Petition for Writ of Certiorari — Smith v. Oregon State Bar

Supreme Court, U.S.

FiLeéOD

No. 971122 Jans SO

In the OFFICE OF [Hk CLERK

Supreme Court of the

United States

October Term, 1997

ROBIN SMITH,

Petitioner,

V.

OREGON STATE BAR,

Respondent.

Petition For Writ of Certiorari

To the Oregon Supreme Court

PETITION FOR WRIT OF CERTIORARI

Robin Smith

8105 SW Maple Leaf St.

Portland, Oregon 97223

Telephone: (503)245-0258

Pro se

7

'

i

QUESTIONS PRESENTED FOR REVIEW

Roughly two decades ago, this court began to strike

down a number of practices that had long operated to

restrict competition within the legal profession. Bans on

advertising by lawyers (Bates v. Arizona State Bar (1977)

433 US 350) minimum fee schedules (Goldfarb v. Virginia

State Bar (1975) 421 U.S. 773), limits on solicitation by

lawyers for public interest cases (In re Primus (1978), 436

U.S. 412) and residence requirements to practice within a

state's courts (

(1985) 470 U.S. 274) have all been ruled to be

unconstitutional restraints. Petitioner asks this court to take

the next step in dealing with barriers to competition and

access to the courts previously erected by the legal

profession --to decide what limits, if any, a state may place

on the dissemination of legal information by non-lawyers to

members of the public.

Petitioner Robin Smith, through her then existing

business called People's Paralegal Service, Inc., served over

9000 primarily low income customers between the years of

1987 and 1995. In 1995 the Oregon State Bar obtained an

injunction against Petitioner on the grounds she was

engaged in the unauthorized practice of law, which

effectively caused Petitioner to shut her business down. The

trial court made 173 findings of fact, including these:

- A significant number of people cannot afford legal

services in this state and some of their legal needs are not

being met by the members of the Oregon State Bar.

(Finding 172, App D).

- Defendant Smith shares her knowledge of the law

and of legal procedures with her customers. (Finding 140,

App D)

il

QUESTIONS PRESENTED FOR REVIEW-Continued

- No non-lawyer has ever filed a complaint of UPL

with the Oregon State Bar against Defendants (Finding 171,

App D).

These findings, and the fact that Petitioner has been

prohibited from in any way sharing her knowledge of the

law and of legal procedures with her customers, fairly give

rise to the following constitutional questions:

1) Does the Oregon law governing the unauthorized

practice of law violate the free speech provision of the First

and Fourteenth Amendments to the U.S. Constitution as

applied to Petitioner Robin Smith?

2) Does the Oregon law governing the unauthorized

practice of law facially violate the free speech provision of

the First and Fourteenth Amendments to the U.S.

Constitution on the ground that the law is vague and

overbroad?

PARTIES TO THE PROCEEDINGS

The caption contains the names of all parties to this

proceeding. In the proceedings below, People’s Paralegal

Service, Inc, an Oregon corporation, was also a party with

Robin Smith. The corporation no longer exists.

iii

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES CITED iv, V

DECISIONS BELOW l

JURISDICTION l

CONSTITUTUIONAL AND STATU- 1.2

TORY PROVISIONS AT ISSUE

STATEMENT OF THE CASE 2

REASONS FOR GRANTING THE WRIT 8

I. THIS CASE INVOLVES AN IMPORTANT CONSTITUIONAL

QUESTION THAT SHOULD BE RESOLVED BY THIS COURT:.

TO WHAT EXTENT UNDER THE FIRST AMENDMENT CAN

STATE UNAUTHORIZED PRACTICE LAWS PREVENT

NON-LAWYERS FROM ORALLY DISSEMINATING LEGAL

INFORMATION TO MEMBERS OF THE PUBLIC 8

Il. THE PETITION SHOULD BE GRANTED BECAUSE THE

DECISION BELOW CONFLICTS WITH THE FREE SPEECH

PROVISIONS OF THE FIRST AMENDMENT BECAUSE IT BARS

PETITIONER FROM ENGAGING IN FULLY PROTECTED

SPEECH 12

Ill. THIS PETITION SOULD BE GRANTED BECAUSE THE

OREGON UPL LAW IS OVERBROAD AND INVALID ON ITS

FACE IN THAT IT BANS AN UNDEFINED CATEGORY OF

FULLY PROTECTED SPEECH 27

CONCLUSION 28

iV

TABLE OF AUTHORITIES CITED

Cases Page

Airport Commissioners vy. Jews For Jesus, 482 U.S. 569(1987) 23, 27

Bates y. State Bar of Anizona, 433 U.S. 350 (1977) i, 15, 24

Board of Trustees, State University of N.Y yv. Fox 7, 18, 19

492 U.S. 469, 482 (1989)...

Cultuim vy. Heritage House Realtors. Inc, 694 P. 2d 630 (Wash. 1985) 25 |

Edinfield vy. Fane 507 U. S. 761(1993) 21

Goldfarb v. Virgnia State Bar 421 U.S. 773 (1975) i, 15

In Re Primus 436 U.S. 412 (1978) i

NAACP y. Button, 371 U.S. 415 (1963) 20

283 N.Y.S. 2d 984, (App, Div.) rev'd on the dissenting opinion,

287 N.Y.S. 2d 422_ 9

a

Oregon State Bar y. Gilchrist, 272 Or 552, 538 P. 2d 913 (1975) 13, 14

Oregon State Bar vy. Smith

Supreme Court of New Hampshire v. Piper, 470 U.S. 274 (1985) i ;

