Archive for the ‘UPL’ Category

Paralegal “Fighting for Access to Justice” Wins a Battle in Montana

Thursday, May 27th, 2010

I do not yet have enough information to pick sides in this controversy, but it is one of interest to the paralegal profession. Jerry O’Neil is an “independent” paralegal in Montana. Unfortunately none of the stories I’ve read so far state what his credentials are for claiming to be a paralegal, much less an “independent” one. As previously discussed in this blog, there 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. That technicality aside, it would be good to know O’Neil’s qualification to call himself a paralegal, supervised or not supervised.

That is not, however, what brings Mr. O’Neil’s story to this blog today. Rather it is the fact that the Montana Attorney General’s Office has withdrawn a complaint against O’Neil that argued phone book advertising by paralegal Jerry O’Neil of Columbia Falls deceived people about his practice. The ad was in the lawyers section of the Yellow Pages identify him as an independent paralegal providing low cost divorce services. He was charged with deceiving people under the state’s Unfair Trade and Consumer Protection Act. The problem is that the state could not identify anyone who had been deceived. District Judge Jeffrey Sherlock of Helena denied a state request for summary judgment in April. The judge gave the state until May 24 to respond to O’Neil’s request to identify someone who claimed to have been deceived by his advertising. The state did not respond and instead an assistant attorney general signed an agreement dismissing the case.

This, it appears, is not O’Neil’s first confrontation with the Montana legal system over his independent paralegal practice. The Billings Gazetteadds this information:

O’Neil has tangled with the state and the commission over his status as an “independent paralegal” for years.

In 2006, the commission pursued litigation that resulted in District Judge Kim Christopher of Polson affirming an injunction that prohibited O’Neil from practicing law or advertising that he is capable of doing so.

O’Neil said that injunction said he can act as a lay representative if authorized by administrative agencies or tribunals, can serve as an arbitrator or mediator, can act as a lobbyist or legislator and can fill in preprinted documents, such as wills. An attorney has to review some documents he prepares.

O’Neil said most of his business involves offering mediation for divorcing parties to help them divide their property and share custody of their children.

The Montana Supreme Court ruled last month that neither the court nor the commission it created had the authority to regulate the unauthorized practice of law, but that the Legislature has charged the executive branch with investigating and prosecuting such cases. That ruling came after the commission filed a petition seeking more than the $1,000 annual budget it had. The commission said the sparse funding meant only one case had been prosecuted since the commission started in 1976 — O’Neil’s.

The state attorney general’s Office for Consumer Protection agreed to take on the duties of the commission.

O’Neil’s spin on all this is not as a matter of protecting the right to practice as an independent paralegal, UPL, or the like. Rather, in his own press release he says it is an access to justice issue:

O’Neil is also asking the Ninth Circuit Court of Appeals to increase the allowable scope of para-professionals’ abilities to help the public access their judicial system. Defendants in that case are the Montana State Bar Association and the Montana Supreme Court Commission on Unauthorized Practice, which the Montana Supreme Court recently found to be operating outside of their Constitutional jurisdiction.
O’Neil says, “This win, along with the Montana Supreme Court disbanding their Commission on Unauthorized Practice of Law, will make it easier for people of modest means to receive legal services. I am proud and grateful to have made a contribution to the public’s access to their judicial system.”

The issues of UPL, independent paralegals, access to justice, and licensing/registration are intertwined. It is clear that paralegals (supervised or independent) can do much to solve access to justice issues. The downside is that absent licensing mandates, anyone can call themselves a paralegal. The deception, if there is any, may be in implying that one has skills, experience, or education that one does not have.

Notario or No Notario

Tuesday, April 13th, 2010

Today Linkedin news roundup for KNOW: The Magazine for Paralegals has this announcement from Nicole Turturro, RP: 

Legislation is on a fast track in the State of New Jersey Assembly would increase the level of criminality of practicing law without a license in New Jersey and create a civil cause of action for victimized clients. The bill, A-1050, backed by the State Bar Association and with no vocal opponents, would upgrade the unauthorized practice of law to a third-degree crime, punishable by a prison term of between three and five years and a $15,000 fine.

The Assembly Judiciary Committee voted 6-0 on March 8th to recommend passage of the bill, aimed largely at notaries public that offer legal services to Hispanic immigrants. In some Latin American and Caribbean countries, the term “notario” or “notario publico” signifies an attorney.

The civil-action provision would allow a court to award damages in an amount of $1,000 or three times the value of all costs incurred by the victim as a result of the criminal activity, whichever is greater, along with counsel fees and costs.

