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A working group of the District of Columbia Bar is proposing steps that will facilitate the provision of limited scope legal representation. Limited scope representation makes legal services more affordable to low- and moderate-income individuals, by allowing them to use a lawyer for smaller tasks such a one-time consultation or help with preparing a document. Though the DC Rules for Professional Conduct have allowed for limited scope representation since 1991, the current proposals will facilitate limited scope arrangements and will provide protections to consumers who may not have experience with using lawyers.

First, the working group is encouraging lawyers engaging in limited representation arrangements to get written consent from the client for the services that the client wants to seek out. Additionally, while limited appearances in court are expressly permitted in certain DC courts, such as in Family Court, the working group is pushing to have limited representation more explicitly permitted throughout the Superior Court. The working group is also recommending lawyer training on managing limited scope clients. Finally, the working group is recommending the creation of materials for limited scope representation, which would include model consent forms and informational brochures for consumers. More information can be found in this article.

The California Senate is considering a measure that will allow the State Bar of California to collect penalties from those who are found to have committed the unauthorized practice of law (UPL) in the state of California. This measure gives the State Bar a financial incentive to launch investigations—one might say witch-hunts—into economic competitors whom it claims are engaging in UPL. If passed, this provision will grant the State Bar a disproportionate amount of power and essentially set the stage for lawyers to dominate the legal field and prevail over any non-lawyer service provider who provides services even remotely linked to the law.

Beyond the undue amount of power that the bill will grant the State Bar, the measure will also have a chilling effect on non-lawyer service providers. Many other professionals, including legal document assistants, tax preparers, and accountants, often deal with issues that relate to the law. However, these professionals will be deterred from providing some of their services as a result of an increased threat of being found liable for UPL. If there are fewer service providers available, consumers will suffer since there will be fewer options available to them when they need help with problems that have a legal component.

The State Bar claims that the bill will prevent fraud. This is unpersuasive, as state consumer fraud law already has measures in place to penalize those who fraudulently represent themselves as lawyers despite not holding the correct qualifications. In addition, prosecutors are already free to pursue criminal cases of UPL. This bill doesn’t give consumers any additional recourse; it only gives new powers to the State Bar.

UPL enforcement has historically been a tool for lawyers to limit their competition, rather than a means to protect consumers. Only two percent of UPL cases involve actual consumer harm. But even if the State Bar is truly concerned with protecting consumers, then it would make sense for the penalties paid by those found liable for UPL to benefit the victims, rather than to financially enrich the State Bar. Instead, every dollar the State Bar is awarded from UPL defendants will be a dollar that those defendants could not pay to any actual victims of UPL.

The California Senate Judiciary Committee will hold a hearing on the bill, Assembly Bill 888, on June 25. To learn more about the bill’s potential impact, read our testimony to the Judiciary Committee.

 

The State Bar of California is currently considering whether to allow non-lawyers to provide certain legal services, potentially giving millions of Californians affordable legal help.
 
In California, as in the rest of the country, most people have no way to get affordable access to the legal system. For example, 80 percent of California divorce litigants are self-represented. These people cannot afford a lawyer, and there are currently no other ways to seek legal advice. California is considering creating a license for “limited license legal technicians” (LLLTs), who would generally be people with training and experience as paralegals. LLLTs might be able to offer services such as conducting legal research, informing clients about procedures, helping clients select and complete appropriate forms, thus providing lower-cost help for people with needs that are not complex enough to require a lawyer. Washington state is in the process of implementing a system of LLLT licensing, and it’s likely that California will use Washington’s system as a model.
 
Licensure of non-lawyers has been debated over the last few months at public hearings of the State Bar of California Limited License Working Group. The overwhelming majority of testimony at these hearings has been in favor of LLLTs. Nearly the only exception has been testimony from lawyers who oppose the idea.
 
Some lawyers have questioned whether LLLTs will provide competent services. If California follows Washington’s lead, LLLTs would need to fulfill a list of specified prerequisites and will have to pass an examination. After obtaining their licenses, LLLTs would only be allowed to provide a specifically prescribed list of services. LLLTs will therefore be well trained to provide services and will be able to competently provide legal assistance.
 
Another concern for lawyers (and in some cases a more honest one) is that LLLTs will hurt lawyers’ ability to attract clients. The economics of purchasing legal services indicate that this is unlikely to be a problem. Most people who use the services of LLLTs will be those who could not afford a lawyer in the first place, so LLLTs could hardly be said to be stealing such clients from lawyers. Furthermore, ensuring lawyers’ livelihood is not a sufficient reason to shut down an endeavour that will promote access to justice. Most lawyers provide some value to their clients beyond being members of a cartel that is allowed to provide legal services. Lawyers who are only making a living because they are part of that cartel have no right to hold access to justice hostage to their continuing cartel membership.
 
The Limited License Working Group's final hearing will be on June 17, 2013, after which it is expected to make its recommendation to the State Bar. For a more detailed discussion of these issues, you can read Responsive Law’s testimony to the Working Group.

The Florida Bar is considering a proposal to place unnecessary restrictions on lawyer referral services. Most people don't use lawyers frequently enough to know how to find one. Lawyer referral services can provide a useful way for people to shop for the lawyer who is right for them. Restrictions on innovation by lawyer referral services, particularly ones that limit how they can operate online, have the effect of limiting access to lawyers for the ordinary person.

You can read our testimony to the Florida Bar on this proposal here.

Thursday, 13 June 2013 00:00

CT Enacts Broad New UPL Restrictions

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Connecticut has enacted a new criminal law that could apply sweeping new restrictions on people's ability to receive legal assistance, with punishment ranging up to five years in prison.

The new law, which was Senate Bill 829, changes the state's relatively reasonable definition of practice of law to a much broader one that could potentially encompass a number of professional activities, including the work of doctors, financial planners, and real estate agents. It also could criminalize any non-lawyer giving advice to a friend or family member about how to fill out paperwork or how to handle any other matter involving legal rights.

The bill also raises the penalty for unauthorized practice of law from a class C misdemeanor, with a maximum sentence of three months, to a class D felony, punishable by up to five years in prison. This is the same sentence applicable to crimes such as jury tampering and third degree burglary.

Responsive Law was the only group to testify against this proposal, speaking out on behalf of the people whose professional  behavior may be criminalized and those whose access to legal information may be chilled. Our testimony on this bill can be found here.

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