Archive for the ‘“Independent” Paralegals’ Category

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.

 

The Paralegal Contract

Thursday, December 29th, 2011

My last post was a set of 10 New Year Resolutions for Paralegals. Number two on the list is “Join a professional association.” I am, in general, a big fan of professional associations as anyone who checks out the “Professional Associations” category can attest. When run effectively they provide benefits to the individual members, to the public, and to the profession itself. In this “guest post” Clifford Smith argues that the ABA and most paralegal professional associations have made the profession into one that is subservient rather than independent, thus curtailing rather than enhancing its historical roll. [Clifford also contributed an article on Independent Paralegals to The Empowered Paralegal Professionalism Anthology.] When I contacted Clifford for permission to re-publish his “The Paralegal Contract” article, he informed me that there is now a Part II to “The Paralegal Contract.” Only Part I is reprinted here, but Part II can be read by clicking this link.

Here is Part I:

The Paralegal Contract
By Clifford C. Smith*

If the philosopher Jean-Jacques Rousseau were alive today, what would he have to say about paralegals? 1 Would he say paralegals are born free and everywhere they are in chains? Perhaps not such a dramatic statement, yet at the heart of his central work, Du contrat social ou Principes du droit politique, there is an underlying premise of freedom.2
Here, The Paralegal Contract briefly describes the evolution of the independent paralegal movement and the organizations that have emerged around paralegals, vying for control of the paralegal profession through certifications, regulations and educational guidelines. Ultimately, The Paralegal Contract encourages all paralegals to act from a deeper center of awareness, as opposed to the subservient support role that has been endorsed by paralegal organizations and advanced by the ABA’s Standing Committee of Paralegals. In many ways, law and its application has become separated from the higher principles of equality and social justice, resulting in unhappiness among many members of the legal profession, from paralegals to lawyers.

Much of the legal work being performed today is extrinsically motivated and revolves around personal financial outcomes, rather than on the intrinsic motivation to deliver legal services to those who need it the most – poor people with no access to justice.3 With the present global economic crisis, the way law will be delivered and practiced is being transformed, as consumers look for affordable solutions to legal problems that don’t involve traditional aspects of law delivery. In effect, corporations and small business will continue to slash their budgets and look for legal solutions through self-help resources, interactive legal software, internet-based law solutions, alternative dispute resolution, and online mediation. Paralegals have an opportunity to be at the forefront of this major transformation and shift, while also challenging and expanding their present roles in the legal workplace.

Paralegals – A Brief History
There are two distinct paralegal groups that emerged around the same time – one was the legal assistant who worked for a lawyer or law firm – and the other was the independent paralegal, which evolved out of the self-help law movement driven by the countercultural movement of the 1960s. Both took rather different paths. For the most part, the legal assistant was not a mainstream concept in the 1960s or 1970s, since most legal assistants worked behind the scenes and little was known about their actual function in the law office. On the other hand, the self-help legal movement was driven by a California based publisher known as Nolo Press, and by non-lawyers who provided self-help legal services directly to consumers.4 Gradually, these self-help providers became known as “independent paralegals,” and many of them operating self-help law clinics were unjustly targeted and shut down, because they were competing with lawyers.

Thus, it was through controversy that independent paralegals gained media recognition and the term “paralegal” stuck in the minds of consumers looking for affordable solutions to their legal problems. It was also through consumer trust and an affinity towards paralegals that propelled the name into mainstream consciousness. It was much later that the term paralegal was incorporated into what was generally referred to as the legal assistant working for a lawyer or law firm. Even magazines like the Legal Assistant Today, years later changed its name to Paralegal Today.

The National Federation of Paralegal Associations (NFPA) is the only national organization that incorporated the word paralegal in its name from its inception in 1974.5 It was founded by eight local associations, some of which later changed their names to incorporate the term paralegal:

Atlanta Association of Legal Assistants (Georgia Association of Paralegals); Minnesota Association of Legal Assistants (Minnesota Paralegal Association); Rocky Mountain Legal Assistants Association (Rocky Mountain Paralegal Association); and San Francisco Association of Legal Assistants (San Francisco Paralegal Association).

One of the first proprietary schools for paralegals was the Paralegal Institute, Inc., which was formed in 1972, in New York. The founder, Carl E. Person, is a Harvard Law School graduate and attorney, who brought an antitrust action against the ABA in connection with its Guidelines and Procedures for Approval of Legal Assistant Education Programs. 6 Person’s contention was that the ABA’s paralegal school accreditation program violated antitrust laws and that it was designed to eliminate competition and restrict entry into the market for the recruitment, training and placement of paralegals. That it was unreasonable when applied to proprietary schools such as the Paralegal Institute. Little did Carl Person know that years later the Department of Justice would bring an antitrust lawsuit against the ABA for numerous violations and anticompetitive practices. 7