While the law may be designed to deal with the notario problem, Nicole correctly brings it to our attention because of its implications for “independent” paralegals and for paralegals who are attorney supervised but cross the UPL line. I have not checked out the pending legislation, but I suspect it does not excempt any paralegals if they do cross that line.

Can anyone call themselves a “paralegal?”

Friday, March 12th, 2010

John Stossel of Fox News says his show tonight will include “interview David Price, a Kansas City paralegal who went to jail for half a year because he helped 86- year old Eldon Ray write a letter defending himself against the charge of “unlicensed practice of architecture.”  I’ve never seen John’s show and, if the contect of the show is as misleading as the announcement, I suspect it is just as well. I’ve reviewed a number of news reports on Mr. Price’s situation. Perhaps the most comprehensive and clearest is here.

There are a lot of problems with John’s characterization of David Price, what Price did, and why his was in jail, but my chief concern here is that Price is characterized as a paralegal. It does not appear that Price has any education or training that would justify that designation.  He also has little experience other than having “challenged dozens of judges, attorneys and court officials in the Kansas justice system with a variety of lawsuits found to be frivolous by the state and federal courts.”

The story linked above states, ”

However, it becomes clear through his own admission that his personal battle with the legal system is deeply rooted in a domestic relations case that went awry. Court files indicate Price filed legal motions for four years to stop the adoption of his biological child after the court severed his parental rights in 2001 and allowed the mother of the child and her husband to voluntarily put the child up for adoption.

Price said the experience spurred his interest in the law, his distrust for the system and the desire to advise others.”

If the news reports are correct, while the experience spurred his interest in the law, it apparently did not spur any interest in obtaining education or training in the law before starting to give advice. Stossel appears to argue that there should be no government licensing of anyone. In essence any one should be able to say they are a paralegal, a lawyer, a doctor, or a pilot, regardless of their knowledge, training, education, or experience. Apparently he’d just let the free market decide whether they survive competing against those that have actual knowledge of the topic.

In my last post I suggested that UPL laws that restrict legal services solely to attorneys were not the best way to deal with the difficulties that arise when people go to non-lawyers for assistance because they cannot afford an attorney. Kansas acknowledges this problem. The story linked above includes this:

While nonlawyers aren’t permitted to advise pro se litigants, a committee established by the Kansas Supreme Court found a growing number of people need help in the court system.

Valdez, who serves as a member of the Kansas Supreme Court’s Pro Se Committee, said public education through town meetings and allowing limited scope assistance from attorneys may help.

“The pro se litigant issue isn’t going to go away,” Valdez said. “You’ll always have people who can’t afford lawyers. Going into it, you want to make sure they have enough knowledge.”

However, the way advocated by Stossell and Price is also not a viable solution. At the very least the government ought to require disclosure of creditials to consumers in a clear, prominent way. However, the public would be best served if there were standards in place that has to be met before someone is allowed to call themselves a paralegal. Mr. Stossel, David Price is not a paralegal.

 All that being said, the legal community must give much more thought to utilization of people who meet that standard to solve access to justice problems, including the possibility of allowing well qualified and regulated professionals to perform some basic legal services without the supervision of an attorney.  It should be noted here that our conception of paralegal varies significantly from the conception of paralegals in many, many other countries. Vivek Mairu, in a well crafted essay appearing in THE YALE JOURNAL OF INTERNATIONAL LAW [Vol. 31: 427] proposes a full definition, but starts with a statement that does appear to catch that conception, “In bare terms, paralegals who provide justice services are laypeople with basic training in law and formal government who assist poor and otherwise disempowered communities to remedy breaches of fundamental rights and freedoms.”

Who do UPL laws benefit?

Wednesday, March 10th, 2010

As discussed in previous posts UPL laws and regulations of legal professionals exist amid tension between the need to provide  the public with access to justice and the need to protect to protect the public from snake-oil salesmen posing as legal professionals. One of my students pointed out today that the State of Wisconsin is currently attempting to define UPL for the first time.  A series of posts on the State Bar of Wisconsin’s website discuss the bar’s attempt to get the Supreme Court to adopt a set of rules in this regard:

A 2005 memorandum of law prepared for the UPL Policy Committee noted that past decisions of the Wisconsin Supreme Court affirm that it has the exclusive jurisdiction to define and regulate the practice of law in Wisconsin, including the power to prevent the unauthorized practice of law by both lawyers and laypersons:

“ . . . the regulation of the practice of law is a judicial power and is vested exclusively in the Supreme Court . . . the practitioner in or out of court, licensed lawyer or layman, is subject to such regulation . . . the court has the power to make appropriate regulations concerning the practice of law in the interest of the administration of justice . . . “ State ex rel. Reynolds v. Dinger, 14 Wis.2d 193 (1961).

