RECOMMENDATIONS 67 FORDHAM LAW REVIEW 1751 (1999)
1. The recommendations are consecutively
numbered for ease of reference. Citations to these recommendations elsewhere
in this volume shall be as follows:
Recommendations of the Conference on the Delivery
of Legal Services to Low-Income Persons, 67 Fordham L. Rev. 1751, Recommendation
___, at ___ (1999) [hereinafter
Recommendations].
RECOMMENDATIONS
67 FORDHAM LAW REVIEW 1759 (1999)
RECOMMENDATIONS 67 FORDHAM LAW REVIEW 1760 (1999)
Explanation: Nonlawyers who charge less and are more numerous
than lawyers provide the potential for expanding access to justice for
low-income people. Various studies of unmet legal needs of the public
have demonstrated that a variety of factors inhibit access to justice for
low-income people: costs of legal services are consistently cited as
the greatest obstacle. (Footnote 4) It is well known
that many of the significant legal
matters that seriously impact low-income people's lives do not gener-ate
fees sufficient to justify the involvement of a private lawyer. In
addition, limited (and decreasing) funding for free legal services
for low-income people cause these programs to be small and available
only to a small fraction of those eligible. Furthermore, "costs" may
be understood more broadly. For instance, "information costs" are
higher for low-income people who may have less time or education to
make effective inquiries about a legal problem or who lack networks
that include people who provide reliable advice about legal problems
and ways to obtain help therewith. Expanding nonlawyer use is one
readily accessible way to overcome these cost barriers for low-income
people.
It is worthy to note that if all lawyers were required to provide pro
bono service, expanding nonlawyer use might not even be necessary
to overcome these cost barriers. There are between approximately 200
to 400 people per practicing lawyer in the United States today.
This ratio is low enough to suggest that if all lawyers provided pro
bono legal services to low-income people, many more unmet legal
needs might be quickly addressed. Since the proposal for mandatory
pro bono has been debated and rejected by most bar associations, we
chose not to pick up the torch on this issue.
26. Judges bear the ultimate responsibility for ensuring that those
appearing before them who cannot afford lawyers obtain fair-ness
and justice in court proceedings. To further that end, judges must
ensure that unrepresented litigants receive exten-sive
assistance and advice. Judges must provide the assistance as necessary
to ensure that the choices of the unrepresented
litigants are "informed" and that unrepresented litigants do not forfeit
rights due to the absence of counsel. The active
role for judges must not be construed as inconsistent with the need
for impartiality.
Explanation: The basic responsibility of the courts is to insure
that litigants receive justice and fairness. Recently, courts have exper-ienced
a flood of unrepresented litigants for which the judicial system is
mostly unprepared. Members of the Working Group on the Use of
4. See, e. g., Carolyn A.
Eldred & Roy W. Reese, Temple Univ. Inst. for Survey Research, Legal
Needs Among Low-Income Households: Findings from the Compre-hensive Legal
Needs Study 50 tbl. 5-7 (1994) [hereinafter Comprehensive Legal Needs Study]
(noting that 16% of households surveyed cited cost as the main reason for
doing without legal help).
RECOMMENDATIONS
67 FORDHAM LAW REVIEW 1761 (1999)
Nonlawyers (Footnote 5) agreed that when judges
treat unrepresented litigants in the same manner as represented litigants,
justice and fairness are not
well served. Society does not fund lawyers for all low-income liti-gants.
Therefore, unless judges begin appointing counsel to all unrep-resented
parties, they must take a more active role with those unrepresented
litigants in order to properly do justice to them. Other-wise,
the courts will be used as instruments of unfairness and injustice,
contrary to their fundamental social mission. Employing a standard of
"informed consent" to the decisions of unrepresented litigants is bor-rowed
from informed decisionmaking in the medical context. (Footnote
6) We be-lieve
that a similarly substantial standard for legal decisionmaking should
be applied, especially when major financial or housing deci-sions
are being made. This more proactive role for judges need not be inconsistent
with impartiality. While this new active role for judges
would surely require the outlay of more judicial resources, it would
save the negative consequences and social costs that arise from an un-represented
litigant waiving his or her rights improperly. (Footnote
7)
27. To enable judges to ensure fairness and justice for unrepre-sented
litigants appearing before them, courts should imple-ment
programs and procedures that use both lawyers and nonlawyers to provide
assistance.
Explanation: Judges cannot increase their assistance to unrepre-sented
litigants without enlisting the aid of lawyers and nonlawyers.
