COMMENTS RECEIVED. 2/1/13 Ian M. Duncan, President, California Association of Legal Document Assistants

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1 COMMENTS RECEIVED 2/1/13 Attorney Stephen E. Ensberg 2/1/13 Ian M. Duncan, President, California Association of Legal Document Assistants 2/14/13 Kathleen Mountjoy, PL, LDA 4/2/13 Attorney Janet Gutierrez 4/2/13 Attorney Anton Lakshin 4/5/13 Melanee Cottrill, RP, President, Sacramento Valley Paralegal Association 4/8/13 Attorney Joan M. Medeiros 4/8/13 Attorney Steve Temko 4/8/13 Attorney Cricket Tryon 4/8/13 Attorney Daniel Grunbaum 4/8/13 Attorney Georgia Williams 4/9/13 Attorney Bernadette C. Hilgeman 4/9/13 Thea Glazer, member of the Family Law Section of the San Diego County Bar Association 4/10/13 Attorney Brian Kretsch 4/10/13 Attorney Nancy Stassinopoulos

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18 Greenman, Teri Subject: RE: Limited license program Original Message From: Janet Sent: Tuesday, April 02, :22 PM To: Greenman, Teri Subject: Limited license program My name is Janet Gutierrez. I am an attorney in Chula Vista California. I was admitted to the Bar in December of Although I was fortunate enough to have a partial tuition scholarship and I worked all through law school, I owe about $150, in student loans. I have a very small practice in Chula Vista, and it is a struggle every month to make ends meet. I make about $4, gross per month. I keep having to lower my fees to deal with so much competition, especially from paralegals, legal document preparers, bankruptcy petition preparers, and unlawful detainer assistants. I am currently charging $ for chapter 7 cases because bankruptcy petition preparers charge $ and some attorneys are advertising for $ for no asset cases, and clients don't understand that doesn't include fees and costs, etc. Bankruptcy petition preparers don't have to go to court, so they dont spend money on gas getting to court, or pay parking at the courthouse. Essentially I am working more every year just to make about the same amount I made when I first started. I am good at what I do. I was recently named one of San Diego's Top Young Attorneys, but I can barely afford rent. Adding a limited license program will only make things worse for attorneys by forcing us to compete with these professionals. It will also be bad for consumers. I get cases all the time from people that paid "professionals" to help them, and I have to fix what they did wrong, and explain why what they were told is incorrect. It is already a misdemeanor to engage in the unauthorized practice of law, but unless you've been through law school, losing a limited license is not the same stakes as losing your bar license. There are already legal document preparers, bankruptcy petition preparers, unlawful detainer assistants, etc. Why create another category? I read that hundreds of law school teachers were going to be laid off because the number of student applicants for law school decreased so much. The reason why is because lawyers are not making a lot of money, recent grads are having a difficult time finding a job, or keeping a job, and we can't afford to even pay our student loans. How is this going to help? Is it fair that I had to pay $150, for my education and someone who didn't invest the time and money can counsel a client about bankruptcy? I don't think so. The program is a terrible idea. The state bar is supposed look after us. It would be better to force us to take on more pro bono cases than to create a limited license program. I believe the only reason why this hasn't resulted in an outcry from attorneys is that a lot of attorneys don't know about it. I can't even afford to make it to San Francisco to attend the meeting or I would. I truly hope you'll consider and read our s in lieu of us not being able to attend. If you would like, I can provide testimony from clients that were defrauded by legal document preparers or assistants. The clients reported them to the DA, and they just filed for bankruptcy or moved offices and nothing could be done because they weren't attorneys. 1