Vv

RULES AND REGULATIONS

28 U.S.C. Sec. 1257/a) i]

UNITED STATES CONSTITUTION

First Amendment 1, 5, 6, 7, 8, 15, 16, 18, 20, 25, 27. 29

Fourteen Amendment 2, 6, 15, 18

MISCELLANEOUS

The American Bar Associafion Commission on Nonlawyer Practice,

Nonlawyer Activity in Law-Related Situations (1995). 8, 20, 26

American Bar Foundation Research Journal , Christensen, The

Unauthorized Practice of Law, Do Good Fences Really Make Good

Neighbors or Even Good Sense? (Spring 1980) 20

Abel, American Lawyers, Oxford University Press (1989) 16

Cox, Self Help Law: Its Many Perspectives, ABA 1984) 10

Rhode, Authorized Practice, Vol.34:1, Stanford Law Review 11, 20

Sales, Self Representation in Divorce Cases, ABA 1993) 10

State Bar of California, Report of the Public Protection

Committee, 1988 11, 26

DECISIONS BELOW

The decision of the Oregon Supreme Court denying

review was entered on October 7, 1997, (SC N. $44532)

and is reproduced as Appendix A. The decision by the

Oregon Court of Appeal was entered on July 9, 1997, (CA

A89206).

JURISDICTION

This Court has jurisdiction over this matter

pursuant to 28 U.S.C. Sec. 1257 (a) and Supreme Court

Rule 10.1 (c).

CONSTITUIONAL AND STATUTORY

PROVISIONS AT ISSUE

The federal constitutional provisions at issue in this

matter are the First and Fourteenth Amendments to the

United States Constitution. The First Amendment provides

that: "Congress shall make no law respecting an proper

establishment of religion, or prohibiting the free exercise

thereof; or abridging the freedom of speech, or of the press,

or the right of the people peaceably to assemble, and to

petition the Government for a redress of grievances." The

Fourteenth Amendment provides in part: "[N]or shall any

State deprive any person of life, liberty, or property, without

due process of law..."

Oregon Revised Statute 9.160 provides: "Except for

the right reserved to litigants by ORS 9.320 to prosecute or

defend a cause in person, no person shall practice law or

represent that person as qualified to practice law unless that

person is an active member of the Oregon State Bar."

ORS 9.166 provides: "(1) If the [Board of

l

2

Governors of the Oregon State Br | has reason to believe

that a person is practicing law without a license, the board

may maintain a suit for injunctive relief in the name of the

Oregon State Bar against any person violating ORS 9.160

The court shall enjoin any person violating ORS 9.160 from

practicing law without a license.

STATEMENT OF THE CASE

From 1987 until 1995, Petitioner Robin Smith, a

non-lawyer, operated a business providing certain

law-related services for a fee. Previous to opening her

business, Petitioner had obtained a legal assistant Associate

Arts Degree, worked in a law firm for one year and

apprenticed for three years with an existing legal forms

preparation business. During the time that Petitioner was in

business, she served in excess of 9000 customers without a

complaint. From the time it became available to her in 1992,

Petitioner carried errors and omissions insurance. No claims

were made against her insurance policy.

The customers primarily served by Petitioner were

average American working class consumers wanting help

with their uncontested divorce, guardianship, name change,

stepparent adoption, bankruptcy, power of attorney, health

care form or will (Finding 133 App D). Many of Petitioner's

customers earned in the neighborhood of the minimum

wage and could not afford to hire an attorney.

Petitioner's services consisted primarily of:

providing her customers with various legal forms made

available to the public by a variety of sources (Finding 11,

App D), answering procedural questions regarding the use

of the forms and how the case would progress, and typing

the forms under the direction of the customer.

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On occasion Petitioner provided non-controversial

substantive answers to common legal questions such as how

the Oregon courts deal with child custody and what

circumstances justify a guardianship?

As all times, Petitioner made it clear to her

customers that she was not an attorney and could not

practice law. In addition to signs to this effect posted

around her office, Petitioner's intake sheets signed by the

consumers included the following statement in capital

letters:

"We are not attorneys. We are legal technicians. Our

service provides preparation of the papers including typing,

notary service, and procedural information*** If you

require legal advice please see an attorney." (Finding 7,

AppD).

In 1991, Petitioner founded the Oregon Legal

Technicians Association (OLTA). The purpose of the

organization was to lobby the Oregon legislature to

implement a licensing scheme for the type of activities

engaged in by Petitioner and others. Petitioner was a vocal

and open proponent for this cause, and for change to ORS

9.160 that would permit Petitioner and others to offer their

document preparation services to the public without

violating the law. (Finding 15, App D). Petitioner's efforts

were opposed by the Oregon State Bar and were

unsuccessful.

In January 1992, the Oregon State Bar began to

investigate the possibility of suing Petitioner for the

unauthorized practice of law (UPL). After more than three

years of indecision, the Or:gon State Bar in 1995 filed an

action for injunctive relief under ORS 9.166, alleging that

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Petitioner was engaged in the unlawful practice of law

under ORS 9.160. (Findings 31-47, App D).

After notice and hearing, the Circuit Court for the County

of Washington (trial court) entered Findings of Fact and

Conclusions of Law supporting its decision that Petitioner

had engaged in the unauthorized practice of law (App D).

The court entered an injunction on June 14, 1995

prohibiting Petitioner from engaging in a wide variety of

activities deemed by the court to constitute UPL (App E).

Specifically, the injunction-prohibited Petitioner from:

1) any personal contact with any persons in the nature of

consultation, explanation, recommendation, or advice

regarding their legal matters

2) meeting with any persons to discuss their individual facts

and circumstances relating to their need or desire for legal

forms, legal services or legal assistance.

3) obtaining information orally, in writing, or in any other

manner relating to individual facts and circumstances so as

to assist any persons with their legal matters.

4) advising any persons regarding their eligibility for or

advisability of legal remedies to address any person's

particular legal matters

5) advising any persons regarding procedural functions of

the court system as it relates to any person's particular legal

matters including advice regarding jurisdiction or venue.

6) assisting in selecting particular forms, documents or

pleadings for any persons to address their legal matters.

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7) assisting in any way with the preparation or filling out

of legal forms, or any parts of such forms, documents or

pleadings for any persons.