Also, in order to address the increased outlay of judicial resources
that is bound to occur as a result of the above recommendation for an
expanded role for judges, courts must "implement programs and pro-cedures"
to maximize the effectiveness of the judges' efforts to aid
unrepresented parties. Courts could draft special procedures for aid-ing
unrepresented litigants, such as appointing counsel to assist those
litigants or permitting nonlawyer representatives to appear in court.
Courts could develop programs for unrepresented litigants, such as
programs that would direct those litigants to court lawyers or nonlawyers.
28. Courts should establish guidelines prohibiting bias in the courts,
and should ensure that all court personnel, including
judges, lawyers, and nonlawyers, adhere to them.
Explanation: Recent studies of gender and race bias in the courts (Footnote 8) have prompted certain judicial systems to begin to alter the status quo
5. References to "the Group" throughout Part II refer to this working group.
6. See Black's Law Dictionary
779 (6th ed. 1990) (defining "informed consent" as
"[ a] person's agreement to allow something to happen
(such as surgery) that is based on a full disclosure of facts needed to
make the decision intelligently . . . .).
7. For a more thorough discussion
of this new role for judges, see Russell Engler, And Justice For AllÐ
Including the Unrepresented Poor: Revisiting the Roles of the
Judges, Mediators, and Clerks, 67 Fordham L. Rev.
1987 (1999).
8. See, e. g., Rena M. Atchinson,
A
Comparison of Gender Bias Studies: Eighth
Circuit Court of Appeals and South Dakota Findings
in the Context of Nationwide Studies, 43
S. D. L. Rev. 616, 616, 626 n. 67 (1998) (noting forty-one gender bias
reports). .
RECOMMENDATIONS 67 FORDHAM LAW REVIEW 1762 (1999)
methods of doing business in order to address potential and actual prejudice.
This type of study is an invaluable tool for toppling barriers
to accessing justice for low-income people who are overwhelmingly members
of minority groups. We suggest that any study of court bias
should investigate institutional biases against nonlawyers in the courts,
either the unrepresented person or the lay advocate.
29. Courts should provide court-approved forms that are in plain, understandable
language and that are translated into the lan-guages
of the populations served by the court. Nonlawyers should be encouraged
and permitted to assist unrepresented
persons in completing the forms.
Explanation: The prohibitions on out-of-court document prepara-tion
by nonlawyers is one of the least sensible aspects of the rules
prohibiting the unauthorized practice of law (" UPL"). In some states,
such as Florida, where nonlawyers are permitted to aid in document
preparation, access to justice has been greatly enhanced for people
of limited means. So much of modern life is dominated by the filling out
of forms for government benefits, private insurance, or other pro-grams.
If courts designed their forms to be used by unrepresented
people, then the need for a lawyer to fill out these types of forms
would be greatly lessened. In addition, we envisioned this reform as
complementary to the new active roles of judges. Thus, where an un-represented
person has received nonlawyer assistance in form prepa-ration,
the court may be obliged to ask about possible claims or defenses included
or excluded from these forms.
30. Court procedures should be modified to encourage nonlawyer assistance
where doing so does not undermine the rights of
litigants.
Explanation: With this recommendation, we intended to encourage
the creation of court procedures that would allow unrepresented peo-ple
and lay advocates to use the court system with greater ease. The Group
sought a "modification" of court procedures to allow for con-text-
specific reforms that would not necessarily abolish UPL restric-tions
imposed by courts or statutes. Through these modifications of
court procedures, the Group envisioned lay advocates being permitted
to represent low-income people while being held accountable by the
same standards of competence applied to lawyers. However, the Group
did not want court rules to be modified so that low-income
people would receive "second-hand" justice. Any modification pursu-ant
to this recommendation must be made with an eye towards ex-panding
the quantity and quality of access to justice simultaneously.
The Group opined that it was unacceptable to sacrifice quality of ac-cess
for quantity of access. Nonetheless, we felt that experimentation
RECOMMENDATIONS 67 FORDHAM LAW REVIEW 1763 (1999)
with nonlawyer advocacy was necessary in light of the unmet civil legal needs of low-income people.
Finally, for the unrepresented person, we envisioned reforms in procedure
that were made with a represented adversary in mind. For
example, default-judgment rules are based on the belief that one must
assert one's rights or waive them. Default judgment rules negatively
impact unrepresented litigants in a disproportionate manner which suggests
that such defaults are not a by-product of informed action.
