New roles for non-lawyers to increase access to justice.

• Author: Zorza, Richard
• Position: Introduction through I. The Status Quo and Options for Expansion, p. 1259-1287

Introduction I. The Status Quo and Options for Expansion A. Non-Lawyers in Nonprofit Settings 1.Non-Lawyers Supervised by Lawyers (Paralegals) a. Develop Training for Lawyers on How to Train and Supervise Non-Lawyers b. Publicize Effective Programs c. Permit Paralegals to Sign Pleadings and Documents d. Research Effective and Cost Effective Collaborations Between Attorneys and Non-Lawyers e. Enhance Collaboration with Paralegal Training Programs f. Test New Roles for Non-Lawyers in Nonprofit Settings as a Means of Considering Roles in For-Profit Settings 2. Non-Lawyers Without Attorney Supervision in Nonprofit Organizations a. Research New Models for Relying on Non Lawyers to Supervise Non-Lawyers b. Consider Developing Training and/or Certification Requirements Authorizing Professionals to Supervise Non-Lawyers in Their Legal Work c. Create New Profession of Paraprofessional Supervisor, Authorized to Supervise Paraprofessionals in Multiple Fields d. Provide Special Training and/or Certification in Being Supervised and/or in Working Without Supervision B. Non-Lawyers in For-Profit Settings 1. Non-Lawyers Supervised by Lawyers (Paralegals). a. Record Keeping and Billing Rules b. "Quality Mark" for Paralegals c. Levels of Certification for Supervised Paralegals d. Research Cost Effectiveness, Division of Labor, and Integration Strategies e. Training for Attorneys on How to Integrate and Maximize Effectiveness of Paralegals f. Reconsidering the Definition of Adequate Supervision g. Inclusion in the Bar Exam of Questions on Ethical Rules for Supervising Paralegals h. Integration into Incubator Programs 2. Non-Lawyers Working Without Attorney Supervision a. Promote Best Service Providers b. Permit Non-Lawyers to Sign Pleadings and Documents When Appropriate c. Analysis and Research into Most Effective and Cost Effective Division of Law Activities d. Enhanced Collaboration with Paralegal Training Programs II. Reflections on Regulating the New Categories of Legal Professionals A. The Unauthorized Practice Laws Should Be Reconsidered in Light of the Changes that have Occurred Since Their Initial Promulgation B. Reconsideration of the Unauthorized Practice Laws Follows Successful Modernization of Analogous Features of the Legal System C. Reconsideration of the Unauthorized Practice Laws Must Also Take into Account the Complexity of Responses Within the Courts and Bar D. In the Modern Era, Some Traditionally Prohibited Practices Are Likely to Be Permitted, for Good Reason 1. Helping to Complete Forms not Requiring Legal Judgment 2. Providing Legal Information (i.e., Clearly Settled Legal Facts) 3. Performing Tasks Already Routinely Performed by Non-Lawyers 4. Non-Lawyers Can Now Perform Tasks Performed Primarily by Lawyers in the Past Because of Safeguard 5. Authorizing "Friend or Neighbor" to Appear in Court 6. Performing "Simple Instrument" Work that Is not the Primary Focus of an Entity 7. Counseling and Other Activities E. Technology Offers More Options for Best Practices III. A Step Toward Establishing a Safe Harbor from the Unauthorized Practice Laws IV. Designing Training Requirements and a Regulatory Structure to Assure Quality V. Marketplace Implications A. Viability Challenges 1. Educational Costs 2. Culture of the Profession 3. Technology 4. Structure of Professional Organization and Ownership 5. Regulatory Environment 6. Existing Models B. Organizational Options for Building Sustainable Non Lawyer Roles 1. Cooperative Model 2. Affiliations with Other Institutions 3. Court Based Models 4. Ownership by Lawyer Groups 5. Participation in Incubators C. Relationship to Changes in the Current Lawyer Market 1. Division of Labor, Specialization and Marketing 2. Pricing Impact 3. Legitimacy and Regulatory Pressure 4. Helping the Traditional Profession Withstand Technology Monopoly Risk D. Making Progress Toward One Hundred Percent Access to Justice Conclusion INTRODUCTION

In the spring of 2013, New York Court of Appeals Chief Judge Jonathan Lippman observed in a speech delivered at the White House, "Sometimes an expert non-lawyer is better than a lawyer non-expert." (1) Indeed, one of the most intriguing developments in response to the crisis of access to justice in our state courts has been the increasing interest at high levels of the legal system in considering new roles for non-lawyer legal practitioners to provide a range of civil legal services.

