Posts Tagged ‘UPL’

California AB 852 Update

Friday, May 9th, 2014

Barbara Liss continues to keep the LinkedIn Paralegal Group informed on developments in California where, as you likely have heard, the Bar Association’s efforts to police the unauthorized practice of law faltered when the legislation was vetoed by Governor Brown only to rise from the ashes in what one political commentator characterized as a “somewhat sneaky action”. Barbara says,

The State Bar just issued/published a summary stating that there is no opposition to AB 852 (a copy of the summary is in my LinkedIn activity — for some reason, I’m not able to attach it here; it’s also available directly at the State Bar’s website: http://board.calbar.ca.gov/docs/agendaItem/Public/agendaitem1000011937.pdf). AB 852 renews the State Bar’s attempt to gain civil penalties for pursuing all non-lawyers for the unauthorized practice of law, not merely rogue immigration consultants or foreclosure scam artists, as addressed in the summary. Once again, the language of AB 852 is broader than the bar’s stated intent.

I understand that the State Bar is frustrated because UPL, although already a criminal offense, is not something it can control directly. It is up to the appropriate prosecutors to make decisions about prosecuting UPL. Many times those prosecutors have crimes they consider more heinous on their minds. I do believe there is merit in protecting the public from UPL, but I remained puzzled and troubled by a proposal that allows an essentially private organization to enforce UPL prohibitions be recovering civil fines. The summary is not clear on the subject, but it appears the fines, which are in addition to the costs of prosecution,  would actually stay with the Bar, not go into the public coffers or to the consumers the Bar purports to be protecting. This seems to make a situation that seems to involve a conflict of interest even more so.

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.

 

Olympic Call Raises UPL Question

Thursday, August 11th, 2011

According to an article on FoxNews.com:

The U.S. Olympic Committee says a Maine organizer will have to rename his “Redneck Olympics” games, saying the man doesn’t have the right to use the word “Olympics” in the event’s title.  Redneck Olympics organizer Harold Brooks told FoxNews.com he received a telephone call Monday from a paralegal at the USOC warning him to change the name of his event or face a lawsuit.”

I have some familiarity with the issue of whether the USOC is properly exercising its rights in this regard, but that is not the issue of primary concern to me at the moment. Rather it is the fact that this particular phone call came from a paralegal. Let’s assume that instead of making a phone call the USOC wanted to notify Brooks by letter. Its in-house paralegal could draft that letter, but could the paralegal sign it or must it be signed by an attorney? My initial sense is that the letter would have to be signed by an attorney, not a paralegal -even an in-house paralegal- in order to avoid UPL. Is it any different then when the warning is delivered via the telephone? Mustn’t that call be made by the attorney (or an officer of the corporation) rather than a paralegal in order to avoid UPL? It might be a bit different if the person making the call (might also be a paralegal) called in his capacity as an officer or assistant to an officer of the corporation and did not identify himself as a paralegal.

What do you think?

Increase in UPL Complaints in Ottawa after Paralegal Regulation

Friday, July 1st, 2011

It should, perhaps, come as no surprise that when a jurisdiction requires a license to perform a service there will initially be an increase in complaints of that service being performed without the required license. We’ve followed the regulation experiment in a Canadian province fairly closely to see how paralegal regulation might work here, recognizing that the role of a paralegal in Canada was different from that in the United States prior to the inception of regulation. Here’s a report on the increased UPL complaints from thestar.com:

The Law Society of Upper Canada is taking aim against people practising law without a proper licence after a jump in the number of complaints.

New complaints rose from 134 in 2007 to 445 in 2009, but dropped to 330 in 2010 and have further decreased this year, according to a report by Zeynep Onen, the society’s director of professional regulation.

In 2006, the law society reduced the number of legal services paralegals were allowed to do without a licence in an effort to tighten professional regulation.

“The increase in the complaints reflects that legal services are now regulated and those individuals who seek to avoid being regulated or who can’t meet the qualifications are now more easily exposed as breaking the law,” said Roy Thomas, the law society’s director of communications.

For more on this, click on thestar.com link above.

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.

Paralegal UPL in Canada

Friday, November 5th, 2010

Licensing of paralegal does not, apparently, entirely eliminate the concern regarding UPL by paralegals, but may shift that concern to paralegals performing activities that go beyond their license as indicated by this report:

A disciplinary panel has reserved its decision to a later date whether to grant a former North Bay councillor her licence to continue practising as a paralegal.

The Law Society of Upper Canada which oversees paralegals and lawyers in Ontario held a four-day good character hearing in North Bay last month to determine if Maureen Boldt should be granted a licence.

Lawyers for the law society and for Boldt gave their closing arguments Tuesday at Osgoode Hall in Toronto.

