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Memphis, Tennessee, United States
Small town paralegal in the city. Once ran a law office, now being run by one. Med mal defense litigation. I think it's growing on me.

Thursday, August 27, 2009

A Major Overhaul... or Invasion of the Independent Paralegals!!

Robert Mongue, at The Empowered Paralegal blog, and I have been involved in a sideways dialogue of late regarding independent paralegals and UPL. His most recent post about independent paralegals, which can be found here, actually blew my mind a little bit. I thought I was reading an entry about independent paralegal practice, but I ended up diving head first into the Bellow-Sacks Access to Civil Legal Services Project, a broad access to justice project that has suggested, among other things, regulating limited nonlawyer practice in a few specialty areas of the law to achieve better access to legal remedies for indigent and even middle class citizens.

But this is not where the project either begins or ends. Its scope is so wide, and it so boldly threatens the ABA's monopoly on the legal world (or at least, it would appear that way at first - it would probably actually stregthen the positions of attorneys as leaders in their field by helping to fix the public's view of the legal system), that I imagine the best parts of it may never be implemented.

I have found three beautiful papers on this philosophy, two of which I share below. I wish I could express all of their findings and research-backed opinions in the small space I have here, but the most I can do is give you a list of highlights of each. However, I urge you to read them yourselves and join with me in this dialogue about how the legal community can rise to better serve the needs of individuals who need us.

In the first research-oriented paper I read on this subject, which I found at The Empowered Paralegal, the author makes the following points:

- Few lawyers tend to be interested in the areas of law in which low and middle income people need services, such as family law, debt, etc.
- Less than 17% of lawyers participate in pro bono programs, for various reasons.
- The United States Federal Administrative Procedure Act already authorizes qualified nonlawyers to appear before federal agencies to represent an individual.
- Several states, California and Washington included, already allow limited nonlawyer practice, to positive results.
- Pro se litigants could stand to benefit from the guidance of nonlawyer facilitators who could take them step by step through the legal process.
- Although critics suggest that in theory, offering nonlawyer legal services will diminish the quality of legal services to the public, existing evidence suggests the opposite may be true.
- In some other countries which allow nonlawyer practice, specifically England and Wales, lawyers had more cases that resulted in an inadequate rating of services, while nonlawyers had more cases that resulted in a rating of "excellent."
- In the U.S., what little comparative research we have on the topic suggests that nonlawyer specialists perform as well as lawyers. In fact, in a survey of consumer satisfaction with legal services, nonlawyer practitioners scored higher than attorneys. (There are various reasons for this, and I'm betting they don't include anything truly negative about lawyers, but rather how much consumers valued the services versus what they were charged for them.)
- UPL rules are overbroad: "Rather than sanction fraudulent legal service, the unauthorized practice doctrine prohibits lay practicioners from performing any traditional legal task."
- UPL rules "fail to fairly inform either the Independent Paralegal or the general public as to what conduct is prohibited."
- Case law shows that UPL laws in the U.S. have been relied on more heavily by members of the bar rather than by consumers, whom the laws are supposedly meant to protect.
- If nonlawyer specialists were narrowly regulated by licensing, minimum standards, etc., as opposed to broadly banned, the consumer would stand to benefit.
- UPL rules are based on the idea that laymen do not have the knowledge or ability to represent others in legal matters. But Independent Paralegals "develop not only competent, but highly specialized expertise by focusing on a specific area of the law or engaging in a certain type of assistance over time." And "[l]aw school does not teach some of the specialized legal knowledge that paralegals acquire from experience." (Or that knowledge attorneys acquire through experience, either.)
- By eliminating UPL rules and regulating highly specialized areas of nonlawyer practice, lower and middle income individuals would receive higher quality and more affordable legal services.

I am leaving out a ton of research and major points, of course, because the paper is so dense with information and thought0provoking discussion. The next piece of literature I found on the Bellow-Sacks project was much more practice-based, and provided a guide for the set-up for a form of socialized legal aid. You can read it here. Below I have listed a few of its highlights and proposals.

- Courts run better, and less time and money are spent when litigants are represented by attorneys, but not everyone can afford a lawyer.
- The Bellow-Sacks Access to Justice Project proposes the following: preventative legal aid, strong management and accountability, reforms that will reduce costs as well as the need for expert legal assistance, and private bar innovations to bring legal costs down.
- Not all legal needs are equal. Sometimes those who can least afford an attorney need assistance the most. (Think of indigent individuals who may be illegally and unfairly evicted or people living with spousal abuse.)
- Some legal issues do not inherently require the advice and expertise of a licensed, experienced attorney. (I know many of you will disagree with this; I'm just the messenger, this is a project created by highly educated attorneys.)
- The project proposes a "Service Pyramid" that involves, from base to tip, the following:
1) Web-based information;
2) Phone and web-based tools;
3) Brief service and advice with web-based tools;
4) Paralegals and lay-advisors; and finally
5) Law student and lawyers. Highly expert lawyers are at the tip top of the pyramid.

The purpose of the project's proposals and the focus of its research seems to be about finding a way to serve the poor and middle class with high quality legal services while at the same time allowing attorneys to take cases that will actually make money. This, as opposed to hoping more lawyers will give up the financial opportunies in order to provide free services to people who can't pay what their time is worth.

The project also includes co-pays, subsidies, and a lot of other things that give me great pause as to what kind of system it would set up; however, the idea is novel to me, and therefore intriguing.

Read the pieces, let me know what you think. I am itching to have a real discussion about the pros and cons of this type of legal system overhaul. I also would like to find out what happened to the project. Everything I find is from 2005 or earlier. I am sure bar associations didn't take kindly to it.

What I found most interesting about this project is that these ivy league education attorneys were promoting the idea of limited nonlawyer practice for the benefit of low to middle income people. They could probably command outrageous salaries at major firms (even in this economy), and yet they are not afraid of the ramifications of allowing nonlawyers to step in to handle those cases that highly educated attorneys don't want anyway.

If you have actually made it to the end of this entry, Reader, congratulations! I will reward you by stopping now.

1 comment:

  1. We should get coffee one day. Lots to say about this one.