Posts Tagged ‘public’

More on Access to Justice

Saturday, March 13th, 2010

Giliam Hadfield, a Harvard law professor writing in The Washington Post argues for innovative approaches to low-cost, quality legal services. He makes several points that support statements made in my last two posts. Here are some excerpts:

The United States stands largely alone in advanced-market democracies in drastically restricting where and how people can get help with their legal problems. In all states, under rules created by bar associations and state supreme courts, only people with law degrees and who are admitted to the state bar can provide legal advice and services of any kind.

In England, Australia and the Netherlands, by contrast, a wide variety of professionals and experts can provide legal assistance.

Free legal aid clinics hardly fill the gap: Only 1 percent of the 1 million lawyers in the United State do either legal aid or public defender work; student-staffed law clinics can operate only under the supervision of a licensed attorney. Pro-bono hours at best amount to about 2 percent of total legal effort.

There’s nothing wrong with ensuring quality of service, but attacks on innovative providers in the United States go well beyond what can be justified in a world that looks so much to law to organize everyday life. They also go much further than other wise countries go.

My research suggests that Americans have a much higher rate of simply giving up in the face of legal difficulties, with effectively nowhere to turn if they cannot afford a lawyer who comes at a minimum price of $150 an hour. This means giving up on seeing their children or saving their homes or credit ratings or jobs. Unlike people in Britain, those facing legal problems in the United States can’t turn to local volunteer organizations, their unions or consumer organizations. They can’t buy what they need from entrepreneurs or the full-service stores like Wal-Mart that now package low-cost eye exams, insurance, banking and more with their diapers and detergents.

This may explain why in U.S. surveys 30 to 40 percent of Americans with an identifiable legal problem say they do nothing to resolve it, compared with just 5 percent in Britain. Yes, Britain spends far more public funds on ensuring access to justice — $76 in legal aid per capita compared with $13 in the States (including charitable contributions). But the critical difference is the widespread and diverse availability of help in Britain and other advanced-market democracies for people with legal troubles — not just criminal arrest but issues such as foreclosure, divorce, child custody, employment and bankruptcy. The United States urgently needs to expand capacity for non-lawyers to meet the legal needs of ordinary Americans in innovative and less costly ways.

As is no secret by now, this commentator argues that well-trained, well-regulated, professional paralegals provide one viable answer to the access to justice issue.

More on the Canadian Example

Thursday, December 3rd, 2009

I’ve posted previously on the paralegal licensing program in Ontario asking, “Is Canada Leading the Way?” Today’s post deals with another aspect of licensing – disciplinary hearings and the possibility of losing a license. Here’s the first few paragraphs of a story on www.northernnews.ca:

The organization that oversees the paralegal profession in Ontario is giving a former North Bay paralegal more time to prepare for a disciplinary hearing that could revoke her licence.

Maureen Boldt was found in contempt of court in 2007 for violating a court order that banned her from the unauthorized practise of law after a superior court judge found she prepared a separation agreement, which is something only licensed lawyers in Ontario are allowed to do.

She was sentenced to four months house arrest, which cost her a seat on city council last year because she missed too many consecutive meetings.

The injunction came after Boldt admitted years earlier to illegally practising law by offering legal advice when preparing wills and separation agreements.

Boldt was at Osgoode Hall Monday morning at the start of what was supposed to be a disciplinary hearing that could see her lose her paralegal licence.

As is usually the case, there are differing opinions on what this story illustrates. Some will say it shows the dangers of licensing. No one wants to be in the position of losing their ability to work, i.e., their license, because they made a mistake. Other will look at it as an opportunity to improve the profession and protect the public by providing a way to remove those who should not be in the profession from the profession. They will point out this was not a mistake, but an apparently flagrant violation of the law – a second time violation at that. Those opposing regulation will point to the fact that this woman has already been punished the court’s contempt order.  However, this situation is confronted by attorneys all the time. Should it not also apply to paralegals?

How does the profession acheive the right balance of allowing paralegals the maximum amount of independence to maximize their benefit to the legal system and the public on the one hand, with the need to protect the profession, the legal system and the public from those who cannot or will not handle the responsibility that goes with that independence?