As a result, simple reforms of these default judgment rules would re-sult
in far less injustice to low-income people.
31. Court employees and people working in court-annexed pro-grams should
not be subject to unauthorized practice of law
rules and should not be prohibited from giving legal advice.
Explanation: Most unrepresented litigants interact with the non-lawyer
staff of the courts or court-annexed programs much more fre-quently
and for a greater duration than with judges. Currently, nonlawyers
who work in the courthouse or in court-annexed pro-grams
(Footnote 9) are subject to UPL restrictions.
As a result, when an unrepre-sented person approaches a court clerk for
help in filling out a court-approved form, the clerk may explain that he
or she is prohibited from helping the party or explaining the form because
of UPL rules. While this level of caution on the part of court staff is
admirable, it is by no means uniform. On the flip side, many nonlawyers
provide advice to unrepresented parties about how to proceed in their suit.
This advice,
however, is not necessarily competent. The Group decided that UPL restrictions
upon court employees and those working in court-annexed programs should
be eliminated both to encourage assistance to unrepresented litigants and
to discour-age incompetent advice to them. This recommendation would
achieve the desired results by expanding and formalizing the type and
nature of assistance that court personnel could give. The court per-sonnel
would receive extensive training in giving legal advice and would be
accountable to the litigant for the advice given. The Group
expected that this recommendation would substantially improve the "consumer-friendliness"
of the courts by making it the responsibility
of court personnel to competently inform unrepresented litigants.
32. Per se prohibitions on nonlawyer representation before administrative agencies should be eliminated.
9. We used the phrase "court-annexed
programs" to include not only court clerks in the ambit of this recommendation
but also programs administered or initiated by
the courts, such as programs that provide advice to unrepresented
parties. An exam-ple of such a program might be the City-Wide Task Force
on Housing Court funded at
the outset by the New York State Office of Court Administration.
For more informa-tion on this program, see Alex J. Hurder, Nonlawyer
Legal Assistance and Access to
Justice, 67 Fordham L. Rev. 2241 (1999).
RECOMMENDATIONS 67 FORDHAM LAW REVIEW 1764 (1999)
Explanation: Representation of any kind greatly enhances the
chances of success of a party appearing before an administrative
agency. In fact, studies have shown that nonlawyer representatives
appearing before agencies achieved a success rate for their clients only
marginally below the success rate of parties represented by lawyers
and radically better than unrepresented parties appearing before the
same agency. (Footnote 10) Hence, the Group
made this recommendation to im-prove the chances for just outcomes for
parties having matters before
administrative agencies.
Nonlawyer representation before administrative agencies is not uni-versally
prohibited or universally approved. The federal Administra-tive
Procedures Act authorizes agencies to elect to permit nonlawyer
representatives to appear in administrative hearings and other proce-dures.
(Footnote 11) Not all federal agencies, however,
have elected to permit
nonlawyer practice. States may not prevent federal agencies from electing
to permit nonlawyer practice based on the Supremacy Clause.
States, however, may independently authorize state agencies to permit
nonlawyer representation. Not all states permit nonlawyer practice
before state agencies and no state permits nonlawyer practice before
all state agencies.
Based on this hodgepodge of authorization for nonlawyer represen-tation
before state and federal agencies, the Group recommends that
any per se rule prohibiting nonlawyer practice before a state
or fed-eral agency be eliminated. The whole notion of an administrative
agency proceeding is that it should be less formal than a judicial
pro-ceeding, in part because agency proceedings are rarely traditionally
adversarial. With this non-adversarial informality in mind, no per
se prohibition on nonlawyer representation before an administrative
agency makes sense. The Group was aware that certain agency practice
is very technical with final determinations that have lasting impact upon
the party in-volved.
Several members of the Group were particularly concerned with permitting
nonlawyer representatives to appear in proceedings
before the Immigration and Naturalization Service. In those agencies
in which technical knowledge is required for competent representa-tion,
the Group suggests that the agency could require a nonlawyer to obtain
some sort of prerequisite training. In this situation, the agency
may require a type of specialty certification or nonlawyer registration
with the agency to insure accountability and competence.
As a final note, nonlawyers who represent a party before an admin-istrative
agency may not represent that same party upon appeal to the
courts. That nonlawyer representative has achieved great familiarity
10. See Derek A. Denckla,
Nonlawyers
and the Unauthorized Practice of Law: An Overview of the Legal and Ethical
Parameters, 67 Fordham L. Rev. 2581, 2597 n. 106
(1999).
