Licensed Paralegal Practitioner

1. Licensed Paralegal Practitioner PANEL: Carrie T. Boren, Esq., Cathy Dupont, Esq. and Jim Hunnicutt, Esq. MODERATOR: Julie Emery 2018 Utah State Bar Summer Convention

2. Overview and Requirements Carrie T. Boren, Esq.

3. Program Overview • Will provide limited legal help to clients who may not be able to afford an attorney or would otherwise be reluctant to hire an attorney. • Will only practice in three distinct areas: Family Law, Landlord/Tenant Law, and Collections Law. • Will be able to retain clients separately from an attorney. • Will be able provide limited legal advice to clients. • Will be able to advertise directly to public, in accordance with the Utah State Bar’s advertising rules. • Will be governed by ethics rules similar to those governing attorneys.

4. Educational Requirements • Law degree from ABA approved law school. Utah Supreme Court Rules of Professional Practice, Rule 15-703(a)(4)(A). • Associate degree in paralegal studies from an accredited school. Rule 15-703(a)(4)(B) • Bachelor’s degree in paralegal studies from an accredited school. Rule 15-703(a)(4)(C) • Bachelor’s degree in any field from accredited school plus a Paralegal Certificate or 15 credit hours of paralegal studies from an accredited school. Rule 15-703(a)(4)(D) • If applicant has not obtained a law degree, they must take: three credit hours in professional ethics for LPPs; a specialized course of instruction approved by the Bar for each area in with they seek to be licensed; and must have obtained certification by the National Association of Legal Assistants, the National Association of Legal Professionals, or the National Federation of Paralegal Associations. Rule 15-703(b)(1)-(3)

5. Limited Time Waiver“Grandfathering Provision” • Bar may grant waiver of minimum educational requirements for three years from the date the Bar initially begins to accept LPP applications for licensure. Rule 15-705(a). • Applicant must show, within two years from the waiver request, that they: • Have filed the Application for a Limited Time Waiver and paid prescribed fees. Rule 15-705(a)(1) • Are at least 21 years old. Rule 15-705(a)(2) • Have completed seven years of full-time substantive law related experience within the 10 years preceding the application, including experience in the practice area in which they seek licensure. Rule 15-705(a)(3) • 500 hours of substantive law-related experience in temporary separation, divorce, parentage, cohabitant abuse, civil stalking, custody and support, and name change. • 100 hours of substantive law-related experience in forcible entry and detainer or debt collection. • Proof of substantive law related experience will be certified by supervising attorney, meeting requirements in Rule 15-705(a)(3)(A)-(C) • Proof that applicant has successfully passed the LPP Ethics Examination and the LPP Examinations for the practice areas in which the applicant will be licensed. Rule 15-705(a)(4) and (a)(5)

6. Experience Requirements • Applicants who have obtained a law degree are exempt from experience requirement. • If no law degree, applicant must have 1500 total hours of substantive law-related experience within the last three years. 15-703(a)(5) • For licensure in family law, must have 500 hours of substantive law-related experience in temporary separation, divorce, parentage, cohabitant abuse, civil stalking, custody and support, and name change • For licensure in other areas, must have 100 hours of substantive law-related experience in forcible entry and detainer or debt collection. • In all practice areas, applicants must have gained experience must have been gained under the supervision of a licensed Utah attorney or LPP. • Full or part-time job • Paid or unpaid internship • Volunteer or pro bono work

7. Experience Requirements- Continued • “Substantive Law-Related Experience” means the provision of legal services as a paralegal, paralegal student, or law student including, but not limited to, drafting pleadings, legal documents or correspondence, completing forms, preparing reports or charts, legal research, and interviewing clients or witnesses. Substantive law-related experience for landlord-tenant and debt collection includes, but is not limited to, the provision of legal services in the areas of bankruptcy, real estate, mortgage and/or banking law. Rule 15-701(bb) • Substantive law-related experience does not include routine clerical or administrative duties.

8. Testing and Admissions • To be licensed, all LPPs must pass the LPP Ethics Exam and an exam for the specific area in which they will be practicing. Rule 15-703(a)(6)-(7) • The Bar is developing a test for each area and will have one full exam in each area ready by September 2018. • The Bar will oversee the admission of LPPs and will regulate licensing. • LPPs will be required to complete 24 hours of Continuing Legal Education per two-year reporting period. Rule 15-404. • Each applicant must be of good moral character. Rule 15-708 • The Bar will perform character and fitness examinations for each applicant before they are admitted, similar to investigation for applicants taking the Bar Exam. • LPPs will be governed by Standards of Professionalism and Civility and Rules of Professional Conduct. • Rules are based on those that apply to attorneys.

