Archive for the ‘UPL’ Category

California AB 852 Update

Friday, May 9th, 2014

Barbara Liss continues to keep the LinkedIn Paralegal Group informed on developments in California where, as you likely have heard, the Bar Association’s efforts to police the unauthorized practice of law faltered when the legislation was vetoed by Governor Brown only to rise from the ashes in what one political commentator characterized as a “somewhat sneaky action”. Barbara says,

The State Bar just issued/published a summary stating that there is no opposition to AB 852 (a copy of the summary is in my LinkedIn activity — for some reason, I’m not able to attach it here; it’s also available directly at the State Bar’s website: http://board.calbar.ca.gov/docs/agendaItem/Public/agendaitem1000011937.pdf). AB 852 renews the State Bar’s attempt to gain civil penalties for pursuing all non-lawyers for the unauthorized practice of law, not merely rogue immigration consultants or foreclosure scam artists, as addressed in the summary. Once again, the language of AB 852 is broader than the bar’s stated intent.

I understand that the State Bar is frustrated because UPL, although already a criminal offense, is not something it can control directly. It is up to the appropriate prosecutors to make decisions about prosecuting UPL. Many times those prosecutors have crimes they consider more heinous on their minds. I do believe there is merit in protecting the public from UPL, but I remained puzzled and troubled by a proposal that allows an essentially private organization to enforce UPL prohibitions be recovering civil fines. The summary is not clear on the subject, but it appears the fines, which are in addition to the costs of prosecution,  would actually stay with the Bar, not go into the public coffers or to the consumers the Bar purports to be protecting. This seems to make a situation that seems to involve a conflict of interest even more so.

The Wall

Saturday, November 10th, 2012

A recent post on the Paralegal Gateway LinkedIn Discussion Board linked to an posting at Law21 entitled, “And the walls came down…” in which Jordan Furlong explains “the challenges facing the legal profession today and outline the contours of the legal market of tomorrow.” The whole post is well worth the read, but of most interest to most of the readers of this blog (or at least to this blogger) is:

In my home province of Ontario, paralegals are members in full standing of the Law Society of Upper Canada, lawyers’ governing body. The United States will hold out against this trend longer than anyone else — except possibly India — but its arrival here is still only a matter of time. Lawyers will be sharing the market with non-lawyers, and I cannot overstate how important that will prove to be.

Furlong and I agree on this.  We are also in agreement regarding the conclusions to draw from it and the causes of it:

2. Non-lawyers will have proliferated throughout the market.

I dislike that term intensely, by the way: “non-lawyers.” We are the only profession I know that divides the world into “us” and “not us.” We use that term all the time, and we rarely appreciate how insulting it is to the people thus described.

But non-lawyers are coming. We are going to share this market with them. The sooner we accept that and start working to accommodate its impact, the better. They’re coming because they are proving their abilities and reliability every day. They’re coming because lawyers have claimed too much territory under the all-powerful description “the practice of law,” too many activities that do not require a lawyer’s rare and valuable skill and judgment.

And they are coming because we have done a lousy job of serving the entire legal market. Clients, both individual and corporate, are spending more and more and waiting longer and longer for outcomes that leave them less and less satisfied. And that’s just the people who can afford lawyers and the legal system in the first place. Many people are not even in the game at all.

And that is on us. These problems developed on our watch, under our administration and stewardship of the legal system. They are our responsibility. We have had ample opportunity to rectify them, and as everyone here knows, we have not moved fast enough or far enough. So governments and citizens are going to start saying, “Time to let someone else try.” Time to start putting the “Unauthorized Practice of Law” in the history books. Look at what’s happening in England and Wales, and recognize that eventually, inevitably, it will happen here.

I especially focus on the first point, a digression from Furlong’s main point that serves well to illustrate a large part of the problem:

I dislike that term intensely, by the way: “non-lawyers.” We are the only profession I know that divides the world into “us” and “not us.” We use that term all the time, and we rarely appreciate how insulting it is to the people thus described.

