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Responsive Law has issued comments to the DC Committee on the Unauthorized Practice of Law recommending improvements to the District of Columbia's rules on the unauthorized practice of law, or UPL. Responsive Law urged the committee to recommend revising the UPL law so non-lawyers would be able to offer legal services to the many low- and moderate-income people who can't afford to use a lawyer.

Responsive Law pointed out that UPL laws exist on top of consumer protection laws, so the broad scope of UPL restrictions is redundant with respect to protecting consumers, and exists primarily to protect lawyers. To make sure the UPL laws are serving consumers, not lawyers, Responsive Law specifically recommended changing the UPL law so that no UPL action may be taken when legal services are provided for free, and so that any UPL lawsuit requires a consumer complaint and proof of consumer hrm.

Responsive Law also urged the commission to consider allowing non-lawyer staff at non-profits to provide legal services. Nonprofits are the perfect avenue to provide low cost legal services, as they usually specialize in offering community services in one area, making them experts on it. These nonprofits operate in the areas where there is the most unmet legal need, such as housing and domestic issues, and could provide their clients with understanding of the law as it pertains to these specific issues. The large range of expert nonprofit organizations in DC could provide assistance with their extensive knowledge of how the law pertains to these areas, giving advice to the people they already serve without cost or for very cheap. Furthermore, there is very low risk of consumer harm when nonprofits offer legal assistance in an area that is consistent with their missions. Nonprofits are not focused on making a profit; they are specifically focused on the interests of their constituencies, which would provide much of the consumer protection that UPL laws are ostensibly meant to provide. The current UPL laws keep knowledgeable people from being able to give free assistance to members of their community. Keeping nonprofits from being able to share their expert knowledge with the people they already serve only maintains the access to justice gap.

Responsive Law also highlighted several other types of legal help beyond lawyers that would help incress access to justice. One service Responsive Law asked the commission to consider is a version of the U.K.'s McKenzie friends, who are volunteer or low cost non-lawyers who provide guidance to unrepresented litigants in court. They provide moral support, help with case papers, give advice on courtroom conduct, and sit with the consumer while in front of the judge, giving litigants the confidence and assistance they need to navigate the complex court system. Responsive Law also suggested licensing new types of legal professionals that provide limited legal services, similar to the Washington State LLLT program. However, Responsive Law recognizes that the high barriers to becoming an LLLT in Washington State keep that program from providing the fullest potential of consumer help, and recommended a model with a lower licensing bar that would allow more people to be able to offer this kind of legal service.

Our comments to the commission can be read here.

 

 

Bridgette Harrison is a Responsive Law intern.

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Yesterday at its midyear meeting in San Diego, the American Bar Association passed a resolution urging states to adopt regulatory objectives for all non-traditional legal service providers (LSPs). This is a pleasant surprise and victory for those advocating for more accessible and affordable legal services, as it signals the ABA is looking forward at the future of legal services and is open to the creation of new types of LSPs.

 

The resolution does not strictly advocate for the creation of any new forms of LSPs, but it outlines a framework on how the courts will address them and indicates openness to expanding non-lawyer LSPs. When arguing for the passage of the resolution, Judy Martinez, the chairman of the Commission on Future of Legal Services stated, “There’s room in this space to think differently about how we provide legal services.” These non-traditional LSPs include already existing programs such as the Limited License Legal Technicians (LLLTs) in Washington State and housing court navigators in New York. The resolution includes basic objectives for regulating all LSPs, such as maintaining protection of the public, advancing administration of justice and the rule of law, and meaningful access to justice. This Resolution comes less than a week after the Conference of Chief Justices passed a resolution supporting transparency in the regulations lawyers and non-lawyer LSPs. The mention of non-lawyer LSPs in both resolutions signals an increase in support for the creation of new providers that are better able to meet the legal needs of all consumers.

