Maui's independent paralegals under attack

By Kim Compoc
Haleakala Times
July 17 - August 6, 2002

Lawyers' jokes are so common it's become clich. Everyone knows that lawyers are paid handsomely for their work, and working people go bankrupt all the time trying to pay their lawyer's fees, especially in divorce cases. So the joke's on the poor, what's new?

What isn't common knowledge is how a movement is brewing nationally to make the judicial system more accessible to poor and working people through the important work of paralegals and other nonlawyers. Sometimes that happens under the supervision of an attorney, and sometimes, to the chagrin of lawyers of course, it doesn't.

The State of Washington has done some innovative work in this area. The Washington Supreme Court created the "Access to Justice" network in 1994 whose charge is "overseeing the civil equal justice delivery system, and taking any necessary steps to deliver on the promise of equal justice under law to low and moderate income residents." They have held symposiums on defining "unauthorized practice of law," and expanding and defining clearly the role of paralegals and nonlawyers. Chief Justice Guy explains, "In any discussion of the scope of the practice of law, we must consider when non-attorneys should be licensed, regulated and permitted to engage in what may technically be the practice of law."

The work in Washington is not without controversy. The American Bar Association (ABA) has formed a Standing Committee on Legal Assistants which follows closely the changing legislation on this issue. The ABA prefers a conservative definition, still protective of their supervisory role: "A legal assistant or paralegal is a person, qualified by education, training or work experience who is employed or retained by a lawyer, law office, corporation, governmental agency or other entity and who performs specifically delegated substantive legal work for which a lawyer is responsible."

The National Federation of Paralegal Associations (NFPA) was founded in 1974 and has 17,500 members. They advocate for expanding and defining the role of paralegals. They argue there are economic benefits in utilizing paralegal services, both for lawyers and clients. They have extensive suggestions on how regulation is necessary in guaranteeing ethical practice, educational requirements and appropriate compensation. Regulation is helpful, they argue, to help define the paralegals' role in the legal community and with the public at large. They are concerned that without regulation, "anyone can claim to be a paralegal, and people can attend 'fly-by-night' programs and compete for the same jobs."

The state of Hawai'i has no such regulation. And last month, Kit Atchley, an independent paralegal, had to learn what the State of Hawai'i has to say about her profession the hard way when she was found guilty of "unauthorized practice of law."

This is what some refer to as a "victimless crime." None of Atchley's clients initiated these charges. But the State Attorney General's office did. The jury found her guilty and she now faces a $1,000 fine or a year in jail.

Atchley has 30 years experience of practicing as a legal secretary and paralegal. She opened her business, Valley Isle Paralegal Service, ten years ago. She never represents herself as an attorney, often referring clients to a lawyer when their needs are beyond the scope of her work. But Atchley runs her business without a supervising attorney, and that apparently is the rub.

Atchley has also helped in the typing and preparation of documents for Maui's Parents for Justice Group, which is, no doubt, a thorn in the side of Hawai'i's Judiciary right now. (See Haleakala Times cover story, "Maui Family Court: Are its Proceedings Fair Enough?" June 5 issue, or at www.mauisfreepress.com).

According to Atchley, "The whole basis of my business is helping people. We need to build this profession to build accessibility to our courts. I'm not getting rich off of this, I make $250-$300 for a divorce, that's it. If you go to a lawyer, their hourly rate is $190-$220. A divorce will cost you $1,500. Then if you need to go back to the courts because you need to make changes in your child support, custody arrangements or visitation schedules, you need a lawyer for that again. If everyone is in agreement, why do people need a lawyer? Who can afford it?"

Ms. Atchley specializes in divorce proceedings when clients choose to represent themselves (called "pro se") which is technically a constitutional right. However the courts tend to discourage people from doing so. The proof, according to Atchley is in the inch-thick packet they provide to pro-se individuals with only a half-page list of instructions to help them.

"We get a book of instructions to complete a tax form, why not this? A lot of times they come in with hand-written documents and I type those up, explain to them what is required, how many copies to make and where to send them. Ordinary people don't know what a 'Letter of Refusal' is, or a 'Certificate of Service', or 'The Child Support Guidelines Worksheet.' I have that procedural knowledge. Should that be illegal? I don't think so. But there's no regulation telling us otherwise. If all paralegals are out, then people have to use lawyers, and that's why I'm saying the system is set up for failure."