This is especially disturbing in its implications for the paralegal profession as it at least suggests that lawyers simply classify all “non-lawyers” as one group, not recognizing the special nature of the paralegal profession and its potential for resolving access to justice and other problems without simply abandoning the “unauthorized practice of law” concept. At the very least, if lawyers are going to create a wall between “us” and “them,” they should recognize that paralegals are and should be on their side of the wall. Working together as two professions that complement each other the two professions can tackle many of the problems set out by Furlong.

Jerry O’Neil Won by Losing!

Thursday, September 13th, 2012

When I last did a post about Jerry O’Neil, an “Independent Paralegal” in Montana, in 2010 he had just won a skirmish in a long-running “war” with Montana authorities over UPL.  Of course as I noted in that post, here technically can be no such thing as an independent paralegal since every generally accepted definition of paralegal in the United States requires that the paralegal be supervised by an attorney. However, O’Neil’s saga is still an important one for the paralegal profession.

Now Richard Hanners of Hungry Horse Newsreports that O’Neil says he won the war even though he lost every battle!

In my 2010 post I wondered aloud about what O’Neil’s qualification were to call himself a paralegal, independent or otherwise. Hanners’ report answers that questions and more:

O’Neil said he “officially” began his career as an independent paralegal in 1984 when he registered his business as Kalispell Mediation Services. He also became licensed to practice law as a lay advocate on the Blackfeet Indian Reservation that same year.

A staunch libertarian who believes in less government and more freedom, O’Neil’s problems with the state’s lawyers and judicial branch began in February 2001 when Flathead County District Court Judges Ted Lympus, Katherine Curtis and Stewart Stadler wrote to the Commission complaining that O’Neil was “engaged in the unauthorized practice of law.”

According to the Montana Supreme Court in their 2006 ruling on the case, O’Neil never attended law school, was never licensed to practice law in Montana, had never sat for the state bar exam and “has not met the Montana Supreme Court’s character and fitness requirements.”

So where  is the “win?” At the end of a long line of loses:

O’Neil got his day in court in 2004, but following a two-day trial, Lake County District Court Judge Deborah Christopher, sitting in for Lympus, Curtis and Stadler, found O’Neil in contempt for engaging in the practice of law when not authorized to do so and permanently enjoined him from engaging in the practice of law “until such time as he becomes duly authorized.”

The Montana Supreme Court upheld Christopher’s ruling in 2006. O’Neil took his case to federal district court in Missoula and lost, and then appealed his case to the Ninth Circuit Court of Appeals and lost again. But things changed after that, he notes.

O’Neil has long claimed that state law on the authorized practice of law was “unconstitutionally vague” and that it restricts economic freedom by giving the state bar association a monopoly.

In a complete turnaround, the Montana Supreme Court on April 20, 2010, dissolved its Commission on the Unauthorized Practice of Law, noting that “we conclude that this court is not authorized either directly or through a Commission to regulate the ‘unauthorized practice of law.’” It also concluded that “what constitutes the practice of law, not to mention what practice is authorized and what is unauthorized is, by no means, clearly defined.”

O’Neil, according to the report continues to practice in Montana. The position of the U. S. DOJ in 2009 is also interesting:

O’Neil notes that he had an ally in his cause — the U.S. Department of Justice’s Antitrust Division, which he had contacted about his case. They wrote to the Montana Supreme Court on April 17, 2009, to comment on the Commission’s proposed revisions to rules on the unauthorized practice of law.

“Consumers generally benefit from competition between lawyers and non-lawyers,” Acting Assistant Attorney General Scott Hammond wrote. “We are concerned that the Commission’s proposal, by identifying broad categories of activities that may constitute the practice of law … will unduly restrict non-lawyers from competing with lawyers.”

Some issues do not go away. In Ontario, Canada, paralegals can be licensed to limited work independently. Yet there continues to be at least some controversy because both are regulated by the Law Society, originally comprised of and for lawyers. And there continue to be some “turf wars.” Yet, one wonders (i.e., I wonder) whether there some merit in have a set of written parameters for the battle such as exist in Ontario rather than the open field that exists in Montana or the very, very closed field we have in other states.

