In New Mexico, Nonattorney Helpers Could Ease Justice Crisis

By Aebra Coe | February 2, 2020, 8:02 PM EST

Judge Albert Mitchell serves on the bench in an area of New Mexico just west of the Texas border where no lawyers at all live in a two-county region that stretches across more than 4,000 square miles.

In a court where an enormous number of litigants do not have legal counsel, “everything takes dramatically longer” because the judge has to explain basic legal concepts to the people appearing before him and shepherd them through the process during their days in court, Mitchell said.

“Divorces that used to take a judge 15 minutes are now taking four to five hours because the lawyer used to gather the information, package it, vet it, but now I have to do that as the trial judge,” he said.

Judge Mitchell said he is hopeful that a number of new initiatives approved by the New Mexico Supreme Court on Jan. 24 will mitigate some of the challenges rural counties like his face in order to help people access justice in a way that is useful to them and which will lead to a more effective and efficient court system.

The state’s high court approved a plan to introduce nonlawyer helpers, called court navigators, into the courts to assist self-represented litigants navigate the system and plans to provide financial incentives to entice attorneys to set up shop in rural parts of the state. New Mexico will also continue to explore the possibility of licensing nonlawyer professionals to take on a limited number of legal tasks that are now performed by lawyers.

The state Administrative Office of the Courts will create the framework for the court navigators program over the next few months, officials said. And, it is likely that funding for the rural attorney incentives will be requested from the New Mexico Legislature in 2021.

Mitchell said he believes the planned changes will have a “huge impact” on his court where 11 local attorneys serve more than 10,000 residents in three counties and where not one attorney lives in two of those three counties.

Many rural communities like those in east New Mexico are facing an access to justice crisis that is impacted both by residents’ ability to afford legal help and because of the shortage of lawyers.

“In your typical rural area where you’ve got a declining population, and a contracting economy — just like these communities are struggling to hold onto their grocery store, they’re losing their lawyers,” said University of California, Davis, law school professor Lisa Pruitt, author of a report on rural access to justice and “legal deserts.”

In 2017, low-income, rural residents received inadequate or no professional help for 86% of their civil legal problems, according to the Legal Services Corporation’s 2017 Access to Justice Report.

New Mexico is one of several states taking aim at that problem.

Under the recently approved court navigator program there, nonlawyer helpers will steer self-represented litigants to the documents they need, help them fill out those documents, and even help them with the logistics of a case as they prepare to appear in court.

The state’s high court also approved two proposals aimed at getting more attorneys to the state’s rural regions. One would involve the recruitment of more out-of-state attorneys who receive passing scores on the Uniform Bar Exam and another is a program that would provide financial incentives such as a government stipend and student loan forgiveness for lawyers to practice in rural or underserved areas.

Additionally, the state will continue to explore the possibility of opening up its attorney regulation in order to allow licensed paraprofessionals to provide some services that are currently restricted to lawyers, similar to the state of Washington’s limited license legal technician program. But, that exploration is still in the early stages and the court did not move any closer to implementing such a program in its decision at the end of January.

The working group that recommended the access to justice-oriented programs to the state’s judiciary also issued an extensive report that attributed New Mexico’s access to justice gap to a lack of attorneys in many areas of the state, costly attorney fees and the retirement of lawyers who are not replaced by younger attorneys as fewer students enter law school and graduates decide against a traditional law practice.

The group found that a third of the state’s counties have 10 or fewer attorneys, and three counties — De Baca, Harding and Hidalgo — have no active resident attorneys. About half of all newly filed civil cases in the state’s district courts in fiscal year 2019 had at least one self-represented party, up from 36% in the 2011 fiscal year.

“Middle- and low-income New Mexicans are increasingly going without legal assistance,” said one of the report’s authors, Judge Donna Mowrer. “Utilizing some of the innovative programs outlined is a potential win for our citizens. They get assistance and a more full understanding of their civil rights and the court process.”

Soon after the state Supreme Court approved the working group’s recommendations, the state’s Legislature heard from New Mexico Commission on Access to Justice on on a strategic plan the commission has developed to make the courts more accessible to residents.

Commission member Supreme Court Justice C. Shannon Bacon outlined the plan for state legislators on Jan. 27, which includes the simplification of court forms, the creation of a statewide online self-help service center, offering more instructional videos, and the expansion of an online service that assists people in preparing documents.

New Mexico’s approach of tackling access to justice from a number of different angles is a smart move, according to professor Lauren Sudeall, who serves as faculty director of Georgia State University College of Law’s Center for Access to Justice.

“For some issues, you really do need a lawyer. But for other issues, I don’t think it’s clear that a lawyer is what’s needed and some of these other solutions might provide what’s needed. I think this multipronged approach makes a lot of sense,” Sudeall said.

Working within the current regulatory system to get more help to those who need it, as New Mexico has moved toward doing, is often easier and more politically feasible than implementing an LLLT-type program that requires expanding the practice of law to include nonlawyers, which often leads to fierce blowback from the bar.

“That is the beauty of these types of programs — they don’t require major regulatory reform because the court navigators aren’t giving legal advice,” said Georgetown Law professor Mary McClymont. “It seems to be a win-win for all the players [in the court system].”

McClymont authored a report for the Georgetown Law Justice Lab on nonlawyer court navigator programs across 15 states and the District of Columbia, where volunteers or staff are assigned to help self-represented litigants as they interact with the courts.

“We found that individuals who were self-represented were better prepared for court, better able to provide complete and accurate forms, and better able to tell their stories to the court when they got before the judge” in regions with court navigator programs, McClymont said.

The impact of access to justice often stretches beyond the nuts and bolts of winning or losing a case in court and impacts the public’s perception of and faith in the courts and their ability to fairly mete out justice, according to Sudeall.

That can make it hard to truly measure the impact of programs like the ones that are about to be implemented in New Mexico, and others like the one in Washington.

“Case outcomes are part of it, but another important part is: Do people feel they have a vehicle to translate the concerns in life in a way a court can address? It’s important to measure, not only did a client win, but did providing them with this tool help them articulate their concerns in a way that they at least feel they were heard and were treated fairly,” Sudeall said.

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--Additional reporting by Jack Karp. Editing by Katherine Rautenberg.