8) assisting, suggesting or advising any persons how forms,

documents or pleadings should be used to address or to

solve particular legal problems (App E).

Petitioner appealed to the Oregon Court of Appeals.

In an opinion filed July 9, 1997, the Court of Appeal s

affirmed the injunction issued by the trial court. (App C).

On September 10, 1997, Petitioners filed a Petition for

Review with the Oregon Supreme Court (App F). On

October 7, 1997 wit:cut opinion, the Oregon Supreme

Court rejected the review. (App A).

HOW QUESTIONS FOR REVIEW WERE RAISED

IN THE OREGON COURTS

Petitioner sought review of the questions presented for

review in this Petition in the following ways:

- In the trial court, in her response to the

Respondent's Petition for Injunctive Relief, the Petitioner

raised the free speech provision of the First Amendment as

an affirmative defense. (App H, 274).

- In the trial court, in a motion for a directed verdict,

Petitioner raised the first amendment free speech issue in the

following manner:

" Second motion for directed verdict, Your Honor, goes to

one of our affirmative defenses. It's the freedom of speech

issues that we've raised by our affirmative defense, both

under the United States Constitution and under the First

Amendment......" App H, 274)

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"The problem is: What is the practice of law? And I think

the statute is overly broad, and it fails because it

encompasses and sweeps in First Amendment rights. And

for both those reasons, we would move the Court for a

directed verdict." (App H, 279).

The trial court refused to issue a directed verdict.

And in its Conclusion of Law #5, the trial court stated that:

"The law's restrictions upon Defendant's business activities,

to the extent they may affect Defendants’ speech, are not

broader than necessary to serve the interest of the public,

and an injunction prohibiting Defendants from engaging in

the practice of law will not violate Defendants’ rights of free

speech as guaranteed by the First Amendment of the United

States Constitution..." (App D)

In her Appellants’ Brief and Abstract of Record

filed in the Oregon Court of Appeals, Petitioner presented

the following question on Appeal: "Whether the injunction

decreed by the trial court is unconstitutionally overbroad

and invalid under the Due Process guarantees of the

Fourteenth Amendment and First Amendment of the United

States Constitution." (App G, 1)

In Section B of her Appellant's Brief, Petitioner

argued that "the trial court's injunction violates Ms. Smith's

rights to free speech and association guaranteed by the First

Amendment and Fourteenth Amendments to the United

States Constitution. as well as by the Oregon Constitution."

(App G) Petitioner went on to argue (pg 19 of the brief):

"State and federally sanctioned legal advice is

educational speech and cannot be banned absent a

compelling state interest and means narrowly tailored to

further the state's interest while protecting the speakers right

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to speak freely. Board of Trustees, State University of N.Y.

v. Fox, 492 U.S. 469, 482 (1989).”

In its opinion affirming the trial court's injunction,

the Oregon Court of Appeal rejected Petitioner's First

Amendment argument as follows:

"That argument fails. As we have explained, the

injunction does not ban speech qua speech; it restrains

speech in the context of a putatively professional

relationship. As significantly, defendants have not |

demonstrated that they actually engage in practices within )

the supposed areas of overbreadth. (fn) Finally, and in all )

events, defendants argument assumes, without apt authority

or analysis, that the First Amendment somehow generally

preempts state law-based restraints on unauthorized legal

practice of law." (App C, 27).

In her Petition for Review in the Supreme Court of

Oregon, Petitioner presented the following question for

review:

"1. Whether the injunction decreed by the trial court is

unconstitutionally overbroad in banning petitioners not only

from statutorily unauthorized practice of law but also from

all those forms of practice of law permitted by the state to

all non-lawyer citizens of Oregon." (App F,1)

In her Petition for Review, Petitioner went on to

state that "[T]he injunction's inclusion within its ban those

forms of law practice which the state authorizes

non-lawyers to practice violates federal First Amendment

guarantees in that there is no compelling interest in the

state's banning petitioners from the practice of law which

the state authorizes non-lawyers to practice." (App F)

Petitioner also stated in her Petition for Review that "Legal

i ii cca A

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advice is fully protected speech under the First Amendment

to the United States Constitution. As such it cannot be

intruded upon absent a compelling government interest."

On October 7, 1997, the Oregon Supreme Court

denied review without comment. (App A)

REASONS FOR GRANTING THE WRIT

I. THIS CASE INVOLVES AN IMPORTANT

CONSTITUTIONAL QUESTION THAT SHOULD BE

RESOLVED BY THIS COURT:, TO WHAT EXTENT

UNDER THE FIRST AMENDMENT CAN STATE

UNAUTHORIZED PRACTICE LAWS PREVENT

NON-LAWYERS FROM ORALLY DISSEMINATING

LEGAL INFORMATION TO MEMBERS OF THE

PUBLIC

This case is about a non-lawyer providing law-related

services directly to the public. This type of activity has a

long history. To quote from the American Bar Association's

1995 report NonLawyer Activity in Law-Related Situations:

"From the founding of the colonies until today, non-lawyers

have participated with lawyers in the giving of advice and

assistance to others on matters involving the law. The role

of non-lawyers in the process waxed and waned until the

eve of the 20th century. Then, in a span of about 70 years,

requirements for admission to practice law became more

rigorous and laws prohibiting the unauthorized practice of

law (UPL) were enacted. The 1930s began several decades

of aggressive enforcement of UPL laws. The last 20 years

have seen a gradual decline of enforcement, although

increased activity by prosecutors or state bar UPL

committees has occurred in several jurisdictions in the last

few years."

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Also during the last 20 years, the modern self-help law

movement was born. In 1967, in New York County

Lawyers’ Ass'n v. Dacey, 283 N.Y.S.2d 984 (App. Div.),

rev'd on the dissenting opinion, 287 N.Y.S.2d 422, the New

York Court of Appeals held that the publication and

distribution of self-help law materials, including forms and

instructions for filling them in, was constitutionally

protected activity under the First Amendment and was not

subject to the New York UPL laws. By the mid 1970s to

early 1980s, self-help law books began to appear in regular

bookstores, especially in the Western states.

