Oregon proposal considers licensing paralegals to provide some legal services

The Oregon Supreme Court is considering a proposal that would allow trained, licensed paralegals to provide limited legal services in family law and landlord/tenant cases. The proposal has been compared to the distinction between nurse practitioners and doctors. We hear details on the proposal from Kirsten Thompson, the chair of the Paraprofessional Licensing Implementation Committee for the Oregon State Bar and senior circuit judge in Oregon and Christy Carpenter, a limited license legal technician in Washington.

The Oregon State Bar is currently accepting public comment on the proposal here.

The following transcript was created by a computer and edited by a volunteer.

Dave Miller:  [There is] a proposal to provide more options for legal services in Oregon. As the head of the Oregon judicial branch, the state Supreme Court is considering a program to expand the role that paralegals can play. These non-lawyers would be able to assist clients who currently have a hard time finding or paying for legal help with family law issues or landlord tenant issues. For more on this I’m joined by Kirsten Thompson. She is a senior circuit court judge in Oregon and the Chair of the Paraprofessional Licensing Implementation Committee for the Oregon state bar. And Christy Carpenter is with us as well. She is a limited licensed legal technician, an LLLT in Washington state.

Miller:  What is the problem that you and others at the State bar are trying to solve by pushing for this new program, licensed paralegals in Oregon?

Kirsten Thompson:  There is a recurrent issue in the state courts in Oregon that people have a very difficult time getting legal assistance - legal help in civil matters. And this is particularly notable in the areas of family law and landlord tenant law. So renters and landlords, people who encounter custody, support, all the different kinds of issues that come up with family law. In those two areas somewhere between three out of four or four out of five litigants proceed through their court proceedings ‚whether it’s a family law matter or a landlord tenant matter, without ever having access to a lawyer. And the biggest barrier is generally that they can’t afford legal services. So this has been something that has been a growing concern really for a great number of years.

Miller:  What happens if someone is facing an eviction or a custody dispute but doesn’t have the money to access a lawyer?

Thompson:  Many of those folks come to court and they just muddle through the best they can themselves. We do have some resources within the Oregon Judicial Department.  There are family court facilitators in most of the courthouses in Oregon. And those facilitation workers can provide general information and point people towards the correct forms.  But they can’t provide legal advice or confidential assistance to people who really need to sit down and figure out what to do next. They don’t have those resources and in eviction matters, there are generally court clerks who can provide forms.

And many, many courthouses have volunteer mediators who can help landlords and tenants meet to work things out. But there is no resource for those folks to have attorneys. There is, for people who qualify, there is legal aid. So legal aid offices operate throughout the state, but many, many of the folks who would qualify for legal aid can’t get legal aid assistance because those resources are just quite limited. So what happens right now is that court clerks, facilitators, and quite often the judge in the courtroom is the resource for people.  And for the judge in the courtroom, you have adversarial parties. Obviously, the judge cannot provide individual legal advice to the parties. The judge can help people get their case handled and hear what they can present. But it’s often pretty awkward and not a satisfactory result for people quite a bit of the time.  They just don’t get legal services.

Miller:  Are you talking from experience there as well? I mean, have you been in the situation where there’s somebody in front of you who doesn’t have a lawyer, doesn’t have anywhere close to the expertise that the circumstance might require? And it’s up to you to sort of shepherd them through it at least a little bit?

Thompson:  Oh yes. I served as a full time judge in Washington County for 17 years. And a large portion of the time of my full time work on the bench. I’m a senior judge now. So I set various places and heard various cases, but a large quantity of what I heard in my years on the bench were family law cases. And it was not uncommon to have the bulk of my docket be people who did not have attorneys.  And they were having full on trials that they were trying to prepare for the best that they could, often, you know, with great, great difficulty.

Then also trying to figure out how to present a judgment or an order that would comply with the statutes and rules. So as a judge, and many of my colleagues experienced exactly the same thing, I would end up quite often just preparing orders and judgments for people, which is really not the best use of a judge’s time. And because the dockets are busy and it would really be so much better if they had someone who was assisting them to properly prepare the paperwork that needs to be reviewed. Things like parenting plans and child support and spousal support, division of assets. That’s very tricky stuff. And a lot of people just kind of muddle through it. A lot of times the judge ends up helping people to the degree that they can.