Brad Salter is a retired attorney who has worked with Kit Atchley for over 15 years. Mr. Salter spoke to this reporter about the value of Atchley's work for the people of Maui.

"Here on Maui people are making $8 an hour. If they need a lawyer they'll get charged $175 an hour, and that's the low end. Most family law lawyers are charging $250 per hour. So somebody's got to work half a week to spend one hour with a lawyer." Salter admits sadly that he could barely afford to hire a lawyer himself when he needed one.

Salter continues, "We have to find a way to help people to help themselves. The courts were set up to be for the people, by the people, and you shouldn't have to hire a lawyer every time you want access to the courts.

But we have this one Attorney General who's like, 'Let's go after paralegals' and they're going after Kit aggressively because she's the most visible. I really support what she's doing. If they're really interested in what's good for the people they'd support what she's doing and figure out how to establish guidelines. Instead they'd rather throw a wrench in the works. I don't know what their motivation is."

Salter and Atchley have dreamed of having a "People's Law Center" but Salter hesitates to do so considering this new ruling. "We want to set it up as a viable alternative. However, it's got to be acceptable so that we're not in litigation with the attorney general all the time."

In an article titled, "Unbundling to Meet the Demands of Self-Help Litigants," William Hornsby of the American Bar Association, describes this new trend of "unbundling" where lawyers provide a limited amount of advice to allow clients to represent themselves. Perhaps stemming from the DIY (Do-It-Yourself) movements of the '80s, legal self-representation is a trend that seems to have positive effects. A study in the Phoenix area concluded that "most of the divorcing parties who proceeded without a lawyer said they would do it the same way if they had to do it all over again."

Hornsby writes, "Research gathered by the American Judicature Society demonstrates that pro se litigation is growing in other jurisdictions as well, particularly in domestic relations, but also in other personal legal matters."

Atchley explains that working as an independent paralegal doing that work allows her to provide an affordable, valuable service to the community, and with 30 years of experience, she doesn't need a supervising attorney. "All we're looking for is acceptance in the community. But apparently we can only be recognized if we're connected to an attorney, like 'You have to be attached to my right arm.' It's another form of slavery."

While calling it slavery might be overstating the case, take closer look into the industry and a very familiar gender dynamic emerges. On the top, there is a tier of elite professionals who are a majority of men over a tier of worker-bee "paraprofessionals," who are mostly women. One survey by the NFPA estimates 93 percent of paralegals are women. While a gender balance is certainly gaining among lawyers (over half of law school students are women), that gender balance among paralegals is slower in coming.

In the meantime, waiting for regulation, certification and cooperation, paralegals tend to be underpaid. Kit Atchley states, "I said I'd be willing to work for a lawyer if I was paid 25 percent of what they are billing, but they won't pay me that. And I'm not willing to work for $12.50 an hour."

State Senator J. Kalani English was trained as a paralegal, but like everyone else, he remains "uncertified" or "unlicensed" by the State of Hawai'i. He says his training was instrumental and "helped me in everything that I do. It helped me to understand how the industry works, the jargon in the industry, how to research legal precedents and other aspects of the law."

About the debate on the professionalization of paralegals, Senator English says, "The debate is healthy because it forces a closed industry to start opening up and see they're not serving the poor. So many are left without access to services, particularly those in family court, or to take it a step further, in drug court - The courts have to change a bit, and maybe set up a process to certify the paralegals and make them officers of the courts as well. That's pretty far-reaching because the judicial branch is slowest to change."

Atchley continues: "Without certification in this state, anyone can come in and say, 'I can type up those forms,' and screw your life up. We're pushing for a certification program for the State of Hawai'i. There's regulation for hearing aid people [by the Department of Commerce and Consumer Affairs], but not paralegals. Why not? So lawyers can continue their reign."

For more information contact: National Federation of Paralegal Associations; American Bar Association; Hawai'i Bar Association; Washington Bar Association.

Return to Sen. English Home Page - KalaniEnglish.com

 

 

 

 

 

 

Home Bills and Resolutions About Senator English Committees Community Profiles Newsletter Archive News Archive Capitol Web Site Media Photos

Connect with Senator English

OUR DISTRICT