 

Although the resolution passed, it faced opposition from many members of the ABA. The outcry came from protectionist concerns for the industry, with one member opposed to the resolution because it “presume[s] there’s a place for non-lawyers to provide legal services.” The complaints about non-lawyer LSPs from Bar Associations have been based on complaints such as the already high unemployment rate of recent law school graduates and the business that they could take from small law firms. These objections clearly show that lawyers who oppose new types of LSPs do so based on their own interests and ignore the large groups of Americans who cannot afford legal services. These claims rooted in a “save our profession” attitude are examples of the antitrust concerns that have arisen in the wake of the U.S. Supreme Court’s decision in North Carolina Board of Dental Examiners v. FTC.

 

After the Resolution passed, ABA President Paulette Brown said, “The adoption of Resolution 105 is intended to create a framework to guide the courts in the face of the burgeoning access to justice crisis and fast-paced change affecting the delivery of legal services.” Responsive Law Executive Director Tom Gordon lauded the decision, saying “It’s wonderful to see that at least part of the ABA has recognized that change is coming to the legal profession and that it’s the bar’s responsibility to adapt to that change in a way that benefits consumers, rather than naked self-interest.”

 

Bridgette Harrison is a Responsive Law intern.

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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.

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As we reported previously, Responsive Law joined in an amicus brief in the U.S. Supreme Court case of North Carolina Board of Dental Examiners v. Federal Trade Commission (hereinafter referred to as the Dental Examiners case). In the amicus brief, we brought to the Supreme Court’s attention the access to justice gap in America that is caused by over-regulation of the legal market and high barriers to entry that benefit lawyers at the expense of the public interest. We encouraged the Court to rule in favor of the FTC to ensure that regulations protect consumers, not market participants. The decision, handed down on Feb 25th, 2015, did just that

In the Dental Examiners decision, the Supreme Court opinion that state regulatory agencies, if controlled by members of the professions they oversee and operating without any active supervision by the state, violate antitrust laws. The defendants in the Dental Examiners case were not lawyers. They were dentists. The Supreme Court recognized that allowing any body of professionals to regulate themselves creates a tangible threat of antitrust violations by acting in ways that further their own interests. In the realm of the law we have seen that state bars’ enforcement of unauthorized practice of law restrictions increases prices to the detriment of consumers while decreasing consumer choice.

State supreme court oversight is an improvement over no oversight at all, but for the oversight to be most effective, it needs to come from the elected branches of government. The legislative and executive branches are best positioned to provide oversight over these agencies so that they are not policing themselves. Nevertheless, the decision, as we hoped, is already having broader ramifications on the legal profession.

As reported in the Michigan Law Journal, a number of state bars are currently working with their legislatures and state attorneys to analyze if they are in compliance with the Dental Examiners decision. Currently, the North Carolina legislature is considering a bill that would further define the practice of law and establish a method of active supervision. The bill would additionally establish the attorney general, as opposed to the state bar, as the body that must first respond to unauthorized practice of law claims. Other states have plans to create an “umbrella authority” over their regulatory and licensing boards as a mechanism to comply specifically with the “active supervision” requirement.

In contrast, the State Bar of Michigan believes that it already has safeguards in place to avoid an antitrust claim; specifically they claim that their regulations are drastically different from the regulation described in the Dental Examiners decision. The Michigan bar argues that, for starters, it has limited statutory authority to investigate and prosecute unauthorized practice of law allegations. Additionally, its limited investigation and prosecution power are currently supervised by the Michigan Supreme Court. Lastly, Michigan claims that their enforcement of unauthorized practice of law claims only happen through the judicial process where those who are accused of violating the UPL have due process rights afforded to them. But not everyone in Michigan believes that the State Bar is in compliance with the Dental Examiners decision. Some note that Michigan does not currently have in place the “active supervision” necessary to comply with the Dental Examiners decision. Additionally, Michigan also lacks a formal definition that clearly articulates what the practice of law is. Neither the Supreme Court of Michigan nor the Michigan legislature has provided a clear definition of the practice of law.

State bars are not the only entities responding to the Dental Examiners case. Public interest organizations are also jumping into action to put pressure on states to comply with the decision. Three public interest consumer organizations have called on all 50 state attorneys general to enforce the high court’s ruling. These organizations have even specifically referenced enforcement within the legal profession by stating the following in their letter:

“[S]tate bars, now comprise majorities — even supermajorities — of licensed professionals in the very economic tribal grouping with an economic interest in restraints of trade benefiting them… State bars controlled by attorneys rarely discipline for excessive billing or intellectual dishonesty…Few require any demonstration whatever of competence in the actual practice area of law relied upon by clients. Few require malpractice insurance, or in any way ameliorate the harm from attorney incompetence. The point is, each of the many agencies within your state is empowered to carve out momentous exceptions from federal antitrust law, and those decisions in particular require a level of independence from the implicit focus of current practitioners.”

