August 10, 2011
Providing Routine Legal Services to the "Masses" in the 21st Century, Part Two: A Prescription for Allowing Main Street-Based Services Provided by Licensed Legal Assistance Practitioners
"The county's public law library can help you because ... ." Usually the sentence ends with "court forms" when spoken by local court employee or "information" when spoken by a legal services staffer whose office cannot provide the services requested. And yes, we do have court forms and "information." We have local court forms and court rules (which may or may not be current even when provided from the local court's website), our state's annotated code, regs, case law, state-practitioner focused deskbooks and loose-leaf services plus self-help books, etc. But the operative word is "help." For the self-representative litigant who visits our little county law library, the matter at hand is usually pretty route. The help they are seeking, however, is how-to answers. Our response must be restricted to directional reference assistance to our resources. It's up to them to read, understand, interpret and decide what is relevant and needed.
Of course, many, if not most ask, "is this relevant, is this form I need, do I need something else, how do I proceed in court?" Of course, we can't answer those questions with the specificity they want. That does not stop members of the general public repeating the same question. We take advantage of our little county law library's layout which provides line-of-sight so all staffers can see what is going on at the public services desk because sometimes the public patron will not accept "sorry, but..." until he or she hears it from a second staff member.
We take a strict and, in my opinion, appropriate interpretation that providing this sort of "help" is an unauthorized practice of law. Hell, we even have a sign posted behind the public services desk with offical citation to the source for why we are not allowed to do so. However, even the questions sounding in the most routine court-related legal formalities can be difficult for many members of the general public. Our final words of "advice" is to suggest to our public patrons that they seek legal counsel and that our local bar association offers a referral service to help them find one. Of course, we never recommend a specific attorney, even when one who could help them is working in our county law library at the time. Most, however, simply cannot afford to hire an attorney. The self-representative litigant is on his/her own.
Let's add that I personally believe most judges have to and do work harder to accommodate the typical self-representative litigant we see in our library when he or she appears in court. No doubt many members of the bench would prefer that the pro se had obtained some sort of legal assistance for routine matters to expedite court proceedding.
Resources for the Self-Represented Litigant. I question the efficacy of the well-intended attempts to provide resources to members of the general public. See, e.g., "2011 Report: Resources to Assist Self-Represented Litigants: A Fifty-State Review of the 'State of the Art'” (Michigan State Bar Foundation, June 2011). No matter how much the "state of the art" improves, many self-represented litigants will simply not comprehend what is required. It's not that they are incapable of eventually understanding what is required. But, more often than not, they simply do not sufficient time to do so.
The equally well-intented "plain-English" movement that started some quarter of a century ago is problematic at best. While the "law" is written in English and can be understood by individuals who did not go to law school, there is a learning curve, one that remains even when "plain-English" documentation of forms and legal procedures are officially recognized. There will always be, in my opinion, a to-understand and to-do gap because the "law" is a formalized process that requires some measure of professional expertise, even for routine legal matters in court or for uncontested transactional documentation.
Comparing the Status Quo to Tax Prep and Healthcare Licensing Requirements. While there may be no solution to the self-represented litigant who has absolutely no funds, there may be a solution to providing legal assistance for routine civil matters that are affordable for many. If states and the federal government can define "tax preparer" to include tax lawyers, accountants, and nation-wide storefront chains which train staff to make decisions on how to input numbers into a software application for personal income tax prep by interpreting income tax requirements, then why not allow the same sort of licensing distinction between attorneys and state-mandated qualified legal assistants. If states can license and regulate the professional distinction between optometrists and ophthalmologists based on educational qualifications for providing eye care services to the masses, between license MDs and once not-accepted but now accepted by insurance providers chiropractors in the healthcare industry, then why not institutionalize the same sort of licensing distinction between attorneys admitted to the bar and certified legal assistants?
Let's start with the medical profession which also protects its industry in cartel-fashion like the legal profession does. When I visit my personal doctor, I always request to see her certified nurse practitioner. While the medical profession requires that they be employed by, work under the supervision of a licensed MD, and cannot prescribe medication on their own initative, but are covered by the doctor's medical malpractice insurance, there is no need for my doctor to spend her valuable time attending to my routine medical needs, even for a person like me who is not "aging well." If certified nurse pratitioners could practice without being affliated to an MD on "Main Street" under a state licensing regime I would go to one for routine medical matters.
There is certainly an analogy here to the provision of legal services for the masses for routine civil matters. Unless a "client" knows something about the law at issue, he or she is dependant on an attorney's attention to detail. Oftentimes, much of that depends on the attorney relying on a paralegal. Why not allow certified legal assistance practitioners work independently on routine legal matters on "Main Street" under a state licensing regime, something short of appearing in court. They could provide the sort of assistance needed for most routine civil matters, like non-contested divorces, child suport matters (oftentimes form-driven with fill-in the blank state-specific software provided by vendors), probate court filling formalities for uncontested estates, as well as common transactional documentation like basic wills, etc.
Providing Qualified Legal Assistance. Of course that would also break the attorney-centric authorized legal practice cartel, one that is already happening in an unregulated manner. See As Nonlawyer Vendors, Would-Be Clients Take on More Legal Tasks, How Can Practitioners Get Ahead? This ABAJ story reviews “The Once and Future Firm: Fact v. Fiction,” ABA Law Practice Management Section panel session at the ABA Annual Meeting:
Increased competition from nonlawyer entities and blurred distinctions between legal and nonlegal work are just two of the major impactors redefining modern law firms, regardless of their size.
As a result, lawyers need to embrace an entrepreneurial spirit more than ever. Indeed, they should distinguish themselves by providing value, beyond their knowledge of the law and being able to craft documents, panelists said.
See also Mark Giangrande's The Grey Area of Unathorized Legal Practice.
A move like suggested might require a substantial improvement in the quality of paralegal education, perhaps even a one-yeare post-graduate program. And it could produce some sleepless nights for law school administrators who may worry about how to convince prospective students interested in the field of law to go to law school (read load-up on student debt) instead of studying to be a paralegal by way of, for instance, enrolling in a paralegal program (read less student debt). What the heck, it would create the opportunity for a new insurance niche, stand-alone paralegal malpractice insurance. I could even imagine one of our major professional legal services vendors opening a national chain of storefront operations like H&R Block has for tax preparation services. Think John & Jenny Westlaw offices across this great land of ours.
Likely to Happen? I think it is a pipe dream (unless TR Legal gets involved!). While the availability of self-help materials is substantially more widely available by way of the Internet from local courts with respect to their rules and forms and commerical sources by way of state-specific forms of questionable value and self-help guides, most national, some state-specific but all also of questionable value, nothing is going to trump face-to-face meetings between a pro se and someone qualified to explain the ways and means of routine legal matters. I am not, however, arguing that this work should be performed by public sector law librarians. Our contribution should not change. However, to the extent some county law libraries provide services to menbers of the bar beyond services provided to members of the general public, those additional services could be provided to licensed legal assistance practitoiners who work indendently. [JH]
For the first part in this LLB series, see Internet-Based Legal Document Prep Services.