The Empowered Paralegal

ABAJournal.com today has a post entitled, “Middle-Class Dilemma: Can’t Afford Lawyers, Can’t Qualify for Legal Aid.” There’s not much new in the article itself for regular readers here where access to justice has a category of its own. It says, in part,

Lawyers are just too expensive for many people needing legal help, a law professor says.

“You can hardly find a lawyer who charges less than $150 per hour, which is out of reach for most people,” University of Southern California law professor Gillian Hadfield tells the Wall Street Journal.

At the same time, people who can’t afford lawyers make too much money to qualify for legal aid. Most aid groups serve those at or below the poverty line, and budget cuts are forcing the organizations to turn away more people, the story says.

Comments to the post, not surprisingly, focus on “unbundling of services” as a possible solution. It is a possible partial solution. However, I continue to suggest that solving the access to justice problem will take more than attorneys. A real solution will find a way to maximize the  utilization of the talent, skill, and experience of professional paralegals.

 It might even include re-visiting UPL and allowing paralegals (suitable licensed) to provide limited legal services at an affordable cost without the supervision of attorneys. This approach is used in other jurisdictions. (Check the “Canada” category.) While many lawyers fear this options as opening the door to competition from paralegals, that approach does not make a lot of sense to me. After all we are talking about middle class people who are not able to afford attorneys. Even now with no competition, the lawyers are not getting that business. As the story notes:

The newspaper cites a survey of nearly 1,200 state trial judges by the ABA Coalition for Justice. Sixty percent of the judges reported that fewer people are represented by counsel in civil cases, according to results announced in a press conference earlier this month.

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I’ve been traveling and have had little internet access so posting has been, and will be, sparse for awhile. Among the many emails accumulated in my Inbox is on from Harry Kopyto. You may recall from previous posts, Mr. Kopyto is challenging the regulation of paralegals in Ontario, primarily because the regulation is by the Law Society, which is comprised primarily of lawyers and also regulates attorneys (although several paralegals were recently elected to the Law Society’s governing board.) Mr. Kopyto does not view the licensing and regulation of paralegals in Ontario as a step forward for the paralegal profession, but an attempt by attorneys to squelch competition. This effort, he contends, has the effect of diminishing access to justice for those without significant financial resources.

The article Mr. Kopyto sent me is too long to post here, but some excerpts follow. Please keep in mind that I have not vetted the statements for accuracy, Mr. Kopyto’s statements are likely to favor a particular position, and I am not endorsing that position by printing the excerpts.

The main rationale that the LSUC has given for its takeover of paralegals is the fact that “the public interest” requires it to ensure that incompetent paralegals are not foisted on the public market.  What the LSUC has done (and what is not apparent to the public) is that, as a result of bylaws passed by it immediately after the takeover ― the Law Society has basically eliminated paralegals as a profession able to provide a wide variety of services in competition with lawyers.

Prior to the enactment of the Access to Justice Act and the amendments to the Law Society Act, paralegals provided a wide range of services to the public.  They did so effectively and, according to former High Court Judge Peter Cory, at “significantly lower fees” then charged by lawyers.  In fact, within about 30 years, the number of paralegals working in Ontario flourished from a few hundred to an estimated 4,000. Many paralegals prepared wills, prepared incorporations, prepared leases, acted in undefended divorces, did simple real estate transactions and engaged in Family Court representation — subject to prior approval.   Some of their work was in “gray” areas, but unauthorized practice prosecutions were few and successful ones were even fewer.

What do the bylaws say?  Specifically, they restrict paralegals to provide legal advice only with respect to Small Claims Court, provincial offences, 6 months maximum criminal court matters and federal and provincial tribunals.  That’s it.  No more.  Everything else is verboten.  The bylaws thus further entrench lawyers’ fixed–price justice monopoly. An example?  While permitting paralegals to negotiate motor vehicle accident claims, the bylaws ban them from cases involving “catastrophic injuries” where large fees are to be earned.

No rationale is given for preserving this lucrative turf for lawyers alone.

Lawyers’ greed trumps affordable justice when lawyers control the game and hold all the aces.   The LSUC has tried to masquerade its dictatorial control over their twenty-first century serfs. In reality, paralegals have been disenfranchised inasmuch as they are  “members” of the LSUC who can’t vote for benchers.    The much-touted elections of paralegals to their LSUC Paralegal Standing Committee is a joke: the Committee is only administrative.  Similarly, the LSUC’s appointment of two paralegals to Convocation where they are outnumbered by 83 to 2 is a coup d’oeil, an illusion of democracy.

The issue is not yes or no to regulation.  Of course, regulation is in the public interest.  But regulation by whom?  Regulation for what purpose?  Regulation in whose interest?  And why regulation by a competing profession?

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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.

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Paralegal Pie posts some advice on “Raises in an Economic Downturn.” It concludes:

If you expect to share in the rewards when the firm is having a good year, its only fair that the firm expect you to share in the leaner years too.  

If you feel your firm is taking advantage of you, which wouldn’t be the first time in history a law firm pulled that trick – think about what other “compensation” may be available. Sometimes extra vacation, parking or leaving early on Friday is an option in lieu of money.  Maybe just keeping your mouth shut is the only option.  Be patient, do a good job…it will get better!

Raises are just one of the many areas where the paralegal and attorney members of the legal team may be in conflict with one another.  Conflict is inevitable and must be resolved. Simply letting it simmer benefits no one. It helps to be aware of approaches to conflict. Such awareness will be beneficial not only in terms of your relationship with your attorney, but in all relationships.

Conflict arises between attorneys and their paralegals when they have wants, needs, desires or interests that not only are different, but it appears that only one set of those wants can be achieved in any given situation. For these purposes, I assume that both the attorney and paralegal are acting professionally, for example, that you are doing your best to earn your salary as opposed to doing the least you can possibly do to earn your salary, and the attorney is doing his best to utilize your professional skills even if he lacks an understanding of what those skills truly are. Even when that assumption is made, conflicts can arise between your desire for the independence and responsibility of your profession and the attorney’s desire for control; between your desire for supervision, guidance and clear instructions, and his desire that you just get the work done without bothering him.

In some situations one party may be, at least initially, unaware that the conflict exists. It is important that there be open communication between the attorney and paralegal not only in order to resolve conflict but to create awareness that the conflict exist. With a demanding, authoritative, perhaps bullying attorney, you will be well aware of his side. A way must be found to inform him that you are not happy without triggering a crisis. On the flip side, you must make it clear to the more reticent attorney that you are open to, even anxious to, be made aware of potential conflicts between his expectations and your performance.

This awareness can sometimes be difficult to achieve because of the approach used to conflict by either the attorney, the paralegal or both. Generally, people will favor one of five approaches to conflict: avoidance, accommodation, competition, compromise or collaboration. Of course, no one is so fully committed to one approach that they can be strictly compartmentalized. Often people will use a blend of approaches, or they may use one approach at home and another at work, and so on. Paralegal Pie‘s suggestion of seeking alternative forms of compensation when money is tight could result in a collaborative resolution to this conflict.

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