Miller:  And just so we’re all on the same page here. The reason that there’s no constitutional right to legal representation for civil trials, unlike criminal trials?

Thompson:  That’s correct. If a person appears at an arrangement with a criminal charge pending, if they are financially unable to hire an attorney, the court will appoint an attorney for them. There is no comparable right in civil matters. And I would say that the Oregon state bar members do provide a lot of pro bono assistance as they are able. But candidly, there aren’t enough attorneys in many places in the state. And it’s not economical for attorneys to take on cases at a lower asset level or a lower income level. There’s just not an ability to bridge that gap.

Miller:  So this takes us to the proposal to actually create this new category of legal professionals in Oregon - licensed paralegals, Can you describe the requirements that applicants would have to meet in order to get this license?

Thompson:  We are assuming that many, many of the licensed paralegals that enter this licensure will be paralegals who are already working in attorney offices and providing services to clients under the direction of an attorney. So highly experienced paralegals would be able to seek licensure. They would have to have practiced in the area as a paralegal: at least 500 hours of their experience would need to be in family law; 250 hours in landlord tenant law; and 1500 hours in total, at least, to seek licensure.  They would need to complete certain topics of continuing legal education. So 20 hours of specific training.   And then they would need to go through a character and fitness application, as attorneys do at this point, prior to licensure.

And we’re anticipating that the board of bar examiners will require some sort of a competency, either exam or portfolio of work to review, prior to issuing that limited license.  Once a person has a limited license as a paralegal, they would be able to represent clients directly either as a stand-alone shop, so to speak. A licensed paralegal could open his or her own office.  Or they might continue to work in a law office with an attorney down the hall and a division of which case goes where depending upon the complexity and expense that the client has.

Miller:  Christy Carpenter, as I mentioned, is a limited licensed legal technician known as a TripleLT in Washington, where this version of a similar program has been in effect for about six years now. What does it mean to be a TripleLT in Washington?

Christy Carpenter:  Well, for me, it’s all about access to justice. In Washington, [among] family law cases, about 75-80% have at least one unrepresented litigant. And so this just is one tool in the toolbox for those people to have access to the procedure, getting through the procedures, getting through the court forms, you know, getting help and hearings. I love what I do and it is so needed in the current climate, especially with racial injustice in the courts. And I feel that we’ve done a great job of helping those who need assistance in the low to moderate income population. I think that being the guinea pig, which Washington was because we were the first in the country to offer such a license, there are lessons learned. We should have done a little more public outreach such as this, which we did not do. And then we should have had some sort of mechanism by which we could measure success. So that is the advice that I offer to the Oregon state bar in promulgating this license.

Miller:  Were you already working in the legal world before this new program was set up six years ago?

Carpenter:  Yes, I became a family law paralegal in 1995 and I had worked as a paralegal primarily in family law for about 20 years before I became licensed.

Miller:  So what changed for you? How was your practice different if you were basically working in family law as a paralegal for 20 years before this program went into effect in Washington state, what were you able to do for the last six years that you couldn’t do earlier?

Carpenter:  Well, number one offer low income people the opportunity to have to be served by legal professionals. I saw, working in law firms, people try to get a consultation with a law firm and that was a couple hundred dollars. And then the law firm would require maybe a $5,000 to $10,000 retainer. I saw those people fall by the wayside. They were referred out often to some of the agencies that Judge Thompson mentioned - to the facilitators office or to qualified legal services providers. But the firms themselves could not offer services to those people because they just couldn’t afford it. Myself, I now work in a law firm where I take a retainer as low as $500 to get going on a case.

Miller:  That’s compared to potentially $10,000?

Carpenter:  $5,000-10,000 is a normal retainer amount for a family law case.