 

Olympic Call Raises UPL Question

Thursday, August 11th, 2011

According to an article on FoxNews.com:

The U.S. Olympic Committee says a Maine organizer will have to rename his “Redneck Olympics” games, saying the man doesn’t have the right to use the word “Olympics” in the event’s title.  Redneck Olympics organizer Harold Brooks told FoxNews.com he received a telephone call Monday from a paralegal at the USOC warning him to change the name of his event or face a lawsuit.”

I have some familiarity with the issue of whether the USOC is properly exercising its rights in this regard, but that is not the issue of primary concern to me at the moment. Rather it is the fact that this particular phone call came from a paralegal. Let’s assume that instead of making a phone call the USOC wanted to notify Brooks by letter. Its in-house paralegal could draft that letter, but could the paralegal sign it or must it be signed by an attorney? My initial sense is that the letter would have to be signed by an attorney, not a paralegal -even an in-house paralegal- in order to avoid UPL. Is it any different then when the warning is delivered via the telephone? Mustn’t that call be made by the attorney (or an officer of the corporation) rather than a paralegal in order to avoid UPL? It might be a bit different if the person making the call (might also be a paralegal) called in his capacity as an officer or assistant to an officer of the corporation and did not identify himself as a paralegal.

What do you think?

Increase in UPL Complaints in Ottawa after Paralegal Regulation

Friday, July 1st, 2011

It should, perhaps, come as no surprise that when a jurisdiction requires a license to perform a service there will initially be an increase in complaints of that service being performed without the required license. We’ve followed the regulation experiment in a Canadian province fairly closely to see how paralegal regulation might work here, recognizing that the role of a paralegal in Canada was different from that in the United States prior to the inception of regulation. Here’s a report on the increased UPL complaints from thestar.com:

The Law Society of Upper Canada is taking aim against people practising law without a proper licence after a jump in the number of complaints.

New complaints rose from 134 in 2007 to 445 in 2009, but dropped to 330 in 2010 and have further decreased this year, according to a report by Zeynep Onen, the society’s director of professional regulation.

In 2006, the law society reduced the number of legal services paralegals were allowed to do without a licence in an effort to tighten professional regulation.

“The increase in the complaints reflects that legal services are now regulated and those individuals who seek to avoid being regulated or who can’t meet the qualifications are now more easily exposed as breaking the law,” said Roy Thomas, the law society’s director of communications.

For more on this, click on thestar.com link above.

Paralegal UPL in Canada

Friday, November 5th, 2010

Licensing of paralegal does not, apparently, entirely eliminate the concern regarding UPL by paralegals, but may shift that concern to paralegals performing activities that go beyond their license as indicated by this report:

A disciplinary panel has reserved its decision to a later date whether to grant a former North Bay councillor her licence to continue practising as a paralegal.

The Law Society of Upper Canada which oversees paralegals and lawyers in Ontario held a four-day good character hearing in North Bay last month to determine if Maureen Boldt should be granted a licence.

Lawyers for the law society and for Boldt gave their closing arguments Tuesday at Osgoode Hall in Toronto.

Boldt started working as a paralegal in 1992 and has three law society convictions for the unauthorized practise of law by performing tasks that only licensed lawyers in Ontario are allowed to do.

The last conviction put her in contempt of court for ignoring an injunction to stop illegally practising law. She was sentenced to four months house arrest and lost her seat on city council when she missed too many consecutive meetings.

The law society began issuing licences to paralegals in 2008 and it has allowed Boldt to continue practising pending the outcome of the hearing.

Forms and UPL

Wednesday, September 8th, 2010

A post on the Paralegal Today listserv discussion forum asked whether the sharing of legal forms opened paralegals up to a charge of UPL. The following analysis and response is reprinted in full with permission from its author, Wendy Kimbel, ACP, NCCP, Paralegal Assistance, Inc.:

Sharing the form is not the issue; determining what type of form is appropriate for what situation is where the legal judgment issue arises.

It is my position that by participating in this forum, one represents oneself as being a paralegal or otherwise a member of the legal community (in which I include paralegal/law students). So, when someone here requests a form for X purpose and members respond, the responding member is sharing his or her form which he or she believes does X. Whether that form, in fact, does X is a judgment call to be made by the ultimate user. For any member working for an attorney, the attorney is the ultimate user. For independent paralegals, most of us are still working for attorneys, so same thing.

