BILL OF THE WEEK: Senate Bill 306
Although Oregon’s public defender crisis has brought attention to a shortage of criminal defense lawyers in the state’s courts, the percentage of litigants without a lawyer in landlord-tenant and family law cases is far higher than in criminal cases. (Criminal defendants have a constitutional right to an attorney while civil litigants do not.) An Oregon Senate bill seeks to rectify that problem by expanding who can assist litigants in those cases.
CHIEF SPONSORS: This bill does not have individual sponsors but rather is a committee bill introduced at the request of the Oregon State Bar.
WHAT IT WOULD DO: SB 306 would allow new licensure and oversight of paralegals and let them represent clients in eviction and family law cases.
The bill would mark a dramatic expansion of duties that lawyers have previously reserved for themselves. Professional licensing bodies often zealously protect the turf of their members. But in this case, the bar has been working since 2019 to “increase access to the justice system while ensuring the competence and integrity of the licensed paralegals and improving the quality of their legal services.”
If the bill passes, it would merely greenlight paralegal licensure. The details of how the new licensure would work are spelled out in a bar proposal already approved by the Oregon Supreme Court: Applicants must meet standards of education and training, pass a licensing exam, and follow bar codes of conduct.
PROBLEM IT SEEKS TO SOLVE: Oregon Judicial Department records show that in more than three-quarters of cases, at least one side in both family law and eviction cases is unrepresented by a lawyer. Those people, “pro se litigants,” in court parlance, are at a significant disadvantage in important disputes: whether they will keep roofs over their heads, for instance, or win favorable terms in divorce settlements, such as child custody. (An unrelated Multnomah County measure on the May 16 ballot would impose a new 0.75% capital gains tax to pay for eviction representation.)
WHO SUPPORTS IT: The Oregon State Bar, the Oregon Law Center and the Oregon Judicial Department. Most importantly, the Oregon Supreme Court, which oversees the bar.
Jody Stahancyk, perhaps the state’s best-known divorce lawyer, also welcomes the proposed change. “We cannot find enough lawyers to help all the people coming through our doors,” Stahancyk testified. “Family law paralegals will make basic legal services available to more people, save the court’s time in dealing with pro se-ers and allow the bar to regulate the process.”
WHO OPPOSES IT: Many lawyers. In its public comment period, the bar got hundreds of responses. Most lawyers who responded didn’t like the idea—the nos from lawyers outweighed the yeses by 54% to 35%.
Critics cited the perils of inadequate training, the unfairness of being allowed to practice without the rigor and cost of law school, and in some cases, unwanted competition.
Troy Pickard, a Portland lawyer who specializes in eviction cases, said there’s far too much work to worry about a profusion of new practitioners, but he cited complexity as a concern.
“I do not believe that Oregon’s tenants would be well served by allowing non-lawyers to give them bad advice,” Pickard wrote to the bar. “We have enough lawyers giving bad advice. With landlord-tenant law, the cost of bad advice is often dramatic, especially for tenants—they can be unexpectedly forced out of their homes through eviction court, and crushed under judgments for the landlord’s attorney fees.”
Although no lawyers signed up to object in the Senate, the Oregon Trial Lawyers Association initially opposed the bill, objecting to what it saw as lack of protections against paralegals providing inadequate representation. “Harm caused by their negligence would be borne by their client,” OTLA testified. “From a consumer protection perspective, this makes absolutely no sense.”
The Senate Judiciary Committee amended the bill to the association’s satisfaction, and the bill won passage on the Senate floor last month. It now awaits a hearing tentatively scheduled for March 30 before the House Judiciary Committee.