 |
| Natalie Anne Knowlton |
.jpg) |
| Janet Drobinske |
Over the last decade, a growing number of states have rethought certain aspects of legal regulation — among them, unauthorized-practice-of-law rules.
Prohibitions on the unauthorized practice of law are intended to protect the public from unqualified, unauthorized and unscrupulous legal services providers.
Nobody disputes that this is a valid and desirable regulatory objective. Yet there are problems with the prevailing unauthorized practice of law framework that purports to meet this objective.
By and large, under current state unauthorized practice of law rules, licensed attorneys are the only professionals allowed to deliver legal services.
Counter to what one would experience in a modern health care setting, for example, where there are a wide range of service providers with different scopes of practice, in legal services it is attorneys or nothing. This would be less of a problem if attorney providers were meeting the needs of everyone who required legal help, but they are not.
For many, attorney help is inaccessible. The high numbers of litigants navigating state court systems without attorneys is well documented. Many self-represented litigants find themselves in this situation because of the costs — perceived or actual — of hiring an attorney. And one's ability to afford an attorney is not as straightforward an issue as it might initially seem.
In the context of subsidized legal services, the hard income cutoffs in service eligibility determinations create an arbitrary and false distinction between those who cannot afford attorney services and those who can.
The 2022 Legal Services Corp. justice gap study, and others, illustrates how affordability is an issue for those above the federal Poverty Guidelines.[1]
Some states are addressing the legal services gap among this so-called missing middle by allowing other types of legal providers, not just attorneys, to offer specific legal services in certain circumstances. While these providers are not licensed attorneys, they are educated, trained and licensed to deliver legal advice in limited circumstances, and in limited case types.
Colorado is the most recent state to open the profession in this way, joining Arizona, Minnesota, New Hampshire, Oregon, Utah and Washington.[2] Programs of this type are also under consideration in other states. Each state program is unique, but together they represent an opportunity to expand affordable and accessible legal services.
Colorado may be the latest state to move toward a more responsive system of regulating legal services, but it will not be the last. More and more states should rethink the century-old assumptions that shape our current regulatory rules — and work to bring this system into the 21st century.
Background
There is a major flaw in how we traditionally think about one's ability to afford an attorney.
First, income is a poor proxy for spending power. Behind income are debts and liabilities, which for many people can be considerable. It is easy to assume that individuals with a higher annual income are able to afford an attorney.
But saddled with $200,000 in student loan debt along with housing, child education, senior care and other recurring monthly expenses, one's spending power becomes much more limited.
One might — and many do — argue that this hypothetical earner is better positioned than lower-income earners to leverage credit or borrow from another source to hire an attorney.
This assumption is really an expectation that the legal profession places on certain consumer segments — mandating the exclusive use of private attorneys to achieve justice, in spite of what a consumer can or will pay.
This kind of dictate might make sense if all legal matters were of the same level of complexity, required the same tasks, and demanded the same level of human skill and expertise. But that is simply not the case. To be sure, there are complex legal issues that necessitate sophisticated representation, specialized expertise, and expert litigation skills. There is little debate that these kind of cases and issues require a qualified attorney.
Yet there are some legal matters — more straightforward issues and streamlined case types — that professionals who are not attorneys can be educated and trained to handle competently.
Just as nurse practitioners can practice medicine within their limited purview, so can new tiers of professionals in the law. To repurpose the claim levied by some opponents: No, you would not seek out a nurse to perform your brain surgery. But you would — and undoubtedly most of us do — seek out a nurse to give you a vaccine.
Colorado's Licensed Legal Paraprofessionals Have Entered the Profession
States are calling these new providers by a variety of names. In Washington, they are limited licensed legal technicians. In Utah, they are licensed paralegal practitioners. In Arizona, they are legal paraprofessionals. We use the term "allied legal professionals" as a placeholder until stakeholders can coalesce around a uniform national title.
Now, in Colorado, licensed legal paraprofessionals, or LLPs, will soon be able to practice law in marital dissolution, parentage and allocation of parental responsibility cases.
While Colorado's program is one of the newest to be implemented, the state's exploration of this issue goes back to 2015 when the Colorado Supreme Court charged a subcommittee to study Washington's limited licensed legal technician program and related efforts.
The subcommittee work was paused but revived in early 2020 when the court established the Paraprofessionals and Legal Services Subcommittee and tasked it to explore the creation of a regulatory regime for the practice of law by licensed qualified paraprofessionals. From there, the PALS Subcommittee built out a proposal for LLPs operating in family law.
Many aspects of the proposal that the subcommittee submitted to the Colorado Supreme Court mimicked programs operating or being considered in other states.
For example, among the states that have these allied legal professional programs, family law is the most included case type — specifically divorce and dissolution, child custody and support, domestic violence and paternity.
The tasks these providers have been authorized to perform is generally consistent with other state approaches: advising clients on which forms to use; preparing, filing and reviewing opposing party court documents; participating in mediation; etc.
Notably, Colorado LLPs are only authorized to provide limited in-court representation. They may stand next to and communicate with clients in court proceedings, but they can only react to questions posed by the court — they may not address the tribunal otherwise.
