Reflections on Regulating the New Categories of Legal Professionals
The Unauthorized Practice Laws Should Be Reconsidered in Light of the Changes that have Occurred Since Their Initial Promulgation
Ask ten lawyers, bar associations, or judges what the practice of law is, and you are likely to get ten different answers. If you rephrase the question and ask what the practice of law by non-lawyers is, you will probably get one answer: they should not engage in the unauthorized practice of law. Answers to the question about the definition of the practice of law range from the circular, (114) to the overly general, (115) to the overly specific. (116)
The core goals of unauthorized practice laws are as valid as ever. Non-lawyers must not hold themselves out as lawyers or undertake activities they are unqualified to perform. But while the core goals remain valid, a changing society and legal practice may necessitate significant alterations to the structure and operation of these laws. (117)
Consider that the exclusive right of lawyers to practice law not only predates computers, but also photocopiers, ballpoint pens, and air travel. The right predates the massive increase in the number of people obtaining higher education, (118) the round of court simplification known as the Federal rules project, (119) and the consumer rights movement (with its presumption that courts and other institutions, public or private, will be accountable to people). It predates the justice gap itself--the phenomenon in which millions of people compromise their rights and interests annually because they proceed without counsel in our civil courts. (120)
While the core goals of the unauthorized practice laws remain valid, these societal changes matter. In the modern era, the law itself (including case law, statutory law, and regulatory law) is now broadly accessible to lay people. Moreover, lay people are well equipped to deliver legal information to self-represented litigants (including, potentially, to large numbers of them). And this legal information may be dispositive in legal matters in which, but for this kind of assistance, parties might otherwise have received no assistance at all. Finally, a huge nonprofit sector and a broader variety of licensed skilled professionals with the potential capacity to supervise nonlawyers in certain contexts have emerged.
The court decisions that shaped the early prohibitions in the unauthorized practice laws, and that continue to remain in force today, make clear that the unauthorized practice of law prohibitions must be evaluated in their real world context. Thus, in People v. Alfaru' in which New York's highest court held that the unauthorized practice laws prohibit actions outside of the courtroom in addition to actions within, (121) the court wisely observed that "[a]ll rules must have their limitations, according to circumstances and as the evils disappear or lessen." (122) The Court therefore proceeded to hold that despite the unauthorized practice laws, it must remain permissible for a lay person to help a neighbor to draft a simple instrument. (123)
Likewise, as we consider the limitations of unauthorized practice laws, it is necessary to consider whether the "evils" (124) targeted by these laws may "disappear or lessen" (125) in light of the context in which these laws operate in our modern times.
Reconsideration of the Unauthorized Practice Laws Follows Successful Modernization of Analogous Features of the Legal System
When analyzing how the unauthorized practice laws might be constructively interpreted or modified, it is important to remember that fifteen years ago, change seemed very unlikely with respect to many analogous areas of the legal profession that have now been modernized. At that time, judges did not ask questions of self-represented litigants, court staff were considered prohibited from responding to self-represented litigants' requests for help, and attorneys did not deliver limited-scope services to clients. (126)
Now it is almost received wisdom, endorsed by the Conference of Chief Justices, that judicial engagement is appropriate when needed. (127) Similarly, most states have issued standards for trained staff on how to provide appropriate information to litigants, (128) and the ABA and almost all of the states have endorsed the delivery of unbundled legal services. (129)
Interestingly, in almost all of these examples, prior law (or at least practice) was modified without being explicitly overruled. A thoughtful reconsideration of the actual wording of the governing law, and a renewed commitment to its underlying purposes, sometimes accompanied by clarifying language, allowed a more sound set of practices to gain approval and spread with immense implications for increasing access to justice. (130)" Those looking to the future might note that a similar reanalysis has only recently begun with respect to the use of interpreters, (131) non-judicial neutrals, (132) and other elements of judicial and attorney practices.
A similar return to first principles may be equally important in evaluating the appropriate reach of the unauthorized practice laws, taking into account that the governing language may mean more (or less) in the modern context than was intended decades ago. The important considerations include the following:
* The purpose of regulation is to benefit the public. Prohibitions are warranted only insofar as they protect consumers and increase access to justice. The public is now deeply skeptical of professions that self-regulate in the interests of the profession itself. (133)
* Regulation need not be an "either/or" matter, but should take into account the breadth of circumstances. It may now be appropriate to allow "intermediate" categories of legal practice by non-lawyers that would not otherwise be handled by admitted attorneys, and that were inconceivable when the structure of regulation was put in place.
* Some activities that might traditionally have been considered the "practice of law" might not warrant continued prohibition under the unauthorized practice laws. For example, because many people now have access to higher education, non-lawyers may be better positioned to provide informational services than would they would have been in the early twentieth century.
* Advances in technology may provide new opportunities for non-lawyers to assist people with legal matters. For example, new software may help to structure the assistance provided by non-lawyers to help people complete court forms. (134)
* Niche practice areas that are currently not being adequately handled by private attorneys may offer opportunities for practice by non-lawyers, especially for specific tasks that are relatively repetitive, or that depend on technical knowledge.
* Regulation of non-lawyers in nonprofit settings may be possible with less restrictive approaches than would be needed in for-profit settings. The concerns and incentives are different.
* Regulation of non-lawyers in supervised settings may require less restrictive approaches than would be needed in unsupervised settings. The concerns and incentives are different. C. Reconsideration of the Unauthorized Practice Laws Must Also Take into Account the Complexity of Responses Within the Courts and Bar
Although millions of people proceed annually in our courts without access to legal representation, the focus has only recently shifted to whether non-lawyers should be authorized to perform expanded roles in the courtroom. The slow pace of reform has been a product of cross-cutting interests and forces. (135) Notably, the ABA process to define the practice of law ultimately dissolved into a recommendation that led to individual states forming their own definitions. (136)
Some players in some states have actively sought to block proposed reforms. For example, the State Bar of Texas' Unauthorized Practice of Law Committee prosecuted a company that was publishing kits to help self-represented parties (and was ultimately blocked from doing so by the state legislature). (137) More recently, the State Bar of Texas attempted (again unsuccessfully) to block the state Supreme Court from issuing standardized forms. (138) In Washington, the Board of Governors of the Bar similarly was unsuccessful in resisting authorization of the limited licensed legal technicians model even though the state's Access to Justice Commission supported the model. (139) While these examples are exceptions to the rule of substantial bar support for increased access, they nonetheless reveal some of the political complexities.
Similarly, some courts that are generally sympathetic to innovation have not always been rigorous with respect to the implications and consequences of opinions on non-lawyer practice. The Ninth Circuit has found certain activities of non-lawyers impermissible, and included needlessly broad language that is likely to chill innovation. (140)
Some speculate that legal practice may evolve slowly because courts' rulemaking processes governing the practice of law are removed from the popular pressures on legislative processes that shape the other professions. (141) This might explain why the medical field has physical therapists, nurse practitioners, emergency medical technicians, health care navigators, and patient advocates, while the legal field has only paralegals. (142)
But in recent years, the dynamics surrounding reform of the legal system to expand non-lawyer practice have become more fluid, precipitated in large part by the crisis in the courts, but also a product of many other factors. The courts themselves are now leading the call for reform, and the organized bar acknowledges the need as well. (143) The calls for reform cite, among other factors, the large number of people who receive no legal assistance in the courts, (144) the development of models authorizing practice by non-lawyers in other countries, (145) the...
New roles for non-lawyers to increase access to justice.
|Position::||II. Reflection on Regulating the New Categories of Legal Professionals through Conclusion, with footnotes, p. 1287-1315|
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