As the number and sales of self-help law publications

increased, so too did the demand for providers of clerical

services familiar with the procedures and requirements

specific to such areas as divorce and bankruptcy. As with so

many other trends, this one was initially centered in

California, but by the 1980s, self-representation based on

the information in published materials and coupled with

form preparation by non-lawyer clerical services became a

popular option throughout most of the Western states, and

Florida.

It should be noted that both self-help publications and the

supportive clerical services almost never were directed

towards contested cases that required advocacy in a court

of law. Rather, the self-help law movement was almost

always restricted to situations where the court was acting in

an essentially administrative role processing of paperwork in

an uncontested context.

In the early 1980s, the American Bar Association first

started talking about a legal access gap. It estimated that at

least 100 million Americans lacked adequate access to the

courts, often because they lacked affordable legal services.

The American Bar Association's Special Committee on the

10

Delivery of Legal Services began studying self-help law in

earnest, selecting Arizona as its primary study site. It first

published a report on self-representation in Arizona in the

legal areas of divorce and bankruptcy (Cox, Self-Help Law:

Its Many Perspectives, ABA, 1984). This report found

self-representation to be an acceptable option for those who

engaged in it. In 1993 the same ABA Committee (now

named the Standing Committee on the Delivery of Legal

Services) focused its attention on the Maricopa County

family court (Phoenix). The Committee's report (Sales,

Self-Representation in Divorce Cases, ABA, 1993)

disclosed that over 50% of the divorces were being handled

without lawyers on either side and that only about 10% had

lawyers on both sides. These numbers were fairly typical of

those found in other Western states.

As self-help divorces grew in number, so did the number of

businesses specializing in typing, serving and filing divorce

papers. These businesses operated in a number of different

ways. Many of them simply assumed the role of scriveners,

typing forms under the direction and control of the

customer, who got his or her information about which forms

to use and what to put in them from a relevant self-help

publication. In some cases the form preparation service also

sold the publication while in others customers were referred

to the local book store. This basic service delivery model

remains the most prevalent as of 1998.

But many form preparation services have gone beyond the

scrivener role and are willing to answer incidental and basic

questions about how a particular legal process works and

what information needs to go in the forms. Still, the main

thrust of these businesses is typing, filing and serving legal

papers for people who have chosen to represent themselves,

and not the provision of legal expertise. This model most

closely describes Petitioner's activities.

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Concomitant with the growth of legal form preparation

services alternatively referred to as independent paralegals

and legal technicians has been the fitful efforts of state bar

associations to either study them (cf State Bar of California,

Report of the Public Protection Committee,1988) or drive

them out of business on the ground that they are engaged in

the unauthorized practice of law. All states except Arizona

have laws against the unauthorized practice of law, and

about two out of three states make UPL a crime.

The primary rationale advanced for UPL laws by the courts,

bar associations and legislatures has been consumer

protection. However, there has never been any meat on

these bones. In a seminal study of UPL enforcement,

Deborah Rhode discovered that virtually all UPL

enforcement was based on complaints by lawyers rather

than consumers, and that consumer harm was virtually

absent from all previously filed UPL cases. Rhode,

Authorized Practice, Vol. 34:1, Stanford Law Review

In 1992, the American Bar Association launched a massive

three year national study of non-lawyer legal service

providers. In its 1995 report titled NonLawyer Activity in

Law Related Situations, the 16 member ABA Commission

on NonLawyer Practice found that legal technicians were

both pervasive, especially in the West, and almost entirely

unregulated. The report cited anecdotal evidence that some

legal technicians had caused harm by imparting erroneous

legal information to their customers primarily in immigration

cases. However, the various formal surveys and eight public

hearings conducted as part of the Commission's study failed

to produce any real evidence of harm.

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Il. THE PETITION SHOULD BE GRANTED

BECAUSE THE DECISION BELOW CONFLICTS

WITH THE FREE SPEECH PROVISIONS OF THE

FIRST AMENDMENT BECAUSE IT BARS

PETITIONER FROM ENGAGING IN FULLY

PROTECTED SPEECH

A. How Oregon Defines the Unauthorized Practice of Law

This petition is being filed because Petitioner, a non-lawyer,

was found to have engaged in the unauthorized practice of

law and was subjected to injunctive relief and ordered to

pay an attorney’s fees award of $16,000 (attorney expenses

on appeal. As is true in many state, the state of Oregon’s

legislature does not define the “practice of law.” Rather

ORS 9.166 provides that anyone not a lawyer who is

practicing law can be enjoined from doing so. UPL is not a

crime in Oregon.

If there is no statutory definition of “practice of law,” how

can a non-lawyer know whether he or she is engaged in the

practice of law? Again as is true in most state, the

definition of UPL is crafted by the Oregon Courts on a case

by case basis. This means that to know whether a particular

activity will or will not be considered the unauthorized

practice of law, the non-lawyer must: Become familiar with

the existing case law, and be able to predict how this case

law will impact on his or her proposed activities.

Unlike any other area of law, a prospective legal form

preparation service is foreclosed from obtaining reliable

legal advice on this issue from the local lawyer community,

due to the inherent conflict of interest between lawyers and

non-lawyers who would offer consumers an alternative to

lawyers. Assuming, however, the ability of a particular

lawyer to overcome this conflict of interest, the lawyer will

13

inevitably be forced to issue an opinion that almost any

proposed activity would constitute UPL. This stems from

the extreme broadness of UPL as defined by the Oregon

courts and from the fact that all attorneys are ethically

constrained by their professional responsibility rules from

assisting another to engage in UPL.

The governing case law in Oregon is Oregon State Bar v.

Gilchrist, 272 Or 552, 538 P.2d 913 (1975). This case

decided two questions:

- Is it the unauthorized practice of law to

disseminate published legal materials?