According to the memorandum, the Wisconsin Supreme Court has never exercised its power to establish a definition of the practice of law that would be the vehicle with which consumers could be protected. The State Bar’s petitions asked the court to establish such a definition.

The Bar casts this as totally a matter of consumer protection:

The State Bar’s initiative, called the Legal Services Consumer Protection Act, responds to a directive issued by the court in 2004 asking the State Bar to document the consumer impact of unqualified individuals practicing law and to recommend changes. Wisconsin residents seeking legal services will gain additional consumer safeguards against individuals and businesses engaging in UPL if the court approves the petition.

The original State Bar petition offered dozens of examples where Wisconsin consumers have been hurt when people without proper training or oversight attempt to practice law. In February 2009, based on feedback from other interested parties, the State Bar filed an amended version of the rule and supporting comments.

Others would argue that this is really an attempt to maintain the monopoly the bar has on providing legal service, i.e., it is a move to eliminate all competition so they can maintain high prices.

I have not yet read everything posted in the weekly series on the Bar association’s website, but what I have read does not deal at all with the access to justice issue. Apparently there is some demand in Wisconsin for such access, which demand is not being met my the present legal system – else there would not be so many examples of consumers seeking the help of “independent” paralegals. 

While the set of rules proposed by the Wisconsin State Bar would indeed add safeguards for the consumer, those rules do not seem to address the access to justice issue at all. I am sure that the Winconsin Bar supports a pro bono program and ethical obligation for attorneys, but such programs simply cannot address the issue. The result appears to be that consumers are left either with legal services provided by attorneys or no legal services at all. There is no middle ground for those who need legal services, but cannot afford an attorney. One question is whether the answer to this problem is a regulatory system such as that adopted by Ontario, Canada. Perhaps the Wisconsin State Bar has another answer. If anyone reading this is aware of that answer, please let me know.

It would seem that there would be support for a regulated paralegal profession among both the political left and the political right. For the left it is a social issue – a matter of equity in that only those with significant financial resources can afford legal access. For the right it is a free-market issue – assuming proper disclosure ought not consumers be able to decide from whom they wish to obtain services, as the do in England.  (Many of the attorneys with whom I have discussed these issues are in favor of protecting consumers of legal services while at the same time arguing in favor of unregulated free markets for businesses, for financial services, and the like.)

As noted in previous posts, I do not favor unregulated snake-oils salesman practicing law – as attorneys or as paralegals. However, it does seem clear we must do more to allow if not provide access to legal services than we do now. A well educated, well trained, well regulated paralegal profession may just be the answer.

Efrem Martin – Independent Still, But Paralegal No More

Thursday, February 4th, 2010

One of the coincidences abounding in the blogosphere is that just as first Melissa H. at Paralegalese and Lynne DeVenny at Pratical Paralegalism posted regarding the case of “independent” paralegal Jerry O’Neil in Montana who successfully defended a Montana AG’s Motion for Summary Judgment on the issues of violating that state’s Unfair Trade and Consumer Protection Act, Efrem Martin, about whom we have posted before, was informing me that he has informed the Colorado the Office of Attorney Regulation Counsel he was no longer a practicing paralegal.

Melissa and Lynne did fine jobs of covering the Montana matter, so I won’t be going into it. (Not everything on the internet about that story has been well done. Some commentators have, it seems to me, clearly misinterpreted both the meaning and the import of the case.)

I am a bit surprised at Efrem’s move. I have not yet had the time to read all of the documents he sent me regarding his case, so I am reserving comment and posting of excepts of his email for a few more days.  However, some of the communication he received from the Office of Attorney Regulation Counsel is interesting at least to the extent that it informs those considering or implementing “independent” paralegal practices. In the initial letter is here: EFREM MARTIN INITIAL REQUEST FOR UPL INVESTIGATION[1]
Efrem challenged the Colorado proceeding in Federal Court. The Federal Court remanded it back to Colorado. I’ll have more on the basis for the challenge and the court’s ruling later. A quick read does no seem to indicate the Federal Court’s decision was a ruling on the merits, but rather on the ability to challenge in Federal Court, at least at this stage. Regardless, Mr. Martin is now teaching high school and writing a book.

ABA, meet Efrem Martin.

