If I can practice medicine with no particular training I see no reason I can't appear in court. I'm a fast learner and an even faster talker. While my rates are high I'm considerably more fun to spend time with than some boring book worm who passed the bar exam.
States Look to Unconventional Fix for Attorney Shortages: Nonlawyers
New tier of legal-service providers faces pushback from some in the industry
By Erin Mulvaney, WSJ
June 7, 2023 12:00 pm ET
Minnesota has a pilot program that allows paralegals to represent clients in housing and family law with attorney supervision. PHOTO: STEVE KARNOWSKI/ASSOCIATED PRESS
From his rural court about an hour north of Duluth, Minn., Judge Robert Friday regularly oversees cases in which people face losing their homes, divorce disputes and debts they can’t pay. One or both parties regularly show up without a lawyer.
Individuals representing themselves don’t always understand how to present their cases or—sometimes, more important—how to avoid a courtroom altogether. “As a legal community, we haven’t done an acceptable job of defining solutions other than, ‘We need more attorneys,’” Friday said.
Minnesota is among a number of states considering an alternative, one that has sparked debate: allowing nonlawyers to provide legal advice.
From evictions to family law, some of the most common legal issues are the ones in which it can be most difficult to find a lawyer. So states are considering potentially expanding the definition of those who can help people with their legal problems. Minnesota has a pilot program, in place since 2020, that allows paralegals to represent clients in housing and family law with attorney supervision. Minnesota’s Supreme Court recently agreed to extend it to next year. New Hampshire is also testing a similar initiative that took effect in January.
Other states have adopted programs to create a new tier of legal-service providers who aren’t attorneys but are licensed to assist people with basic everyday legal issues, including on family law, debt collections and housing. In Utah and Arizona, dozens of these professionals are already providing legal services. And this year, Colorado and Oregon are implementing similar initiatives, approved by their respective high courts.
In Alaska, the state’s Supreme Court last November approved a program that allows community justice workers to offer some legal services. Hundreds of people have volunteered to be trained.
“We have a legal system built by lawyers, for lawyers, but doesn’t provide help for everyone who needs it,” said Nikole Nelson, executive director of the Alaska Legal Services Corporation. “The tide is turning.”
‘Early period of experimentation’
While the initiatives vary, they all share a central goal: expanding the number of professionals who can offer legal services to the people who find themselves alone in the court process. The states are still in an early period of experimentation, including on the areas in which nonlawyers should be allowed to practice and what kind of supervision is necessary for their work, said Michael Houlberg, director of special projects at the Institute for the Advancement of the American Legal System, which researches innovations in the legal industry.
‘As a legal community, we haven’t done an acceptable job of defining solutions other than, ‘We need more attorneys’’
— Judge Robert Friday
“All of this is so new. It’s creating a new profession or classification in the legal industry that hasn’t existed before,” Houlberg said. “It’s really only been attorneys since the start of the American legal system.”
The rising cost of legal services and a shortage of lawyers around the country has rankled state bar associations and clogged courts with self-represented parties.
Recent studies estimate that in civil and family law cases, more than 70% that go to court have at least one party self-represented, and in about 90% of eviction and debt-collection cases, there is no representation, according to the Institute for the Advancement of the American Legal System.
In criminal cases, people are guaranteed court-appointed representation, but that isn’t so for civil cases.
“Some of these civil matters require a level of technology and legal literacy that is extraordinary,” said Michele Statz, an assistant professor at the University of Minnesota who studies lawyer shortages. “The stakes are high. People will say, ‘If I fill out this form wrong, will I lose my kids?’”
Opposition from the industry
Some states are heading in the opposite direction. Florida’s high court and California state lawmakers, for example, last year rejected proposals that would have loosened bans on who can offer legal advice.
Washington state in 2012 was the first to create a program that licensed nonlawyers to assist on family matters. It will end this summer after the state’s Supreme Court decided not to renew it, saying the cost couldn’t be justified because of limited interest in the program. The state bar said it continues to study other solutions to attorney shortages.
The idea to allow nonlawyers to perform some legal services has been floated for years and consistently faced opposition from lawyers who say softening bans on legal work would erode the industry and pose ethical dilemmas.
“It’s like a landscaper trying to do brain surgery, or an accountant putting up your drywall,” said Jeralyn Lawrence, a family law attorney and former president of the New Jersey State Bar Association. “These are important real-life situations relying on those not trained and giving significant advice. Answering a question wrong could have dire consequences.”
Court battles
In some states, the issue is being fought out in court. Plaintiffs in New York and South Carolina are testing bans there on nonlawyers providing legal advice, arguing the prohibitions violate speech protections guaranteed by the First Amendment.
In New York, a federal judge last year paused the state’s ban, saying legal advice was constitutionally protected speech. A pastor in the Bronx and the nonprofit organization Upsolve sued to ease the ban to provide advice to residents facing debt-collection issues.
The judge, in granting the request to block the prohibition, said the nonprofit would help alleviate a continuing problem without threatening the legal profession. The state has appealed.
Marvin Neal, a member of the South Carolina NAACP, says the organization could help many families facing evictions if allowed to offer legal advice. PHOTO: NAACP
The NAACP sued South Carolina in March, arguing for its workers to be able to offer legal advice to people facing evictions, a rising problem in the state after the Covid-19 pandemic.
Marvin Neal, a plaintiff and member of the South Carolina NAACP, says hundreds of people have come to the organization for help when they risked losing their homes. He is limited in what he can tell them to do, even though he knows the legal process. Giving legal guidance is a felony offense and can be punished by a fine of up to $5,000 or five years in prison.
“It would be an enormous advantage for us. We could help a ton of families,” Neal said, adding that there is a huge knowledge gap in his community and that many people just give up. “It’s very frustrating. We can’t provide enough help.”
Judge Friday in Minnesota said he understands both sides of the debate. He said he has mixed feelings about the state’s pilot program and trepidation about what will happen if too many nonlawyers are handling cases.
“We can’t give up on the gold standard of attorney representation,” he said. “But I’m not saying other solutions aren’t part and parcel of that.”
Write to Erin Mulvaney at erin.mulvaney@wsj.com