BAEC Bulletin | Summer 2021 | 21
Reimagining the Legal Team SPOTLIGHT ON PARALEGALS By Margaret Phillips and Peter Howell
Phillips
Howell
Change is not an easy thing for the legal profession, but as a profession we might be reaching agreement that something has got to give. Because of the well-documented crisis in unmet civil legal needs across the country – including New York – there have been numerous calls to action. The ABA published a “Report on the Future of Legal Services in the United States” in 2016 by its Commission on the Future of Legal Services, which it dedicated to the “estimated 80 percent of the poor, and those of moderate means, without meaningful access to our justice system” and recommended a number of innovations; most recently, in early 2020, the ABA House of Delegates passed a resolution encouraging U.S. jurisdictions to “consider regulatory innovation” to improve access, affordability, and quality of legal services (without changing current ethical rules on the unauthorized practice of law). 1 Perhaps for this reason, the Commission to Reimagine the Future of New York Courts (“Commission”), a commission of the New York State Unified Court System, published a report in December 2020 by its Working Group on Regulatory Innovation which recommended first, expanding legal and advocacy services by trained and certified social workers, and second, the expansion of the Court Navigators program (currently operating in New York City). 2 For its first recommendation, the authors argue “The provision of certain legal services and advocacy by non-lawyers is an idea whose time has come.” 3 Other states have made efforts over the past decade or so to bridge the justice gap with limited licenses for paralegals or “legal technicians.” 4 Efforts often explicitly refer to paralegals and allow legal services and legal advice. For example, the Washington State Courts were the first to pass a rule in June of 2012 allowing the licensing of paralegals (or “nonlawyers”) as Limited License Legal Technicians (LLLTs) who could practice in the family law area. 5 The licensure requirements were strict, requiring LLLTs to take paralegal courses and 15 credits of practice area education; work 3,000 hours under a lawyer’s supervision; and sit for exams. 6 LLLTs could provide legal advice (only in the family law area), primarily in helping clients fill out forms and explaining legal procedures, but could not appear in court or represent their client in negotiations. 7 Citing cost concerns, and despite a study concluding its positive impact, the Washington Court recently voted to sunset the program. 8 Other states have followed suit with proposals or programs for limited licenses that allow legal advice, including Minnesota (authorizing pilot project in September 2020 allows legal paraprofessionals to provide legal services in landlord-tenant disputes and family law) 9 ; Utah (authorizing program in 2015 allowing licensed paralegal practitioner to represent clients in family court, debt collection, and landlord tenant disputes) 10 ; Oregon (approving recommendation in 2019 for a paraprofessional licensing program to provide legal services in family law and landlord-tenant proceedings) 11 ; and Arizona (approving Legal Paraprofessionals in August of 2020 to practice in administrative law, family law, debt collection and landlord-tenant disputes). 12 In general, these programs were approved by the state supreme courts and differ in the requirements for the limited legal license as well as the extent of representation allowed (mainly, whether the paralegals can represent clients in court or in negotiations with opposing papers). New York has also addressed the problem of unmet civil needs while stopping short of allowing nonlawyers or paralegals to give legal advice. The Court Navigator program started in 2007 allowing law students to assist tenants in eviction proceedings in order to ensure the tenant’s voice was heard. 13 After further study and reports on closing the justice gap, the Court Navigator pilot program was created in 2014 to “make use of trained and supervised persons with no prior formal law school training to provide one-on-one assistance to unrepresented litigants in court.” 14 The Court Navigators were in the Consumer Debt and Housing courts, and provided one-on-one assistance with general information, completing forms, accompanying litigants to the courtroom, helping them find interpreters, explaining the courtroom process and actors, but not providing legal advice. 15 When the Court Navigator pilot projects were evaluated by the American Bar foundation and the National Center for State Courts in December of 2016, the study found that the clients were much more likely to be able to tell their story, get their defenses addressed, and far less likely to experience eviction than people who had no legal assistance at all. 16 In continuing to pursue innovation to address our access to justice problem, it only makes sense to include the role of paralegals in the conversation. As the regular readers of this column know, the American Bar Association can approve paralegal programs, which includes a requirement to educate students on substantive legal skills, include legal research, writing, and technology. Most programs
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