., that it is
impossible for anyone but a trained anthropologist to assign any
given individual at once to his proper tribe. In fact, I think that even
an anthropological specialist, after the most careful examination,
might find it a difficult task to decide. The whole congeries of peoples
collected in the region bounded on the west by the great Central
African rift, Tanganyika and Nyasa, and on the east by the Indian
Ocean, are closely related to each other—some of their languages are
only distinguished from one another as dialects of the same speech,
and no doubt all the tribes present the same shape of skull and
structure of skeleton. Thus, surely, there can be no very striking
differences in outward appearance.
 Even did such exist, I should have no time
to concern myself with them, for day after day,
I have to see or hear, as the case may be—in
any case to grasp and record—an
extraordinary number of ethnographic
phenomena. I am almost disposed to think it
fortunate that some departments of inquiry, at
least, are barred by external circumstances.
Chief among these is the subject of iron-
working. We are apt to think of Africa as a
country where iron ore is everywhere, so to
speak, to be picked up by the roadside, and
where it would be quite surprising if the
inhabitants had not learnt to smelt the
material ready to their hand. In fact, the
knowledge of this art ranges all over the
continent, from the Kabyles in the north to the
Kafirs in the south. Here between the Rovuma
and the Lukuledi the conditions are not so
favourable. According to the statements of the
Makonde, neither ironstone nor any other
form of iron ore is known to them. They have
not therefore advanced to the art of smelting
the metal, but have hitherto bought all their
THE ANCESTRESS OF
THE MAKONDE
iron implements from neighbouring tribes.
Even in the plain the inhabitants are not much
better off. Only one man now living is said to
understand the art of smelting iron. This old fundi lives close to
Huwe, that isolated, steep-sided block of granite which rises out of
the green solitude between Masasi and Chingulungulu, and whose
jagged and splintered top meets the traveller’s eye everywhere. While
still at Masasi I wished to see this man at work, but was told that,
frightened by the rising, he had retired across the Rovuma, though
he would soon return. All subsequent inquiries as to whether the
fundi had come back met with the genuine African answer, “Bado”
(“Not yet”).
 BRAZIER

Some consolation was afforded me by a brassfounder, whom I

came across in the bush near Akundonde’s. This man is the favourite
of women, and therefore no doubt of the gods; he welds the glittering
brass rods purchased at the coast into those massive, heavy rings
which, on the wrists and ankles of the local fair ones, continually give
me fresh food for admiration. Like every decent master-craftsman he
had all his tools with him, consisting of a pair of bellows, three
crucibles and a hammer—nothing more, apparently. He was quite
willing to show his skill, and in a twinkling had fixed his bellows on
the ground. They are simply two goat-skins, taken off whole, the four
legs being closed by knots, while the upper opening, intended to
admit the air, is kept stretched by two pieces of wood. At the lower
end of the skin a smaller opening is left into which a wooden tube is
stuck. The fundi has quickly borrowed a heap of wood-embers from
the nearest hut; he then fixes the free ends of the two tubes into an
earthen pipe, and clamps them to the ground by means of a bent
piece of wood. Now he fills one of his small clay crucibles, the dross
on which shows that they have been long in use, with the yellow
material, places it in the midst of the embers, which, at present are
only faintly glimmering, and begins his work. In quick alternation
the smith’s two hands move up and down with the open ends of the
bellows; as he raises his hand he holds the slit wide open, so as to let
the air enter the skin bag unhindered. In pressing it down he closes
the bag, and the air puffs through the bamboo tube and clay pipe into
the fire, which quickly burns up. The smith, however, does not keep
on with this work, but beckons to another man, who relieves him at
the bellows, while he takes some more tools out of a large skin pouch
carried on his back. I look on in wonder as, with a smooth round
stick about the thickness of a finger, he bores a few vertical holes into
the clean sand of the soil. This should not be difficult, yet the man
seems to be taking great pains over it. Then he fastens down to the
ground, with a couple of wooden clamps, a neat little trough made by
splitting a joint of bamboo in half, so that the ends are closed by the
two knots. At last the yellow metal has attained the right consistency,
and the fundi lifts the crucible from the fire by means of two sticks
split at the end to serve as tongs. A short swift turn to the left—a
tilting of the crucible—and the molten brass, hissing and giving forth
clouds of smoke, flows first into the bamboo mould and then into the
holes in the ground.
The technique of this backwoods craftsman may not be very far
advanced, but it cannot be denied that he knows how to obtain an
adequate result by the simplest means. The ladies of highest rank in
this country—that is to say, those who can afford it, wear two kinds
of these massive brass rings, one cylindrical, the other semicircular
in section. The latter are cast in the most ingenious way in the
bamboo mould, the former in the circular hole in the sand. It is quite
a simple matter for the fundi to fit these bars to the limbs of his fair
customers; with a few light strokes of his hammer he bends the
pliable brass round arm or ankle without further inconvenience to
the wearer.
SHAPING THE POT

