While the use of nonlawyers to provide legal advice and representation is not new, the idea is a controversial yet possible solution to help close the access-to-justice gap, according to an expert panel at a Jan. 31 program presented during the American Bar Association Midyear Meeting in Phoenix.
“There’s a lot of opposition within the bar to nonlawyers offering any legal services, especially without the supervision of an attorney,” said Stephen Daniels, an American Bar Foundation research professor emeritus, at the program, “The Age-Old Question Facing All of Us — Deny People Any Help or Allow Some By Nonlawyers: An Innovation’s Odyssey.” Yet, Daniels said, the idea is a “harbinger of the future.”
In 2012, Washington state “let the genie out of the bottle” and authorized a training program for limited licensed legal technicians, known as LLLTs, Daniels said. Other states followed: Arizona, Colorado, Oregon and Utah. Arizona now has more than 100 nonlawyer firms, said panel moderator Don Bivens, chair of the ABA Center for Innovation.
Minnesota has a program that requires attorney supervision of nonlawyers. As many as a dozen other states have or are exploring a program involving nonlawyers of some kind in specific areas, such as family law and criminal law. “It is an experiment. It is evolving,” Daniels said.
While opponents of nonlawyers say these mid-level legal professionals are taking away business from young lawyers in rural America, proponents argue that nonlawyers are needed to address the problems of affordability, an aging profession, sharply lower law school enrollments and debt and geography and legal deserts.
“Access to justice is a problem that’s never going away, only mitigated,” Daniels said.
Michele Statz, an associate professor at the University of Minnesota Medical School, addressed the rural justice gap, noting that 92% of low-income Americans can’t access the services to address their civil legal needs. Additionally, only 14% of rural individuals receive assistance for their civil legal needs.
Statz pointed to the success of the Alaska Legal Service Corporation’s Community Justice Worker program, which trains local community members to provide legal assistance to Alaskans who would otherwise lack access to civil legal help. The model resembles one also used in the state that allows trained health advocates to provide health care in rural areas.
“There is no silver bullet to provide legal services to everyone,” said Rudy Sanchez, executive director of DNA-People’s Legal Services, a nonprofit law firm that offers legal services to Native Americans in three southwestern states. But in order to help those who cannot afford or access services performed by traditionally licensed attorneys, “we have to be willing to experiment” and train others to provide those services, he said.
Sanchez conceded that the legal profession needs to consider what constitutes the unauthorized practice of law and the services nonlawyers can and cannot provide. When it comes to community justice workers serving as nonlawyers to the population that desperately needs them, Sanchez asked, “Do (the people) get zero services? Or do they get some services?” For people to have access to legal services, “you have to tweak the rules.”
The program was presented by the Fellows of the American Bar Foundation.