By Theresa L. Wright
Picture the following: An immigrant seeks help in obtaining legal status in this country. Despite the fact that he has had a petition pending for years filed by his father, the advocate he sees suggests that if the immigrant marries his long-time girlfriend and mother of his children, he will obtain status sooner. The immigrant relies on the information and marries his girlfriend. Later, he finds himself no longer eligible to become a permanent resident, and will undoubtedly be required to return to his home country, never to return, because of the marriage.
A client is unhappy with the result of a domestic relations matter in the trial court, so decides to appeal. He hires a new advocate who files the notice of appeal and brief. Due to irregularities in the brief, the Court of Appeals dismisses the appeal on its own motion.
A father hires an advocate to represent him in a termination of parental rights case. She tells the client not to worry about attending the initial show cause hearing as she will be there representing him. At the time of the show cause hearing, neither the father nor his advocate appears, so the father’s parental rights are terminated by default.
An advocate intentionally picks out female single parents and convinces them to allow him to do their legal work. When he has gotten started and the client doesn’t continue to pay him, he threatens to turn her in to the state’s child protective services, or insists she begin a sexual relationship with him.
Bad lawyering? Without a doubt. Bad lawyers? Believe it or not, no. That’s because none of the 'advocates' discussed is an attorney. Each of the cases described above is a case reviewed by the bar’s Unlawful Practice of Law (UPL) Committee within the last year. All involved non-lawyers (although in two of the cases, the 'advocate' identified him or herself as an attorney) who ostensibly assisted clients with their legal matters, at cheaper cost than attorneys. The committee investigates many cases where the type of harm to the public is minimal or nil. As the above examples illustrate, however, there are people in Oregon who are intentionally or unintentionally harming people in significant ways.
The Oregon State Bar is charged with investigating and enforcing the civil unlawful practice of law statutes. The bar has assigned the responsibility for investigating UPL complaints to a volunteer committee made up of 15 lawyers and three lay people. Once the investigation is done, the committee approves appropriate action: dismissal of the complaint; sending a letter putting the accused on notice that his or her behavior may constitute the unlawful practice of law or that the committee found the accused to have committed UPL. For more egregious behavior, the committee will ask the investigator to negotiate a cease and desist agreement with the accused, which is essentially an injunction by contract. In the most serious of cases (as those cited above), the committee will ask the Board of Governors to approve prosecution, which involves filing a formal complaint with the court and pursuing a civil action for a permanent injunction. In some cases, the bar works hand-in-hand with other local, state and federal agencies, including district attorneys, the secretary of state and the Federal Trade Commission.
The bar needs your help. With the exception of significant support provided by bar staff, UPL cases are assigned, investigated, analyzed and prosecuted by volunteers. Every time the committee and subsequently the Board of Governors, approves prosecution, bar staff scrambles to find volunteer counsel to prosecute these cases. Glamorous work? Not especially. Rewarding? Absolutely! Injured 'clients' of the accused are appreciative, and the volunteers can keep the public from being further damaged. This can really be considered to be a form of consumer protection, only prosecuted 'privately' (as opposed to by the Department of Justice). Please consider volunteering for this important work.
I know that there are skeptics who believe the bar has no business in policing UPL, because it makes us look like we’re simply protecting our turf. As the chair of the UPL Committee for the last two years, I can assure those who are concerned that the committee is well aware of the cost of legal services and the need for alternative methods for Oregonians to obtain legal assistance. Nevertheless, we do take seriously our role of protecting the public from advocates who are harming people.
Again, please think about assisting the bar in helping to protect the public. You’ll only get recruited to do a UPL case once (unless you volunteer again). If you have questions, or want further details, or especially if you want to volunteer, don’t hesitate to contact me, or Amber Bevacqua-Lynott at the OSB Center. You won’t be sorry!
The author is chair of the OSB’s Unlawful Practice of Law Committee.
ABOUT THE AUTHOR
The author is chair of the OSB’s Unlawful Practice of Law Committee.
© 2003 Theresa L. Wright