Miller:  So what does that mean in terms of the quality of representation that people are getting? I guess. I mean to put it really baldly, do you think there’s a connection between the price someone pays for legal services and the quality they’re getting for the service they’re paying for?

Carpenter:  I don’t believe so. I have a background. I’ve been in this industry for 25 years. I know the ins and outs very well and I don’t think that the service that I offer is any less than that of an attorney. I am limited in scope of course. I can’t go and speak for a client before the court. But I prepare my clients well. I prepare talking points. And I think that educating the clients is something that they don’t normally get if they’re represented by an attorney. So I feel like they are more empowered to know where their case is going really because you know, we TripleLT’s provide the law to the client, they explain the forms and I think that maybe that’s not often done by attorneys.  They simply just do the work and maybe [don’t] explain it as much, but we have limited scope. We have to prepare our clients to go forward on their own in court. And so I think we do a very good job of that.

Miller:  The American Bar Association Journal had an article about Washington’s TripleLT program last year and they noted that five years into the program, there were fewer than 40 active TripleLTs in the state. How do you explain that?

Carpenter:  I explain that by saying that this is a one-of-a-kind program. As I said before, we are the guinea pigs. I think part of it is that we, in Washington, did not expand the practice areas as Oregon is doing.  They’re also including landlord tenant actions. And for Washington, it was just family law. You know, it’s just a start, the basic startup company.  You don’t expect things to happen overnight. That said, we now do have 66 actively practicing TripleLTs in the span of about six years. And when our Supreme Court sunsetted and the license last year there were about 200-300 potential TripleLTs in the pipeline who were working towards the license.

Miller:  So Kirsten Thompson, we’ve just heard a really striking bit here which we have to dig into. Last year the Washington state Supreme Court essentially shut down new licenses for this new program, this pilot program or guinea pig program as Christy Carpenter has described it. If I understand correctly, what they said is if you are an existing limited licensed legal, technically in Washington state, you can keep doing it, but we’re not going to let new people get this license. That just about the same time you and others in Oregon were working on creating a very similar program here.  How do you explain that, that the Washington High court said, ‘nah, this didn’t really work’ at the time when you were saying, ‘let’s try this’?

Thompson:  So, a couple of things. First, we were certainly aware of what Washington was doing. And for those of us who have been engaged in the implementation committee, we’re saddened that Washington at this point is sunsetting their program. That said, I’m aware that there are some good folks in Washington who would like to see the program revived and I think if Oregon does well, that might provide a path forward for Washington. So, fingers crossed for, for Washington state regarding that.

There were some sort of lessons learned for us in looking at what Washington state went through. I think the requirements were longer and more expensive for the Washington folks without necessarily a benefit for the potential clients. And the other thing is, although Washington is sunsetting its licensure program, there are multiple states throughout the United States right now that are looking at implementing licensed paralegal programs including Utah and Arizona, because the need is really there.

Miller:  How much do you know though about the demand among existing or potentially future paralegals to actually meet that need. In other words, is their data about the number of people who will choose to pursue this licensure?

Thompson:  So, if that’s a difficult question to answer, because we don’t, the licensor as such doesn’t doesn’t exist right now. But what we are doing in the implementation committee is we’re working with the community colleges that have paralegal programs. So, in Oregon, Umpqua Community College and Portland Community College are the two colleges that have paralegal programs at this point. And we have worked with them in terms of how we are creating the licensing requirements in order to get an idea of making it accessible. But we also worked with them to ask the question of their students and the professional paralegals that are out there in various associations to see if this were available, would you seek licensure? And we’ve gotten a resounding yes, that there is an interest in this from folks who are in the pathway to become paralegals and existing paralegals if given the opportunity to be licensed and work as independent professionals. There is a need there. Attorneys in general are pretty concerned about this until they kind of hear what the uh safety mechanisms are in terms of protection of the public. We’re requiring that licensed paralegals have professional malpractice insurance, that they are required to continue to take legal education, many of the same kinds of things that we do to try and make sure that consumer protection is required in licensing of attorneys. We’re requiring many of those same things for paralegals.

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