Jerry O’Neil says he lost every battle in his decade-long fight against the Montana Bar Association and the Montana Supreme Court’s Commission on the Unauthorized Practice of Law.
“But in the end, I won the war,” he recently told the Hungry Horse News.
O’Neil said he “officially” began his career as an independent paralegal in 1984 when he registered his business as Kalispell Mediation Services. He also became licensed to practice law as a lay advocate on the Blackfeet Indian Reservation that same year.
A staunch libertarian who believes in less government and more freedom, O’Neil’s problems with the state’s lawyers and judicial branch began in February 2001 when Flathead County District Court Judges Ted Lympus, Katherine Curtis and Stewart Stadler wrote to the Commission complaining that O’Neil was “engaged in the unauthorized practice of law.”
According to the Montana Supreme Court in their 2006 ruling on the case, O’Neil never attended law school, was never licensed to practice law in Montana, had never sat for the state bar exam and “has not met the Montana Supreme Court’s character and fitness requirements.”
O’Neil claims the judges’ letter was prompted by work done by another Flathead independent paralegal, not him.
“Nobody has ever complained about my work,” he said.
But according to the Montana Supreme Court, Lympus wrote to Chief Justice J.A. Turnage in June 1998 about O’Neil’s work in a dissolution hearing. And a state social worker complained to the Commission in February and March 2000 about O’Neil providing legal advice to an incapacitated individual.
Then in November 2000, state bar general counsel Betsy Brandborg learned from a U.S. West Dex representative that O’Neil was listed in the phone book under “attorneys.”
O’Neil told Brandborg he was licensed as an attorney by the Blackfeet Tribal Court and by the Confederated Salish and Kootenai Tribal Court. Brandborg learned that he was a “licensed lay advocate” for the Blackfeet. The Salish-Kootenai subsequently terminated O’Neil’s license after being contacted by Brandborg.
Commission chairman John Connor wrote to O’Neil in May 2001 requesting detailed information about O’Neil’s work, which he claimed he never received. According to the Montana Supreme Court, O’Neil “engaged in a tirade” and told the Commission, “If your object is to try me without a jury, you had better bring along your chains and restraints.”
O’Neil got his day in court in 2004, but following a two-day trial, Lake County District Court Judge Deborah Christopher, sitting in for Lympus, Curtis and Stadler, found O’Neil in contempt for engaging in the practice of law when not authorized to do so and permanently enjoined him from engaging in the practice of law “until such time as he becomes duly authorized.”
The Montana Supreme Court upheld Christopher’s ruling in 2006. O’Neil took his case to federal district court in Missoula and lost, and then appealed his case to the Ninth Circuit Court of Appeals and lost again. But things changed after that, he notes.
O’Neil has long claimed that state law on the authorized practice of law was “unconstitutionally vague” and that it restricts economic freedom by giving the state bar association a monopoly.
In a complete turnaround, the Montana Supreme Court on April 20, 2010, dissolved its Commission on the Unauthorized Practice of Law, noting that “we conclude that this court is not authorized either directly or through a Commission to regulate the ‘unauthorized practice of law.’” It also concluded that “what constitutes the practice of law, not to mention what practice is authorized and what is unauthorized is, by no means, clearly defined.”
O’Neil notes that he had an ally in his cause — the U.S. Department of Justice’s Antitrust Division, which he had contacted about his case. They wrote to the Montana Supreme Court on April 17, 2009, to comment on the Commission’s proposed revisions to rules on the unauthorized practice of law.
“Consumers generally benefit from competition between lawyers and non-lawyers,” Acting Assistant Attorney General Scott Hammond wrote. “We are concerned that the Commission’s proposal, by identifying broad categories of activities that may constitute the practice of law ... will unduly restrict non-lawyers from competing with lawyers.”
O’Neil, who continues to work as an independent paralegal in Columbia Falls, says that in hindsight, another factor probably led to the Commission’s demise — money.
“I learned that the Commission’s budget was $2,000 a year,” he said. “I couldn’t do all that legal work for that much money. I think I broke them. I lost every battle, but I won the war.”