Are Limited License Legal Technicians Coming to Oregon?

With the success of the Washington Limited License Legal Technician (LLLT) experiment, will Oregon finally dip its toe into paraprofessional licensing? The answer appears to be yes.

In June 2017 the OSB Futures Task Force submitted its report to the OSB Board of Governors. Among the recommendations: implementation of a paraprofessional licensing (LLLT) program in Oregon.

The task force recommended the BOG appoint a committee to develop a detailed implementation plan. The plan would include draft rules of admission, practice, and professional conduct for approval by the Supreme Court and adoption by the BOG. ORS Chapter 9 would be amended to provide for licensure of paraprofessionals who would be authorized to provide limited legal services, without attorney supervision, to self-represented litigants in family law and landlord-tenant proceedings. Consumer protection measures would also be enacted.

Why Do We Need LLLTs (Paraprofessionals)?

Short answer: access to justice. As detailed in the task force report, the number of self-represented litigants continues to grow. Legal Aid, pro bono services, and limited scope representation only meet a small part of the need.

Minimum Qualifications and Licensing

The task force report lays out a series of minimum qualifications for paraprofessionals or LLLTs. Licensing would include “liability insurance in an amount to be determined,” preferably through the Professional Liability Fund, and continuing legal education. To protect the public from confusion, LLLTs would be required to use written agreements with mandatory disclosures.

Scope of Services

“Licensees should be able to select, prepare, file, and serve forms
and other documents in an approved proceeding; provide information and advice relating to the proceeding; communicate and negotiate with another party; and provide emotional and administrative support to the client in court. Licensees should be prohibited from representing clients in depositions, in court, and in appeals.”

Proposed Expansion of Washington’s LLLT Program

BOG approval of a LLLT/paraprofessional program seems greater than 50-50. As we await the outcome in Oregon, Washington is seeking to update its program. Under draft amendments, the LLLT role would expand to permit:

  • Accompanying and assisting clients in specific court proceedings, mediation, settlement conferences, and arbitration proceedings.
  • Attending, but not participating in, depositions.
  • Communicating with opposing counsel and parties on procedural matters and negotiations.
  • Gathering information on the value and potential encumbrances on a home.
  • Presenting agreed, uncontested, and default court orders.
  • Assisting clients seeking nonparental custody or major modifications up to the point of the adequate cause hearing.
  • Dividing single-family residential dwellings which have no more than twice the homestead exemption in equity.

Washington bar members have until July 17 to submit comments.

Parting Thoughts

At its June meeting, the BOG accepted the OSB Futures Task Force report. As noted on the OSB website, “the board will be looking at those recommendations throughout the year and likely into 2018.” Comments are encouraged and may be submitted to president@osbar.org.

All Rights Reserved Beverly Michaelis 2017

Family Leave for Solos and Small Firm Lawyers

How do solos and small firm lawyers plan for extended leave when a new member is about to join the family?  It can be hard enough to take a vacation!

Fortunately, there are some answers and good resources to draw upon.  (Jump to the end of this post.)  For now, let’s cover the basics.

Colleagues, Conflicts, and Staffing

The best coverage plan entails having a number of colleagues lined up who are willing to cover your cases.  Remember what your parents said?  Safety in numbers!  If one person can’t cover in an emergency, someone else can.  A team approach works best.

By necessity, any lawyers who might work on client matters must be screened for conflicts.  Clients need to be notified anyway about your upcoming leave.  Use this opportunity to get permission to share information for conflict and representation purposes.  (More on this below.)

If you have staff, great!  They are a huge help any time you are away from the office, more so during extended absences.  They will be a lifeline for everyday communication, including screening mail, email, and calls.  If you don’t have staff, consider getting a temp.  Having someone who can cover day-to-day operations brings peace of mind and ensures that nothing falls through the cracks.

How Do I Tell My Clients?

One option is to send a letter or email.  No surprise there.  But is it the best approach?

Most lawyers anticipating family leave have a number of colleagues in mind to assist in covering their cases.  This alone can make writing a letter or email complicated and confusing:  “I’m going to be out of the office, but you can choose from Lawyer A, Lawyer B, or Lawyer C.”  Huh?