Read the full story at the link above and let me know what you think.

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?

A question of identity

Monday, November 2nd, 2009

The paralegal profession continues to deal with questions of identity and definition as can be seen by responses to this post on the Legal Assistant Today listserv:

I am new to this blog, new to this profession-I’m actually finishing my certificate in the spring.Although I hope to get into mediation practice, I want to spread my skills out as far as I can over the legal spectrum. So in order for me to get started as an independent paralegal, I’m trying to design a business card. Does anyone have any ideas about what I can put on my business card other than just “Independent Paralegal”?

Aside from the question of whether there is a role for truly “independent” paralegals within the current American legal system and, if so, what that role should be, there is some confusion in this instance as whether the person making the post means “independent” or “freelance.”  The post also raises questions about education, certification, and experience. All of these questions are raised by Rachel in her response:

The paralegals I know who are freelancers all have years–as in 20, 30 years–experience in this profession and did not jump from a certificate to a full blown, attorneys knocking down their doors, career.

 
You might want to maybe get your feet wet a bit before you do this. From what I understand, the laws vary from state to state but even a freelance paralegal has to be beholden to an attorney in order to do any real substantial legal work independently. Check your states statutes concerning this.
 
Also, is this certificate you spoke of just that–a certificate, like a program you took that lasted a year or less? If so, you might also want to do some research into the area where you live as far as the minimum educational requirements for this type of work. The only way around not having at least an associates if not a bachelors degree where I live is to either 1.) start out in a different capacity, say, as a legal secretary or something along those lines, or 2.) to already have been in the field for many years and have the actual experience under your belt.
There does appear to me to be a distinction between indepenent paralegal providing services directly to clients such as Martin Legal Services, who wrote regarding his practice as discussed in this post, and freelance paralegals who work for attorneys as independent contractors rather than employees such a Outsourced Paralegal Services, who I discussed in a previous post.
There is a real question of whether there would be adequate protection to the public in a case where someone with minimum education and experiences attempting to establish a practice as a truly independent paralegal. It is far too likely that serious mistakes will be made when an undereducated, inexpereinced practitioner in any field attempts to practice without superision. One problem with which the paralegal legal professions still must deal is the fact that there  is, in most jurisdictions, no clear statement of what is “adequate” education and experiences to hold oneself out as a paralegal.
There are also dangers to the profession should the public not be well served in such circumstances. First, the perception of the paralegal profession as a whole is affected when members of the public suffer from such mistakes. Ultimately enough incidences will lead to a demand for regulation. Regulations as a reaction to an accumlation of such incidences rather than as a well-thought out effort to establish paralegals as a profession, it seems to me, is not likely to serve the best interest of the profession or the public.

Paralegals Contributing In Another Way

Friday, September 4th, 2009

Through a press release on www.pr.com, Outsourced Paralegal Services has asserted a “Link Between Chapter 7 & 13 Bankruptcy Filings and Medical Bills:”

Outsourced Paralegal Services, LLC a company specializing in providing Chapter 7 and Chapter 13 consumer bankruptcy petition preparation and other relevant support services to attorneys has identified a direct correlation between chronic illness and medical bills, and filings for Chapter 7 & 13 bankruptcies throughout the Unites States.

According to Outsourced Paralegal Services President and Bankruptcy Paralegal, Patrick Campbell, “Our firm has prepared several hundred bankruptcy petitions for attorneys in the past year. I can corroborate the unsettling fact that approximately 65% of the consumer bankruptcy petitions that have come across my desk this year are for people who have, or who are still dealing with a chronic illness with medical bills in the thousands, and in some cases the tens of thousands of dollars. This is no longer simply something I read in the newspaper or watch on CNN. I have seen it in black and white first hand.”

This is interesting for several reasons. One is that it provides a starting point for a type of paralegal that has not previously been discussed on this blog – the paralegal who works as an independent contractor for a variety of attorneys. These paralegals are neither employees of special law offices in the traditional sense and the sense most discussed here. Nor are they “independent”paralegals in the sense of working directly with the public without attorney supervision as discussion several posts in the category “‘Independent’ Paralegals.”