Responsive Law is very excited about the developments made so far; we will continue to monitor these developments and push for real oversight of the legal industry that makes it responsive to the people, not only to itself.

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Currently, California is one of the many states in this country that has issues providing access to adequate and affordable legal services. Legal document assistants, or “LDAs”, assist self-representing parties in preparing legal documents. They help to reduce the issue of expensive or inaccessible legal representation, as they can act to provide limited legal assistance to parties that either do not need to hire an attorney or cannot afford to do so.

The problem remains, however, that LDAs are encumbered by regulations that burden their work: specifically, LDAs must register in each separate county they provide services in. The process of registering in each county becomes expensive, and the consumer ultimately winds up subsidizing the incurred costs. This regulation is also problematic in that it deters LDAs from offering their services in multiple counties, which restricts consumers’ access to this service. Moreover, these regulations are purposeless; they do not serve to protect the consumer.

Responsive Law’s recently submitted testimony in support of California Assembly Bill 285, which would eliminate this burden, thus facilitating greater consumer choice among LDAs. The provision of AB 285 that will be most helpful to consumers provides for statewide—as opposed to county-by-county—registration for LDAs. Not only would AB 285 eliminate this costly and time-consuming limitation on LDAs, but it would also enable them to branch out and provide services throughout the state. In short, AB 285 would benefit the consumer in the long term by allowing greater access to a legitimate, cost-effective legal service.

On May 26th, AB 285 passed the California Assembly and is awaiting consideration by the Senate.

Emily Iannucci is a Responsive Law intern.

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Responsive Law, along with a coalition of law professors and alternative legal service providers has filed an amicus curiae brief in the U.S. Supreme Court case of North Carolina State Board of Dental Examiners v. FTC. The case concerns whether dentists on the state licensing board are exempt from antitrust law for their behavior in banning non-dentists from providing teeth-whitening services.

While dentistry is not part of Responsive Law’s mission, the case has important implications for the regulation of the legal profession and whether anyone besides lawyers will be allowed to provide legal services. The position of dental examiners in this case is directly analogous to that of lawyers who regulate the legal profession through state bar associations. In both cases, a group of professionals that has a financial self-interest in excluding outsiders has been given the power to regulate the profession. Unsurprisingly, in the case of both dentists and lawyers, the professionals have used this power to exclude outsiders. In both cases, it is the public who suffers, by being forced to pay cartel prices for services.

The damage caused by a self-regulating cartel is even greater in the case of lawyers than it is for dentists. The cost of the legal cartel is the denial of access to justice for the vast majority of the American population. When lawyer prices start at $200 per hour, only the richest people can afford to pay lawyers for everyday legal needs, such as simple estate planning, arranging child custody, landlord-tenant disputes, or addressing consumer debt matters. As a result, over 80 percent of Americans are unrepresented when such matters go to trial. And that number reflects the lack of legal help for crisis-level legal problems—those that are headed to court. An even greater percentage of people are priced out of legal help when facing these matters at an early stage, when basic legal help could prevent smaller issues from erupting into a crisis. Given these conditions, it’s no wonder that a recent study found that the US was tied with Kyrgyzstan, Mongolia, and Uganda in the affordability and accessibility of its legal system.

In the face of this access to justice crisis, state bars, many of which claim to be committed to equal access to the legal system, are concerned primarily with their own wallets. State bars have acted aggressively to shut down any attempt by non-lawyers to provide legal assistance to the large number of Americans who need help. State bars use their power to regulate who may practice law (and expansive definitions of the practice of law that they have created) to protect itself from non-lawyer competition. This type of cartel is exactly the type of danger that antitrust laws are designed to protect consumers from.