Boldt started working as a paralegal in 1992 and has three law society convictions for the unauthorized practise of law by performing tasks that only licensed lawyers in Ontario are allowed to do.

The last conviction put her in contempt of court for ignoring an injunction to stop illegally practising law. She was sentenced to four months house arrest and lost her seat on city council when she missed too many consecutive meetings.

The law society began issuing licences to paralegals in 2008 and it has allowed Boldt to continue practising pending the outcome of the hearing.

ABAJournal.com on Middle-Class Dilemna

Thursday, July 22nd, 2010

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.

Penny the Paralegal with a Clever PC

Tuesday, July 20th, 2010

As I’ve often noted issues facing the attorney and paralegal professions in other countries are both different and the same as ours. Take Great Britain for example. The system for becoming and being a lawyer in Great Britain is quite different than ours, and lawyers themselves are divided between barristers and solicitors. However, there as in most other jurisdictions there is a tension between the goals of providing affordable legal services to the public and protecting the public from incompetent service providers. There, though, the public can choose their representation to a larger degree than here where only the licensed attorney can practice law. As noted in a post today on guardian.co.uk, “Anyone can launch themselves as a legal adviser, but solicitors have a unique selling point, they are qualified.”

There are a lot of “legal advisers” in England. As the author of the post, Neil Rose, points out, “After a 50% growth each decade over the past 50 years, there are now nearly 150,000 people on the roll of solicitors (plus another 45,000 in the various other legal professions), making England and Wales one of the most densely “lawyered” countries in the world. In another 50 years, on current trends, there will be a million solicitors.”

But the question he raises is, “For what do we need qualified lawyers? Why not just go to Penny the Paralegal with a clever PC (who may be a law student who couldn’t find a training contract)?”

Here, of course, this question could not arise since Penny the Paralegal is prevented from performing most lawyer-like activities by UPL statutes. This is true only to a very limited extent in England where, “By law, there are six areas of work – known as reserved legal activities – for which you need a legal qualification: preparing litigation; representing someone in court; transferring land; certain limited aspects of probate; notarial activities; and the administration of oaths. That’s it.”

Here’s the rub – a rub we saw in Canada and, to a degree, here -especially in Wisconsin: “The argument that more legal activities, such as will-writing and employment advice, should be reserved may seem like a job creation exercise by the legal profession, …” In other words, who are UPL laws meant to protect – the public or the legal profession.

If he smells bad there, he’ll smell bad here.

Monday, July 19th, 2010

Way back in 1984 the Mississippi Bar Association issued an ethics opinion that concluded it is not proper for an attorney to allow a disbarred or suspended attorney to work as a paralegal or legal assistant in the attorney’s law office. OPINION NO. 96 OF THE MISSISSIPPI STATE BAR, RENDERED JUNE 7, 1984. The opinion rested primarily on UPL considerations:

In the recent case of In re Frank John Kuta, Attorney, Petitioner, 427 NE2d 136 (1981), the Supreme Court of Illinois held as follows:

Without a doubt, a disbarred or suspended attorney should not serve as a law clerk or a paralegal during his disbarment or suspension. The line of demarcation between the work that a paralegal or a law clerk may do and those functions that can only be performed by an attorney is not always clear and distinct. The opportunity for a disbarred or suspended attorney who is serving as a paralegal or a law clerk to violate that line of demarcation is too great and too inviting. Also, the public is not aware of the differences between the work of a paralegal and that of an attorney. For a disbarred attorney to be seen performing what the public may perceive as legal functions can only lessen the public’s regard for the effectiveness of our attempt to discipline errant attorneys, and would foment the belief that the public was not being protected from unethical attorneys.

A synopsis of unpublished Informal Opinion 7 (found at page 134 of the American Bar Association Opinions on Professional Ethics, 1967 edition) indicates that the American Bar Association Committee on Ethics and Professional Responsibility previously has given this advice:

An attorney should not employ a disbarred lawyer, even to do only office work and seeing no clients, because of the practical difficulty of confining his activities to an area which does not include practice of law, and because such employment would show disrespect to the courts.

Recent reports from Texas give another reason:

Disbarred S.A. lawyer sentenced for stealing thousands from indigent veterans fund
by KENS 5 Staff

kens5.com

Posted on July 17, 2010 at 5:46 PM

A former San Antonio lawyer, who was found guilty of defrauding the VA, will be spending the next four and a half years in prison.

On Friday, a judge sentenced Leo Alvarado to 54 months in prison for stealing $134,000. The money was supposed to go to the legal needs of indigent veterans.

Alvarado, a disbarred lawyer and former paralegal with the Texas Rio Grande Legal Aid,  reportedly submitted over 500 fraudulent vouchers for trips from San Antonio to Big Spring, San Angelo, Midland, Waco and other Texas cities between November 2003 and February 2006.

