"Paralegal" Wins Against Summary Judgment, But Will He Succeed In Trial?

The Daily Inter Lake, a Montana newspaper, is reporting that a self-named independent paralegal has prevailed against the attorney general's summary judgment motion, which stated that his advertising had been "deceptive as a matter of law." Of course, while the judge may agree that the case needs hearing, paralegal Jerry O'Neil is more cautious than optimistic. The newspaper quotes him as saying, “He indicated my ads were not deceptive, but that was the only motion before him.” If the case makes it all the way to trial, Mr. O'Neil, a former state senator, seems to face charges of unauthorized practice of law and deceptive advertising.

A few things interest me about this case. First, apparently Mr. O'Neil enlists the help of attorneys for his document preparation, paying them to review his completed documents before filing them for his clients. Second, the judge himself noted that the Montana Legal Services uses non-attorney volunteers to perform many of the same functions that O'Neil says he performs, and that the volunteer-prepared documents do not even receive the benefit of attorney review.

The judge has pointed out a major discrepancy in Montana's system, it appears. If Mr. O'Neil is having attorneys review his work, it should be assumed that such work is higher in quality than documents which do not get the benefit of attorney review.

I will also note that my office works in the same basic fashion, except that I do not pay the Boss for his review of my work. Still, I draft a Will based on a form the client has filled out, he reviews it, most of the time it needs no alterations, and then we deliver it to the client.

Another point of interest is that Mr. O'Neil had legal trouble with his "independent paralegal" practice in the past and had since changed his advertising to conform to previous injunctions. The judge in his current case is quoted as saying, "O’Neil claims he has complied with the permanent injunction and is not violating MCPA, as he is not providing services that only a lawyer can perform and is now [sic] working under the auspices of an attorney.”

Of course, I am not going to opine whether Mr. O'Neil is guilty of UPL or violating any other law in the state of Montana. I am not familiar with Montana's UPL laws. Neither am I familiar with the Montana Unfair Trade and Consumer Protection Act. However, I will suggest that if he is performing services with the benefit of attorney review which are the same services non-attorney volunteers perform without attorney review, it would seem unfair to both him and his consumers to deem his work the unauthorized practice of law.

[Editor's Note 1/31/2010: Further investigation into Mr. O'Neil's situation, aided by a reading of Practical Paralegalism's story on the topic, led me to the 2006 Montana Supreme Court opinion in an earlier case regarding Mr. O'Neil and the unauthorized practice of law. It can be found here. It may be noted that in the earlier case, the court described Mr. O'Neal as having readily admitted to "drafting pleadings for his customers, providing them with legal advice and appearing in court with his customers," actions the court (and probably any sensible person) deemed to be the practice of law. Still, the facts of the new case seem distinguishable to some extent from the earlier case, so it should be interesting.)

More On Independent Paralegals

I hate to beat a dead horse, to return to the question of independent paralegals and whether it is possible to walk that tightrope between serving an attorney and committing UPL - but here I am, doing just that.

My friend Professor Mongue at The Empowered Paralegal Blog, shared quite an interesting letter from an independent paralegal today. I encourage you to take a moment to read his entry and the letter he supplied, which can be found here, before continuing reading my thoughts on the subject. (It should open in a new window.) Go on. Read it. My words will be here when you get back.

Now that you are thoroughly informed, at least as informed as you can be at this point, you know that a self-proclaimed independent paralegal is currently being investigated for UPL. While we could argue the pros and cons of independent paralegals until we're blue in the face, I am more interested in one or two issues this letter brought up.

1) First, it seems that the complaint for UPL was filed, not by a dissatisfied or misled customer, not by someone who felt taken advantage of, but rather by a lawyer. Now, I have no qualms with someone doing what he feels is necessary to protect or defend the legitimacy of his profession or field. I just find it interesting that the only person who has enough of a problem with Mr. Martin's independent paralegal practice to file a complaint against him alleging UPL is a lawyer. This reminds me of some of the information I found regarding nonattorney practice in California when I first began researching independent paralegals. In that post, found here, I mentioned the apparent success of some independent paralegal (or rather, legal document assistant) companies. My limited reading and research found that at least customers are at least as satisfied, if not more so, with these businesses as with licensed attorneys when using them for situations in which they are not in need of legal advice.

2) If we take the letter at its face, Mr. Martin believes he is providing a necessary service to those who could not otherwise afford it. He does not sound like an incompetent attorney impersonator trying to pull the wool over an unwitting public's eyes.

3) Think about what Mr. Martin says about fear in the legal profession. Whether I agree with his stance regarding independent practice or not, I have a hard time rebutting his allegations of fear of UPL. It's the scarlet letter no one wants to wear. One mistake, one wrong word, and BAM, you've committed UPL. And whether you are even guilty of committing it is irrelevant. Once a complaint is filed, no matter what the verdict, your reputation can be blemished. I understand that UPL is an attorney issue too, but the lines are in different places. The problem for paralegals, as I've said before, is that the UPL line is to some extent subjective. We all know those things that MUST NOT BE DONE. But there are some things that may be unsafe to do, not because we are worried about the client's welfare, but rather because we are worried about the perception of some unnamed person who might wrongly construe our actions as the practice of law (as Mr. Martin seems to think happened in his situation). For instance, in some courts paralegals can sit with their attorneys at the table. In others, paralegals are restricted to the public seating, presumably to avoid appearing to the public that they are acting as a representative of the client.