Thursday, November 19th, 2009

Efrem Martin is an “independent” paralegal whose emails have engendered some discussion here (with a very good side dialogue through Melissa H. at Paralegalese of the role of “independent” paralegals in the U.S. Legal System. I use the “” marks on independent because the ABA/NALA definition of paralegal states that a paralegal must be supervised by an attorney. By that definition, there can be no “independent paralegals.” In the last installment Mr. Martin informed us of recent action taken by the Colorado Bar Association to charge him with UPL. As indicated in this morning’s email Mr. Martin has met fire with fire and filed a lawsuit against the ABA and CBA in Federal Court. I’m posting the email without further comment this morning because I have a class to teach shortly, but I hope to say more on this soon. In the meantime, here’s the email:

Hello Professor Mongue, this is the last email I will be sending you, just wanted to give you an update. I filed a Federal Lawsuit yesterday in Federal Court to challenge the Constitutionality of the UPL investigation of me and also to challenge the UPL Rules and Statutes here in Colorado as Unconstitutional, as they are applied to everyone. Now once again I do not care who you choose to share this email with. As I stated in my last email this is not about my business as a Independent Paralegal Services Provider, this is about my constitutional rights as a Pro Se Litigant. I am going to represent myself in court, I believe that this is in my best interest and the only way to expose the ABA and the Colorado Bar Association and the Office of Attorney Regulation who oversees attorneys in Colorado. I have received so much support from around the country from other paralegals and Pro Se Litigants that it really makes me proud to be in this profession.

I am not going to allow the Office of Attorney Regulation here in Colorado intimidate me or punk me and I am sure as hell am not going to allow them to coerce me into admitting that I have practiced law. 100% of the emails that I have received from paralegals around the country state that they truly hope that I am able to get the Federal Court to find UPL unconstitutional, because they fill the same way that I do and fill that it is time that someone challenge the ABA and all State Bar Association, because it is paralegals who do the work and attorneys get paid for the work. I am so humbled, I am blessed on so many levels and I continue to become more encouraged with the support that I am getting throughout the United States. Pro Se Litigants are saying that I am their voice for doing the right thing and that we Pro Se Litigants have constitutional rights to represent ourselves in court. If I were the ABA I would take notice of what is happening, because sooner or later they are going to have to be in court at the Federal Level to address UPL, they have gotten away with hiding and using their association to continue to take advantage of paralegals and their services for too long. I want to share an email with you that I received today verbatim.

“Hello Mr. Martin, I pray that all is well. I am a certified paralegal in Vermont and support you 150%, I am a white female in my 30’s and like you have had enough of the ABA, Vermont Bar Association and all paralegal associations that continue to pimp out paralegals like we are their property. The reason why paralegals are not regulated in the United States or in some states and not other states is simple, attorneys have a monopoly and will fight like hell to keep their monopoly, I see it everyday in my law firm. There is not another industry where a person has to be under the direction of anyone, only in the legal profession and since no one challenges this none sense the ABA and all the State Bar Associations continue to abuse and use it to their advantage. Paralegals don’t practice law, please we are trained to understand the difference between giving legal advice and answering questions. Just the other day I was put in the position to give legal advice because one of our partners was not able to make the meeting with our client so here I am again as usual telling our client what they have to do. I wonder if I am ever going to be charged with UPL, oh that can’t happen to me because I work under an attorney.

… [Edited for length by R. E. Mongue] I work for a law firm that would not even look your way, because you are a threat to their pockets and I can tell you that attorneys take care of their own, there are no ethical or moral boundaries when it comes to greed. It is a good thing that you filed a Federal Lawsuit because that is the only place where you can get justice. Mr. Martin never feel like you are alone, paralegals like myself are out there just like you are and trust me we are so grateful that you are going to take this for the team. I support you and pray that we get justice, all UPL Statutes need to be found unconstitutional and struck down in every state, you have been in this field far to long to be challenged and treated the way that you are being treated. Mr. Martin knowledge is power and they know that you have the knowledge and power to help people. Mrs. C

Professor these are the emails that I continue to receive daily so I know that I am doing what is right for all Pro Se Litigants. I have been asked over and over again do I worry about the ABA, Colorado State Bar Association and the Office Of Attorney Regulation in Colorado and what they can do to me. My answer is always the same, “FEAR CREATES PARANOIA” they pick the wrong Marine to mess with and they are about to see be very careful what you ask for, I fear God not men or women. So with that being said it has been a pleasure corresponding with you, I am sure that you will read about my case sometime in the future. I want to thank you for allowing me the opportunity on your forum it has been a good thing for me. Thank you Professor Mongue. Efrem B. Martin

Efrem B. Martin BA, Certified Paralegal & Owner
Martin Paralegal Services LLC
www.martinparalegalservices.com

I have notified Mr. Martin that future emails updating on the status of this lawsuit would be welcome.

Pro se Perspective on “Independent” Paralegals and UPL

Sunday, November 8th, 2009

I have received some responses to my post of Efrem Martin’s email on the Colorado State Bar Association’s charge that he is engaged in UPL. Here is on from the perspective of pro se litigants.