 It is possible outsourced paralegals may provide a way balancing the competing interest of increasing access to the legal system by the public and providing protection for the public against the harms that arise from UPL. According to the press release, “Outsourced Paralegal Services provides law firms with the opportunity to outsource their workload to a senior level bankruptcy paralegal at half the cost of hiring a full time paralegal on staff.” The question, of course, in terms of providing greater public access to the legal system is whether the sole benefit of this is “conserving resources within a law firm” without that consevation of resources being passed on to the public thus making access more affordable.

Another interesting aspect is the way, not totally altruistic to be sure, that these particular paralegals used their expertise to contribute some hard data and some research to a public debate. There is a tremendous amount of talent and expertise with the paralegal profession. Bringing that talent and expertise to bear on matters of public interest, if done properly, can help improve the public’s perception of paralegals as professionals.

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.”

Do Attorneys Underestimate the Value of Talented Paralegals?

Sunday, August 23rd, 2009

Pennsylvania paralegals recently celebrated “Paralegal Week” by virtue of a proclamation by Pennsylvania Governor Rendell, apparently at the urging of the Keystone Alliance of Paralegal Associations. The proclamation states,

WHEREAS, The practice of law is a demanding, challenging, and complex endeavor – one in which the rights, liberties, and safety of our citizens have been protected and preserved for centuries; and

WHEREAS, member of the bar require knowledgeable and reliable assistance to fulfill the duties of their profession. Paralegals have become an invaluable source of support in law offices, providing lawyers with a variety of skilled professional services throughout their practice; and

WHERES, paralegals are highly educated, trained, and experienced professionals with expertise in legal and case research, interviewing clients and witnesses, legal and correspondence writing, and other critical areas of successful and efficient law practices; and

WHEREAS, the value of talented paralegals is often overlooked by the general public, but their worth is never underestimated by the lawyers and firms for which they work; and

WHEREAS, the Keystone Alliance of Paralegal Associations, along with other associations, is dedicated to the advancement of the paralegal profession through education, a network of support, and raising public awareness and appreciation.

THEREFORE, I, Edward G. Rendell, Governor of the Commonwealth of Pennsylvania, do hereby profclaim July 20-24, 2009, PARALEGAL WEEK,  and July 24, 2009, PARALEGAL DAY throughout our Commonwealth.

This sort of recognition is good for the profession and well deserved. I wonder, though, how many paralegals agree with the statement,

WHEREAS, the value of talented paralegals is often overlooked by the general public, but their worth is never underestimated by the lawyers and firms for which they work. (Emphasis added)

Certainly, my email suggests that lawyers and firms do at time, perhaps with some frequency underestimate the value of talented paralegals. As discussed in a previous post, this is due in part to a lack of understanding as to exactly what that value is.

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.

Paralegals Can Help Fix Legal Profession’s Image

Friday, August 21st, 2009

ABA Journal.com reports  Only 25% of Americans Have a Positive Image of Lawyers:

Do Americans have a better image of lawyers, bankers or real estate brokers?
Lawyers may take little comfort in the answer.
Only 25 percent of Americans have a positive view of the legal field, according to a new Gallup survey. Only three industries got lower ratings—real estate, automobiles, and oil and gas. Bankers bested lawyers by three percentage points.
The survey asked respondents to indicate whether they held positive or negative views of 25 different industries. The five industries with the worst images, starting with the very worst, were:

  • Oil and gas industry, viewed positively by 21 percent, compared to 15 percent last year.
  • Automobile industry, viewed positively by 24 percent, compared to 29 percent last year.
  • Real estate industry, viewed positively by 24 percent, compared to 16 percent last year.
  • The legal field, viewed positively by 25 percent, compared to 26 percent last year.

While the perception of the legal profession is, to a large degree, dependent on those at the top of the pyramid – the lawyers, paralegals can be an effective force for changing this perception. If paralegals have and project a good, professional perception of themselves, it will ultimately translate into a better perception of the entire legal profession by the public. In fact, I believe it will increase the professionalism of the lawyers with whom the paralegals work. When paralegals meet high standards of professionalism, it raises the bar not only for the paralegal profession but for members of the bar.