State bars argue that their behavior is exempt from antitrust regulation because they are given their power by the state government. However, private actors acting to restrict competition have not been viewed as exempt from antitrust enforcement merely because they are part of a state board. In fact, the ability of the bar to use state-granted power to enforce its monopoly makes its behavior even more harmful to consumers.

The self-regulatory nature of lawyer regulation is at the root of our access to justice crisis. If lawyers did not have the ability to use government power to protect themselves from competition, we’d see more innovation and lower prices in the legal services market, both from the innovative non-lawyer services that would be permitted to flourish, and from the innovation and lower prices that lawyers would be forced to provide to remain competitive in an open market. We hope the Supreme Court will agree when it hears the case on October 14.

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The U.S. Army’s Fort Drum, in upstate New York, is home to about 13,000 soldiers and their families. Derek Distenfield is a soldier stationed at Fort Drum. After eleven years of service, Distenfield will be leaving the Army in September. Distenfield noticed that Fort Drum had a higher divorce rate than most military bases and decided that in his post-military career he would do something to help his fellow soldiers with divorce and other legal problems they face.

In 2012, Distenfield founded Legal Docs By Me, a legal document preparation service. The company uses non-lawyers to help people complete legal documents for matters such as uncontested divorces, wills, and incorporations. The company opened an office in Watertown, near Fort Drum, in May. It offers document preparation for divorce and several other services for a flat rate of $399.

Since most people can’t afford a lawyer at $200 to $300 per hour, the company helps fill a gap in access to justice for people with simple legal needs that don’t require the expertise of a lawyer. Without document preparation services, people who can’t afford to hire a lawyer are left to identify appropriate forms to create a legal document on their own. Books from companies like Nolo and online services such as LegalZoom have helped fill some of these unmet legal needs, but many people prefer to work with somebody face-to-face on these matters, as shown by the large number of satisfied customers visiting the recently-opened Watertown office.

However, businesses that give people access to the legal system without a lawyer are a threat to lawyers’ monopoly, and recently New York Attorney General Eric Schneiderman has been on a mission to shut down Legal Docs by Me. Schneiderman is claiming that the business engaged in the unauthorized practice of law (UPL), and he ran an undercover sting operation to try to find evidence that paralegals at the business were providing legal advice.

Running a sting operation shows the desperation of a prosecutor trying to generate evidence of a crime with no victims. If consumers were being harmed by the alleged UPL at Legal Docs by Me, then the attorney general would have no trouble producing testimony from the victimized consumers. Instead, customers continue to flock to the business, and not a single UPL “victim” has come forward.

Even if a paralegal at Legal Docs by Me accidentally crossed the blurry line between permissible help and practicing law, it’s a misuse of prosecutorial resources to try to shut down the company. Undoubtedly, at law firms across the state, paralegals have crossed this line on multiple occasions. However, the attorney general is not sending undercover investigators into Manhattan law firms to ferret out paralegals who accidentally step into the forbidden territory of legal advice. This is clearly a case of the state’s chief lawyer using his prosecutorial power to protect his professional brethren. The attorney general should focus his office’s resources on real crime rather than trying to shut down a business that is helping to bridge the access to justice gap.

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Responsive Law has long supported the use of competent non-lawyers to assist people who are unable to afford a lawyer. Allan Rodgers, a guest contributor to Richard Zorza’s Access to Justice Blog, has called attention to a possible solution to this problem in his most recent post. Rodgers suggests the implementation of programs to train lay advocates who could represent clients in certain court proceedings. He praises the efforts by some states to start up programs that would train these lay advocates, but he still sees some hesitation and urges the states to make more radical changes. The current high cost of lawyers may force people to attend court hearings without any representation and without full understanding of the legal system. Lay advocates could be a step in the right direction towards fixing this problem without triggering the unauthorized practice of law.

In his blog post, Rodgers suggests that the implementation of lay advocate programs is moving slowly due to two primary concerns. First, some lawyers fear that having trained non-lawyers would threaten the legal industry. Second, some argue that lay advocates would not be able to represent their clients in court as well as a lawyer. However, Rodgers believes that neither of these concerns is well founded. In fact, he suggests that training non-lawyers could help both the legal industry and struggling clients. If more people were represented in hearings, by lay advocates or otherwise, more lawyers might need to be hired to oppose them in court. This would increase the use of lawyers, as well as non-lawyers, in the legal system. As for proper representation of clients, people represented by lay advocates have consistently fared better than those without any representation at all.