11. See 5 U. S. C. 555( b)
(1994).
RECOMMENDATIONS 67 FORDHAM LAW REVIEW 1761 (1999)
with the facts and law of the party's case. The judicial appeal involves
the same parties: the agency and the challenger. The only difference
is that there is a judge from a separate branch of government ruling
on the case. Therefore, the courts should adopt some special rules to
permit nonlawyer appeals of agency rulings where those nonlawyers meet
the same competency and accountability standards as attorneys.
Although the Group made no specific recommendation on this mat-ter,
it was our belief that our earlier recommendation that court pro-cedures
be altered to permit nonlawyer practice would encompass the authorization
of nonlawyer appeals of administrative agency decisions
in which the nonlawyer represented the party below and made some showing
of minimum competence to pursue a judicial appeal.
33. Court rules that prohibit lawyers from assisting competent nonlawyers
generally providing competent legal advice and
assistance to the public should be eliminated.
Explanation:
Many court rules still prevent lawyers from giving ex-tensive assistance
to unrepresented parties and competent independ-ent
nonlawyers who either prepare documents, give advice, or represent
parties, before administrative agencies. A total prohibition
on this type of assistance seems to make little sense in light of the
great numbers of unrepresented litigants and their need for assistance.
In addition, lawyers need not give this advice pro bono. As part of
a notion called "unbundling" of various aspects of "full representation,"
advice is one discreet task for which the public ought to be able to
pay without regulation. (Footnote 12) Courts and
critics of this type of assistance have
raised the concern that when lawyers give such advice anonymously,
they are not accountable to those advised. (Footnote
13) Some courts address this
perceived problem of accountability by permitting lawyers to assist
nonlawyers while requiring that a nonlawyer indicate that he or she
had been aided by a lawyer (giving that lawyer's name) in preparing
for a case. The Group opined that aiding a document preparer or
nonlawyer advocate served the same purpose as advising unrepre-sented
persons. In the interest of justice, the ethics rules and codes
should be interpreted to permit this type of assistance of nonlawyers.
12. This notion of "unbundling"
is discussed in greater detail in the report and recommendations of the
Working Group on Limited Legal Assistance.
See Report of
the Working Group on Limited Legal Assistance, 67
Fordham L. Rev. 1819 (1999); infra Recommendations 47± 64.
13. Cf. John P. Gillard,
Jr., Comment, Pay-Per-Call Legal Advice, Professional In-tegrity, and
Legal Licenses: Why 1-900-LAWYERS Is a Call to the Wrong Number, 79
Marq. L. Rev. 549, 555-56 (1996) (" Some people fear,
however, that unscrupulous attorneys will establish 'boiler room' pay-per-call
operations with no accountability to
users . . . .").
RECOMMENDATIONS
67 FORDHAM LAW REVIEW 1766 (1999)
Explanation: This recommendation sets the tone for the remaining
recommendations of this part. Lawyers need to recognize that they
are not the only professionals or practitioners providing law-related
services and advocacy to low-income people. In particular, such pro-fessionals
as social workers and such lay advocates as community or-ganizers perform
many service and advocacy tasks that impact
important legal rights for their clients and community, respectively.
Lawyers should work with a wide variety of other providers of serv-ices
to achieve the best problem-solving available for their clients. The
ethical rules of lawyers and other professionals that may inhibit
these collaborations should be eliminated. In addition, lawyers are
reluctant to get involved in anything other than straight legal solutions
to their clients' problems in isolation from the wider issues in a
client's life. This reluctance is part of lawyers' institutional culture
and must
be eliminated to make way for sharing competent representation with
other advocates and service providers.
Nonlawyer providers of service and advocacy bring different per-spectives
to a client's problem that may prove crucial to achieving
long-term solutions. For example, we will discuss a simple scenario,
based on experience, where a low-income client comes to a lawyer's
office owing rent. First, the lawyer represents the client in court,
ad-vancing the defense that she has not paid the rent in her apartment
based on illegal conditions therein. Second, a social worker who sees
the same client finds out that the client also has a pathological gam-bling
habit. Unless this habit is treated, any resolution of the present
lawsuit will eventually unravel in the not-so-distant future. Third, the
community organizer talks to the client and finds out that her landlord
owns three other poorly maintained buildings in the same community.