If an independent paralegal is not working directly for an attorney, it is his/her responsibility to know what is permitted in his/her jurisdiction and to comply with the rules. Again, there is no judgment call being made by the person who provides the form.

Where the issue arises is when one is dealing with someone outside the legal community. When someone asks specifically for a motion and order for an extension of time to file answer to a complaint and the responder provides standard forms generally recognized in the legal community, it’s no more UPL for one of us to provide the forms than it is for an online site to do so. However, if I did it (which I wouldn’t in my jurisdiction because we have no latitude), it would come with a written disclaimer stating that I had not participated in the selection of the form for the user’s purpose and was only providing a form which bore the name requested.

If someone asks, “What form do I need to use for X?” the UPL happens in answering that question, which is a legal judgment, not in providing the form.

In North Carolina, our AOC has quite a few forms online. The site has a simple search function. I’m free to direct anybody to that sight so they can find a form; however, even though they are standard forms, it’s UPL if I tell someone outside the legal community which form to use in which situation, with the exception of cover sheets when those are required. I’m allowed to tell them about cover sheets because those are an administrative form–but I’m not allowed to tell someone how to make selections when filling them out (which makes sense when you know the form).

My conclusion on form sharing is: Here [on the forum] it’s good. Offline within the legal community it’s good. Outside the legal community, stick to directing folks to publicly available resources. But that’s North Carolina. Other jurisdictions may vary.

Here’s some more about Wendy and the paralegal profession in North Carolina. ( I recently posted on an interesting ethics opinion form NC.) :
Wendy is a graduate of the University of North Carolina at Chapel Hill. She attained her NALA certification in January 1988, her NALA Real Estate Specialty in December 1988, and her NALA Corporate & Business Law Speciality in January 2000. Wendy is also a North Carolina State Bar Certified Paralegal, having attained that designation in 2005, the initial year of the program. She has been assisting attorneys in the private practice of law on May 15, 1978, the day after she graduated from UNC-CH. She deals in transactions involving money and property, i.e., real estate, small business, contracts, wills, trusts, estates, probate and related matters.
Wendy reports:
Unlike some jurisdictions, in North Carolina we have some fairly specific guidelines about what constitutes the practice of law. If you’re interested, they can be found here:
We do have one interesting exception to our UPL statutes, which comes from our ethics opinions. There is one class of people to whom I may give legal advice: attorneys licensed to practice in North Carolina. By definition, they are presumed to exercise independent legal judgment in evaluating what I tell them.

Penny the Paralegal with a Clever PC

Tuesday, July 20th, 2010

As I’ve often noted issues facing the attorney and paralegal professions in other countries are both different and the same as ours. Take Great Britain for example. The system for becoming and being a lawyer in Great Britain is quite different than ours, and lawyers themselves are divided between barristers and solicitors. However, there as in most other jurisdictions there is a tension between the goals of providing affordable legal services to the public and protecting the public from incompetent service providers. There, though, the public can choose their representation to a larger degree than here where only the licensed attorney can practice law. As noted in a post today on guardian.co.uk, “Anyone can launch themselves as a legal adviser, but solicitors have a unique selling point, they are qualified.”

There are a lot of “legal advisers” in England. As the author of the post, Neil Rose, points out, “After a 50% growth each decade over the past 50 years, there are now nearly 150,000 people on the roll of solicitors (plus another 45,000 in the various other legal professions), making England and Wales one of the most densely “lawyered” countries in the world. In another 50 years, on current trends, there will be a million solicitors.”

But the question he raises is, “For what do we need qualified lawyers? Why not just go to Penny the Paralegal with a clever PC (who may be a law student who couldn’t find a training contract)?”

Here, of course, this question could not arise since Penny the Paralegal is prevented from performing most lawyer-like activities by UPL statutes. This is true only to a very limited extent in England where, “By law, there are six areas of work – known as reserved legal activities – for which you need a legal qualification: preparing litigation; representing someone in court; transferring land; certain limited aspects of probate; notarial activities; and the administration of oaths. That’s it.”