-Is it the unauthorized practice of law to

communicate with the purchasers of those materials for the

purpose of helping them prepare court documents?

The court decided the first question in the negative on the

basis of New York County Lawyers’ Ass'n v. Dacey, 283

N.Y.S.2d 984 (App.Div.), rev'd on the dissenting opinion,

287 N.Y.S.2d 422 (1967). However, the court answered the

second question in the affirmative, as follows:

"All personal contact between defendants and their

customers in the nature of consultation, explanation,

recommendation or advice or other assistance in

selecting particular forms, in filling out any part of

the forms, or suggesting or advising how the forms

should be used in solving the particular customer's

marital problems does constitute the practice of law

and must be and is strictly enjoined."

As Gilchrist is the last judicial word on this subject in

Oregon prior to the instant case this paragraph defines the

unauthorized practice of law in Oregon as it pertains to

of

legal form preparation services at all times relevant to this

case.

It should be noted that Oregon's UPL law, like most state

UPL laws, does not depend on whether UPL resulted from

business or non-profit activity. Although the instant case

involves a business, the same law that was applied to

Petitioner could equally be applied, for example, to a

battered woman's shelter that counseled its clients for free

on how to obtain a temporary restraining order.

B. The Injunction Issued in this Case Is Not Inconsistent

With the Gilchrist case.

Earlier, the verbatim terms of the injunction issued against

Petitioner were set out in the Statement of the case.

This injunction is logically supported by the Gilchrist

language, which among other things prohibits "personal

contact between defendants and their customers in the

nature of consultation, explanation, recommendation or

advice or other assistance in selecting psr*icular forms, in

filling out any part of the forms, or suggwzting or advising

how the forms should be used in solvim the particular

customer's marital problems" (emphasis added).

While denying Petitioner's Motion for Directed Verdict

from the bench, the trial judge demonstrated just how broad

the Gilchrist case really is:

The Court: "The difficulty that you get into in certain

situations, whether you're the legislature or whether

you're the Supreme Court or you're the Ninth Circuit

or you're the Court of Appeals or you're a Circuit

Court judge, is there are those things and the one that

we all hear about is pornography that you know it

15

when you see it, but you can't put it in words. And

brighter people than I have had that particular

problem. The practice of law, like pornography, has

that same kind of problem, especially when you get

out towards the periphery." (App H)

Comparing the practice of law with pornography in terms of

its vagueness is apt. But it offends common sense to suggest

that the same "know it when you see it" rule can be used

both to decide when UPL has occurred and when particular

materials are pornographic. The analogy would be germane

_ if licensed pornographers were given the function of initially

determining what was pornographic and barring others from

producing it in competition with themselves. And if

pornography is protected when it serves a serious artistic

purpose, what can be said about legal information which

serves the fundamental right of accessing a branch of

government and gaining basic legal entitlements.?

C. The Oregon UPL Law as Applied to Petitioner Violates

the Free Speech Provision of the First and Fourteenth

Amendments

1. Petitioner Concedes the Legal Profession Is Subject to

State Regulation

This court has long upheld the right of a state to regulate

the legal profession. Goldfarb v. Virginia State Bar, 421 .S.

773 (1975), Bates v. State Bar of Arizona, 433 U.S. 350

(1977). Although this court has previously struck down

anti competitive practices, it has always upheld the concept

of occupational licensing as such.

Importantly, Petitioner is not challenging a state's right to

regulate the legal profession. Rather, Petitioner is raising the

question of how far the legal profession's monopoly over

16

legal information can constitutionally extend. Under

Gilchrist (and in the injunction issued against Petitioner), the

legal profession's monopoly has been extended, in effect, to

any oral interchange between a non-lawyer and a customer

regarding the customer's need to use the Oregon courts.

Petitioner argues here that this extension of the lawyer

monopoly is far beyond what the First Amendment permits.

> The House of Practice of Law Has Many Mansions

In Chapter 5 of his well regarded book American Lawyers

(Oxford University Press, 1989), UCLA law professor

Richard L. Abel, traces the history of how lawyers came to

define their monopoly and defend its boundaries against lay

competitors. He points out that until 1870 the legal

profession was primarily concerned with its exclusive right

to represent people in court. Then the profession turned its

attention to out-of-court "incursions" by title insurance

companies, credit and collection agencies, banks and trust

companies, accountants, automobile clubs, mortgage and

insurance companies and lay representatives seeking to

appear before administrative agencies. Both the ABA and

state bar associations encouraged restrictive legislation over

these out-of-court activities, and to a large extent succeeded

in either pushing them under the UPL umbrella or

addressing them in "treaties" with organizations

representing these other groups that clearly delineated the

scope of permissible activities. Most of these treaties were

abrogated when the very concept came under review of the

U.S. Attorney General's antitrust division in the late 1970s.

In large part because of these monopoly building activities,

state statutes and UPL case law consigns in all of the

following to be the practice of law: 1) representing people

in contested court cases as an advocate 2) advising people

as to what decisions to make in a court case 3) advising

17

people as to what decisions to make in a non-judicial matter

(such as estate planning) 4) representing people in their

dealings with court clerks in uncontested situations (as an

intermediary) 5) explaining to people what going to court

might accomplish for them 6) explaining to people what a

particular court process entails 7) drafting complex

transactional forms and court pleadings 8) drafting simple

pleadings in uncontested cases 9) helping people to

complete check the box fill in the blanks forms that are far

less complex than those required to file your taxes or apply

for social security or welfare benefits 10) explaining how

official court forms are used, and 11) defining technical

terms that people need to understand in order to handle

their own legal affairs.

The fact is, virtually all law-related information targeted to

an individual's situation is off limits to anyone but a lawyer.

Bar associations have consistently maintained that

explaining law-related matters to people is the same as

giving them advice. No UPL case has ever distinguished

between disseminating legal information and giving legal

advice.