4) Mr. Martin hits on an important question: Should it really be necessary for someone to pay a lawyer to assist him in such common sense instances as signing his name in a specific spot? Does telling someone to write his debts in this column labeled "debts" really take a graduate degree and a license to practice law? Should that really be construed as legal advice? The people who need such assistance rarely can afford an attorney, and this is a dilemma. I'm not saying tat the answer is limited non-attorney assistance; I'm just saying that if we discount limited non-attorney assistance, we have to do a better job of finding a real answer to better serve those who need it.

It is not my job or within my limited area of expertise to give a solid opinion of Mr. Martin's letter and all the points he raises. I chose here to write about the points of interest to me, the specific areas I find curious, the statements that made the cogs in my brain start turning. If you have comments, feel free to leave them here, or even better, return to Professor Mongue's blog to contribute your opinion. We all learn best when we enter into a dialogue and share our thoughts.

I am wishing Mr. Martin luck in all his endeavors. As for myself, I am glad I have a Boss to depend on.

Where Are We Going?

I regret that I have been absent for a few days, Reader, but I am sure you will forgive me when you discover my reason. I was enjoying beautiful (and I do mean beautiful) Huntsville, Alabama this weekend with my boyfriend-the-lawyer. We enjoyed a long walk through an almost hidden park before bumping right into downtown Huntsville. We admired the mod-style courthouse in the middle of town befor exploring the local law offices. If only you could have seen it! We peeked into one window to an office that looked as if it had just stepped out of the 1960's. Dark wood, a grandfather clock, even a coat rack that should have been holding Don Draper's hat. I wanted to melt into the scene and be whisked away to a different time. As you can tell, my wish did not come true. Instead, I ended up back home in the southern part of the state, and four days gone on the blogging.

But even while away on my weekend mini-vacation, paralegal issues found me. First, if you have not checked out The Empowered Paralegal blog, by Robert E. Mongue, please do so now. Right now. Specifically, read this one about independent paralegals. Mr. Mongue received a letter from the owner of an independent paralegal business in Colorado regarding his business and how he avoids UPL. However, the description of this business, one which directly serves pro se litigants by assisting them in the process of representing themselves, gave me great pause.

My first thought was that a paralegal should be working under the supervision of a licensed and practicing attorney. Period. Then I took away the term paralegal and added in some generic term like project assistant. Then I started confusing myself. It is a given that you can represent yourself in a court of law if you so choose. You can draft and file documents and negotiate on your own behalf, if you so choose. What if you are a busy 8-5er and you need someone to assist you with the execution of your tasks? What if you will not ask this person for legal advice, nor will you expect them to use independent legal judgment - you just want them to help get everything typed up and filed? Is that person committing UPL?

My boyfriend-the-lawyer's answer was an unequivocal YES. His stance is that anyone who provides services of a legal nature without the supervision of a licensed practicing attorney is committing UPL. I certainly understand where he is coming from, and I agree. But not completely. California, for one, seems completely fine with allowing non-attorneys to help the general public with preparing and filing their legal documents. If you go to the website for the National Association of Legal Document Preparers, you will find a host of valuable information regarding this niche that several states seem intent on expanding for non-attorney practice.

I was quite surprised to read from their website that in 1993, the ABA actually commissioned a panel on non-lawyer practice, though their report never made it to the House of Delegates. From what I can gather, the report would have suggested regulating certain non-lawyer practices in order to provide less expensive access to justice for those who cannot afford attorneys.

Now, I know what lawyers will say about this. And I know how I, a fair-minded paralegal who does not wish to provide attorney-type services directly to the public, feel about it. If you keep pushing this issue into all fifty states, if lawyers eventually become merely the fine dining option when pursuing one's legal goals, wouldn't the license eventually become irrelevant, and then what would all those law school grads do with their expensive educations?

I jest, but I do agree with my boyfriend-the-lawyer (and not just because he takes me to see awesomely-bad chick flicks). There has to be a clearly defined line of UPL, and that line cannot keep being pushed further and further back until all the lawyers are confined to a tiny corner where they push and fight over expensive legal fees. The fact that the public, some non-attorneys, and even a few lawyers think that it is a good idea to regulate and allow non-attorney legal services directly to the public says at least one thing to me: lawyers have become too expensive for the common man. I think it also says that law firms value their own services more than their prospective clients do. When people are willing to forego the licensed professional for the regulated document preparer, it's time to rethink the status quo. Hey attorneys, do you hear me? It's your jobs and futures we're talking about here. It appears the paralegals will be just fine.