19 Respectfully, Janet Gutierrez, Esq. Gutierrez & Associates 303 H St., Suite 457 Chula Vista, CA Sent from my NOOK 2

20 Greenman, Teri Subject: RE: re Limited License Program From: On Behalf Of Anton Lakshin Sent: Tuesday, April 02, :44 PM To: Greenman, Teri Subject: re Limited License Program Dear Teri: I am contacting you because I wanted to give some feedback regarding the idea of developing a Limited License program. I have grave concerns that creating yet another sub category of legal services will lead to even greater abuse and fraud of the legal system. I am a practicing attorney of 4 years, and I have witnessed firsthand how paralegals, would be document preparers and just plain crooks fleece the public and provide sub par legal services that end up doing more harm than good. Creating yet another category will just create another avenue for these people to exploit, while confusing the consumer. The Bar should be exploring way of lowering the cost of legal education to make it more affordable for the lawyers that are already out there and the ones coming out of law schools to be able to provide legal services without charging $300 an hour just to pay off their student loans. We have a glut of new graduates, who cant provide affordable legal services because they are under too much financial stress themselves. Why cant the bar look at way of helping these new graduates in some way. -- With Confidence, Anton Lakshin, Attorney At Law Confidentiality Notice: The information contained in this electronic and any accompanying attachment(s) is intended only for the use of the intended recipient and may be confidential and/or privileged. If any reader of this communication is not the intended recipient, employee, or agent of the intended recipient, you are hereby advised that unauthorized use, disclosure, dissemination, or copying is strictly prohibited, and may be unlawful. If you have received this communication in error, please immediately notify the sender by return e- mail, and delete the original message and all copies and backups from your system. Thank you. Good afternoon, Mr. Lakshin Thank you for your feedback. I will be forwarding your to the Working Group members and would also like to include it as part of the public record for the April 11 hearing. Could you please let me know if that is OK with you? Kind regards, Teri Greenman 1

21 Teri Greenman Executive Offices State Bar of California 180 Howard Street, 10th Floor San Francisco, CA Phn: (415) This may contain confidential and privileged materials for the sole use of the intended recipient(s). Any review, use, distribution or disclosure by others is strictly prohibited. If you are not the intended recipient (or authorized to receive for the recipient), please contact the sender by reply e- mail and delete all copies of this message. From: On Behalf Of Anton Lakshin Sent: Wednesday, April 03, :18 PM To: Greenman, Teri Subject: Re: re Limited License Program Absolutely. You may include the statement. Quite honestly, I think the BAR is moving in the wrong direction. Instead of cutting up the legal field into smaller and smaller pieces and sub categories what we should be doing as a state and as a country is lowering the cost of entry into the profession. For example why does the legal profession have to be 3 years of formal law school education? It could just as easily be 2 years of actual schooling and 1 year of intern/externship with a licensed attorney or firm. This is very similar to what is done in the UK, and it works great. They produce attorneys that are well rounded in the law, and who have experience coming out of school. In contrast what we produce are students well versed in common law that is totally not relevant to actual practice, with debt loads of $150,000 or more, who have limited if any experience in actually working in the legal field with clients. The solution should not be to create sub categories of licensed professionals, it should be to drive down costs of legal education and produce higher quality attorneys. There are thousands of unemployed attorneys right now in the state of California. They and new graduates can fill the need that is out there, but we have to make it possible for them to do that. A newly minted attorney with $150,000 in loans cant. just as a personal example, I work in the family law field, and I frequently take clients through the local bar at a rate of $75/hr. But I can only do this because I was able to pay off my loans in full and had a scholarship. My law partner recently left to join a firm that charges $350/hr, because she could not make ends meet serving lower wage clients. That should not be an outcome in this profession. And it all comes back to cost of entering the legal profession. 2

22 Advancing the Paralegal Profession Since 1977 Melanee Cottrill, RP: President Leslie Baum: Vice President Cindy Marchetti: Vice President Elizabeth Geiger, CRP: Secretary Janine Orsi: Treasurer Mary McLaughlin, RP: Director Connie Kelley, CRP: Director Christina Robinson: Director Julieanne Allen: Director Eric Garcia: Director Marcia McClain: Director April 5, 2013 State Bar of California Limited License Working Group 180 Howard Street San Francisco, CA Re: April 11, 2013 Working Group Meeting Dear working group members, We are glad you are looking into the timely issue of Limited License Legal Technicians. Enclosed are the following documents for your consideration: 1. Limited License Legal Technician position paper; and 2. Non-lawyer Practice position (National Federation of Paralegal Associations). We hope you find these documents informative and assistive, and look forward to working with you on this exciting program. Regards, Melanee Cottrill, RP President, SVPA Enclosures: Two position papers PO Box 453 Sacramento, CA (916)