Petitioner does not seek a ruling permitting her to engage in

all of these roles. She recognizes that states have an interest

in assuring that consumers aren't harmed by errant advice or

information that may deeply impact their legal rights. For

that very reason, Petitioner dedicated herself in 1991 to

working with the Oregon legislature to examine these and

other roles and come up with a regulatory scheme that

would sensibly permit some of them to be engaged in by

non-lawyers under appropriate regulations while reserving

others to members of the Oregon Bar. Petitioner does not

want to be a lawyer. But Petitioner wants to be able to help

the large number of Oregonians who simply can't afford a

18

lawyer and who are willing to handle their own cases with

Petitioner's help.

3. Legal Advice is Fully Protected Speech Under the First

and Fourteenth Amendments

In Board of Trustees, State Univ of N.Y. v. Fox, 492 U.S.

469 (1989, this court noted that "legal advice” is fully

protected speech. At issue in Fox was a free speech

challenge to a public university's rule essentially banning

from the dormitories anyone whose motive in entering was

to make a profit. The court first pointed out that the ban

implicated non-commercial as well as commercial speech in

that it would ban a student from receiving medical or legal

advice in his or her dorm room (492 U.S. at 482). The court

then cited N.Y. Times v. Sullivan for the proposition that

legal advice is non-commercial speech even if it is delivered

for a fee:

While these examples consist of speech for a profit, they do

not consist of speech that proposes (emphasis in original) a

commercial transaction, which is what defines commercial

speech, see Virginia Pharmacy Board, 425 U.S. at

761(collecting cases). Some of our most valued forms of

fully protected speech are uttered for a profit. See, e.g.,

New York Times Co. v. Sullivan, 492 U. S. at 482.

In his dissent from the majority decision remanding the case,

Justice Blackmun noted:

"As the majority correctly observes, the resolution so

interpreted prohibits not only commercial speech (i.e.,

speech proposing a commercial transaction), but also a wide

range of speech that receives the fullest protection of the

First Amendment , 492 U.S. at 482.

19

4. The Activities Enjoined by the Oregon Trial Court Are

Fully Protected Speech

If legal advice is fully protected speech, so are the activities

enjoined by the trial court in this case. There is no issue of

unauthorized legal representation here. Petitioner did not

undertake to represent her customers in or out or court, nor

to act as their fiduciary. Nor did she hold herself out as a

lawyer or as a legal expert. Petitioner's only pure conduct

was typing legal forms. All of her other activities held to

constitute UPL and barred by the injunction had to do with

communicating legal information of a primarily procedural

nature that is, information about how the law works in

certain types of cases such as divorce and guardianship and

about how to use the Oregon judicial system which is, after

all, a branch of the Oregon government. Specifically,

Petitioner answered such questions as: How long do I have

to live in Oregon to file for divorce? How long does a

divorce take? I haven't seen my spouse for 2 years. How

w do I divorce him? Does my spouse need to sign the

papers? Do I need to notify the Children's Services

Division when I file for an adoption? Where do I file a

bankruptcy? How many copies of the forms will I need?

What is a codicil? Does a Power of Attorney have to be

notarized? How many witnesses will I need for my will? Is

there a court hearing for a name change?

Under traditional First Amendment analysis, fully protected

speech remains fully protected no matter who engages in it.

For instance, legal advice, which is fully protected speech

when uttered by lawyers (Cf State University of New York

y. Fox) should not become less protected simply because it

is uttered by non-lawyers. Rather, to the extent that a state

has a compelling interest in regulating the content of legal

advice or legal information uttered by a non-lawyer, this

interest must be advanced through a constitutionally

20

permissible system of regulation instead of by barring the

speech altogether except when a lawyer utters it.

5. Oregon Must Have A Compelling State Interest in

Banning All People But Lawyers From Engaging In Fully

Protected Speech

Once a type of speech is determined to be fully protected

under the First Amendment, prohibiting a person from

engaging in that speech is presumptively unconstitutional.

The prohibition may only be upheld if the state offers a

"compelling state interest" for the regulation. NAACP v.

Button, 371 U.S. 415 (1963). Because no court has ever

ruled that legal information or legal advice offered by a

non-lawyer is fully protected speech under the First

Amendment, no court has ever had to rule on the question

of whether states have a compelling state interest in

maintaining their UPL laws.

The almost universal rationale advanced for UPL laws by

the courts that have enforced them is the need to protect

consumers against receiving erroneous legal information or

advice. But several comprehensive academic studies have

reported the virtual absence of any evidence that consumers

are harmed by non-lawyers assisting people in uncontested

matters, and Petitioner is unaware of any studies that

establish the existence of such harm. See eg, Rhode,

Authorized Practice, Vol. 34:1, Stanford Law Review;

Christensen, The Unauthorized Practice of Law; DoG

Fences Really Make Good Neighbors Even Good Sense?;

American Bar Foundation Research Journal (Spring 1980);

ABA Commission on NonLawyer Practice, NonLawyer

Activity in Law-Related Situations (1995).

The state of Oregon undoubtedly will argue that consumer

protection is a compelling state interest justifying banning

21

the Petitioner and other non-lawyers from transmitting legal

information to their customers. However, the fact that a

huge legal access gap exists for many millions of Americans

(the ABA has estimated that in excess of 100 millions

Americans have unmet legal needs because of how the legal

system is structured) makes an equally strong argument that

UPL laws cause far more consumer harm than they prevent.

In Edenfield v. Fane 507 U.S. 761 (1993), a commercial

speech case, this court invalidated an occupational

restriction on solicitations by licensed accountants. In

response to the state's argument regarding its interests in the

regulation, this court noted that the states:

“burden is not satisfied by mere speculation or

conjecture; rather, a governmental body seeking to

sustain a restriction on commercial speech must

demonstrate that the harms it recites are real, and that

its restriction will in fact alleviate them to a material

degree.”

Without this requirement, a State could with ease restrict

commercial speech in the service of other objectives that

could not themselves justify a burden on commercial

expression (507 U.S. at 771).