Dear Professor Monge,
I am responding to your request for comments on your post regarding Mr. Martin and UPL.  I am a pro se litigant and founder of the National Association of Pro Se Litigants, Inc. (NAPSL)   I fully support Mr. Martin because I could have used a paralegal’s support services while I was engaged as a pro se plaintiff in complex litigation in Prince George’s County Maryland.  I believe UPL is just one of the numerous measures that the ABA and the legal community at large has used to oppress average citizens and prevent them from exercising their rights.

I believe that the legal landscape nationwide will change overnight if Efrem Martin, challenges the State of Colorado and the Colorado State Bar Association in Federal Court over the constitutionality of Unauthorized Practice of Law Statutes in that State … and HE WINS!  I am praying to God that he does.
I believe that the State Bar’s claim that prohibiting paralegals from providing services directly to the public as a means to protect the public is a ruse. I think UPL statutes are in place solely to stamp out competition and to force the public to pay UNREGULATED attorney fees upwards of $400 per hour.  This is evidenced by the fact that the UPL investigation against Mr. Martin was not initiated by a member of the public who allegedly needed to be protected, but by Colorado Attorney, Byron Large, an attorney that Mr. Martin believes felt threatened that Mr. Martin was encroaching upon his [Large’s] business.  I support Mr. Martin and have distributed his story in NAPSL’s newsletter.  Nothing but support from the Pro Se Community is pouring in.
Denying paralegals the right to assist pro se litigants directly should be illegal in every state.  Pro se litigants have a right to paralegal and legal secretarial support services just like attorneys.  I find the UPL to be strikingly like slavery laws which prohibited slaves from learning to read and write, both have the effect of keeping a group within the public ignorant, and when people are ignorant, they are oppressed!
Thats just my little humble opinion.
Deirdre Glascoe
Executive Director
National Association of Pro Se Litigants, Inc.

There is some support for the position that paralegals ought to be able to assist the public without the supervision of attorneys in Canada and Great Britain. In Great Britain, for example, it appears paralegals have much greater leeway based on a common law right of British citizens to select there representatives. I have met with a paralegal who runs an independent office where he supervises other, less experienced and educated, paralegals.

Some Canadian provinces allow paralegal representation by licensed paralegals. It is on this point, perhaps, that the discussion should focus. Under our present system, attorneys are licensed and regulated to protect the public, but paralegals are not. The protection to the public comes from attorney supervision. If paralegals are allowed to operate without the supervision of attorneys for the benefit of the public, then must they be licensed and regulated for the protection of the public?

“Independent” Paralegals and UPL

Monday, November 2nd, 2009

I am still making my way through email that arrived while I was at the AAfPE Conference last week, but here is one that just recently arrived, perhaps in response to my referring to Martin Legal Services in this morning’s post. I am posting it in full to avoid the risk that I might alter its author’s meaning through misunderstanding or just editing. I have some thoughts on the topics raised in the email, but cannot take the time at the moment to make them all, so I will look for an opportunity to make them in one or more subsequent posts. I would like to hear what you have to say!

Hello Professor Mongue, this is Efrem B. Martin of www.martinparalegalserices.com I am writing you to give you an update as to what has transpired since I last spoke with you.  I am currently being investigated for Unauthorized Practice of Law (UPL) here in the State of Colorado.  After 25yrs of being a certified paralegal and having the educational and professional background experience, an Immigration Attorney by the name of Bryon Large attorney registration number #38574 here in Colorado feels threatened by me and sent an email to the Office Of Attorney Regulation in Colorado stating that I am in violation of UPL, I am now their target.  Now before I start this email remember that it was an attorney who reported me not a formal complaint filed by a citizen in Colorado that I have worked with in the past I want to make that perfectly clear.  Professor I really don’t care who you share this email with because I am going to fight this to the very end, even if I have to take it to the United States Supreme Court.  I am a former United States Marine (USMC) I took an oath to defend and protect my country against all “Foreign and Domestic Enemies”  and the American Bar Association is a domestic enemy. 
 
