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.