Earlier this year, I was invited to speak as part of the Vermont Law School Summer Lecture Series. My topic: “Using the Rules of Professional Conduct to Increase Access to Justice.” I’m reformatting the talk as a series of blog posts on ways we can use the Rules of Professional Conduct to increase access to legal services.
Part 1 of the series is HERE. It includes a link to a video of my talk and is intended to reassure you that the Rules of Professional Conduct do not pose a barrier to increased access to legal services.
This is Part 2. Here, I focus on using limited licenses to increase access to legal services. To tie it to the Rules of Professional Conduct, I’ll refer to Rule 5.5 throughout. Rule 5.5 is the rule that prohibits the unauthorized practice of law. In other words, this post focuses on increasing access to legal services by increasing the pool of people who are authorized to provide legal services.
You’ll note that I prefer the phrase “access to legal services.” Andrew Perlman is the Dean of Suffolk University Law School. He’s also one of the leading thinkers on the future of the legal profession. A law review article that he wrote played a significant role in shaping my views on limited licenses for nonattorneys. The article is here. In footnote 4, Perlman noted:
- “. . . it may be more appropriate in some situations to say that the public needs better ‘access to legal services.’ After all, many important legal and law-related services (e.g., getting a will or health care proxy) are not necessarily about ‘justice,’ at least not in the usual sense of the word. That said, a significant percentage of legal services have a strong relationship to justice, so the phrase ‘access to justice’ is appropriate in most circumstances. The terms are used interchangeably in this Article.”
Perlman’s initial point resonates with me. “Justice” can be a nebulous term. I’m sure there are many litigants who had lawyers but do not feel like they received “justice.” We should not measure access by results. Rather, when staggering numbers of civil litigants come to court without attorneys, we should measure access by the number of people who arrive with a person authorized to provide legal services.
Here are two ideas.
- Limited Licenses for attorneys who agree to limit their work to pro bono cases.
- Limited Licenses for Vermont Certified Paralegals.
1. Pro Bono Emeritus
This idea focuses more on amending the attorney licensing rules than it does on Rule 5.5.
As most of you know, when a Vermont attorney receives or renews a law license, the attorney must choose “active” or “inactive” status. An attorney on active status must pay full freight ($410 per cycle) and complete 20 hours of CLE. An attorney on inactive status is not authorized to practice law.
There are plenty of lawyers who no longer want to maintain an active license, but who are willing to give back by providing services pro bono. Requiring “active” status (and its $420 fee and 20 hours of CLE) is a deterrent to giving back. So is the spectre of a disciplinary prosecution for the inactive attorney who represents clients, albeit without pay.
In a few weeks, the Vermont Supreme Court will consider a proposal to add a new license status: pro bono emeritus. If approved, a lawyer who chooses pro bono emeritus status would be authorized to provide legal services, without pay, to persons of limited means, as well to organizations of the type listed in Rule 6.1(a)(2). Lawyers on pro bono emeritus status would pay a significantly reduced licensing fee. They would be required to complete 8 hours of CLE, not 20, er reporting period.
To be clear, this idea was not mine. It came from the VBA’s Pro Bono Committee and has been endorsed by the VBA Board of Managers. My role was limited to drafting the language and submitting it to the Court. The hope is that the new licensing category will afford more lawyers an opportunity to give back and, in the process, afford more litigants access to legal services. Many other states have adopted similar rules. And by “many,” I mean “most.” The ABA’s chart on state pro bono emeritus rules is here.
2. Limited Licenses for Vermont Certified Paralegals
Another idea is to confer limited licenses to certified paralegals. In the first post in this series, I referenced the Vermont Commission on the Future of the Legal Profession. I chaired the Commission’s Committee on the Future of Legal Education. Our committee recommended licensing paralegals who complete a certified educational program. I won’t rehash the recommendation. It’s on pages 14-33 of this report. However, here are a few thoughts:
As the Committee noted:
- “Not all legal services require delivery by a person with a law degree. Given the
staggering number of cases involving self-represented litigants, there are routine
matters in which common legal services could be delivered competently with proper
training.” Commission Report, p. 28.
I mentioned Andrew Perlman above. Again, his law review article is here. In it, he wrote that:
- “The focus should be on whether a particular service can be performed by
someone who does not have a law license, not who can perform the service best.
After all, even when services must be performed by lawyers, we have never
concluded that only the most skilled lawyers must handle a matter. The
touchstone should be competence.” Toward the Law of Legal Services, 37 CARDOZO L. REV. 49, 92(2015).
By licensing paralegals who complete a certified educational program, we’d expand the pool of people authorized to provide legal services and, hopefully, increase access to legal services.
I often hear two counter-arguments.
The first is that authorizing paralegals to practice will take work from lawyers. If that’s your argument, raise your hand.
Thank you. Now I know that you did not read the Committee report. Again, here’s the report. The Committee made it clear that the recommendation was “to identify specific legal services within family law, landlord-tenant law, and collections law that Vermont Certified Paralegals should be authorized to provide to clients.” Report, p. 27 (emphasis addded).
Specific areas within family law, landlord-tenant law, and collections law.
As I mentioned in the original post in this series, those are the exact areas of law in which huge numbers of litigants are representing themselves. Per Judge Davenport’s study, the percentages of self-represented litigants in each area:
- Active parentage cases: 84%
- Tenants: 90% (vs 24% of landlords)
- Collections Defendants: 84% (vs 2% of the plaintiffs)
- Foreclosure Defendants: 74% (vs 1% of the plaintiffs)
- Divorce: 54%
Authorizing certified paralegals to provide legal services to litigants who are not receiving legal services from lawyers will not take work from lawyers.
The second argument that I’ve heard against limited licenses for paralegals is that people who can’t afford lawyers won’t be able to afford paralegals. Maybe not. But maybe some will. On this point, I’m reminded of my priest, Monsignor Lavalley.
Monsignor Lavalley often tells the story of a man who went for a walk on a beach. The beach was littered with thousands of starfish that had been left ashore when the tide receded and that would surely die before the tide rose again to save them. The man encountered a little girl who was returning starfish to the water, one at a time. It was late in the day, and the girl would soon have to go home for the night. The man said to the girl “it’s getting dark and there are too many. Go home. You’re never going to make a difference.” The girl picked up a starfish, smiled, and replied “to this one I will.”
True, some people who can’t afford lawyers won’t be able to afford paralegals. But maybe one will. Let’s help who we can, when we can. If tomorrow one more person than today has access to legal services, we’ll be better off than we were this morning.
Increasing the type of providers who are authorized to provide legal services is a way to use the licensing rules and the Rules of Professional Conduct to increase access to legal services.