Posts Tagged ‘Jerry O’Neil’

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 Rather it is the fact that the Montana Attorney General’s Office has withdrawn a complaint against O’Neil that argued phone book advertising by paralegal Jerry O’Neil of Columbia Falls deceived people about his practice.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.