The Oregon State Bar has started to license paralegals, allowing them to offer some legal help that previously could only be provided by lawyers. The program is one of a handful nationwide and allows licensed paralegals to provide assistance in housing and family law.
Sue Gerhardt is a longtime paralegal who recently received her license through the Oregon State Bar. She joins us with more about what this means for Oregonians in need of family or housing law services.
Note: The following transcript was created by a computer and edited by a volunteer.
Dave Miller: From the Gert Boyle Studio at OPB, this is Think Out Loud. I’m Dave Miller. The Oregon State Bar has started to license paralegals, allowing them to offer some legal help that previously could only have been provided by lawyers. This program is one of a handful nationwide. It gives licensed paralegals the opportunity to provide assistance in family law and housing disputes. Sue Gerhardt is a longtime paralegal at the law firm Lufkin Peckham who recently received her license through the Oregon State Bar. She joins us now. It’s great to have you on the show.
Sue Gerhardt: Thank you.
Miller: Why did the State Bar create this? I mean, what’s the problem that it’s intended to solve?
Gerhardt: It identified landlord tenant and family law as the two areas where people are least likely to be able to have representation by attorneys. That affects the litigants, they don’t know how to maneuver their way through the court system. They don’t know how to represent themselves. And it also caused backlogs in the court system. The judges end up in an awkward position. They end up almost acting as parties’ attorneys because they still have to get the cases through the docket.
Miller: And they would step in to say, let me give you some advice here, essentially?
Gerhardt: Well, they tried not to, but they would end up having to draft judgments and orders that typically attorneys would do, because the parties weren’t able to draft them themselves. So it really bogged down the system.
Miller: Is this because those people couldn’t afford lawyers? Is that what it boils down to?
Gerhardt: Most of them. Sometimes it was by choice. Usually, it was by economic circumstances.
Miller: What’s an example that comes to mind that you saw of the effects of somebody who couldn’t afford legal representation, needed it legally, because a paralegal couldn’t provide those kinds of services? What are some of the things that happen in addition, say, to a judge having to draft documents?
Gerhardt: People would lose custody of children.
Miller: It could be that serious?
Gerhardt: Yes, if they didn’t know that they needed to file a response to contest something that they were served with and they didn’t show up to court, they could lose custody of their children, they could lose parenting time. They could be ordered to pay child support based on an amount of income that is not what they actually earn. They could be sanctioned if they didn’t comply with discovery requests by an attorney, because they think it’s none of their business. They could get ordered to pay the other party’s attorneys fees, even though they couldn’t afford to pay an attorney themselves.
Miller: Really serious outcomes.
Gerhardt: Yes.
Miller: You’ve worked as, in the past, a non-licensed paralegal, in the old system we had. And my understanding is that for a number of decades, you worked in family law in this realm. So what could you do in the past? And where was the bright line that you weren’t allowed to cross?
Gerhardt: For probably the first decade that I did it, I was working for attorneys and I was only allowed to work under the attorney, preparing pleadings for the attorney. Then in 2000, I was hired by the Oregon Judicial Department to create the facilitation program for Washington County courts. And there was a new statute that protected facilitators and said, while they were working for the courts doing that job, they were not practicing law, but we were not allowed to give advice. We were allowed to help people with filling out forms. We couldn’t tell them what to write, but we could explain processes. We could give them copies of statutes, we could tell them which forms it was that maybe they were trying to find and what the process was, but we couldn’t advise them.
I always told everybody in our office, eliminate the words “should” from your vocabulary unless it’s followed by a consultant attorney or obey the restraining order, because we couldn’t tell people what they should do. We could just tell them how to do something. So if they said, “I want to get custody of my child,” we could say, “Oh, here are some forms for getting custody. After you fill them out, if you want me to review them for completeness, I can do that.” But that was the extent of what we could do.
Miller: What was that like? I mean, because even the way you describe that … I guess I understand that the “should” qualified as giving legal advice. But it’s hard to imagine truly helping somebody deal with a complex legal matter like this if you know what they actually should do and there’s a very clear path forward, but you can’t tell them that. What was that like?
Gerhardt: It was frustrating, but it was still an enormous help to them and to the court system, because at least then they had the proper documents. I could explain to them if you don’t file a response, here’s what could happen.
Miller: So there was a little bit of a way around that.
