Written Testimony of James Turner,
Executive Director of H.A.L.T.
The Commission next heard from James Turner, Executive Director of H.A.L.T., a national 50,000 member legal reform organization that is focused on access issues that exclude low and moderate income Americans from the civil justice system. He told the Commission an outdated regulatory scheme (UPL statutes as well as lawyer ethical rules) has the effect of restricting the kinds of legal services that can be provided by nonlawyers, by lawyers with nonlawyers and lawyers working in non-traditional settings. The continuum of legal needs, from the simple, straightforward and routine to the arcane and complex, is matched by a continuum of individual client capacities that vary by education and experience; these should be met by a similar continuum of legal services such as self-help books and software, document preparers and independent paralegals. He spoke of Judge Sanders Northern District of Texas decision that found that the sale and distribution of Quicken Family Lawyer by Parsons Technology violated the Texas UPL statute. He listed defects in the Sanders ruling: 1) finding that no particular aspect of what the product did constituted UPL, but rather that the totality of what the package did was the practice of law, a terribly vague approach, dangerous in the First Amendment arena, and 2) an implicit rejection of technological change, as the objectionable feature was not any of the forms but rather use of the expert system in the computer software that provides guidance in the form filling out process to tailor the document to the information the consumer provides. Citing to lay advocacy in educational disability act placement hearings that is being challenged as UPL in Delaware by school board lawyers (the adversaries in the proceedings), and NOLO Press, a distributor of self-help books and software, being investigated for UPL in Texas, Mr. Turner questioned such complaints that are brought by lawyers rather than a wronged customer or client. He mentioned California’s recent statute recognizing legal document assistants (Section 6400 of the Business and Professions Code) as legitimate service providers with registration and bonding requirements. Three principles inform his approach: 1) create a bright line test, that is, UPL means saying you’re a lawyer when you’re not, 2) allow innovative partnering between lawyers and nonlawyers with disclosure and client consent, and 3) require a customer or client complaint before UPL proceedings can be initiated. Urging consumers access to a full array of legal service delivery tools he highlighted HALT’s attempt to make the state consumer fraud acts more effective and touted them, in some respects, as more powerful remedial tools than bar discipline because of their grant of a private right of action in many states.
Professor Daly raised concerns with the state consumer fraud remedy as the consumer may not really be aware of his or her rights and may need to hire a lawyer in order to enforce the statutory remedy. Also the Attorney General, because of limited resources, is likely to get involved only in egregious situations. Mr. Turner thought that lawyers carving themselves out of the consumer fraud statutes was an anomaly and that, in some states, consumer protection agencies have staffing to assist the enforcement effort. Queried about a regulatory scheme for multidisciplinary practice including nonlawyer provisions, Mr. Turner thought nonlawyer regulation would have to be negotiated on a voluntary basis with accountants, consortia of paralegals and other entities that would be impacted. Asked by Professor Haddon about how to address the different levels of sophistication of clients, Mr. Turner referenced NY’s requirement that lawyers post a statement of client rights in their office, and Illinois and Florida, in two specialized areas, requiring statements of client rights in the retainer agreement. Information to the client, he said, should be short, precise, in plain language and open to dialogue, that is, ask questions if you don’t understand. The bar association should help educate nonlawyer MDP providers who do not have the lawyer’s sensitivities to conflict situations and confidentiality strictures. He thought it was competence, the complexity of the matter, rather than protection of core values that required certain legal services be performed by a lawyer. He isn’t sure there are core values because of the variation on the range of values people within the profession pursue and because lawyers can’t say the discipline system works perfectly. He thinks a lawyer should not do anything against the public interest. He clarified to Mr. Wander that under his proposed scheme licensure would be required to say you are a lawyer and that client disclosure would encompass, if appropriate, notification that you are an employee of a public corporation. Focusing on the information component of the consumer decision Mr. Turner explained to Judge Friedman that the market would create the baseline of provider qualifications disclosure that if not met would send up a red flag. Ms. Garvey clarified what the Commission has come to refer to as core values and Mr. Turner commented that the toughest issue is conflicts. He concurred that a licensed lawyer’s relationship is with the Bar if he or she is doing something that looks like delivery of legal services and said that the lawyer’s compliance with the lawyer discipline rules is an aspect of consumer protection. Asked by Dean Powell whether imputed conflicts in the switching firms scenario should be attributed to MDP accountants as well as lawyers Mr. Turner said that the bar’s only linkage in that situation is to the lawyers practicing in that entity and while they theoretically can be sanctioned a mutually acceptable regulatory scheme with the professional organizations is the preferred course. He acknowledged to Ms. Lamm that there could not be a UPL prosecution under his scheme if someone who never told the consumer "I’m a lawyer" wrote an incompetent contract. He felt there are other remedies available. Mr. Nelson questioned whether it was meaningful to tell a consumer nothing or that the consumer was not getting a lawyer’s regulatory protections. He also asked to what standard of competence a person who said "I can do this document for you" and either said "I’m not a lawyer" or didn’t say "I am a lawyer" would be held? Mr. Turner referenced state statutes, common law and administrative mechanisms and said multiple regulatory schemes provide the widest array of legal service delivery mechanisms.