While criminal defendants have a constitutional right to representation by an attorney, that protection doesn’t extend to those embroiled in civil matters. Instead, many Oregonians unable to afford a lawyer are navigating such life-changing events as divorces, custody battles and eviction proceedings without one.
In fact, 83% of family-law cases and 95% of landlord-tenant law cases in Oregon had at least one party who was not represented by an attorney, according to statistics compiled by the Oregon Department of Justice. A 2018 survey evaluating the legal needs of low-income Oregonians found that 84% of respondents had a civil issue for which they had no legal help.
That has obvious implications not just for individuals seeking fair resolution of their cases, but also for the efficiency of the justice system. Judges, court facilitators and others strive to help them follow arcane rules, decipher legal-speak and file documents in their cases, but they cannot provide legal advice. If Oregon believes in promoting justice, it needs to do much more to ensure that a lack of legal expertise isn’t driving outcomes more than the merit of someone’s case.
A proposal expected to go before the Oregon Supreme Court next month offers one compelling way to address this need: allow paralegals who meet educational and experience requirements to handle a range of family-law and landlord-tenant cases. Several states have already launched similar programs with the goal to increase access for lower-income residents to legal professionals who can advise and represent them at more affordable rates than an attorney. While paralegals don’t have law degrees, their work assisting attorneys, drafting and filing legal documents, conducting research and other responsibilities give them a strong understanding of legal protocols and client needs.
The Oregon State Bar is accepting public comment through June 6 and its board of governors will consider the issue on June 24. While comments submitted by judges and by members of the public so far appear heavily in favor of the proposal, not everyone is a fan. Many attorneys have registered their opposition, arguing that representing clients in family-law or rental housing cases can be overly complex for someone who hasn’t earned a law degree.
Certainly, the Bar has a responsibility for consumer protection and ensuring that those representing clients in court are qualified and reliable. But that’s why it’s important to note the depth of work that has gone into studying and developing this proposal. Unlike the COVID-19 driven decision two years ago to grant Bar admission to anyone graduating from an Oregon law school, regardless of whether they take the Bar exam, the question of how to expand paralegals’ roles has been under discussion for years. Since 2020, a committee appointed by the Bar’s Board of Governors and led by senior judge Kirsten Thompson has been exploring the scope of practice, as well as the education and experience a paralegal would need to handle family law and tenant-landlord disputes. The committee studied other programs, examined what worked and what didn’t and developed a comprehensive approach that seeks to increase legal options, while upholding the Bar’s consumer protection responsibility.
The proposal calls for these specialized paralegals to complete 1,500 hours of substantive experience under the supervision of an attorney, with set minimums in family law and landlord-tenant law to gain licensure in those areas. In addition, they must complete 20 hours of specific coursework, pass a character and fitness evaluation and demonstrate their competence, either through an exam or portfolio of work.
As Thompson notes, licensed paralegals will help address only a portion of a significant need. But it provides another tool that “is going to help narrow the gap a little bit,” she told the editorial board.
Judges, Thompson noted, were overwhelmingly in favor of the proposal. That’s not surprising, considering how they see first-hand the difficulties Oregonians experience in trying to work out a divorce settlement or avoid eviction without the help of an attorney. Judges know that that’s not justice. That’s a system stacked against people who can’t afford help in a time of crisis. It’s one more reason approving this new program should be an easy call.
-The Oregonian/OregonLive Editorial Board
Editorials reflect the collective opinion of The Oregonian/OregonLive editorial board, which operates independently of the newsroom. Members of the editorial board are Therese Bottomly, Laura Gunderson, Helen Jung and John Maher.
Members of the board meet regularly to determine our institutional stance on issues of the day. We publish editorials when we believe our unique perspective can lend clarity and influence an upcoming decision of great public interest. Editorials are opinion pieces and therefore different from news articles.