23 Limited License Legal Technicians A Position Paper April 5, 2013 P.O. Box 456 Sacramento, CA (916)

24 Contents Introduction... 1 About the Association... 1 Limited License Legal Technicians... 1 Background... 2 Paralegals... 2 Legal Document Assistants... 2 Legal Technicians... 2 Canada: Licensed Paralegals... 3 Washington State: Limited License Legal Technicians... 3 Limited License Legal Technicians... 4 Need... 4 Services Provided... 4 Qualifications and Conditions for Admittance... 5 Education and Experience... 5 Mandatory Continuing Legal Education... 6 Certification Exam... 6 Conclusions... 7 Paralegals as Legal Technicians... 7 Limited License Legal Technicians Page i

25 Introduction About the Association The Sacramento Valley Paralegal Association was formed in 1978 to promote and enhance the paralegal profession through educational and professional development activities. The Association represents over 150 paralegals from throughout the Sacramento region, and is managed by an 11-member board with more than 160 years experience in the legal field. We are also affiliated with state and national paralegal associations. As a professional association, part of our mission is to represent the interests of our member paralegals in matters that impact our vocation. To that end, this position statement is being issued to convey our stance on the Limited License Legal Technician (Legal Technician) concept. Limited License Legal Technicians The Limited License Legal Technician would be a new class of legal professional, able to provide finite legal services directly to the public. Although it is not a new one, the Legal Technician concept has risen to the forefront of our collective consciousness in recent years. As courts have become increasingly backlogged and more consumers are in need of low-cost assistance, the need for a new type of legal professional has become greater than ever. The Association would support legislation that creates a new class of legal professional, the Limited License Legal Technician, provided that such legislation includes: 1. Strict standards for education, experience, and continuing legal education, beyond those currently required for paralegals and legal document assistants and which allow certain qualified paralegals to become Legal Technicians; 2. A certification mechanism, including some combination of testing, education, and experience, which demonstrates the Legal Technician s expertise in particular aspects of the law and allows them to practice only in those areas; 3. Clearly defined areas of the law in which Legal Technicians can practice, including penalties, remedies for violations, and an enforcement mechanism; and 4. Ethical standards, including continuing education requirements, penalties, remedies for violations, and an enforcement mechanism; and 5. Bonding or insurance requirements. Limited License Legal Technicians Page 1

26 Background The national legal community has long recognized the need for a new class of legal professional. With the adoption of regulations for two distinct professions, the paralegal and the legal document assistant, California has been a leader in modernizing the provision of legal services. Although we have these classes of legal professionals, neither of them is analogous to the potential Legal Technician. Paralegals California paralegals are regulated by Business and Professions Code section 6450 et seq., which was adopted in The code defines a paralegal as a person who is qualified by education, training, or work experience, who either contracts with or is employed by an attorney, law firm, corporation, government entity or other entity, and who performs substantial legal work under the direction and supervision of an active member of the State Bar of California or an attorney practicing law in the federal courts. The code also delineates duties typically performed by paralegals, including: case planning, development, and management; legal research; compiling and utilizing technical information to make an independent decision; and representing clients before a state or federal administrative agency. Paralegals are prohibited from: providing legal advice; representing clients in court; and selecting, explaining, drafting or recommending the use of any legal document to any person other than an attorney. Legal Document Assistants California has a second class of non-lawyer legal professionals, the legal document / unlawful detainer assistant. These professionals are regulated by Business and Professions Code section 6400 et seq., adopted in A legal document assistant is a person who provides any self-help service to a member of the public who is representing himself in a legal matter. Self-help services include: completing legal documents in a ministerial manner, selected by a person who is representing himself in a legal matter, by typing or otherwise completing the documents at the person s specific direction; providing general published factual information that has been written or approved by an attorney; and making published legal documents available to a person who is representing himself; and filing and serving legal forms and documents at the specific direction of a person who is representing himself. Legal document assistants are prohibited from providing any kind of advice, explanation, opinion, or recommendation to a consumer about possible legal rights, remedies, defenses, options, selection of forms, or strategies. Legal Technicians Currently, only attorneys and legal documents assistants are able to serve the general public; paralegals may only work for attorneys. Legal document assistants are very limited in the scope of services they can provide, and are barred from providing the type Limited License Legal Technicians Page 2