I received my Paralegal Training from the United States Marine Corps (USMC) in 1984 and I helped defend the legal rights of every Marine not some and if the United States Marine Corps (USMC) had full confidence in me to handle the day to day legal affairs off all Marines from Officers, Generals to Enlisted Marines, I am sure that I am capable and qualified to work with Pro Se Litigants.  Let me give you further understanding about me, I have worked professionally in the Criminal Justice System my entire career over 20yrs not just as a Paralegal.  I have never been arrested or incarcerated in my 44yrs of living.  I have a BA in Criminal Justice & Economics, I obtained my Paralegal Certification from the United States Marine Corps (USMC) in 1984, I have a very diversified background, I am more than just a paralegal.  I am a former State of Colorado Juvenile Probation Officer, former Paralegal Supervisor, former Investigative Assistant working with White Collar Crime, former High School Teacher, former Restorative Justice Coordinator with Middle School Children, I worked for a Law Firm as a Document Clerk & Paralegal, I also worked for a Private Solo Bankruptcy Attorney, I am not a rookie or a first round draft choice out of paralegal school, I am a seasoned veteran but that does not mean anything to the American Bar Association.  I have several problems with the American Bar Association and their continued unwillingness to address the real issues of Pro Se Litigants and the continued denial of fair and equal access to the Legal Services Industry.  Professor Mongue you know as well as I do that the American Bar Association is not interested in providing access to justice for all people, I have worked in the Criminal Justice System far to long and have witnessed the atrocities not heard stories from other people but have witness through my own personal and professional experience in how to gain access to the Legal Services Industry is impossible for those people who are poor and have no economy of scale in their favor.  I am not going to stand by and allow the American Bar Association or any other State Bar Association continue to support the hypocrisy that they say they are against for all people. 
 
The American Bar Association controls all the Paralegal Organizations in this country and that is for one reason only to have full control and continue to monopolize their very existence and keep them fearful.  As a Marine I learned that “FEAR” is the number one way to control people, if people are fearful of you then they won’t challenge you.  The American Bar Association has that fear in citizens and non-citizens in the United States of America, I see it and deal with it everyday.  I will never join any of the Paralegal Organizations in America because they are not about the Freedom of Choice or the Freedom of Pro Se Litigants rights in this country.  Paralegal organizations are a front and support all the decisions the Bar Associations give them and that is for one reason only.  Paralegal organizations are “Fearful” of the repercussions that the Bar Associations will hand down to them.  If I were a member of any Paralegal Organization right now they would abandon me and turn their backs on me, they would not support me in any manner and they would hand me directly over to the enemy The American Bar Association.  The American Bar Association does not want to talk about Race, Class, Economics and Social Status regarding people of color and poor people who are severely underrepresented in the court systems in this country this is a dead silence issue for The American Bar Association.  The American Bar Association does not support fair and equal access to justice for all people because this would mean that they would have to accept the reality of Race, Class, Economics and Social Status of all the citizens and non-citizens in this country.  I am tired of having the American Bar and all the State Bar Associations tell me what I can and cannot do, it is interesting to me that when I took my oath of becoming a Marine to defend this country I don’t remember it being that I would defend this county and the Constitution of the United States sometimes and for some of the citizens and non-citizens in this country, I put my life on the line so the American Bar and all State Bar Associations would preserve and support the choices, rights and freedoms of every citizen and non-citizen not some. 
 
The hypocrisy lays within all the Bar Associations and it offends me as a human being first, Marine second that I must now after 25yrs of loyalty to this legal profession go to court and defend myself and my actions of helping all people who do not have access to the courts in this country because the American Bar and State Bar Associations are accusing me of “Betrayal” to every citizen in this country that has a Constitutional Right in which I helped defend them to have.  I am offended on so many levels I don’t even know where to began, this is not about me in anyway, shape or form this is about the Constitution of the United States and is about the Freedom of Choice that all people who live in the United States of America have the Constitution guarantees this.  The Constitution is not a document that should ever be used against the American People it is what we live by and die by.  I will fight the American Bar and any other Bar Association for the Freedom of Choice that Pro Se Litigants have, I will never be dictated to by any Bar Association who I can and cannot help. I became a Paralegal in the United States Marine Corps (USMC) in 1984, I received my Good Conduct Medal in 1987, I received my Honorable Discharge in 1988, I do not have to explain myself to any civilian who is a hypocrite and refuses to help all people access the court system in this country and who believes that I am beneath them.  I became a Paralegal to help all people, regardless of race, class, economic status, religion, beliefs, sexual orientation but most of all, all human beings period! 
 
The American people must abide by the laws of the land, the American Bar Association is not the Title Holder of the laws in this country, but for whatever reason they lost track of who they are, and have forgot that you work for the people in this country, the people don’t work for you and ultimately you will be held accountable to the American people.  The American Bar Association has a lock and monopoly on the Legal Services Industry, this is foul, unethical, immoral and shows their hypocrisy but more than anything else it goes against the Constitution that I put my life on the line for every citizen and non-citizen in this country.  I don’t need the validation of the American Bar Association or any other State Bar Association to tell me that Paralegals can only work for them and only work for Law Firms, or only work under the direction of an attorney that is a monopoly and hypocrisy.  The American Bar Association cannot justify to me or the American people that have been priced out of the Legal Services Industry that they care about all people.  In 25yrs of helping everyone who needed help in the Legal Services Industry I have never had a formal complaint filed on me or against me and the reason is because I am a human being first and treat and respect the freedom of choice that all citizens and non-citizens have.  So to come after me and try and coerce me into saying that I have practiced law and have put myself out there as an attorney practicing law is a direct attack on my integrity and self worth.  I will not allow the American Bar Association, The Office of Attorney Regulation in Colorado intimidate me and force me to give up my rights as the Constitution of the United States says that I have. 
 
