'Unauthorized Practice Of Law' Rules Promote Racial Injustice

By Rohan Pavuluri | June 7, 2020, 8:02 PM EDT

Rohan Pavuluri
This past week, black Americans and those who stand with them have openly voiced their anger against racism, hate and systemic oppression. Addressing the recent protests, former President Barack Obama wrote, "The point of protest is to raise public awareness, to put a spotlight on injustice … But eventually, aspirations have to be translated into specific laws and institutional practices."[1]

Some have begun to channel the outrage against racism into policy proposals like citizen-led police oversight. But fighting the legacy of white supremacy extends beyond law enforcement reform. A less discussed, yet still pernicious, set of policies that must change are the rules lawyers use to regulate their own profession.

Known as unauthorized practice of law, or UPL, rules, every state in America has policies that grant lawyers a monopoly on providing legal advice, prohibiting professionals who are not lawyers from providing meaningful legal assistance. These policies promote racial inequity and guarantee that black Americans don't have equal opportunities and equal rights under the law.

First, consider which group of people disproportionately has access to three years and $100,000-plus of graduate school education. Due to today's racial wealth gap, created by centuries of white supremacy and black oppression dating back to slavery, the net worth of a typical white family is nearly 10 times[2] higher than that of a black family. It should come as no surprise that only 5% of lawyers are black.[3]

Countless legal problems do not and should not require someone to pay more than $100,000 in fees to learn how to provide competent assistance. By essentially requiring people to go to law school to provide legal assistance, UPL rules guarantee that only a fraction of black people who could competently provide legal assistance are actually allowed to provide such help.

Second, consider which group of people disproportionately cannot afford the legal help they need. UPL rules guarantee that black people don't have equal access to our justice system by limiting the supply of helpers available, which drives up the cost of legal assistance.

It's not hard to imagine a system that exists, similar to nurse practitioners in medicine, where we train professionals to provide the same outcomes as lawyers in specific areas of poverty law. The process could include training modules for specific parts of poverty law that are routine and straightforward, followed by a test for each one.

We could start by training social workers, paralegals and law librarians who are already familiar with the law and serve lower-income communities. Areas of the law that present opportunity include uncontested divorce, consumer bankruptcy, immigration, social security disability, and consumer debt collection.

Opponents of UPL reform claim that we'll compromise consumer protection if we allow nonlawyers to provide assistance. This line of defense lacks nuance.

To reform UPL doesn't mean choosing between regulation and no regulation of the legal industry. It's a choice between maintaining a status quo where black people are disproportionately excluded from both providing and receiving assistance and a system where we re-regulate the legal industry to make it more inclusive, increasing the supply of vetted, qualified helpers available. The false dichotomy of an all-or-nothing dialogue around UPL reform has failed black Americans who need access to affordable legal assistance.

Opponents also object on the grounds that allowing a new class of professionals to help low-income families access the justice system will create two tiers of justice, one for people who can afford a lawyer and one for those who can't. This view fails to appreciate that it's simply impossible to have a lawyer for every single person in America who needs one.

We need more lawyers to do pro bono work and more public funding for legal aid. We need more black lawyers too. But anyone who thinks the sole solution to the access to justice problem in America is more lawyers doesn't understand the scope of the problem.[4]

I applaud the efforts of regulatory bodies in Utah, California, Arizona and Illinois that have all launched honest initiatives to revise their rules, so that vetted professionals who aren't lawyers can provide meaningful legal assistance to people who can't afford an attorney.

The Utah Supreme Court recently enacted an Office of Legal Services Innovation to oversee a "regulatory sandbox," allowing vetted professionals who aren't lawyers to provide legal services.[5] The State Bar of California Board of Trustees recently created a task force that will explore similar reforms.[6] The Arizona Supreme Court is considering the creation of a limited license legal practitioner, or LLLP.[7] And a joint committee of the Chicago Bar Association and Bar Foundation task force will be making recommendations to the Illinois Supreme Court later this year.[8]

We must call on all state supreme courts and bar associations to follow their lead. And we must all have a more open discussion around how UPL rules and race in America intersect.

We can protect consumers and make 10 times the number of helpers available. Today's UPL rules across America are a civil rights injustice. It's not hard to see why black Americans rightfully feel like they live under a different legal system when they must overwhelmingly rely on white lawyers who they can't afford to access their basic civil legal rights. Every state supreme court and bar association has the duty to reform their UPL rules if they care about racial justice.

Rohan Pavuluri is the CEO of Upsolve, a member of the Legal Services Corp.'s Emerging Leaders Council, and a committee member of the American Academy of Arts and Sciences' Making Justice Accessible project.

"Perspectives" is a regular feature written by guest authors from the access to justice field. To pitch article ideas, email expertanalysis@law360.com.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

[1] https://medium.com/@BarackObama/how-to-make-this-moment-the-turning-point-for-real-change-9fa209806067

[2] https://www.brookings.edu/blog/up-front/2020/02/27/examining-the-black-white-wealth-gap/

[3] https://www.americanbar.org/content/dam/aba/images/news/2019/08/ProfileOfProfession-total-hi.pdf

[4] https://www.lsc.gov/media-center/publications/2017-justice-gap-report

[5] https://sandbox.utcourts.gov/

[6] https://news.bloomberglaw.com/us-law-week/california-bar-trustees-move-toward-new-regulatory-sandbox

[7] https://www.azcourts.gov/Rules-Forum/aft/1118

[8] https://chicagobarfoundation.org/advocacy/issues/sustainable-practice-innovation/

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