27 of assistance many individuals require. Individuals needing any kind of legal assistance, no matter how routine, minute, or non-controversial, must consult an attorney. While we recognize and respect the value of an attorney s education and skills, the Association believes there are certain, limited areas of the law in which nonlawyers can effectively provide legal assistance to the public. There are two existing systems to which we can look for guidance. Canada: Licensed Paralegals Canadian paralegals have been offering services directly to the public since They are able to work either with or without the supervision of an attorney; the duties they may perform differ depending on whether they are supervised. Licensed paralegals are similar to Legal Technicians; only licensed Canadian paralegals can independently represent clients. Services licensed paralegals may provide include: selection, drafting, completion, or revision of a document for use in a proceeding; negotiating a party s legal interests, rights, or responsibility with respect to a proceeding; and representing a party before certain courts. Washington State: Limited License Legal Technicians Washington State was the first to implement a formal policy for Legal Technicians, with its Supreme Court s adoption of Order No A This order created standards and an oversight structure for limited license Legal Technicians. The Washington order establishes certification requirements, proscribes allowable activities under certain circumstances, specifically prohibits certain lawyerly activities, and requires continuing certification and financial responsibility. The Washington Supreme Court also established a Limited License Legal Technician Board to provide oversight to the new profession. Limited License Legal Technicians Page 3

28 Limited License Legal Technicians Need There is no question that California s burdened legal system needs relief. A significant portion of legal consumers are low-and-middle income individuals who simply cannot afford to hire an attorney. Instead, these individuals seek assistance from legal aid (which cannot even begin to serve the massive number of potential clients it receives), paralegals (who have to turn them away), and legal document assistants (who can only fill out and file paperwork with direction from the very individuals who need assistance). When an individual has exhausted these avenues and found no relief, they have no choice but to file pro se. The consequences of so many pro se filing include improper filings, court delays, and an overtaxed court system. In a 2010 survey, nearly 1,200 state trial judges from around the country indicated that the weak economy has increased the number of litigants representing themselves; the judges say litigants are doing a poor job and burdening courts already hurt by cutbacks. 1 There is an additional, more sinister result of this shortage of assistance the unlicensed, unqualified legal consultant or paralegal (not to be confused with actual paralegals) who provide legal assistance to consumers who have nowhere else to turn. Despite numerous disclaimers on our website and telephone system, the Association still receives several calls a month from consumers seeking legal assistance. While we turn them towards attorneys, there is no doubt in our minds that they are pursuing assistance from less professional avenues. These unscrupulous individuals plague and do great harm to our legal justice system, yet they persist in their endeavors. The Legal Technician profession could help combat this problem by providing proper assistance to consumers who would otherwise seek out services from fraudulent legal assistants. Services Provided Services to be provided by Legal Technicians should be clearly defined and limited. Moreover, services should be confined to certain practice areas. Allowable assistance to be provided directly to clients should include: Factual and legal research and presentation of results to clients Informing clients of processes, procedures, and deadlines for filings and service of process Providing clients with a docket or deadline list for the case Reviewing and explaining documents from opposing parties Drafting correspondence Selecting, preparing, and filing Judicial Council and local forms 1 Terry Carter, Judges say Litigants are Increasingly going Pre Se at Their Own Peril, Trials & Litigation, Limited License Legal Technicians Page 4

