Oregon consumers have lost a low-cost alternative to lawyers, thanks to the efforts of the Oregon Bar Association. The Bar's initial victory against low-cost competition came earlier this year when the state Court of Appeals affirmed a trial court's 1995 decision closing down People's Paralegal Services of Tigard. The Bar's charge against the paralegal service was that it engaged in the unauthorized practice of law, commonly referred to as UPL. Early this month, the Oregon Supreme Court dealt a near-final blow to People's Paralegal when it declined to consider the case.

Operated by longtime consumer activist Robin Smith, People's Paralegal had helped more than 10,000 Oregonians prepare their own paperwork for divorces, bankruptcies and other routine legal matters. The average cost was less than $200. Signs in the office and written notices given to customers clearly announced that "We are not attorneys.... If you require legal advice please see an attorney."

Smith's primary argument was that shutting down her business violated the Oregon constitution's free expression clause. But the Court of Appeals, in a lengthy and tortured opinion, concluded that because Oregon's UPL statute is in the consumer interest, it preempts Smith's constitutional guarantees. The court also noted--but seemed unfazed by--the fact that UPL statutes "could be read, just as plausibly and less benignly, as perpetuating a professional 'monopoly.'"

Now that the Oregon Supreme Court has refused to review her case, Smith's only remaining option is to file a writ of certiorari, based substantially on First Amendment arguments, with the U.S. Supreme Court. If the Court agrees to hear the case, Smith will again try to point out that far from benefiting consumers, the enforcement of Oregon's UPL statute hurts hundreds of thousands of them. Because of it, low- and middle-income Oregonians who can't afford to pay lawyers upwards of $150 per hour are effectively barred from using their own court system. The result is that while Oregonians have the legal right to represent themselves, the self-interested legal establishment makes sure they can't get the help they need to do it effectively.

Smith's arguments also raise the issue of whether the Oregon Bar Association's own membership rules really work to protect the public. It is easy to argue that they don't, since even lawyers readily admit that the practical lawyering skills necessary to handle paperwork for routine legal procedures such as uncontested divorces and guardianships (the type of work Smith did) have little to do with what's taught at law school or tested on bar exams. Add to this the incredible fact that the Oregon Bar does not regulate attorney competence, discipline incompetent practitioners or require mid-career competence certification, it is hard to see how being forced to buy legal services from an Oregon lawyer provides Oregonians with any significant degree of public protection.

So while Oregon lawyers prosecute Smith and other independent paralegals because they are not lawyers (and therefore, according to the Bar, might harm the public), at the same time they take few, if any, steps to guarantee that Oregon lawyers understand what they are doing or to disbar them in situations when they plainly do not. Lest you think I exaggerate, take a look at the views of a member of the Oregon judiciary. Writing in the Oregon State Bar Bulletin (Sept. 1997), Robert Jones, a Judge of the Multnomah County Circuit Court, put it like this:

"Oregon legal consumers...have no way to properly determine the proficiency of their civil trial attorney. Oregon lawyers tolerate a system that permits a law student to theoretically go directly from the swearing-in ceremony into a courtroom to litigate any civil dispute. That's equivalent to permitting a medical school graduate to go from the graduation ceremony to an operating room to perform a heart transplant procedure!"

In the meantime, Robin Smith is out of business and her legal bills mount. Almost unbelievably, the Bar has obtained a court order ordering Smith to pay its legal costs of $16,000. Smith was represented on her Oregon appeal without fee by Tom Mack, a Washington, D.C. public interest lawyer. But because an out-of-state lawyer can appear in court only in association with a local lawyer (thanks to another anti-competitive Bar rule), she must pay local counsel. So far, Smith's supporters have raised $3,000--almost $20,000 short of what she needs. And of course if the case goes to the U.S. Supreme Court Smith's costs will go even higher. If you would like to help, please send your contribution to the Robin Smith Defense Fund, 10015 S.W. Hall Blvd. #13, Tigard, OR 97223.