Can Nonlawyer Advocates Increase Access to Justice?
The U.S. has the highest per capita concentration of lawyers — one lawyer per every 300 people, according to American Bar Association statistics. Yet low-income Americans have failed to receive any or sufficient help for 93% of their legal problems, according to the Legal Services Corporation’s 2022 Justice Gap Report. More than half (53%) aren’t sure they can afford an attorney when faced with a civil legal problem. A separate study finds that this affordability gap cuts across low- and middle-income individuals and small businesses.
Advocates of access to justice contend that the legal profession is a monopoly perpetuated by bar associations and state supreme courts. Other factors include the high cost of traditional law school tuition that saddles new lawyers with significant amounts of debt. Whatever the cause, high legal fees give large corporations and wealthy individuals an unfair advantage in the U.S. legal system. Allowing nonlawyers to represent clients in certain civil matters can help to level the playing field.
The concept is already moving forward on a limited basis in some states. In Delaware, for example, nonlawyer Qualified Tenant Advocates have been allowed to represent tenants free of charge in eviction cases since March 1, 2022. Other states have implemented licensing schemes for nonlawyer legal advocates.
However, opposition from licensed attorneys can be a formidable roadblock to these programs. In August 2022, California lawyers effectively shut down the implementation of a pilot project in the state.
Opposition in the Golden State
In March 2020, the State Bar of California established a working group to develop proposals for a nonlawyer advocate program. The California Paraprofessional Program Working Group published its report in September 2021, with recommendations for allowing nonlawyers to represent clients in certain debt collection, employment, family law, and landlord-tenant cases. An advocate would be allowed to take many of the steps an attorney would take in a case, such as filing pleadings and documents, engaging in settlement negotiations, and appearing in court except for jury trials.
Nonlawyer legal advocates would be required to complete a JD or paralegal program, or be a qualified legal document assistant. They would have to complete coursework in legal ethics and court procedures and 1,000 hours of practical training. They would also have to meet the same moral character requirements as attorneys and undergo subject-matter and professional responsibility testing.
After publishing the report, the State Bar opened a 110-day public comment period and received a significant amount of negative feedback. Under pressure from licensed attorneys, the California State Legislature passed a bill withdrawing funding from the working group and requiring it to report the source and use of all funding spent since 2018.
A Look at Other State Programs
Washington was the first state to develop a nonlawyer advocate program. Introduced in 2012, the Limited License Legal Technician (LLLT) Program allows nonlawyers to assist clients with family law and immigration matters. Washington shut down the program in 2020, although LLLTs who were already licensed or completed the program by July 2021 can still provide services. The program was shuttered due to high costs and low participation — LLLTs were required to complete 3,000 hours of attorney-supervised work, creating a high barrier to entry.
In 2018, the Supreme Court of Utah adopted rules allowing licensed paralegal practitioners (LPPs) to assist clients with debt collection, family law, and landlord-tenant disputes. LPPs can file preapproved forms, review court documents, and represent clients in mediations and negotiations, but cannot argue in court. Applicants must possess a qualifying degree or certificate and at least 1,500 hours of law-related experience. They must pass an ethics exam and a Licensed Paralegal Practitioner Examination for each area in which they wish to practice.
Arizona’s Licensed Legal Paraprofessional program, implemented in January 2021, is the most expansive. Advocates can represent clients in civil matters involving monetary amounts less than $10,000, limited jurisdiction criminal matters and administrative law. LLPs can provide legal advice, prepare, sign and file documents, and appear before a court or tribunal.
Will Paraprofessional Programs Work?
Other states are considering or implementing nonlawyer legal advocate programs. Minnesota launched a pilot project in March 2021. Oregon’s program, in development since 2017, was approved in July 2022. A New Mexico task force continues to study the concept.
More controversially, these and other states have considered or implemented new business models that enable nonlawyers to have ownership in law firms — again, to foster greater access to legal services. American Bar Association (ABA) Model Rule 5.4 generally prohibits lawyers from sharing fees and forming partnerships with nonlawyers. Arizona eliminated this rule and created licensing for Alternate Business Structures in August 2020. At the same time, Utah launched a pilot program for a similar licensing scheme.
Opponents of these programs say they fail to address one of the root causes of high legal fees — ABA accreditation standards that keep law school expensive. If the ABA would make accreditation available to online law schools, attorneys could graduate with less debt and be better positioned to offer affordable rates to clients of modest means.
They also argue that nonlawyers are not qualified to provide legal advice, lack the ethical obligations of licensed attorneys, and aren’t regulated by state bar disciplinary structures. Allowing only lawyers to provide legal services ensures quality and protects consumers against fraud, they say. Opponents also worry about competition, not only from paraprofessionals but from technology companies such as LegalZoom.
Furthermore, some opponents question whether alternative forms of representation will help poor and underserved civil litigants afford legal services. The paraprofessional programs implemented by a few states will test whether nonlawyer advocates can increase access to justice.
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