The State of Oregon has no studies justifying its claimed

interests (in fact, all pertinent studies in other states draw

the opposite conclusion). It is true that the trial court

concluded in a "discussion" following its "Findings and

Conclusions" that Petitioner "has done great harm to some

of her customers." (App D). However, this statement is not

supported by the Findings of Fact,

Assuming that the speech in question here is held by this

court to be fully protected under the i rst Amendment, the

22

State of Oregon will have the even greater "compelling

interest" burden to justify the absolute ban on the

dissemination of legal information by non-lawyers.

6. Assuming Oregon has a Compelling Interest in

Regulating the Dissemination of Legal Information by

Non-lawyers, UPL is Not A Narrowly Tailored Method of

Serving That Interest

Under the Oregon UPL laws as applied to Petitioner,

| Petitioner may not personally offer any substantive or

procedural information to her clients regarding an Oregon

divorce. In this regard, Oregon's UPL laws are typical of

those in other states, which often prohibit non-lawyers from

providing any information about how to access and use the

courts. Put another way, under these laws only lawyers (and

those under their direct control and supervision )are

authorized to disseminate legal information to the public in a

one-on-one context.

For people undertaking to represent themselves, these UPL

rules mean that they must obtain all their information from

books or from lawyers. What this means in practice is that

people who have sub-par reading or language skills and who

also cannot afford lawyers are completely deprived of

access to the courts, often for the lack of supportive

information that is routine and trivial. Many of these are

surely the very same people who the ABA in its various

"legal needs" studies has found to be underserved by our

current legal system. Imagine the barriers a self helper faces

when none but a lawyer can answer questions like the ones

listed earlier in Section C.4.

Assuming, then, that legal information or legal advice is

fully protected speech, and further assuming that the State

of Oregon is found to have a compelling interest in

23

regulating that speech by non-lawyers, the final question to

address is whether the Oregon UPL laws are narrowly

tailored to satisfy that compelling state interest.

We start with the fact that no U.S. Supreme Court case has,

after first identifying speech as fully protected, acquiesced in

a regulatory system that forbade that speech to all but a

handful of individuals who were licensed by the government

to engage in it. But this is precisely how UPL laws operate.

They forbid everyone except licensed lawyers from

imparting information about the law and about how to use

and access a branch of government. In this respect, current

UPL laws achieve the exact opposite of narrow tailoring. In

fact UPL laws are specifically tailored to have all the

subtlety of a blunderbuss. That this is no exaggeration can

be seen from the fact that Oregon makes no effort to

statutorily define UPL but rather leaves it to be defined by

the courts on a case by case basis.

In many ways the instant case is like the situation in Airport

Commissioners v. Jews For Jesus, 482 U.S. 569 (1987).

There, an airport regulation banned "all First Amendment

activities" in the central terminal. In ruling that the

regulation on its face violated the First Amendment, this

court stated: " We think it obvious that such a ban cannot

be justified even if LAX were a nonpublic forum because no

conceivable governmental interest would justify such an

absolute prohibition of speech." [482 U.S. 574-575]"

In addition to preventing many types of people from

engaging in self-representation, the locking up of legal

information in the hands of a small government-sanctioned

group of lawyers has certainly helped to make us into a

society of legal illiterates. Information is the lifeblood of a

democracy, especially information about how to access and

use the government itself, whatever the branch. The freer

een

24

such information flows, the better the democracy works.

Blockages in the information pipeline, on the other hand,

tend to unfairly concentrate power in the hands of the

privileged. This is the exact rationale that the U.S. Supreme

Court used in the commercial speech case of Bates v. State

Bar of Arizona, 433 US 350 (1977) to strike down blanket 4

bans on lawyer advertising. And like the ban on advertising

struck down in Bates, UPL restrictions have been a vital

part of the legal profession's efforts to define and maintain

its monopoly. That is, they were intentionally set up to

prevent competition, the consumer protection justification

came later. (American Lawyers, Abel, Oxford University

Press). The case against UPL laws that throw an

all-encompassing blanket cver fully protected speech such

as the dissemination of legal information is even more

compelling than in the case of the commercial speech

addressed in Bates.

Professional licensing has long been a mainstay of the

American regulatory landscape and it may seem, on the face

of it, as inherently reasonable to regulate the legal

profession as any other. And since regulation always implies

a border between who is authorized to practice the

profession and who is not, it seems reasonable to punish

people who illegally cross this border, however it is defined.

As the Oregon Court of Appeals put it, "[T]he practice of

law involves conduct, processes, and relationships that

transcend mere expression. In that respect, ORS 9.160 and

the corollary legal licensing statutes are no different from

other professional licensing and regulatory schemes." (App

C)

The problem with this rationale is that the legal profession

really is like no other. A major portion of its stock in trade

‘s information about how to access and use a branch of

government, a commodity vital to exercising the rights of

25

citizens. While an argument can be made that courts have

historically had the right to decide who serves as an

intermediary between a party and the court, this argument

cannot constitutionally be extended to the dissemination of

legal information about how to access the courts. This is not

to say that laws protecting consumers against the

consequences of bad legal information and advice aren't

appropriate. But consumer protection laws are a far

different matter than prohibiting most of the population

from imparting or receiving an entire category of speech

that is central to their ability to secure their legal rights in a

court of law.

7. The State of Oregon Has Reasonably Available

Regulatory Alternatives

Assuming that this court strikes down Oregon's UPL law

under the First Amendment, how might the State of Oregon

protect its consumers against receiving erroneous legal

information or advice?

First, with relatively few exceptions, there has been no

attempt by the State of Oregon to regulate legal document

preparation services or their activities at any level. Indeed,

when Petitioner tried to get a licensing bill past the Oregon

legislature, the Oregon State Bar opposed it. And so,

occupational regulation is as yet an untried option for the

type of services offered by Petitioner and others. There is

precedent for such regulation. For example, many states,

including Oregon, offer limited practice licenses for real

estate brokers (for activities that are still considered UPL in

other states). See eg Cultum v. Heritage House Realtors,

Inc., 694 P.2d 630 (Wash. 1985).