People are tired of the nonsense, unethical, immorality and non-empathy of attorneys.  People are tired of being told that they must be represented by an attorney because Pro Se Litigants don’t know what they are doing.  Not everyone needs an attorney, not everyone is ignorant of the law, like the Bar Associations leads the American public to believe and think people are, not everyone wants to be in the presents of attorneys and this is called “Choice” the Freedom of Choice.  The American Bar Association and all State Bar Associations cannot continue to hide behind State Statutes and then use those State Statutes to justify their monopoly and reluctance to help all people gain access to the court system and then turn against the American people.  Attorneys can challenge me if they want, but they know that I am telling the truth because if I were not telling the truth, I would not be the subject of a UPL investigation.  I am done with this email. You can do whatever you like with this email. I will not run and hide and put my tail between my legs and roll over for anyone when it comes to standing up and protecting the Freedom of Choice for all people in this country.  I have children and if I am going to have them become decent human beings I must defend their Freedom of Choice or else they don’t stand a chance.  Thank you Professor Mongue
Efrem B. Martin BA, Certified Paralegal & Owner
Martin Paralegal Services LLC
www.martinparalegalservices.com

Is There a Role for Independent Paralegals?

Wednesday, August 26th, 2009

Melissa H. of Paralegalese continues a great dialogue regarding independent paralegals asking of the legal profession, “Where are we going?”and  stating, “When people are willing to forego the licensed professional for the regulated document preparer, it’s time to rethink the status quo.”  In my comment to that post I noted there is a tension between the need to provide legal services at an affordable cost and the legal profession’s desire to monopolize the legal field. If the latter is going to continue, the profession must find a way to achieve the former. My rather preliminary research into legal systems in other countries indicate that lawyers continue to flourish even when others are not excluded.

I believe that paralegals are the answer to this problem. The question is how we protect the public while providing that answer. One way is to insist upon supervision by an attorney who has a license to protect. Another is through regulation. You are correct that the legal profession must ultimately deal with the fact that, “When people are willing to forego the licensed professional for the regulated document preparer, it’s time to rethink the status quo.”

One concern I have is that public may become confused by the existence of both supervised and “independent” paralegals. If “independents” are allowed, they must be regulated for the protection of the public (not the protection of lawyers) and should probably be required to call themselves something other than “paralegals.”

Since reading Melissa’s post and making that comment I’ve run across an article entitled, “THE ROLE OF INDEPENDENT PARALEGALS IN IMPROVING THE QUALITY AND DELIVERY OF LEGAL SERVICES” by Joi Pierce Cregler (which is curiously annotated as “Edited for the Bellow-Sacks Project. This document may be used for discussion purposes only. General distribution prohibited.”) While I am not incomplete agreement with the reasoning or the conclusions of the article, it is worth the read for anyone interested in this issue.

The article references some studies that provide important background for this discussion: “Relying upon lawyers alone to increase access to justice has proven to be inadequate. Currently, fewer than seventeen percent of U. S. Lawyers accept pro bono cases. Moreover, given that there have never been more than four thousand American legal aid lawyers, the federally funded legal aid program is able to serve only a very small percentage of the poor. While legal needs are unmet for low- and middle-income Americans, a majority of U. S. legal resources are utilized to serve the wealthiest individuals and corporations. Left unaddressed, this disparity in access to justice will continue to erode public confidence in the legal system and fuel dissatisfaction with the legal profession.” (footnotes omitted) Thus these studies may provide empirical support for Melissa’s instinctive conclusions.

More surprisingly, the article also notes, “The study also found that individuals often do not seek legal assistance because of their perception that the involvement of a lawyer will not solve their legal problem.”(emphasis added)

The article argues for replacing of UPL laws with regard to independent paralegals with a system of regulation and licensing. In the final section of the paper, Cregler “challenges the assumption that licensing Independent Paralegals will create a group of ‘second-class’ legal services providers.”