The 1980s and 1990s saw the widespread expansion of paralegal educational programs and paralegal organizations marketing memberships and certifications, while enacting a variety of guidelines to oversee the paralegal field. In 2000, Governor Gray Davis signed AB 1761, a bill that defined and regulated paralegals under California law. It is important to note, however, that prior to the adoption of the bill, that it was paralegals who were providing self-help law services directly to consumers and with the passage of AB 1761, they were forced to trade in the designation “paralegal” or “independent paralegal” for Legal Document Assistant (LDA). Yet, it was those pioneers who popularized the term paralegal and put it on the map, along with the many independent paralegals working in other states, such as New York, Florida and elsewhere.8
This important point often gets blurred following the consolidation of the title paralegal by national and local paralegal organizations. Even the ABA itself changed from “The Standing Committee of Legal Assistants” to “The Standing Committee of Paralegals.” Younger paralegals entering into the field, today, may be unaware of this blurring of the term paralegal.

What we now have is control over the title so that paralegals are placed into a one size fits all definition of the profession, when historically it was not.

The Pioneers
The pioneers who propelled the paralegal self-help movement to the forefront were notably different from the legal assistants who worked for lawyers and law firms. It was the latter group that converged around NALA and the NFPA, where both organizations played a
part in shaping much of what we have in the way of restrictive ideology and of paralegals working under the supervision of lawyers. 9
Yet both organizations have failed to advance independence on the part of paralegals and in many respects, have become miniature extensions of the American Bar Association and its relegation of paralegals to working under the supervision of lawyers, which is at the heart of the ABA’s definition of a legal assistant or paralegal.
A legal assistant or 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.
Despite those qualifications of education, training or work experience, paralegals now find themselves micromanaged by a variety of organizations and inescapably locked into support roles, while being controlled along each step of the way.

Epilogue
The Paralegal Contract is about remaining true to the higher principles of equality and social justice, rather than being defined by any one professional organization or regulatory body desiring control over a group through use of its collective power.
The consolidation of the paralegal profession by paralegal organizations and the American Bar Association has created a tragic situation where paralegals are prevented from realizing their full potential and growth, as independent professionals. Thus, figuratively, they have traded their freedom for a form of paralegal servitude.
That even though paralegals must enter into social contracts with lawyers and the organizations overseeing them, in doing so, they should not lose sight of their fundamental vision of freedom and inner recognition of independence.
For a true association of paralegals to exist, there must be the unanimous consent of all its members.

* Cliff is a writer and holds an advanced paralegal credential. He is also a graduate of Duke Continuing Studies.
1 Jean-Jacques Rousseau was born on June 28, 1712 in Geneva, Switzerland. Rousseau’s philosophical writings have greatly influenced modern philosophy.
2 Rousseau’s work, The Social Contact, describes the relationship of man with society. Rousseau argued that no social contract can exist without the unanimous consent of all its members, resulting in a true association, instead of an aggregation, which has no validity. The framers drew from Rousseau when drafting the U.S. Constitution.
3 “Intrinsic motivation” refers to motivation that is driven by an interest or enjoyment in the task itself; and “Extrinsic motivation” refers to the performance of an activity in order to attain an outcome, which then contradicts intrinsic motivation. See Ryan, M. R., & Deci, L. E. “Self-Determination Theory and the Facilitation of Intrinsic Motivation, Social Development, and Well-Being,” American Psychologist, 2000
4 Nolo Press was formed by two lawyers, Charles (Ed) Sherman and Ralph (Jake) Warner, both of which had worked for legal aid in the late 1960s. Seeing a need for affordable legal services, they began publishing self-help law books and training non-lawyers to assist consumers with uncontested divorces through the Wave Project. More and more independent paralegals began using Nolo resources to assist consumers in self-help law. See “Nolo History” at .
5 See THE HISTORY OF THE NATIONAL FEDERATION OF PARALEGAL ASSOCIATIONS at
6 Paralegal Institute, Inc. v. American Bar Association, 475 F. Supp. 1123 (1979).
7 In 1995, the Department of Justice brought an antitrust action against the American Bar Association. The lawsuit alleged numerous violations under the ABA’s law school accreditation process, along with other anticompetitive practices. See
8 See Ralph Warner, et al., Independent Paralegal’s Handbook, 6th Ed., California: Nolo (2004) (Provides a historical background on the self-help law movement and independent paralegals working throughout the United States).

9.The ABA’s Standing Committee sets out a variety of guidelines on how paralegal services can be utilized to the benefit of lawyers. See the “ABA Model Guidelines for the Utilization of Paralegal Services,” and “Economic Benefits of Paralegal Utilization” available at <http://www.americanbar.org/groups/paralegals.html>

Wisconsin, UPL, and Legal Ethics

Tuesday, February 1st, 2011

This post does not directly concern paralegals, but it passes muster as a follow-up of sorts to a post I did quite some time ago on Wisconsin’s attempt to regulate UPL. The Wisconsin Bar casts this as totally a matter of consumer protection, but 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. What I read on the Bar Association’s website, 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.