Second, the State of Oregon has it within its power to

inform its citizens about the relative merits of getting legal

nh ae

26

information from a lawyer as opposed to a non-lawyer. To

quote from the ABA report, Non-lawyer Activity in

Law-Related Situations :

" Americans are independent-minded and historically value

choice in purchasing services of any kind. Government

efforts to restrict individual choice are, thus, unpopular in

this country. Further, we can reasonably assume that when

consumers know the pros and cons of the choices of

assistance, they will make reasonable ones with which

government need not unduly interfere." (Pg :33) The

Report goes on to detail "the current array of approaches to

federal tax preparation and advice, a law related area that

affects almost everyone including self-help consumer

software, IRS tax advise, Tax preparation services, CPA,

enrolled tax agents and lawyers. The report goes on to

suggest that this many-options model can be useful for how

"the legal profession, together with non-lawyers, can offer

the public the kinds of affordable, appropriate and

reasonably safe help for law-related matters that the public

seeks in many areas."

To decide whether regulation is needed for a particular

law-related task, the report suggests (Part Two, Section D)

a three part criteria: 1) Does the non-lawyer activity pose a

serious risk to the consumer's life, health, safety or

economic well-being? 2) Do potential consumers of

law-related non-lawyer services have the knowledge needed

to properly evaluate the qualifications of non-lawyers

offering the services? 3) Do the actual benefits of

regulation likely to accrue to the public outweigh any likely

negative consequences of regulation?

Still another approach to regulation can be found in the

Report of the California State Bar's Public Protection

Committee published in 1988. In that report, an eight

27

member committee (half lawyers and half non-lawyers)

unanimously recommended that the legislature enact a

number of consumer protection statutes that would require

all non-lawyers providing law-related services to register

and would provide injured customers with targeted speedy

and affordable remedies.

If the Oregon judiciary is concerned about the impact that a

more permissive environment for legal information might

have on its operations, it can do what other government

entities do. It can take steps to provide enough information

to allow people to use the courts without information

intermediaries, if that is their choice. The judiciary may also

simplify its procedures so that less outside clerical assistance

is necessary. Lest this approach be thought unfeasible, the

Maricopa County Superior Court in Arizona has recently

established a pro per service in the courthouse and by all

reports, people are now able to do much of their own legal

work without the use of an intermediary whether it be a

lawyer or a legal typing service. And thanks to training

sessions conducted by the Maricopa Superior Court, a

number of other states are following their lead.

Il. THIS PETITION SHOULD BE GRANTED

BECAUSE THE OREGON UPL LAW IS

OVERBROAD AND INVALID ON ITS FACE IN

THAT IT BANS AN UNDEFINED CATEGORY OF

FULLY PROTECTED SPEECH.

Airport Commissioners v. Jews for Jesus, 482 U.S. 569

(1987) states the test for when a rule may be declared to be

facially invalid:

"Under the First Amendment overbreadth doctrine, an

individual whose own speech or conduct may be prohibited

is permitted to challenge a statute on its face "because it

28

also threatens others not before the court - those who desire

to engage in legally protected expression but who-may

refrain from doing so rather than risk prosecution or

undertake to have the law declared partially invalid."

Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 503

(1985).

When a law such as the Oregon UPL law is intended to be

so broad that it is left undefined, it certainly meets the

overbreadth test and should be struck down without regard

to the facts of Petitioner's individual case. Returning to the

Gilchrist case, it's hard to imagine a broader ban on an entire

category of fully protected speech. Without question, the

Oregon UPL law not only bans speech that might

reasonably be considered to be the practice of law, it also

chills speech that articulates general information available in

writing, often in government documents intended to instruct

the public on handling a legal problem, or in privately

published materials often authored by lawyer-experts. For

example, a law library reference librarian or a court clerk

may be reluctant to answer the simplest question about

Oregon law or legal procedure. Only by standing the First

Amendment on its head can this type of ban of fully

protected speech be justified.

CONCLUSION

Millions of Americans suffer from a legal access gap created

by our current legal system. This access gap exists in

Oregon as well as in most other states. Under the Oregon

UPL statute, as interpreted by Oregon case law, Petitioner

is prevented from personally disseminating any information

that would help her customers access and use the Oregon

judiciary. The dissemination of legal information in a one on

one context is fully protected speech under the First

Amendment to the U.S. Constitution. Petitioner and other

29

non-lawyers may only be barred from engaging in such

speech if the State of Oregon has a compelling state interest

in such a drastic form of regulation. Oregon has failed to

demonstrate this compelling state interest, but if it does, its

method of serving that interest must be narrowly tailored.

The Oregon UPL law is the broadest rather than the

narrowest possible method of serving its interests, and

cannot, therefore, withstand scrutiny under the First

Amendment, both as applied and on its face. Assuming that

Oregon has a compelling interest to regulate legal

information and advice, many regulatory devices other than

the UPL laws are available to Oregon for this purpose.

DATED: January 4, 1998

Respectfully submitted, Sass hfs

Robin Smith

8105 SW Maple Leaf St.

Portland, Oregon 97223

(503)245-0258

Pro se

APPENDIX

A. ORDER DENYING REVIEW

B. MONEY JUDGMENT

C. OREGON COURT OF APPEALS DECISION, HASELTON, J.

D. FINDINGS OF FACT AND CONCLUSIONS OF LAW

E. JUDGMENT AND DECREE PERMANENT INJUNCION

F. PETITION FOR REVIEW TO OREGON SUPREME COURT

G. APPEALANT'S BRIEF

H. TRANSCRIPT TRIAL COURT, SELECTIONS

I. ABA NON LAWYER ACTIVITY IN LAW RELATED SITUATIONS,

SELECTIONS