Colorado is not the only state that adopted this kind of reactive representation model, but many states are moving toward authorizing full representation, in recognition of the documented struggles self-represented litigants have in navigating hearings.
Leveraging Existing Expertise and Trusted Paralegal Professionals
It is not uncommon for attorneys who learn of these new programs to express concern that untrained individuals will end up doing more harm to legal consumers than if the consumer had no legal help.
Self-representation is devastating for many who try it, and we know from study after study that outcomes are negatively affected when one does not have legal help. But more importantly, education and training are hallmarks of each and every allied legal professional program that is active or under consideration.
In Colorado, prior to sitting for the required examination, LLP applicants must have received either:
- A J.D. from an approved law school;
- An associate's degree in paralegal studies from an accredited school;
- A bachelor's degree in paralegal studies from an accredited school;
- A bachelor's degree in any subject from an accredited school that includes a paralegal certificate or 15 hours of paralegal studies from an accredited school; or
- A first professional law degree from a foreign law school with an LL.M. qualifying the applicant to sit for the Colorado bar examination.
Alternatively, under Colorado Rule of Civil Procedure 207.8(4), an applicant is not required to meet these educational qualifications if they have
Further, to obtain a license, Colorado's LLP will have to complete 1,500 hours of substantive law-related practical experience, including 500 hours of experience in Colorado family law.worked the equivalent of three full-time years in employment constituting substantive law-related practical experience, which must include the equivalent of one full-time year focused on Colorado family law, during the five years immediately preceding the date of filing the application.[3]
Colorado's program, and many others, are designed to appeal to paralegals, who already handle a substantial amount of client interaction, often acting as a buffer for attorneys by addressing basic inquiries or soothing agitated clients and even meeting with clients without attorneys present to advance cases and to provide clients with regular — and requested — law firm contact.
They perform various essential tasks for which they are well trained, and as their experience grows, attorney oversight is, in reality, often reduced. It is not a leap — or even a baby step — to imagine traditional paralegals with additional training providing limited legal advice in select case types.
Given the experience already possessed by many of the paralegals who might pursue licensure under Colorado's LLP program, and the substantial educational and experiential requirements of the program, the claim of attorneys in opposition to this change in regulatory rules — namely, that an unwitting public will be subject to unqualified help — is an increasingly tough sell.
Every state with a program in place now or in the near future has seen fit to establish significant standards for practitioners who are not attorneys.
How States Can Emulate Colorado's Model
State legal regulators can follow the example set by Colorado and others by first exploring the national landscape of these allied legal professional programs, along with the emerging data on how these programs are operating.[4] The experiences of other states are an invaluable starting point.
Modifying state regulatory rules to authorize these programs takes leadership, from the bench and bar — and this leadership signals to the public a willingness to modernize the practice of law to better serve consumers.
These programs also require a longer-term commitment by state legal regulators. Introducing a new tier of providers into a historically closed-off profession will take time. New service delivery models do not take hold overnight.
The good news is that there is a first-tier audience for these new provider roles: paralegals. Many currently practicing paralegals would consider the expansion and potential of their roles and could transition almost immediately if already qualified through their educational and experiential backgrounds.
Looking to the future and the evolution of these programs, instead of limiting allied legal professionals to family law cases, housing issues and debt collection, states could expand their scope to other areas of law, such as estate planning and probate.
A recent survey from Caring.com echoes what previous studies have shown — approximately 67% of Americans do not have an estate plan, and yet each of us is going to need one someday.[5]
States might consider imposing regulatory requirements such as additional education and experience, as referenced above. Other safeguards might include requiring allied legal professionals to acquire credentials and training similar to that of attorneys, such as periodic CLE courses including ethics, and assessments for character and fitness.
Washington, Arizona and Utah have all instituted a licensure exam. In states where allied legal professional programs have been approved, it would be beneficial to also have judicial education programs on the role of the new professionals so that the permissions and parameters of the representation are understood by all.
Ultimately, expanding the pool of legal professionals who can help meet people's urgent legal needs will increase access to justice by providing a new, more affordable tier of legal services.
Americans often feel priced out of legal counsel and the only legitimate alternative for average earners who do not qualify for legal aid has been to represent themselves.
Millions are in need of services that complement the work of attorneys, and states can accomplish this by opening the profession to new tiers of practitioners.
Natalie Anne Knowlton is a regulatory innovation adviser and Janet Drobinske is a senior legal assistant at the Institute for the Advancement of the American Legal System at the University of Denver.
"Perspectives" is a regular feature written by guest authors on access to justice issues. 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 their employer, 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://justicegap.lsc.gov/.
[2] https://www.courts.state.co.us/Media/release.cfm?id=2033.
[3] https://www.courts.state.co.us/userfiles/file/Court_Probation/Supreme_Court/Rule_Changes/2023/Rule%20Change%202023(06).pdf.
[4] https://iaals.du.edu/projects/allied-legal-professionals.
[5] https://www.cnbc.com/2022/04/11/67percent-of-americans-have-no-estate-plan-heres-how-to-get-started-on-one.html.