29 Advising clients as to necessary documents and evidence, including exhibits and declarations, and explaining how those documents may affect the case Assisting clients in obtaining documents and records (including medical records, financial records, and recorded documents) Representing clients before a state or administrative agency and certain courts Obtaining and providing copies of court files from completed cases Allowable practice areas and courts should include: Name/gender changes Small claims Uncontested divorce Unlawful detainer Restraining orders Traffic infractions and misdemeanors Criminal record expungement Modification of exiting support orders Resolving fees and fines Qualifications and Conditions for Admittance The Association firmly believes that a combination of education (including MCLE), experience, and certification is necessary for Legal Technicians. Experience is a key component, as no amount of education is a true substitute for experience. These qualifications will create a true professional field, and ensure that the public is wellserved by Legal Technicians. Education and Experience We believe, at a minimum, the following qualifications for education and experience should apply. As used below, experience means performing duties similar to those of a Legal Technician under the supervision of an attorney, which experience would be certified by an attorney licensed to practice in the State of California: Completion of an associate s degree or equivalent program in paralegal / legal assisting studies approved by the American Bar Association and a minimum five years experience in the applicable practice area; or Completion of a bachelor s degree in paralegal / legal studies approved by the American Bar Association and a minimum four years experience in the applicable practice area; or Completion of a bachelor s degree in any field, and a minimum six years experience in the applicable practice area; or Completion of a bachelor s degree in any field, a minimum three years experience in the applicable practice area, and passage of the Paralegal Advanced Competency or Certified Legal Assistant exam. Limited License Legal Technicians Page 5

30 Mandatory Continuing Legal Education We would support the following continuing legal education requirements, to be completed every other year commencing upon passage of a Legal Technician examination (e.g. if a Legal Technician passed the exam on May 1, 2014, they would be required to complete their education by March 31, 2016): Four hours of mandatory continuing legal education in ethics Four hours of mandatory continuing legal education in each practice area (if a Legal Technician is licensed to practice name changes and small claims, they would need a total of eight hours four in name changes and four in small claims) Certification Exam In addition to the educational, experience, and continuing legal education requirements, Legal Technicians should be required to pass a certification test. Certification examinations should be two-part: (1) ethics and basic procedures; and (2) specific procedures and information relative to each practice area. Re-certification should be required at two-year intervals. Limited License Legal Technicians Page 6

31 Conclusions The Association supports a program which would create a new class of legal professional able to directly serve the public in a specific manner. We believe that this program would enhance, not harm, the legal community and consumers. Paralegals as Legal Technicians Both of the existing Legal Technician-like professions are comprised of paralegals. Paralegals are uniquely qualified to serve as Legal Technicians. Paralegals are educated in the legal system, research methodology, calendaring procedures, identifying and completing forms, and document drafting. In addition, we take ongoing mandatory continuing education courses which hone our skills and keep our topical and ethical knowledge current. Our education focuses on many of the hard and soft skills necessary for Legal Technicians to properly represent clients. In addition to technical expertise, paralegals are well-versed in the more practical aspects of legal services. The decades of experience many of us have has given us an unparalleled breadth and depth of knowledge. Seasoned attorneys rely on their paralegals ability to locate forms, conduct legal research, and obtain records; while new attorneys benefit from paralegals who know the proper terminology for pleadings and courthouse locations. These, and other skills paralegals have are easily adapted to working directly with clients, and could be put to great use as a Limited License Legal Technician. Limited License Legal Technicians Page 7

32 The National Federation of Paralegal Associations Position Statement on Non-Lawyer Practice The National Federation of Paralegal Associations (NFPA) believes it is in the best interest of the NFPA to be prepared to respond to potential legislation or court rules providing for non-lawyer practice. NFPA believes that paralegals can and should play an integral role in the delivery of costeffective legal and law-related services. Therefore, the NFPA adopts the following position statement regarding Non-Lawyer Practice, to be implemented consistent with the NFPA Resolution 01S-04 which imposes certain limits on advocacy efforts in those states with the NFPA voting member associations: The NFPA supports legislation and adoption of court rules permitting non-lawyers to deliver limited legal services provided that such legislation or court rules include: 1. Exceptions from the unauthorized practice of law. 2. That non-lawyer practice rules contain minimum criteria as set forth herein. 3. Advanced competency testing as to specialty practice area and limitation of practice as prescribed by laws, regulations, or court rules. 4. Notwithstanding the foregoing, paralegals who choose to work in a traditional setting under the supervision of an attorney shall be specifically exempt from any such non-lawyer practice laws, regulations, or court rules. BACKGROUND. Over twenty years ago, the NFPA stated that In examining contemporary legal institutions and systems, the members of the NFPA recognize that a redefinition of the traditional delivery of legal services is essential in order to meet the needs of the general public. We are committed to increasing the availability of affordable, quality legal services, a goal which is served by the constant reevaluation and expansion of the work that paralegals are authorized to perform. Delivery of quality legal services to those portions of our population currently without National Federation of Paralegal Associations 1 PO Box 2016 Edmonds, Washington