SMOOTHING WITH MAIZE-COB

CUTTING THE EDGE

 FINISHING THE BOTTOM

LAST SMOOTHING BEFORE

BURNING

FIRING THE BRUSH-PILE

 LIGHTING THE FARTHER SIDE OF
THE PILE

TURNING THE RED-HOT VESSEL

NYASA WOMAN MAKING POTS AT MASASI

Pottery is an art which must always and everywhere excite the
interest of the student, just because it is so intimately connected with
the development of human culture, and because its relics are one of
the principal factors in the reconstruction of our own condition in
prehistoric times. I shall always remember with pleasure the two or
three afternoons at Masasi when Salim Matola’s mother, a slightly-
built, graceful, pleasant-looking woman, explained to me with
touching patience, by means of concrete illustrations, the ceramic art
of her people. The only implements for this primitive process were a
lump of clay in her left hand, and in the right a calabash containing
the following valuables: the fragment of a maize-cob stripped of all
its grains, a smooth, oval pebble, about the size of a pigeon’s egg, a
few chips of gourd-shell, a bamboo splinter about the length of one’s
hand, a small shell, and a bunch of some herb resembling spinach.
 Nothing more. The woman scraped with the
shell a round, shallow hole in the soft, fine
sand of the soil, and, when an active young
girl had filled the calabash with water for her,
she began to knead the clay. As if by magic it
gradually assumed the shape of a rough but
already well-shaped vessel, which only wanted
a little touching up with the instruments
before mentioned. I looked out with the
MAKUA WOMAN closest attention for any indication of the use
MAKING A POT. of the potter’s wheel, in however rudimentary
SHOWS THE a form, but no—hapana (there is none). The
BEGINNINGS OF THE embryo pot stood firmly in its little
POTTER’S WHEEL
depression, and the woman walked round it in
a stooping posture, whether she was removing
small stones or similar foreign bodies with the maize-cob, smoothing
the inner or outer surface with the splinter of bamboo, or later, after
letting it dry for a day, pricking in the ornamentation with a pointed
bit of gourd-shell, or working out the bottom, or cutting the edge
with a sharp bamboo knife, or giving the last touches to the finished
vessel. This occupation of the women is infinitely toilsome, but it is
without doubt an accurate reproduction of the process in use among
our ancestors of the Neolithic and Bronze ages.
There is no doubt that the invention of pottery, an item in human
progress whose importance cannot be over-estimated, is due to
women. Rough, coarse and unfeeling, the men of the horde range
over the countryside. When the united cunning of the hunters has
succeeded in killing the game; not one of them thinks of carrying
home the spoil. A bright fire, kindled by a vigorous wielding of the
drill, is crackling beside them; the animal has been cleaned and cut
up secundum artem, and, after a slight singeing, will soon disappear
under their sharp teeth; no one all this time giving a single thought
to wife or child.
To what shifts, on the other hand, the primitive wife, and still more
the primitive mother, was put! Not even prehistoric stomachs could
endure an unvarying diet of raw food. Something or other suggested
the beneficial effect of hot water on the majority of approved but
indigestible dishes. Perhaps a neighbour had tried holding the hard
roots or tubers over the fire in a calabash filled with water—or maybe
an ostrich-egg-shell, or a hastily improvised vessel of bark. They
became much softer and more palatable than they had previously
been; but, unfortunately, the vessel could not stand the fire and got
charred on the outside. That can be remedied, thought our
ancestress, and plastered a layer of wet clay round a similar vessel.
This is an improvement; the cooking utensil remains uninjured, but
the heat of the fire has shrunk it, so that it is loose in its shell. The
next step is to detach it, so, with a firm grip and a jerk, shell and
kernel are separated, and pottery is invented. Perhaps, however, the
discovery which led to an intelligent use of the burnt-clay shell, was
made in a slightly different way. Ostrich-eggs and calabashes are not
to be found in every part of the world, but everywhere mankind has
arrived at the art of making baskets out of pliant materials, such as
bark, bast, strips of palm-leaf, supple twigs, etc. Our inventor has no
water-tight vessel provided by nature. “Never mind, let us line the
basket with clay.” This answers the purpose, but alas! the basket gets
burnt over the blazing fire, the woman watches the process of
cooking with increasing uneasiness, fearing a leak, but no leak
appears. The food, done to a turn, is eaten with peculiar relish; and
the cooking-vessel is examined, half in curiosity, half in satisfaction
at the result. The plastic clay is now hard as stone, and at the same
time looks exceedingly well, for the neat plaiting of the burnt basket
is traced all over it in a pretty pattern. Thus, simultaneously with
pottery, its ornamentation was invented.
Primitive woman has another claim to respect. It was the man,
roving abroad, who invented the art of producing fire at will, but the