9. Current Projected Timeline • NOVEMBER 1, 2018 – Final rules to be approved and enacted by the Utah Supreme Court • JANUARY, 2019 – First classes available through UVU • SPRING 2019 – Applications accepted • SPRING 2019 – Exams offered (through testing centers)

10. What Will Licensed Paralegal Practitioners Do? Jim Hunnicutt, Esq.

11. How LPPs Will Benefit Attorneys: • More independent operation: • Rules of ethics don’t require supervision • May interview clients without attorney present • Attract clients who would never call a traditional law firm • New option for clients opposing pro se litigants • Because the LPPs’ practice will be form-based, if issues come up outside the forms’ scope, LPPs must consult with an attorney • New clients will hire LPPs, but if they later want in-court representation, they would have to shift to an attorney

12. First Steps • Initial Client Interview • Why is the client seeking legal assistance? • 14-802(c)(1)(C) authorizes "interviewing the client to understand the client's objectives and obtaining facts relevant to achieving that objective" • LPP must clearly explain the scope of representation, and what the LPP can do vs. when an attorney needs to get involved. • 14-802(c)(1)(E) authorizes "informing, counseling, advising, and assisting in determining which form to use and giving advice on how to complete the form" and 14-802(c)(1)(D) allows "completing an approved form."

13. LPP Engagement Agreements • Written engagement agreement required, with very detailed requirements: • clear fee provisions, and contingent fees are not allowed • must include “a statement printed in 12-point boldface type that the licensed paralegal practitioner is not an attorney and is limited to practice in only those areas in which the licensed paralegal practitioner is licensed.” • a provision stating “that the client may report complaints relating to a license paralegal practitioner or the unauthorized practice of law to the Utah State Bar, including a toll free number and Internet website.” • “identifies the document to be prepared... explains the purpose of the document... explains the process to be followed in preparing the document... states whether the licensed paralegal practitioner will be filing the document on the client’s behalf; and ... states the approximate time necessary to complete the task.” • List not exhaustive: see LPP Rule of Professional Conduct 1.5 for more

14. Scenario ABroken-Hearted Boyfriend • Girlfriend not letting client see 9-year-old child • Girlfriend demanding alimony and child support • Girlfriend took Xbox and coin collection • Mediation?

15. Scenario A Considerations Rule 14-802(c)(1), subparts: • (E) "informing, counseling, advising, and assisting in determining which form to use and giving advice on how to complete the form;" • (D) "completing an approved form;” • (G) "obtaining, explaining, and filing any document needed to support the form;” • (I) "informing, counseling, assisting and advocating for a client in mediated negotiations;”

16. Scenario BThe Dreaded Petition to Modify • Client has primary custody • Ex-husband has 2 overnight visits per week • Ex-Husband pays child support + $500/month alimony • Ex-Husband wants 50-50 parent-time & to terminate alimony • Please download copies of all filings • Wisdom of 12(b)(6) motion to dismiss vs. an answer? • Wisdom of filing a counterclaim? • Request for custody evaluation • QDRO?

17. Scenario B Considerations • LPPs may file notices of appearance in cases and use e-filing • Preparation of QDRO is not associated with approved forms and will need to be referred to a lawyer • Rule 14-802(c)(1), subparts: • (E) "informing, counseling, advising, and assisting in determining which form to use and giving advice on how to complete the form;" • (H) "reviewing documents of another party and explaining them;"

18. Scenario CPrenup! • Premarital agreement says no alimony, but client’s wife is requesting alimony anyway • Served with Summons & Petition 20 days ago • Intimidate unrepresented ex? • Twitter defamation claim • Client started writing the answer

19. Scenario C Considerations • Rule 14-802(c)(1): • (G) "obtaining, explaining, and filing any document needed to support the form;" • (K) "communicating with another party or the party’s representative regarding the relevant form and matters reasonably related thereto;” (emphasis added) • However, the rules governing professional conduct don’t allow for “intimidation” • (D) "completing an approved form;" • (F) "signing, filing, and completing service of the form;” • Torts fall outside the scope of family law, evictions, and collections.

20. Scenario DChanging Horses • Clients shifting away from attorneys to less-expensive LPPs • Started business during the marriage • Client’s wife seeking alimony plus 50% of the business’s value • Waiting for client’s expert valuation report • Partial settlement over dinner last night: write it up? • What is the Right of First Refusal? Should we change it? • Follow-up with expert witness • 10% bonus if no alimony

21. Scenario D Considerations • Rule 14-802(c)(1): • (C) "interviewing the client to understand the client’s objectives and obtaining facts relevant to achieving that objective;" • (J) "filling in, signing, filing and completing service of a written settlement agreement form in conformity with the negotiated agreement;" • (L) "explaining a court order that affects the client’s rights and obligations;" • (K) "communicating with another party or the party’s representative regarding the relevant form and matters reasonably related thereto;" • LPP Rule of Professional Conduct 1.5(f) forbids contingent fees

22. Scenario E: Starting a Divorce & Moving for Temporary Orders • 9½ year marriage, ending over infidelity • Grabbed client’s iPhone during argument • Boxed up some of his things, changed locks • Husband won’t give her money, but mortgage payments coming up • Husband demanding 50/50 time, and nesting arrangement • Finalize divorce in under 60 days? • What should client do?

23. Scenario E Considerations • Continue interviewing client & gathering information. • Potential forms: • If fearful, Request for Protective Order? • Petition for Divorce & Summons • Motion for Temporary Orders • Financial Declaration • Notice of Hearing • Notice of Financial Disclosure Requirements • Proposed Parenting Plan, if seeking joint custody • Legal advice: Social Security concern?