In a culmination of steps occurring over a number of years, on March 11, 2014 Chief Judge Lippman called for a study of the appropriateness and scope of the current rules governing unauthorized practice of law:

Building on the use of non-lawyers who do not, in a real sense, practice law, we must look at our legal regulatory framework, first, to see if our unauthorized practice of law rules should be modified in view of the crisis in civil legal services and the changing nature of legal assistance needs in society; and, second, to identify if, short of full admission to the bar, there are additional skill sets, separate in concept from our incubator projects, that can be licensed to provide low-bono or less costly services to help those in need of legal assistance. The high cost of legal services is a real barrier to a growing part of our population gaining access to justice. If lay persons with training in discrete subject areas can dispense legal information or assistance expertly and more cheaply, we should be exploring how best to accomplish that, without diminishing the great legal profession in our state. (2) In February 2014, Chief Judge Lippman announced the planned launch of two pilot projects in New York to test involvement of non-lawyers in roles responsive to the crisis. (3) One of these pilots involves non-lawyer "navigators" who will provide a variety of forms of assistance to unrepresented parties in certain housing courts and civil courts within the state, including answering judges' questions about the facts of cases. (4) The other involves new roles for non-lawyer professionals to provide informational assistance to seniors, including those who are homebound. (5) The New York City Bar Association's Committee on Professional Responsibility has issued two reports--the first in 1995 (6) and a second in 2012 (7)--calling on New York to consider authorizing new models for non-lawyers in helping to respond to the justice gap.

But, while these are cutting-edge developments, they are not the only initiatives to test the potential benefits of expanded roles for non-lawyers in access to justice. In a different approach, the Washington State Supreme Court in 2012 authorized the creation of a new class of "limited licensed legal technicians" to provide legal assistance and information to unrepresented persons, (8) and the Limited License Legal Technician Board (9) has now established the regulatory structure, (10) with initial licenses expected in spring 2015. (11) The approach and analysis are comprehensive. (12) In California, the state bar is holding public hearings on whether to move forward with new roles for non-lawyers. (13) In Massachusetts, the state Access to Justice Commission prioritized the issue for action. (14)

More is happening at the national level. The American Bar Association (ABA) Task Force on the Future of Legal Education's final report supported the involvement of law schools in the creation of innovative frameworks for authorizing the provision of legal services by new categories of practitioners. The Task Force explained:

[T]he services of these highly trained professionals may not be cost-effective for many actual or potential clients, and some communities and constituencies lack realistic access to essential legal services. To expand access to justice, state supreme courts, state bar associations, admitting authorities, and other regulators should devise and consider for adoption new or improved frameworks for licensing or otherwise authorizing providers of legal and related services. This should include authorizing bar admission for people whose preparation may be other than the traditional four-years of college plus three-years of classroom-based law school education, and licensing persons other than holders of a J.D. to deliver limited legal services. The current misdistribution of legal services and common lack of access to legal advice of any kind requires innovative and aggressive remediation. (15) Similarly, at a White House function in the spring of 2013, the then-President of the ABA, Laurel Bellows, offered tentative general support for discussion of the concept (although this did not constitute formal support by the ABA). (16)

The new interest in reform follows earlier writing in the legal academy, including assertions that the traditional blanket prohibitions on unauthorized practice of law are unsustainable, (17) and a conference at Fordham University School of Law in the fall of 2013 in which a public panel was devoted to expert presentations on the potential roles for non-lawyers in response to the justice gap. (18)

The current debate about the role of non-lawyers has been prompted by the access to justice crisis in our courts, and by the fact that the numerous current reform initiatives, each individually...