woman, unable to imitate him in this, has been a Vestal from the
earliest times. Nothing gives so much trouble as the keeping alight of
the smouldering brand, and, above all, when all the men are absent
from the camp. Heavy rain-clouds gather, already the first large
drops are falling, the first gusts of the storm rage over the plain. The
little flame, a greater anxiety to the woman than her own children,
flickers unsteadily in the blast. What is to be done? A sudden thought
occurs to her, and in an instant she has constructed a primitive hut
out of strips of bark, to protect the flame against rain and wind.
This, or something very like it, was the way in which the principle
of the house was discovered; and even the most hardened misogynist
cannot fairly refuse a woman the credit of it. The protection of the
hearth-fire from the weather is the germ from which the human
dwelling was evolved. Men had little, if any share, in this forward
step, and that only at a late stage. Even at the present day, the
plastering of the housewall with clay and the manufacture of pottery
are exclusively the women’s business. These are two very significant
survivals. Our European kitchen-garden, too, is originally a woman’s
invention, and the hoe, the primitive instrument of agriculture, is,
characteristically enough, still used in this department. But the
noblest achievement which we owe to the other sex is unquestionably
the art of cookery. Roasting alone—the oldest process—is one for
which men took the hint (a very obvious one) from nature. It must
have been suggested by the scorched carcase of some animal
overtaken by the destructive forest-fires. But boiling—the process of
improving organic substances by the help of water heated to boiling-
point—is a much later discovery. It is so recent that it has not even
yet penetrated to all parts of the world. The Polynesians understand
how to steam food, that is, to cook it, neatly wrapped in leaves, in a
hole in the earth between hot stones, the air being excluded, and
(sometimes) a few drops of water sprinkled on the stones; but they
do not understand boiling.
To come back from this digression, we find that the slender Nyasa
woman has, after once more carefully examining the finished pot,
put it aside in the shade to dry. On the following day she sends me
word by her son, Salim Matola, who is always on hand, that she is
going to do the burning, and, on coming out of my house, I find her
already hard at work. She has spread on the ground a layer of very
dry sticks, about as thick as one’s thumb, has laid the pot (now of a
yellowish-grey colour) on them, and is piling brushwood round it.
My faithful Pesa mbili, the mnyampara, who has been standing by,
most obligingly, with a lighted stick, now hands it to her. Both of
them, blowing steadily, light the pile on the lee side, and, when the
flame begins to catch, on the weather side also. Soon the whole is in a
blaze, but the dry fuel is quickly consumed and the fire dies down, so
that we see the red-hot vessel rising from the ashes. The woman
turns it continually with a long stick, sometimes one way and
sometimes another, so that it may be evenly heated all over. In
twenty minutes she rolls it out of the ash-heap, takes up the bundle
of spinach, which has been lying for two days in a jar of water, and
sprinkles the red-hot clay with it. The places where the drops fall are
marked by black spots on the uniform reddish-brown surface. With a
sigh of relief, and with visible satisfaction, the woman rises to an
erect position; she is standing just in a line between me and the fire,
from which a cloud of smoke is just rising: I press the ball of my
camera, the shutter clicks—the apotheosis is achieved! Like a
priestess, representative of her inventive sex, the graceful woman
stands: at her feet the hearth-fire she has given us beside her the
invention she has devised for us, in the background the home she has
built for us.
At Newala, also, I have had the manufacture of pottery carried on
in my presence. Technically the process is better than that already
described, for here we find the beginnings of the potter’s wheel,
which does not seem to exist in the plains; at least I have seen
nothing of the sort. The artist, a frightfully stupid Makua woman, did
not make a depression in the ground to receive the pot she was about
to shape, but used instead a large potsherd. Otherwise, she went to
work in much the same way as Salim’s mother, except that she saved
herself the trouble of walking round and round her work by squatting
at her ease and letting the pot and potsherd rotate round her; this is
surely the first step towards a machine. But it does not follow that
the pot was improved by the process. It is true that it was beautifully
rounded and presented a very creditable appearance when finished,
but the numerous large and small vessels which I have seen, and, in
part, collected, in the “less advanced” districts, are no less so. We
moderns imagine that instruments of precision are necessary to
produce excellent results. Go to the prehistoric collections of our
museums and look at the pots, urns and bowls of our ancestors in the
dim ages of the past, and you will at once perceive your error.
MAKING LONGITUDINAL CUT IN
BARK

