Standards for the Provision of Civil Legal Aid

Standard 2.9 on Use of Non-attorney Practitioners

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Standard

A provider should consider using paralegals, tribal advocates, lay advocates, law students and other legal assistants, when authorized by state, federal or tribal law and appropriate ethical rules.

Commentary

General considerations

Paralegals, tribal and lay advocates, law students and other legal assistants supervised by an attorney to assist clients have long played an essential part in legal aid practice. There are many circumstances in which properly supervised non-attorneys may assist clients directly or may support the work of an attorney in serving clients.

The provider should determine the nature and extent of non-attorneys' use based on consideration of cost end effectiveness of the assistance. A provider should meet the needs of its clients in the most cost-effective manner possible. The costs of representation by non-attorneys are generally well below that of lawyers and, therefore, use of non-attorney practitioners can often be an economic way to serve clients in appropriate areas.

Assistance by non-attorneys is only appropriate, however, if clients’ need for effective representation will be met. Many legal matters require a level of professional skill and knowledge that calls for formal legal education and professional licensing. Laws prohibiting the unauthorized practice of law foreclose non-attorneys participation in many areas of practice. There are areas, however, in which non-attorney practitioners can, under the supervision of an attorney, properly and effectively assist clients.

Appropriate use of non-attorney practitioners

The level of responsibility that is appropriate for a non-attorney to take on depends on the experience of the practitioner and the nature of the matter. Practitioners with significant experience will have an understanding of a broader range of legal issues, and can take greater responsibility, commensurate with the experience.

Representation by a non-attorney practitioner is appropriate where the law and procedure relative to recurring issues can be learned without a formal legal education and where the problem is unlikely to involve ancillary legal issues that would require formal legal training to identify and address. Representation by non‑lawyers is authorized in many circumstances by state, federal or tribal law. Federal entitlement programs, such as welfare and food stamps, specifically authorize non‑attorney practitioners to appear on behalf of clients in administrative hearings. Many states permit non‑attorney practitioners in unemployment compensation hearings and agency rules permit non‑lawyers to represent clients in certain immigration matters.

Tribal courts generally require advocates appearing before them to be members of the tribal bar, and allow members of the tribe who have passed a competency exam to appear and practice, even though they have not attended law school. Licensed tribal advocates are traditionally used in many tribal courts to handle a wide variety of cases. Some tribal courts rely exclusively on tribal advocates, allowing only limited participation by lawyers who are not members of the tribe. Such advocates are entitled to represent clients in the jurisdiction in which they are licensed, subject to the rules of the tribal court. They are subject to the general Standards regarding supervision of legal work.

Non-attorney practitioners can also assist attorneys in the preparation of cases. Such assistance can take many forms, including: 1) initial interviewing of clients; 2) the preparation of documents and drafting of pleadings in repetitive and relatively straightforward cases, such as family law or eviction matters; 3) contacting witnesses; and 4) assisting in the coordination of complex representation involving multiple clients and client groups.

Paralegals can also effectively assist licensed attorneys in clinics and other projects to provide legal information to pro se litigants. They should not, however, give any legal advice except as specifically authorized by a licensed attorney familiar with the case.

Many providers use intake paralegals to conduct interviews of persons seeking assistance to determine eligibility and the general nature of the legal problem. Providers should make certain that paralegals who conduct an initial problem diagnosis have the training and experience necessary to identify the applicant’s problem accurately and that their work is supervised by a licensed attorney.

Law students may properly be used in a variety of ways to assist in the delivery of legal services to eligible clients. Providers may invite participation of law students as interns practicing under the direction of staff and participating outside attorneys. Local rules of court may permit closely supervised court appearances by such students.

Many law students participate in student programs or in law school clinics that provide representation to low income clients. To the extent that a principal purpose of such enterprises is to represent the poor, they are legal aid providers, and, to the extent possible, should operate in conformance with the Standards. Law student providers should utilize, when appropriate, the assistance and expertise available from other local legal aid providers, and should work in close cooperation with such programs to coordinate referral practices and to set service priorities. Student programs have a responsibility to address the limiting factors that are unique to them, and that may affect the quality of work performed:

  • Student programs experience frequent turnover requiring special efforts to ensure continuity in the representation of clients.
  • Students require closer supervision than attorneys to ensure high quality representation.
  • Students have academic obligations that compete for their time.

Provider responsibilities in the use of non-attorney practitioners

While use of non-attorney practitioners can be a cost-effective way to serve clients, the provider must be aware of the many areas of legal practice where non-attorney representation is foreclosed because of restrictions on the unauthorized practice of law. The law regarding what constitutes the unauthorized practice of law varies by state and the provider should be aware of the requirements in the jurisdictions in which it operates and abide by them. The provider must avoid implicitly or explicitly giving the impression that its non‑attorney practitioners are lawyers.

Legal work by non-attorney practitioner should be under the supervision of a licensed attorney and subject to strict quality controls. The provider should assure that all non-attorney practitioners receive adequate training to be proficient in the work which they are assigned.