On Friday the United States Citizen and Immigration Services announced that it was beginning a new campaign against individuals falsely purporting to be an attorney qualified to provide immigration services. The initiative includes efforts to increase enforcement of UPL laws, educate the public about how to avoid scams when selecting legal counsel, and increase the number of organizations approved by the Department of Justice Executive Office for Immigration Review (EOIR) to provide immigration aid in underserved areas.
Immigration scams are a real problem that harms consumers. It is commendable the USCIS is working to address this issue, and realizes that part of the solution must be informing the public and providing reasonably priced services above board. However, the problems highlighted by USCIS are far from unique to immigration, and solutions are just as urgently needed in other areas of law.
For instance much of the public does not know how to make smart choices about who to hire as their lawyer in any civil matter. We simply don’t give consumers the information they need to make informed decisions when choosing a lawyer. While consumers have numerous resources to use in choosing a plumber or drycleaner, these options are largely absent when choosing a lawyer. Responsive Law’s Client’s Bill of Rights provides consumers with a set of guidelines for choosing a lawyer and negotiating an agreement with them. This type of information is needed in all areas of law, not just immigration.
Additionally, it is important that in its zeal to prevent non-lawyer scammers, USCIS neither ignores unethical lawyers nor prevent legitimate non-lawyer assistance with immigration matters. There are numerous instances of actual attorneys who have claimed to be assisting immigrants only to take their money and do no work while their client is deported. Such lawyers make it tougher for immigrants to be able to trust the vast majority of immigration lawyers who behave ethically. At the same time, many immigrants either do not need or cannot afford full legal representation but may just need help completing forms or need to be directed to self-help resources. In using restrictions on the unauthorized practice of law to prevent scammers pretending to be lawyers, it is important that USCIS not prevent immigrants from receiving legitimate help from people who make no claim to being lawyers. By casting too wide a net, USCIS may end up wasting resources on prosecuting people who are providing a valuable service along with the bad actors who deserve to be targeted.
We recently commented on the ABA's Ethics 20/20 Issue Paper on Alternative Businesss Structures which examines, for example, whether lawyers should be allowed to partner with nonlawyers or to raise money from investors. You can read them here.
We recently sent the Wisconsin Supreme Court our suggestions for how it could best support Limited Scope Representation (or "unbundling"), which is a new form of legal representation that would allow lawyers to advise clients on only selected elements of a legal matter. You can read our comments here.
We recently weighed in on the ABA's new proposed rules for allowing lawyers to practice across state lines. You can read them here.
Mark Childress was sworn in yesterday as the White House's Access to Justice Advisor, succeeding Laurence Tribe, who left last fall due to health problems. The Washington Post describes Childress as a "savvy Washington operator" who played a major behind-the-scenes role in the enactment of health-care reform and in handling federal judicial nominations. While Professor Tribe has left some large shoes to fill, we are pleased that the administration has chosen a serious political player as his replacement. We hope that Childress will quickly put those skills to use on behalf of the majority of Americans who lack meaningful access to the legal system.
A Kentucky woman convicted of unauthorized practice of law will be appealing (subscription required) the $5,000 fine handed down by the Kentucky Supreme Court for her actions. Della Tarpinian operates what she describes as a scrivener service. Her customers, who need someone to prepare simple legal documents for them, fill out questionnaires which Tarpinian uses to complete fill-in-the-blank legal forms. Document preparation services are licensed and regulated in states such as California and Arizona, providing clear guidelines as to what services non-lawyers may provide. In other states, however, vague definitions of the practice of law leave the legality of these services in a gray area. As a result, consumers do not have the benefit of a robust marketplace providing document preparation services.
Tarpinian has been prosecuted for UPL once before. In 2004, a jury took 15 minutes to acquit her of UPL charges. However, her current conviction did not come as the result of a jury trial, but as the result of findings made by a special commissioner appointed by the Kentucky Supreme Court. However, one thing missing from both the opinion of the Supreme Court and the findings of the special commissioner is a finding that any consumers were harmed as a result of Tarpinian's services. We would venture that the jury in her 2004 case similarly failed to find that Tarpinian caused any harm to her customers, resulting in her rapid acquittal. Unfortunately, in the current case, the bar has made the assumption that provision by non-lawyers of services related to law is by its nature harmful to consumers. This assumption is clearly incorrect, as proven by Tarpinian and the hundreds of licensed document preparers in other states. Whatever the letter of the law may say about whether someone is engaging in UPL, prosecutors and bar associations should decline to bring charges without a showing of consumer harm. To do otherwise is a waste of prosecutorial resources, a miscarriage of justice, and a blow to consumers.
The Massachusetts Supreme Judicial Court (SJC) yeserday issued a ruling on whether lawyers are required to be present at real estate closings. In Real Estate Bar Association v. National Estate Information Services, the Court held that, although non-lawyer "conveyancing" companies that provide closing services are not practicing law, they nevertheless are prohibited from providing closing services, because those must be provided by a lawyer. Major media outlets have covered the ruling as the resolution of a turf battle between lawyers and non-lawyers in providing services. That's certainly one aspect of the case, but it also has important implications for legal consumers in Massachusetts, both in real estate transactions and in other legal matters.