Here’s the rub – a rub we saw in Canada and, to a degree, here -especially in Wisconsin: “The argument that more legal activities, such as will-writing and employment advice, should be reserved may seem like a job creation exercise by the legal profession, …” In other words, who are UPL laws meant to protect – the public or the legal profession.

If he smells bad there, he’ll smell bad here.

Monday, July 19th, 2010

Way back in 1984 the Mississippi Bar Association issued an ethics opinion that concluded it is not proper for an attorney to allow a disbarred or suspended attorney to work as a paralegal or legal assistant in the attorney’s law office. OPINION NO. 96 OF THE MISSISSIPPI STATE BAR, RENDERED JUNE 7, 1984. The opinion rested primarily on UPL considerations:

In the recent case of In re Frank John Kuta, Attorney, Petitioner, 427 NE2d 136 (1981), the Supreme Court of Illinois held as follows:

Without a doubt, a disbarred or suspended attorney should not serve as a law clerk or a paralegal during his disbarment or suspension. The line of demarcation between the work that a paralegal or a law clerk may do and those functions that can only be performed by an attorney is not always clear and distinct. The opportunity for a disbarred or suspended attorney who is serving as a paralegal or a law clerk to violate that line of demarcation is too great and too inviting. Also, the public is not aware of the differences between the work of a paralegal and that of an attorney. For a disbarred attorney to be seen performing what the public may perceive as legal functions can only lessen the public’s regard for the effectiveness of our attempt to discipline errant attorneys, and would foment the belief that the public was not being protected from unethical attorneys.

A synopsis of unpublished Informal Opinion 7 (found at page 134 of the American Bar Association Opinions on Professional Ethics, 1967 edition) indicates that the American Bar Association Committee on Ethics and Professional Responsibility previously has given this advice:

An attorney should not employ a disbarred lawyer, even to do only office work and seeing no clients, because of the practical difficulty of confining his activities to an area which does not include practice of law, and because such employment would show disrespect to the courts.

Recent reports from Texas give another reason:

Disbarred S.A. lawyer sentenced for stealing thousands from indigent veterans fund
by KENS 5 Staff

kens5.com

Posted on July 17, 2010 at 5:46 PM

A former San Antonio lawyer, who was found guilty of defrauding the VA, will be spending the next four and a half years in prison.

On Friday, a judge sentenced Leo Alvarado to 54 months in prison for stealing $134,000. The money was supposed to go to the legal needs of indigent veterans.

Alvarado, a disbarred lawyer and former paralegal with the Texas Rio Grande Legal Aid,  reportedly submitted over 500 fraudulent vouchers for trips from San Antonio to Big Spring, San Angelo, Midland, Waco and other Texas cities between November 2003 and February 2006.

The trips were supposed to have been made to help indigent veterans and widows in filing claims with the Veterans Administration. Alvarado was in a position to approve his own travel. But investigators say he used invalid Social Security numbers , Social Security numbers of dead people, or numbers that belonged to different people.

They say sometimes Alvarado just made up clients so that he could be reimbursed fictitious travel expenses.

The VA says they have no record of Alvarado every assisting any veteran or widow.

Instead Alvarado pocketed the money.

None of the reports I’ve read state why Alvarado was disbarred. The State Bar of Texas website lists him as “Not eligible to practice in Texas,” but only reports the specifics on disbarment for ten years.

This poses a number of issues for the paralegal profession. First, the definition of paralegal is supposed to include attorney supervision, but the Legal Aid group apparently made him a “team leader” without supervision. So why is he called a paralegal?

Most attorneys are simply not trained or experienced in paralegal skills to actually do a paralegal’s job well. So what was the skill set required for this person as “team leader.” Is this really a paralegal position? If not, why call him a paralegal? If so, why not hire a real paralegal?

In general, why taint the paralegal profession with the stain of a person the lawyer profession found unsuitable? As the title of this post says, “If he smell bad there, he’ll smell bad here.”

Of course, these issues are just particular instances of the issues that arise when there is no firm definition of paralegal exists, when there is no “good character” requirement to become a paralegal, when there is no way to say when a person has the skill set required to be a paralegal, etc.

Paralegal or Legal Technician?