Gerhardt: Yes. And I could give them copies of rules. I could give them copies of the list of custody factors that a judge will consider in making those decisions.
Miller: What can you do now, now that you are one of the first 10 licensed paralegals in the state of Oregon?
Gerhardt: I can use the word “should” whenever I want. I can tell them what I think they should do. I can tell them the risks of continuing behavior or decisions that they’ve been making. I can advise them on not just the options they have, but the consequences of those decisions. I can draft pleadings for them. I can issue subpoenas. I can represent them in their case, or I can do a la carte services and a pay-as-you-go as well.
Miller: I’m glad you mentioned the pay-as-you-go because we started by saying that the real issue here was people who couldn’t afford a lawyer’s representation. What’s the price difference broadly, on average, do you think, between a licensed paralegal and a lawyer?
Gerhardt: I can’t speak for the other nine paralegals. I can say in our office, I’m less expensive as a licensed paralegal than our attorneys are. The retainer is lower. And as I said, they can do a pay-as-you-go or a la carte services. So if they just want to pay for coaching for their trial, for instance. If they just want me to draft the initial pleadings to start their case and then they want to take it themselves from there. Or if they want to hire me to start it, and then when they get closer to trial, if it ends up going to trial, then rehire me to step back in on the case, I can do that. But it’s much less than full representation for a lawyer.
Miller: As I mentioned, right now licensed paralegals can work in family law, also Oregon’s residential landlord tenant act disputes and issues. Is there talk of expanding that sphere of work?
Gerhardt: I foresee, in the future, but I think we need to work and get these two areas fine tuned first, because we’re going to hit bumps in the road, things that we haven’t thought about. We need to tweak some things that maybe we didn’t think about before when we were setting this up.
Miller: And I should say when you say “when we were setting this up,” you actually do mean yourself. You’re not just one of the first 10 licensed paralegals, but somebody who was asked by a judge to be one, a member of a committee that helped implement these rules. What do you think it’s going to take for people to actually want to become licensed paralegals? Everything you’re talking about will only work if more than 10 people make this decision.
Gerhardt: Exactly right. And I hope there will be lots of people across the state who make that decision. It’s an opportunity for a career that isn’t fully going to law school, getting a bachelor’s degree, then paying for three more years of law school, coming out with huge student loan debt, being able to help people in their lives and the two areas where people need the most help: getting evicted from where they live and with their family law decisions and futures. It’s an in-between and it still protects the public because we’re required to have the same malpractice insurance that lawyers do and yet it’s a robust application process and testing, so that it’s qualified people who are getting licensed. It’s not the folks that have held them out for years as paralegals, who have absolutely no oversight, who don’t have malpractice insurance.
I think it’s a win, win. It’s a great career opportunity. We can help people wherever they are in the state, we’re not limited to whatever county we live in. And with the advent of Zoom, it’s made a difference as far as how easy it is for us to assist people.
Miller: Oh, so somebody in Washington County, a paralegal, could help somebody in Malheur County?
Gerhardt: Absolutely.
Miller: What do you see as potential barriers, things that might get in the way of the widespread adoption of this program?
Gerhardt: I think people just need to get used to the idea that there are very competent paralegals. Most law firms have one person who’s been doing it for years and years, who trains the new lawyers when they come out of law school. These are the kinds of things they don’t teach people in law school, they don’t teach them the nuts and bolts of how to draft the pleadings and what the processes are and the motions that are required. It’s the paralegals who have always known those parts and pieces. So I think it’s just more of an acceptance of the fact that yes, these are competent people who know what they’re doing, who can take another step. And we’ve always used nurse practitioners before we go see the doctor. And I think this is comparable to that and I think it’s just an acceptance of people that this is a good quality service to be provided.
Miller: Just briefly, what’s it been like for you after doing similar kinds of jobs for decades, to now have a different version of official licensure that you can point to?
Gerhardt: Well, number one, I’m very proud. I worked hard for it. A lot of people worked very hard for it. And it’s very rewarding for me to actually be able to not have to have the extra step of, “well, let me check with the attorney and I’ll get back to you on that,” to be able to just answer a person’s question when they call me and ask me, to be able to just respond to the email with the answer that they’re looking for.
Miller: Sue Gerhardt, thanks very much.
Gerhardt: Thank you for having me.
Miller: Sue Gerhardt is one of the first licensed paralegals in the state of Oregon. She is at the firm Lufkin Peckham LLP.
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