The organizer begins to contact occupants of these buildings to begin
a rent strike, so that the conditions that the original client complained
about will not recur. In this scenario, it should be plain that lawyers
acting alone would not be able to provide the perspective of other
service providers nor will lawyers have the time or inclination to
ap-proach problems in the same manner as these other service providers.
Collaboration is the appropriate solution for the lawyer.
14. These recommendations concerning
collaboration between lawyers and nonlawyers drew heavily upon Paula Galowitz's
conference paper, which provides
most of the background information necessary to explain
these recommendations.
See Paula Galowitz, Collaboration Between
Lawyers and Social Workers: Re-examining
the Nature and Potential of the Relationship, 67
Fordham L. Rev. 2123 (1999). 16
RECOMMENDATIONS 67 FORDHAM LAW REVIEW 1767 (1999)
35. Lawyers should be encouraged to work with other profession-als (i.
e., social workers, mental health service providers, teach-ers,
health care providers, community-based workers) to maximize competent
representation.
Explanation: This recommendation follows logically from Recom-mendation
Thirty-four. It should be obvious from the explanation
above that collaboration between lawyers and nonlawyer providers of
advocacy and service will often maximize the competence of the rep-resentation
of a particular client. There are certain issues upon which a lawyer
must seek guidance from other service providers in order to
maximize competent representation of a client. For instance, in the
scenario described above, if the lawyer simply ignored the client's
gambling problem as "not legal" in nature, the lawyer would not be
able to save the client's home. While the lawyer would not have been
incompetent as a lawyer, she would not have maximized the compe-tence
of her representation.
36. Lawyers should be encouraged to transmit legal knowledge to other
professionals about the rights and responsibilities of low-income
people; one of the purposes should be to enable the other professionals
to identify legal needs, to provide assist-ance
that addresses those needs where possible, and to make referral for
further legal assistance where needed.
Explanation: This recommendation echoes Recommendation Thirty-three,
concerning altering court rules to permit lawyers to ad-vise
and assist nonlawyers. Lawyers have legal knowledge that is usu-ally
only employed to serve the needs of their individual clients. If
lawyers are encouraged to transmit this legal knowledge to a wider
audience, for example, other providers of service to low-income peo-ple,
their knowledge will have a broader salutary impact overall. Just as
lawyers will tend to maximize the competence of their representa-tion
of low-income clients by seeking the perspectives and skills of other
service providers, those service providers will enhance their ef-fectiveness
through being aware of the legal parameters in which they operate.
As a result, nonlawyers who provide services and advocacy
to low-income people will also know when to refer a matter for legal
representation. In this way, lawyers do not end up doing social work,
or organizing, or other work for which the lawyer is untrained. Rather,
each service provider maximizes her effectiveness through
this collaboration and sharing. In these times of limited funds for
legal services for low-income people, this sort of effectiveness max-imization
for lawyers is crucial to the efficient use of funding for scant legal
resources.
37. Ethical codes and statutes governing lawyers and other profes-sionals
should be changed so that where there is collaboration
between a lawyer and another professional, subject to their
RECOMMENDATIONS 67 FORDHAM LAW REVIEW 1768 (1999)
agreement, information gathered in the course of the collabo-ration is covered by the lawyer's confidentiality protections.
Explanation: As discussed in greater detail in the article by
Paula Galowitz in this volume, many professionals and service providers
are
required to divulge information about their clients through reporting
statutes. (Footnote 15) Lawyers are exempt from
these reporting requirements
and may keep client confidentiality regardless of these reporting requirements.
In order to facilitate collaboration, the clients of those nonlawyers
working with lawyers must be protected by the lawyer's standard for
confidentiality. If clients of nonlawyer providers of service and advo-cacy
are not protected by the lawyer's standard for confidentiality,
lawyers will be substantially impaired in their ability to collaborate
with those nonlawyers. For instance, lawyers would be reticent to
share any information with the nonlawyer service providers except for
the most superficial details of a case for fear of violating a client's
confidences. This kind of defensive posture on the part of the lawyers
would virtually eliminate any meaningful form of collaboration. At
one point, the Group proposed the creation of a Unified Code of Ethics
for the professions that would give all clients the same level of
confidentiality protections. The Group arrived at this recommendation,
however, as a more targeted solution to a barrier to
collaboration.
38. We recommend further study to identify barriers to collabora-tion
among lawyers, other professionals, nonlawyer advocates,
and clients.
