Last week, Responsive Law issued comments to the American Bar Association asking it to support new categories of legal service providers (LSPs) that could expand the types of services non-lawyers may offer consumers. In October the ABA’s Commission on the Future of Legal Services sought advice on alternative LSPs in an effort to expand access to justice. Responsive Law provided insight on how to offer more affordable legal services by cutting down on regulation that limits the types of services non-lawyers can provide.
Responsive Law urged the Bar to push for the creation of more non-lawyer LSPs as the most effective way to close the access to justice gap. Response Law highlighted the fact that pro bono work and legal aid—often the bar’s tools of choice in providing legal assistance to those with unmet legal needs—are insufficient to remedy the problem. Only a greater variety of non-lawyer LSPs can create a sustainable solution. Although the creation of non-lawyer LSP programs in states such as Washington, California, and New York are a step in the right direction, the limitations on how these LSPs can offer assistance keep them from being able to meet a significant portion of the unmet need. Responsive Law recommended loosening unauthorized practice of law (UPL) restrictions and more narrowly defining what qualifies as practicing law in order to expand the kind of services that non-lawyer LSPs are able to provide, including offering assistance in court and giving legal advice.
Responsive Law pointed to the Limited License Legal Technician (LLLT) program in Washington State as a step in the right direction which may be unnecessarily limited in its reach. The program has only been in existence for roughly six months, but the strict requirements to become a LLLT appear to be a large barrier to the program. The combination of education, experience, and exams required to become a LLLT rival those that lawyers themselves face. Responsive Law recognizes the necessity of stringent requirements to maintain a high level of standard for all LSPs, but quality assurance should come from primarily from existing consumer protectionism laws. More regulation from the bar, however well intended, only serves to keep barriers to affordable legal help in place and protect lawyer profits.
Responsive Law turned to European countries to provide examples of successful non-lawyer LSP programs that face low regulation and have more freedom in the types of services they may provide. In the Netherlands, England, and Wales, there are a variety of LSPs, including non-lawyer legal professionals, who may give advice to those navigating the legal system. A study of England and Wales indicated no difference in the quality of legal services between these alternative LSPs and lawyers.
Responsive Law lastly asserted that the Commission should recommend right-sizing regulation of LSPs to remove barriers that keep the cost of legal services high and unattainable for many. We also called for shifting the authority to create and monitor new LSPs from judiciaries to legislative and executive branches in each state. There are antitrust concerns when an industry is controlled by members of its own profession instead of objective state supervision, as the U.S. Supreme Court made clear in its recent decision in North Carolina State Board of Dental Examiners v. FTC. Industry members may act in ways that further their own interests, leading to limited consumer choices and increased prices.
Our full comments to the Commission can be read here.
Bridgette Harrison is a Responsive Law intern.