Consider picking up the phone instead.  Call clients and tell them you are taking a medical leave and why.  (Of course, you can omit the “why” part – it is personal and technically no one’s business, but most lawyers taking family leave don’t mind sharing this news.)

Have a conversation with the client about what is happening.  Explain your plan, offer a name of a monitoring lawyer (or team of monitoring lawyers), then get consent to screen for potential conflicts and review the client’s case with the monitoring lawyer(s).  If everything is a “go,” make sure the client understands and agrees to temporary representation by the monitoring lawyer(s).  Don’t forget to discuss how the billing and payment piece will work.

If the client does not agree with your proposed arrangement, you may have to disengage and withdraw from the case.  The client will need to find a new lawyer of their choosing.

Confirming Arrangements in Writing

Assuming you call clients to review your plan, sending a confirming email becomes relatively easy:

“As we discussed, I will be out of the office on a medical leave of absence for ___________ (months/weeks).  During my leave, I propose that _______________ monitor your file.  You agree that I may share information with _____________ so (he/she) may screen for potential conflicts of interest. If no conflicts exist, you agree that I may disclose details of your case to ______________________ for purposes of monitoring your file and attending to any legal work that needs to be accomplished while I am out of the office.  If we discover a conflict that prohibits ___________________ from assisting you, I will contact you immediately.

You will receive a separate written confirmation from ___________________ (the monitoring lawyer) confirming the arrangements we have made.

(Describe next how the client will be billed.)

My assistant, _______________, will be available by phone and email should you have any questions while I am out of the office.  (Provide your assistant’s contact information.)

Rest assured I will stay informed regarding the status of your case.  I anticipate returning to the office on ___________.  If for any reason my return is delayed, I will inform you immediately.

(Optional:  Please reply to this email confirming your understanding and agreement to this arrangement.)

Fee Agreements and Paying the Monitoring Lawyer

If your existing fee agreement has a provision informing the client that you have made arrangements for someone to cover your practice in the event of illness or disability you have laid the necessary foundation for using a monitoring lawyer.  The PLF offers a number of fee agreements and engagement letters that incorporate “assisting attorney” language.  For samples, visit the PLF website.  Select Practice Management > Forms, then Engagement Letters.

If your existing fee agreement has a contract lawyering provision – meaning the client has consented to use of a contract lawyer at a specified rate – it is easy to have the monitoring lawyer step into the contract role.  You may bill the client for contract lawyering services according to your existing fee agreement.

Alternatively, clients can sign separate fee agreements with the monitoring lawyer.

More Answers and Good Resources

There are many excellent articles and resources for lawyers planning family leave:

[All Rights Reserved – 2015 – Beverly Michaelis]

Learning the Ropes 2013

Are you new to private practice? Then I have just the ticket for you!

Attend our three day conference – Learning the Ropes: A Practical Skills & Ethics Workshop – for a mere $65.  Attendance at the full program satisfies the MCLE requirements for new admittees’ first reporting period.

Choose from these concurrent sessions:

  • Domestic Relations or Criminal Law
  • Tort Litigation or Estate Planning
  • Civil Motion Practice or Bankruptcy
  • Creating a Firm or Joining a Firm

Can’t decide?  All tracks are recorded for later viewing at no charge.

Plenary sessions include:

  • How to Develop a Successful Practice and Avoid Legal Malpractice
  • Client Communication and Other Practice Management Survival Tips
  • Alternative Dispute Resolution
  • The Ethics of Practice Management
  • Recognizing Child Abuse and Fulfilling Your Duty to Report
  • Negotiation Tips, Tricks, Traps, and Tools
  • Courtroom Do’s and Don’ts
  • Employment Law and Conscientious Communication
  • Bridging the Cultural Gap

Day 1 includes a “Meet the Judges” luncheon.  Day 2 features a networking luncheon with bar leaders and respected practitioners in the fields of Appeals, Criminal Law, Employment Law, Intellectual Property, Business Litigation, Debtor/Creditor Law, Estate Planning, Litigation, Business Transactions, Elder Law, Family Law, and Real Estate.

All meals, including the luncheons, are included in your $65 workshop fee.  The program is at the Oregon Convention Center November 6-8, 2013.  Register here or visit the PLF Web site > Upcoming Seminars (under the heading Loss Prevention – CLE).  Sign up early.  Space is limited!