The trips were supposed to have been made to help indigent veterans and widows in filing claims with the Veterans Administration. Alvarado was in a position to approve his own travel. But investigators say he used invalid Social Security numbers , Social Security numbers of dead people, or numbers that belonged to different people.

They say sometimes Alvarado just made up clients so that he could be reimbursed fictitious travel expenses.

The VA says they have no record of Alvarado every assisting any veteran or widow.

Instead Alvarado pocketed the money.

None of the reports I’ve read state why Alvarado was disbarred. The State Bar of Texas website lists him as “Not eligible to practice in Texas,” but only reports the specifics on disbarment for ten years.

This poses a number of issues for the paralegal profession. First, the definition of paralegal is supposed to include attorney supervision, but the Legal Aid group apparently made him a “team leader” without supervision. So why is he called a paralegal?

Most attorneys are simply not trained or experienced in paralegal skills to actually do a paralegal’s job well. So what was the skill set required for this person as “team leader.” Is this really a paralegal position? If not, why call him a paralegal? If so, why not hire a real paralegal?

In general, why taint the paralegal profession with the stain of a person the lawyer profession found unsuitable? As the title of this post says, “If he smell bad there, he’ll smell bad here.”

Of course, these issues are just particular instances of the issues that arise when there is no firm definition of paralegal exists, when there is no “good character” requirement to become a paralegal, when there is no way to say when a person has the skill set required to be a paralegal, etc.

The California Story

Saturday, July 17th, 2010

Yesterday I did a post based on a Paralegal Today Forum discussion regarding state regulation of paralegals. Today I’m yielding the blog to Stacey G. Hunt, CLA, CAS a paralegal with Duggan Smith & Heath LLP in  San Luis Obispo, California, for a guest post on the history of the California law regulating paralegals:

Hi, Lucy.  Elona is right – UPL and paralegal regulation are two separate issues.  There are huge downsides for  paralegals in states where there is no recognition of the profession at all, either through bar membership or certification or regulation that go beyond people practicing UPL.   In California we tried everything – a Supreme Court opinion/order, regulation through the State Bar, hiring a lobbyist, and were shot down every time.  An interesting string of events allowed us to get through the regulation we have in place now.

Believe it or not, one of the strongest oppositions we received when the California Alliance of Paralegal Associations originally attempted some form of regulation was from the AARP.  They wanted senior citizens to have access to inexpensive legal help, and they thought the only way to do that was through “independent paralegals’ who at the time were practicing UPL.  They did not want traditional paralegals to put those people out of business.  In approximately 1997, the governor of California got into a big disagreement with State Bar and literally shut it down by vetoing the bill approving the funding for the State Bar.  The Bar actually ceased to exist for a couple of years and the “machine” was in complete disarray.  During that time, two bills went through, one creating Unlawful Detainer Assistants and the other creating Legal Document Assistants.  These two new groups were non-attorneys who had to register in their counties and be bonded, but were allowed to help lay people with their court paperwork.  I doubt these bills would ever have passed if the State Bar hadn’t been too busy trying to get itself put back together  to oppose them.

After those statutory schemes were in place, the AARP and other “anti-attorney monopoly” groups were satisfied, so when we came along with our proposed legislation for paralegal regulation, they did not go after us.  Once we talked the independent paralegals into giving up the title and instead embrace the legal document assistant concept, we had overcome most of the opposition out there and our bill sailed through quite easily.  We did have to make concessions that we hated.  One of them was that we were forced to allow disbarred attorneys to be called paralegals, as long as they were properly supervised like we are, which the State Bar viewed as a form of rehabilitation for them so they could eventually get their licenses back.  But we thought that in the big picture it was worth it.

Since the bill became law in 2001, we have been very pleased with the results.  Many of the “Mary’s Beauty Salon and Paralegal Services” signs have come down.  The “become a paralegal in 3 weeks” schools have gone away.  Senior partners at enlightened firms have stopped bringing in their wives and college kids to the office and calling them paralegals.  We learned of a woman in a neighboring city who was advertising herself out as a paralegal/legal document assistant and I was able to call the local police department who put a stop to it.   We finally have case law now (in a California federal court) that actually reduced an attorney’s fee claim because the paralegals were not qualified under the code.  Talk about sending a message!  When it gets to the attorneys’ pocketbooks, they will sit up and take notice.  And I believe they were talking about revising a judicial council form filed in probate matters to recover fees that required the attorney to attest that all paralegals whose fees were being charged to an estate were qualified paralegals under the code.

It is a big fight and well worth it.  I encourage your state paralegal association to continue its efforts.