To put his ideas into action, Rodgers proposes a temporary experimental system, using volunteers who would be trained by lawyers. As this system gets rolling, a review process could also ensure that these lay advocates are representing their clients well and that everything is running smoothly. A potential group of candidates for lay advocacy work could be college graduates or law students who are looking for valuable work experience, creating a win-win scenario for both the clients and the lay advocates. New York has already taken a step in this direction with its Court Navigator program, which trains lay people to help provide legal information to unrepresented litigants in Housing Court. Other states should follow this lead and implement programs of the type that Rodgers recommends.

 

Mika Bray is a Responsive Law intern.

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Richard Zorza has an excellent blog post this week on a new program announced in New York Chief Judge Lippman’s 2014 State of the Judiciary Speech. The Court Navigator pilot program will provide “trained volunteer non-lawyers” to help unrepresented New Yorkers in Brooklyn and the Bronx navigate Housing Court and consumer debt cases. Here at Responsive Law, we have long argued that providing consumers with non-lawyer options for legal assistance is a core issue for providing real access to justice throughout society. We applaud Chief Judge Lippman’s continued efforts to address the legal needs of the most vulnerable New Yorkers.

But even as we cheer, we must also exhort Chief Judge Lippman, and New York as a whole, to push onward. Programs like the Court Navigators should be embraced and expanded, and policymakers should seek other ways to increase consumer choice and access to legal services. In England, for example, litigants are entitled to the assistance of a “McKenzie friend”—someone who may provide support and advice in navigating the case, and crucially, need not be a licensed attorney.  Likewise, New York Senate Bill 427, which Responsive Law has endorsed, would allow New Yorkers to choose non-lawyer representation in housing court cases.  Both of these would provide much-needed legal assistance to those who, unable to afford the price of a full attorney, today must to stand in court alone.  The Court Navigator program is certainly good news, but if it is truly a “milestone in the development of access to justice,” as Mr. Zorza claims, then we have miles further to go.

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An American Bar Association task force has recommended that state regulators license people other than lawyers to perform certain legal services. In a recently released working paper, the ABA Task Force on the Future of Legal Education stated, “State regulators of lawyers and law practice should undertake or commit to … authoriz[ing] persons other than lawyers with J.D.’s to provide limited legal services and create certifications for such persons.”
 
The state of Washington has already begun to implement a program to license non-lawyers and California is considering doing so as well. A recommendation from the ABA that such programs be created could go a long way toward expanding this additional avenue of access to the legal system nationwide.
 
Of course, the release of a working paper is several steps removed from a nationwide change in policy. Even if these recommendations remain in the task force’s final report (due on November 20), there is no guarantee that the ABA House of Delegates will adopt it as ABA policy. Numerous consumer-friendly proposals about lawyer regulation have received strong support from ABA committees and task forces, only to be shot down by the House of Delegates. And even if the ABA endorses this proposal, each state will be free to accept or reject it in setting its own policy with regard to non-lawyer licensure. Local bars are sure to put up a strong fight over what they may see as non-lawyers infringing on the turf of lawyers.
 
Nevertheless, this is a significant development in the expansion of legal services to all Americans. If non-lawyers provide simpler legal services, the cost of those services will drop, potentially to a level where they would be affordable to the vast majority of people in this country who cannot currently afford legal help. If nothing else, the coalescing opinions on this point among a group of distinguished lawyers and judges shows how far the legal establishment has come. It appears that at least one segment of the legal establishment recognizes that it is irrational to continue the decades-old monolithic way of educating lawyers that produces newly-minted lawyers who are incapable of providing the legal services that most people need.
 
The recommendation that limited practice licenses be created is also only one of several dozen recommendations that the task force has put forward. On nearly all of the issues it addresses, the task force has made thoughtful recommendations that would, if followed, give the legal education system the room it needs to experiment with new models that can help both potential legal service providers and their clients.
 

 

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