Copyright 2013 Beverly Michaelis

Is the Filing Fee Nightmare Over?

The OSB Court Fees Task Force has published an Initial Report with short term recommendations regarding 2009 HB 2287.  Having fielded many a call on this subject, I agree with the conclusion of the task force:  reform is badly needed.  The current fee structure is complexconfusing, and in some cases, unfair.  Here is an excerpt:

General Findings

  • The courts are a critically important, constitutionally mandated core function of government.
  • Courts must be open and accessible to all Oregonians.
  • The OSB’s highest legislative priority is open and accessible courts.
  • Keeping courts open and accessible requires stable and adequate funding.

Specific Findings

  • The current statutory fee structure is confusing and complex, even to experienced practitioners.
  • Any changes to the fee structure must not impede reasonable access to justice, including access by indigent persons, unrepresented litigants, and middle-income Oregonians.
  • The legislature should simplify the current fee structure to make it more predictable and more uniform.
  • Any changes to the fee system must maintain adequate funding for services critical to the justice system, such as Legal Aid services.
  • Some of the fees enacted in 2009 HB 2287 have created unintended and high transaction costs and/or unduly impaired access to justice, and should be modified or allowed to sunset.
  • Court-imposed financial obligations upon conviction of a crime or offense are an important part of the accountability process of the justice system.
  • Much of the liquidated and delinquent court-imposed debt cannot be collected and/or is owed to victims of crime, and does not represent a reasonable opportunity to increase revenue to the state or local governments.

Recommendations

  • Consolidate many existing fees that occur in the lifetime of a case (e.g., ex parte order and judgment fee, and fees for routine motions) into the filing and first response fees.
  • Enact consistent fee amounts for motions and other individual fees, so they are consistent within and among different types of cases.
  • Modify the following specific fees:
    • Sunset the $10 ex parte order and judgment fee. This fee imposes excessive administration costs on litigants and the courts.
    • Establish a statutory cap on fees in cases involving multiple parties and/or large prayer amounts. The current structure has created excessive fees in some cases.
    • Sunset the expunction fee in cases where an arrest occurred but no conviction resulted. Imposing a substantial fee in these cases does not reflect court workload and imposes an unfair burden on persons not convicted of a crime.
    • Restore a statutory limit on the amount retained from release security deposits, but at a higher limit than the previous $200 limit.
    • Modify the mediation/conciliation fee and law library fee to a fixed amount set by statute, rather than a percentage of the filing fee set by individual counties.
  • The legislature should encourage efficient, effective, and fair collection of court-imposed financial obligations, maintain long-term judgments for accountability, and develop a mechanism to classify and categorize debt that can reasonably be expected to be collected.

(Emphasis supplied.)

The report continues with findings and recommendations specific to probate, family law, civil practice, and criminal practice.

The reforms proposed by the OSB Court Fees Task Force will be welcomed by everyone – court staff, lawyers, and parties – all of whom have struggled with the fee structure created by HB 2287.

Copyright 2010 Beverly Michaelis

Proposed Legislation for 2011 Session

The Oregon State Bar wants your input on draft proposals for the 2011 Legislative Session.   A forum will be held on Tuesday, April 13 at the Oregon State Bar Center.  The purpose of the forum is to increase awareness and allow members an opportunity to comment.  Members may also contact the Public Affairs Committee or bar staff.

Some of the proposals caught my eye:

IOLTA Sanction Bill – This bill would change the sanction for failure to file a notice of annual IOLTA compliance from a disciplinary violation to an administrative one. 

LPRC Restructuring – Eliminates LPRCs (local professional responsibility committees); permits bar to appoint individual lawyers to serve as investigators.

Termination of Attorney-Client Relationships – Streamlines withdrawal procedures for attorneys in family law matters.  Permits withdrawal by filing a notice upon conclusion of a case.

There are other legislative proposals in the areas of: 

  • Business Law
  • Construction Law
  • Consumer Law
  • Elder Law
  • Estate Planning and Administration
  • Family Law
  • Real Estate and Land Use
  • Taxation

Review the proposals here.

Copyright 2010 Beverly Michaelis