Our position is the same as the Federal Trade Commission's: "Permitting competition by lay services allows consumers to consider more relevant factors in selecting a provider of settlement services, such as cost, convenience, and the degree of assurance that the necessary documents and commitments are sufficient." We are encouraged, however, by the Court's recognition that a lawyer's role in a closing is "not only the presence but the substantive participation of an attorney on behalf of the mortgage lender." In other words, lawyers must provide actual legal services at a closing so that consumers who are forced to pay for the lawyer receive something beyond his or her mere presence.
The Court also made some encouraging pronouncements about what activities may be undertaken by non-lawyers. One of the arguments frequently made by lawyers trying to retain their monopoly is that if a service includes even one element that must be performed by a lawyer, then all elements of the service must be performed by a lawyer. When courts interpret definitions of the practice of law, it's important that they recognize that lawyers provide a wide range of services, but that only a subset of those services are exclusive to lawyers The Court applied that principle correctly here, recognizing that many of the activities involved in conveyancing are not considered the practice of law, and that "the talismanic invocation of the word 'conveyancing' is not sufficient to require that all of them be performed by or under the supervision of an attorney."
In sum, while the Massachusetts high court failed to take the large pro-consumer step of forcing Massachusetts to join several other states in allowing non-lawyer closings, it did establish a principle limiting when consumers can be forced to hire a lawyer.
I wrote a few weeks ago about how the high cost of law school is driving prospective lawyers away from the profession. Another recent opinion piece, by the dean of Massachusetts School of Law, raises another reason why we're facing a shortage of lawyers: the ABA's reluctance to accredit new law schools. This reluctance is particularly strong (and often mandated by the ABA's standards for law school accreditation) when schools deviate from tradition by allowing "too much" credit for experiential learning, or by relying too heavily on adjunct faculty who can share ongoing real world experience with their students, or by taking of advantage of virtual facilities that don't meet outdated requirements about the types of volumes required to be physically present in the library or the amount of space required for studying there.
Some people have asked why Responsive Law, which promotes alternatives to the use of lawyers, isn't rejoicing about a decrease in the number of lawyers. The truth is, even in an ideal system with a range of services available to meet the continuum of legal needs, lawyers will play an important role in providing legal services. The most complex legal issues are almost always best resolved by using a lawyer. And for simpler matters, even when alternatives are available, consumers may choose to use a lawyer because the lawyer provides a better set of skills for their particular problem. However, when the supply of lawyers is capped by the limited number of accredited law schools, the price of using a lawyer increases. And when the cost of a legal education increases, the rate that lawyers must charge increases. Allowing more people to become lawyers–and allowing non-lawyers to provide legal assistance–will give consumers of legal services the greatest range of options at the lowest possible price.
Forty states cut their court budgets last year. Some even began to close their courthouses altogether for several days each month – “rolling blackouts” on access to justice. Others eliminated programs designed to help the growing number who cannot afford to hire a lawyer. But those cuts will ultimately cost the courts money because they make them less efficient: Instead of a clerk explaining basic terms and how the process works, now a judge has to.
According to a study by the ABA Task Force on the Preservation of the Justice System, 88 percent of lawyers and judges believe the middle class are at risk of being driven out of the courts altogether. We believe this is already happening. In fact, according to the World Justice Project's 2010 Rule of Law Index, which ranked the 11 wealthiest nations by how well they provided access to civil justice, the United States came in last.
Legislators must be reminded that the rule of law and access to the courts are fundamental to our democracy. Indeed, laws and rights are meaningless without the means to enforce them and take on even greater value in a recession. We often criticize the courts for serving unrepresented litigants poorly, but an imperfect system is clearly better than none at all. It’s time to turn the courthouse lights back on.
Unbundling (also called limited scope representation or à la carte legal services) allows a consumer to hire a lawyer to handle a discrete part of a legal matter. For example, a businesswoman might want to draft a contract and have an attorney review it. Also growing in popularity is paying a lawyer to answer a legal question online. The resultant savings to consumers, and increased access to justice, could be significant.
One of the obstacles to unbundling is that some lawyers are concerned that ethics rules define their duty to their client in such a way that they cannot agree to represent them for only part of a matter. Montana recently adopted rules that would facilitate such services by making it clear that clients can consent to limited representation. They also provide protection to consumers and lawyers by requiring them to sign an unbundling agreement. The Montana rules go far toward implementing two elements of Responsive Law's reform agenda: fostering innovation in the legal industry and requiring all engagement agreements to be in writing. (Our complete Client's Bill of Rights is here.)
Clarifying what types of unbundled services lawyers may provide benefit consumers even more. States also need to adopt clearer rules and definitions regarding the unauthorized practice of law, which would allow non-lawyer legal services providers to innovate as well.
We encourage other states to follow Montana's lead in improving access to justice and accountability in the legal system.