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August 13, 2018

Task Force on the Model Definition of the Practice of Law

Comments on Draft Definition

LSC Testimony

The Legal Services Corporation (LSC) is a private, nonprofit corporation established by Congress to ensure equal access to justice for all Americans by providing legal assistance in civil matters to low-income individuals. Congress created LSC to carry out the federal commitment to equal justice. Congress continues to recognize that the federal government must play a strong role in ensuring that a minimum level of access to the civil justice system is available everywhere in the United States. For more than 28 years, LSC has worked with its local grantees across the nation to ensure that equal access to justice remains an indispensable component of the American justice system.

Given LSC’s congressionally defined mission – and data suggesting that 80 percent of the more than 43 million eligible low-income clients cannot access the civil justice system – we urge this committee not to adopt the definition in its current form, and to seriously consider not drafting a definition at all. We believe that by adopting an inflexible definition for the “unauthorized practice of law,” the ABA would dramatically limit and restrict access to vital legal services and advice. The adoption of this definition, which seeks to protect the public from injustice, would risk the grave unintended consequence of doing just the opposite.

Legal services programs across America depend upon paralegals, legal assistants, and other unlicensed advocates to provide many types of legal aid, including social security and public benefits work. These highly skilled staff members practice regularly before “adjudicative bodies” (as defined by the proposed rule), as they are expressly permitted to do so by these bodies. Under the newly drafted definition, such assistance by legal aid paralegals would constitute the “practice of law” and would therefore be proscribed, unless we presume that the statutory authorization to provide lay representation before administrative agencies creates “a limited license to practice.” The results of the new definition would be potentially disastrous for a nation already struggling to find solutions for its access-to-justice crisis. Thousands of non-lawyer advocates currently assisting low-income clients, as permitted by statute or regulation, would be precluded from offering vital services.

Typically, courts grant a “limited license to practice law” to law students who have completed certain academic requirements and wish to offer limited representation under the direct supervision of a bar-certified attorney. Legal services offices across America partner with local law schools to provide students with the opportunity to give back to their communities while learning the fundamentals of lawyering. Law school students provide an invaluable resource for struggling and overworked advocates, but their ability to continue in this role risks being compromised by the proposed rule.

The most substantial problem with creating an expansive definition of “the practice of law” is that it paints with too broad a brush. By including all-encompassing language such as “giving advice or counsel to persons as to their legal rights or responsibilities or to those of others,” the proposed rule presumes to make the practice of law an everyday pursuit. Real estate agents, accountants, trust officers, insurance agents, and a host of other professionals perform these acts routinely as a fundamental part of their job.

Nationally, legal services programs are severely understaffed and advocates are too often grossly underpaid. As a consequence, legal aid offices must rely on the assistance of lay people in order to maintain a minimum level of service. Given current budgetary restraints, much of our work focuses on community legal education. For example, we might train the staff of a senior health clinic to help serve the legal needs of Alzheimer’s patients, or instruct the staff of a domestic violence center on how to obtain protective orders for abuse victims. Yet under the proposed definition, selecting, drafting, or completing legal documents that affect the legal rights of a person would be exclusively the province of bar-certified lawyers. Unfortunately, there are not enough legal aid or pro bono attorneys to meet the existing legal needs of the poor. The assistance of qualified lay people is therefore crucial.

With so many clients unable to afford a private attorney, the number of self-represented litigants appearing in court is troublesome. As you can imagine, pro se litigants present an immediate and pressing problem for our court system. They severely tax the time and patience of judges and court personnel who are not equipped to handle their needs. Legal services programs are working with courts around the country to create tools to help pro se litigants navigate the justice system. Many courts employ technology such as self-help kiosks, where litigants can access a host of information that may help them forestall an eviction or escape an abusive spouse. We have found that providing technical assistance on how to use these systems is critical to assist clients who are not technologically savvy. Typically, these facilitators are not lawyers. The proposed rule, as drafted, could have a chilling effect when we try to recruit lay people to offer this important guidance.

Legal services programs zealously protect our clients from those who would prey upon them. We are often the only ones with the resources and skills to challenge home-repair scam artists and predatory lenders. Full and complete disclosure is the key to ensuring justice. It is important that we protect our clients from those who would seek to deceive them and do them injustice. Instead of more strictly codifying the practice of law, we believe a better approach to protecting the public would be to encourage laws that require the full disclosure of the precise training and skills of the person providing the legal service. A layperson can become quite competent to do legal work, and it is better for the client to have this assistance than none, so long as they are making an informed choice. Legal services programs are uniquely equipped to provide the oversight and supervision necessary to ensure that clients receive competent counsel.

More than 43 million low-income Americans are eligible for some level of civil legal assistance. Of those who need aid, the ABA’s own statistics estimate that only one in five can gain access to a lawyer to help them with their legal needs. LSC applauds ABA President Alfred P. Carlton Jr. for his support for improving access to justice. In his message to this task force, he challenges you to write a definition that supports “the goal to provide the public with better access to legal services...”

With debt-burdened young attorneys turning away from public interest legal careers in record numbers, and legal aid resources disappearing at an alarming rate, the need for services has never been greater. Despite the best intentions of its authors, the proposed definition serves only to jeopardize the work of millions of advocates dedicated to providing equal access to justice. We urge this committee to seriously reconsider any definition that restricts the public’s access to qualified legal advice and services.