At the time I stated, “I am sure that the Winconsin Bar supports a pro bono program and ethical obligation for attorneys…” I’m not quite as sure as I was after seeing this report at ABAJournal.com:

Being convicted of a felony, or even a misdemeanor, can mean the loss of a lawyer’s license to practice in many states. Plus, it is standard in some states for an attorney’s license to be suspended as soon as he or she is convicted of a serious crime.

But in Wisconsin there are 135 attorneys who still hold active licenses despite convictions for crimes such as battery, theft, fraud and repeat drunken driving, reports the Milwaukee Journal Sentinel. Some had active licenses even as they served time behind bars.

Another 70 managed to avoid law license trouble by getting charges reduced or entering into deferred prosecution agreements.

It is difficult to see how the Bar Association can claim to be motivated to eliminate “independent” paralegals by a desire to protect the public if this report is accurate.

The “Independent Paralegal Movement”

Wednesday, December 22nd, 2010

Those who frequent this blog know I use quotation marks around “independent” in the phrase “independent paralegals,” because of the seeming incompatibility of the concept of true independent paralegals when the only accepted definition of paralegals in the United States defines paralegals as working under the supervision of an attorney.  (Even freelance and virtual paralegals work under contract with and the supervision of attorneys rather than under contracts directly with clients.) I receive emails fairly frequently from “independent” paralegals and, from time to time, have given them a forum in which to express their positions. (See the category “‘Independent’ Paralegals.”) Recently, during a particularly busy time, I received an entire article from Clifford C. Smith. Without taking a position on his position, I helped him edit it a bit. While it is far too long to reprint here in its entirety, I’m posting the beginning and end for your consideration. If you’d like to comment on it feel free to do so, but first read the entire article which is available at http://napa.club.officelive.com/Documents/ArtCSmithEdited2.pdf:

The independent paralegal movement gave birth to non-lawyers that provided self-help legal services to people who simply could not afford the high cost of legal services. Because paralegal educational programs were scarce in the late 1960s and ‘70s, most of these non-lawyer practitioners had no formal legal training. Much of what they learned was based on hands-on experience and applying that knowledge towards the legal self-help movement.

For the most part, the independent paralegal movement emerged in California around lawyers that had worked in legal aid, only to realize that many of the people they saw were the working poor, who simply didn’t meet the requirements of legal aid. Among other factors, it culminated in the formation of Nolo Press, a legal self-help publication based in Northern California in the 1970s.[1] Nolo’s self-help books became the main resource for independent paralegals – not only in California – but in many other states too, along with resources like, The Independent Paralegal’s Handbook, which provided legal guidelines for them to set up businesses as independent paralegals. The handbook was written by Ralph Warner, a lawyer and one of the founders of Nolo Press.

Through the visionary efforts of Nolo, coupled with the courage and commitment of  independent paralegals, those paralegals earned the trust and admiration of many working people. Eventually, this self-help movement spread throughout the United States. It also made its way into Canada, where paralegals also played a role in assisting consumers with self-help law. It even spawned a Nolo counterpart, entitled “Self Counsel Press.”[2]

Paralegals Today

While many paralegals continue to strive for independence in order to provide access to justice for working class people, the paralegal profession is constrained from fulfilling its full potential in this regard by the restraints imposed by the American Bar Association in its efforts to prevent competition and by paralegal associations that accept the subservient role of paralegals.

Paralegals today have very little in common with the independent paralegal movement that earned the trust and admiration of consumers. In many ways, this new paralegalism has appropriated the term “Paralegal,” which has now come to signify subservience to and working under the supervision of lawyers. In effect, paralegal associations in both United States and Canada have advanced a doctrine of “non-competition” of the paralegal profession, wherein every paralegal must work under the control and supervision of a lawyer. The only exception is the province of Ontario, where paralegals are licensed to practice law, in limited areas.

….

Conclusion

Paralegals should not adopt regulations and licensing absent conditions of professional autonomy and independent decision making. This is not to propose that paralegals should be given a blanket license to practice law. Rather, they should be permitted to provide basic legal advice and to practice law in specialized areas. Paralegals should:

  • Be permitted to exercise independent discretion and decision making.
  • Be permitted to practice before all small claims courts, traffic courts and government agencies.
  • Be permitted to work independently or in cooperation with lawyers.
  • Not be under the control of state bar associations or provincial law societies, but should form their own independent bodies comprising paralegals and members of the public to oversee the paralegal profession in a way that will balance the interests of both groups.

All of the forgoing will ensure deregulation of the legal profession by the ABA and inject some much needed competition in the legal market place. It is important that all paralegals understand the history of the independent paralegal movement and its goal of gaining  people  access to affordable legal services. Only with this understanding can the paralegal profession gain an identity as a truly independent profession dedicated to providing access to justice to working class people.

Clifford C. Smith

napalliance@gmail.com

North American Paralegal Alliance


[1] http://www.nolo.com/about.html

[2] http://www. Self-counsel.com

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.

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.