33 access to them requires innovation and sensitivity to specific needs of people 1 The growing gap between those few citizens who can afford quality legal services and those who must proceed without any legal representation whatsoever has gained increased prominence in recent years. Many observers now recognize the desirability and fairness of increasing the availability of basic legal services to a much broader portion of our community. Certain states have adopted or are considering legislation or judicial rules allowing non-lawyers to provide limited legal and lawrelated services directly to the public (such non-lawyers are commonly referred to as Legal Document Preparers ( LDP )). 2 RECOMMENDATIONS In order to facilitate improved access to the legal system, qualified non-lawyers must be permitted to provide limited legal and law-related services directly to the public, including guidance and/or direction within a certain scope, according to their expertise, experience, and education. To be effective, any new non-lawyer regulation plan must include authority for qualified non-lawyers to provide a limited scope of legal advice under conditions which balance public protection with consumers individual needs. However, the NFPA believes that the following four areas must to be addressed in any non-lawyer practice regulation plan: 1) minimum licensing criteria; 2) practice state; 3) exemptions for traditional paralegals working under the supervision of an attorney; and. 4) specific exceptions from unauthorized practice of law (UPL) statutes (if any). 1. Minimum Registration Criteria Currently, the educational standards in the State of Arizona for a person to become an LDP 3 are far below what NFPA and the American Association for Paralegal Education (AAfPE) deem acceptable for entry into the paralegal profession. The Department of Labor, Bureau of Labor Statistics, recognizes that it is no longer common for a person to become a paralegal 1 Legal Assistant Today/Winter Arizona Code of Judicial Administration 7-208; California Business and Professions Code ; 2005 IL S.B. 335, Illinois 94 th General Assembly 3 Arizona minimum criteria. 3. Initial Certification a. Eligibility for Individual Certification. The board shall grant an initial certificate to an individual applicant who meets the following qualifications: (1) A citizen or legal resident of this country; (2) At least 18 years of age; (3) Of good moral character; and (4) Comply with the laws, court rules, and orders adopted by the supreme court governing legal document preparers in this state. (5) The applicant shall also possess one of the following combinations of education or experience: (a) a high school diploma or a general equivalency diploma evidencing the passing of the general education development test and a minimum of two years of law related experience in one or a combination of the following situations: (i) under the supervision of a licensed attorney; (ii) providing services in preparation of legal documents prior to July 1, 2003; (iii) under the supervision of a certified legal document preparer after July 1, 2003; or (iv) as a court employee; (b) a four-year bachelor of arts or bachelor of science degree from an accredited college or university and a minimum of one year of law-related experience in one or a combination of the following situations: (i) under the supervision of a licensed attorney; (ii) providing services in preparation of legal documents prior to July 1, 2003; (iii) under the supervision of a certified legal document preparer after July 1, 2003; or (iv) as a court employee; (c) a certificate of completion from a paralegal or legal assistant program that is institutionally accredited but not approved by the American Bar Association, that requires successful completion of a minimum of 24 semester units, or the equivalent, in legal specialization courses; (d) a certificate of completion from an accredited educational program designed specifically to qualify a person for certification as a legal document preparer under this code section; 6 (e) a certificate of completion from a paralegal or legal assistant program approved by the American Bar Association; (f) a degree from a law school accredited by the American Bar Association; or (g) a degree from a law school that is institutionally accredited but not approved by the American Bar Association. National Federation of Paralegal Associations 2 PO Box 2016 Edmonds, Washington