Tuesday, July 6th, 2010

The Seattle Timesreports on an owner of a “paralegal firm” charged with unauthorized practice of law. The story describes complaints brought against the owner and the owner’s interesting responses to the charges. Overall, though, the story is quite similar to others describing the ongoing conflict between “independent” paralegals and those seeking to penalize UPL.

Of more interest to me than the details of this particular conflict was the story’s reference to “The state Practice of Law Board …created by the state Supreme Court in 2001 to enforce rules prohibiting individuals and organizations from engaging in unauthorized legal and law-related services, as well as to promote affordable and reliable legal services.” At least the Supreme Court recognized the need to balance access to justice concerns with UPL concerns (whether those concerns rests in protecting the public or the bar. ) However, it set me to wondering what the Board had done on the second aspect of its duties: promoting affordable and reliable legal services.

Looking at the Board’s website, it does appear that the Board’s focus is on the UPL aspect of its duties rather than the access to justice aspect. It’s home page recites that the Board is required to:

* promote expanded access to affordable and reliable legal and law-related services;
* expand public confidence in the administration of justice;
* make recommendations regarding the circumstances under which nonlawyers may be involved in the delivery of certain types of legal and law-related services;
* enforce rules prohibiting individuals and organizations from engaging in unauthorized legal and law-related services that post a threat to the general public;
* ensure that those engaged in the delivery of legal services in the state of Washington have the requisite skill and competencies necessary to serve the public.

The Board has found over 40 instances of UPL in its history. While  it has apparently taken only one step on the access to justice side, that step appears to be a major one:

The Board also works on developing a pilot project of its proposed Legal Technician Rule. This rule allows trained, tested and licensed non-lawyers to provide specifically defined legal services without supervision by a lawyer.

The website provides additional information regarding the Legal Technician Rule:

[T]he Board has developed a  proposed APR creating Legal Technicians.  Legal Technicians are envisioned to be educated, tested and certified nonlawyers authorized to provide limited legal services in specific areas.  The proposed APR creates a commission to assist in regulating the legal technicians.  Here are the proposed regulations rules for that commission. The Board wrote an article explaining the vision for legal technicians.  The POL Board asked for input from invited guests during its April, May, and July 2006 meetings.  During the October 2006 retreat, the Board set up four sub-committees.  These sub-committees will investigate the feasibility of a legal technician pilot project in four areas of substantive law.  The four sub-committees are: family law, immigration law, elder law and housing law.

Here’s the general statement of what the Elder Law Subcommittee has decided:

The Elder Law Sub Committee of the Practice of Law Board recommends that legal
technicians be authorized to perform certain basic legal tasks in the following areas, when a
matter is uncontested: guardianship law, basic estate planning, probate law, and vulnerable
adult proceedings. These areas were identified by the Sub Committee because the legal
community has already developed model forms to perform many of the basic legal tasks in
these areas. More complex or contested elder law issues do not lend themselves well to a
form based practice and, therefore, should be handled by licensed attorneys.
Those model forms are used currently by pro se litigants with little or no instruction from
attorneys; sometimes with success and sometimes with unexpected results. The frequency of
unexpected outcomes can be reduced with improved access to legal professionals with elder
law training.

However, in 2008 the Board proposed a rule that applied only to Family Law.  Later in 2008 the State Bar Association Access to Justice Committee asked the Supreme Court to form a task force to implement the rule noting:

The proposed Rule, with its advice and advocacy enhancements, is intended to increase access to justice. With the availability of more advocates, more people will have access to legal assistance for their family law matters. The Rule is intended to open up the availability of limited legal services to those who fall into the populations noted above. The Rule is very technical and is probably not well understood within the legal community. It is not perfect, but seldom is any law or rule. If, after implementation, it is determined that the Rule isn’t working, it can be modified or repealed. For now, the Rule is a step in the right direction and merits the support of the ATJ Board.
We understand many interested parties oppose the Rule. However, this important issue has been ignored for far too long and the ATJ Board must exercise creative leadership on this matter consistent with the ATJ Board’s mission.

There is no information on the site as to what has happened since with regard to this Rule or the pilot project. If any of you know the present status of this adventure, I’d be pleased to hear from you.