DRAWING THE BARK OFF THE LOG

REMOVING THE OUTER BARK

 BEATING THE BARK

WORKING THE BARK-CLOTH AFTER BEATING, TO MAKE IT

SOFT

MANUFACTURE OF BARK-CLOTH AT NEWALA

To-day, nearly the whole population of German East Africa is
clothed in imported calico. This was not always the case; even now in
some parts of the north dressed skins are still the prevailing wear,
and in the north-western districts—east and north of Lake
Tanganyika—lies a zone where bark-cloth has not yet been
superseded. Probably not many generations have passed since such
bark fabrics and kilts of skins were the only clothing even in the
south. Even to-day, large quantities of this bright-red or drab
material are still to be found; but if we wish to see it, we must look in
the granaries and on the drying stages inside the native huts, where
it serves less ambitious uses as wrappings for those seeds and fruits
which require to be packed with special care. The salt produced at
Masasi, too, is packed for transport to a distance in large sheets of
bark-cloth. Wherever I found it in any degree possible, I studied the
process of making this cloth. The native requisitioned for the
purpose arrived, carrying a log between two and three yards long and
as thick as his thigh, and nothing else except a curiously-shaped
mallet and the usual long, sharp and pointed knife which all men and
boys wear in a belt at their backs without a sheath—horribile dictu!
[51]
Silently he squats down before me, and with two rapid cuts has
drawn a couple of circles round the log some two yards apart, and
slits the bark lengthwise between them with the point of his knife.
With evident care, he then scrapes off the outer rind all round the
log, so that in a quarter of an hour the inner red layer of the bark
shows up brightly-coloured between the two untouched ends. With
some trouble and much caution, he now loosens the bark at one end,
and opens the cylinder. He then stands up, takes hold of the free
edge with both hands, and turning it inside out, slowly but steadily
pulls it off in one piece. Now comes the troublesome work of
scraping all superfluous particles of outer bark from the outside of
the long, narrow piece of material, while the inner side is carefully
scrutinised for defective spots. At last it is ready for beating. Having
signalled to a friend, who immediately places a bowl of water beside
him, the artificer damps his sheet of bark all over, seizes his mallet,
lays one end of the stuff on the smoothest spot of the log, and
hammers away slowly but continuously. “Very simple!” I think to
myself. “Why, I could do that, too!”—but I am forced to change my
opinions a little later on; for the beating is quite an art, if the fabric is
not to be beaten to pieces. To prevent the breaking of the fibres, the
stuff is several times folded across, so as to interpose several
thicknesses between the mallet and the block. At last the required
state is reached, and the fundi seizes the sheet, still folded, by both
ends, and wrings it out, or calls an assistant to take one end while he
holds the other. The cloth produced in this way is not nearly so fine
and uniform in texture as the famous Uganda bark-cloth, but it is
quite soft, and, above all, cheap.
Now, too, I examine the mallet. My craftsman has been using the
simpler but better form of this implement, a conical block of some
hard wood, its base—the striking surface—being scored across and
across with more or less deeply-cut grooves, and the handle stuck
into a hole in the middle. The other and earlier form of mallet is
shaped in the same way, but the head is fastened by an ingenious
network of bark strips into the split bamboo serving as a handle. The
observation so often made, that ancient customs persist longest in
connection with religious ceremonies and in the life of children, here
finds confirmation. As we shall soon see, bark-cloth is still worn
during the unyago,[52] having been prepared with special solemn
ceremonies; and many a mother, if she has no other garment handy,
will still put her little one into a kilt of bark-cloth, which, after all,
looks better, besides being more in keeping with its African
surroundings, than the ridiculous bit of print from Ulaya.
MAKUA WOMEN