Independent Paralegals and UPL

Saturday, August 22nd, 2009

In her comment to a previous post on independent paralegals Melissa H. of Paralegalese expressed a concern regarding UPL issues. This concern is well grounded. As noted by Mary Kay Lieberman, RP, in DCBA Brief: Journal of the De County Bar Association in May of 2002,

There are cases on point about paralegals and other nonlawyers being prosecuted for the unauthorized practice of law. Although not all cases have been included, listed below are some cases of interest.

a. Statewide Grievance Committee v. Patton:1 Defendants provided customers a form to indicate the type of service they requested. The service provided legal documents for nonlawyers to file in their own uncontested legal actions. The question was whether the acts performed were those commonly understood to be the practice of law.

b. Attorney Grievance Commission v.Hamilton:2 The attorney was charged with violating the rule that prohibited a lawyer from assisting unlicensed persons in the unauthorized practice of law when the attorney failed to adequately supervise a paralegal in the representation of a church at a zoning hearing.

c. Davis v. Woolridge:3 Lawsuit filed against 40 independent paralegals in the San Bernardino County Superior Court charging the paralegals with unauthorized practice of law. This suit was filed in 1997.

d. In re Reed:4 The court ruled that Christine Mandjik, who runs Affordable Court Assistance and is a nonlawyer bankruptcy petition preparer, did not engage in the practice of law by advising a debtor about which exemption to select on her bankruptcy papers.

e. In the Matter of Arons:5 A lawsuit was filed in the Supreme Court of the State of Delaware by the Office of Disciplinary Counsel against Marilyn Arons and others for engaging in the unauthorized practice of law. Arons runs the Parent Information Center of New Jersey and provides services to parents of disabled children in due process headings before administrative agencies.

f. Florida Bar v. Catarcio:6 Florida Supreme Court ruled that a paralegal may not use the phrase “free consultation” to advertise legal form preparation service.

g. Furman v. Florida Bar:7 The Florida Bar prosecuted a former legal secretary and tried to have her jailed for helping poor and middle-income people complete routine divorce forms. The Florida’s governor granted her a pardon and she did not serve any jail time.

h. Oregon State Bar v. Smith:8 Robin Smith, an independent paralegal who ran Peoples Paralegal Service, was put out of business after being successfully sued for unauthorized practice of law.

In the Furman matter the former legal secretary was sentenced to eighteen months of jail time. This is significant even though she did not serve the time due to the pardon.

In some states a distinction is made between “paralegals” and “legal document preparers” with the latter being subject to regulation. the California Legislature enacted legislation recognizing and regulating the industry. Since 2000, all California independent paralegals have been classified as Legal Document Assistants and have to register with the Department of Consumer Affairs, post a bond, and meet minimum education and experience qualifications. Paralegals working under the supervision of an attorney have escaped this type of regulation. The regulation that does exist, according to ABA.net,

In California, the desire to increase standards has resulted in legislation that sets out a higher standard of education and mandatory continuing education for paralegals. Sponsored by the California Alliance of Paralegal Associations, California Business & Professions Code Sections 6450-6456 became effective on Jan. 1, 2001. Under the California statute, it is unlawful for a person to identify himself or herself as a paralegal unless he or she has met the qualifications of the statute and performs all services under the direction of a qualified lawyer. Further, the terms “paralegal,” “legal assistant”, “lawyer assistant,” “freelance paralegal,” “independent paralegal,” and “contract paralegal” are synonymous under Section 6454.

The California statute does not establish a governing body, mandatory competency testing, or mandatory registration for the paralegal profession. It does not provide for moral character checks or a disciplinary system. However, it creates a crime enforceable by the courts and allows consumers to bring a cause of action against an individual who violates the law.

I have received communication from Efrem Martin of  Martin Paralegal Services LLC  www.martinparalegalservices.com addressing this issue. It states in part,

Thank you for putting our conversation for others to view and I am always open to good discussion regarding the paralegal profession.  I am a rare breed of paralegal because I know most paralegals are really concerned about being accused of UPL but I have been in this field too long and understand the difference between answering questions and giving legal advice, my entire background in the Criminal Justice System has prepared me to address any attorney, judges and anyone else regarding UPL, the Supreme Court has already spoken on this issue and their is case law so I am never concerned.  Efrem

For Efrem, as I suppose it was for Furman, this is more than simply a matter of career or profession. In discussion another point regarding blogs, he states (again in part),

I will not ever provide a forum like yours for just paralegals there are too many of them out there and they are used primarily to give information to paralegals.  I have a greater mission and that is to make sure those people who represent themselves in court that I provide to them information in order for them to make a better decision, I cannot help all Pro Se Litigants trust me I refer a lot of people to attorneys because their cases are more complicated then they think and only an attorney will be able to help the.

I think one point on which we can all agree is that the ultimate goal must be to benefit the public as much as possible. I like to focus in particular on the role paralegals can play in bring services to those who might otherwise not be able to afford or obtain access to legal services. The question, of course, is how best to accomplish this goal.