Explanation: The Group recognized that, regardless of any formal
recognition by the states or bar associations, nonlawyers are providing
advocacy to low-income people. In order to address this situation in
a positive manner, the Group thought that lawyers and state authori-ties-
either separately or together- ought to produce educational and other
material to promote competence of these nonlawyer advo-cates.
In addition, professionals who serve low-income communities should
seek ways to collaborate with these nonlawyer advocates.
RECOMMENDATIONS 67 FORDHAM LAW REVIEW 1769 (1999)
In seeking to fulfill this recommendation, the Group was mindful of
the technological developments that have expanded and will continue
to expand the activities in which nonlawyer advocates may engage. In
particular, computer software and hardware can combine to permit
nonlawyer advocates to perform many of the tasks formerly reserved
to lawyers alone. For instance, tax preparation programs guide the lay
user through all the steps of an income tax return, explaining the
ramifications of each step of the filing and providing the user with
many legally related decisions. Similar programs can and should be
developed to permit low-income people to maximize available bene-fits,
file uncontested divorces, make out a will, a health care proxy, a
power of attorney, or other basic legal documents. In addition, giving
low-income people meaningful access to the internet and its legal-re-search
tools will permit them and their nonlawyer advocates and doc-ument
preparers to gain access to knowledge that will undoubtedly empower
them. Nonlawyer document preparers may be crucial in
aiding low-income people who wish to use these new technologies. Lawyers
are simply not available to perform these types of tasks for
all who need or want them. This recommendation can support an ad-ditional
"unbundling" of a legal service, whereby lawyers could be
called upon to perform the discreet task of reviewing whatever legal
documents or filings have been prepared by independent nonlawyers
so as to confirm their competence and thoroughness.
The final piece of this recommendation is to ensure that these tech-nologies
are accessible and usable by low-income people through
community groups and agencies and not just lawyers.
40. We encourage the development of community-based general advice, referral, and assistance centers or hotlines.
Explanation: In making this recommendation, the Group envi-sioned
the development of community service centers based on the
Citizens Advice Bureaus that exist in the United Kingdom. Essen-tially,
this model of legal services is preventive in nature, seeking to
reduce the information costs that act as such a high barrier to low-income
people who have legal problems. In particular, the Group felt
that these centers and hotlines should be targeted to help working
families. However, we felt that such centers could achieve widespread
public support if they were made available to people of any income.
Some states, such as Pennsylvania, already have statewide legal hot-lines
in place. Hotlines are relatively inexpensive to start and main-tain.
Obviously, hotlines suffer from a major shortcoming: they do
not reach those people who lack access to a telephone. A local drop-in
center, however, will be accessible to almost everyone except those
who have severe mobility problems, such as the severely disabled and
certain elderly persons. These local centers could also make home
visits to area residents who have severe mobility problems. Establish-ing
local advice centers will be more costly than hotlines, but far less
RECOMMENDATIONS 67 FORDHAM LAW REVIEW 1761 (1999)
costly than employing lawyers for every low-income person whose legal
problem may end up in court for lack of good information at the
outset.
41. We encourage the creation of programs and organizations for the training and advancement of client and community advo-cates.
Such programs could be at community-based sites and established in partnership
with organizations such as law
schools, government agencies, local and state bar associations, adult
education programs, and technical and community
colleges.
Explanation: The Group made this recommendation in order to im-prove
the competency, legitimacy, and accountability of nonlawyer
advocates. Law schools have the expertise and ability to act as an
important educational resource in training nonlawyers. Government
agencies that permit nonlawyer representatives could provide training
that would end in some sort of certification or registration of those
advocates. This government training would serve the dual goal of competence
and accountability for these nonlawyers. If bar associa-tions
got into the business of training nonlawyers rather than prose-cuting
them for UPL, then the bar could use its substantial resources
to improve nonlawyer advocacy and expand access to justice for low-income
people. Using more accessible educational institutions to
reach low-income people and their nonlawyer advocates is essential.
Adult education, technical, and community colleges should provide
minimum education to all students in basic legal rights and responsibilities.
42. We encourage law schools and continuing legal education pro-grams
to educate law students and lawyers in effective collabo-ration
with other professionals, nonlawyer advocates, community-based organizations,
and client groups.
Explanation: The Group concluded that all lawyers, especially
law-yers for low-income people, would greatly enhance their effectiveness
by learning management and collaboration skills in law school and continuing
legal education programs. Currently, law schools espe-cially
and continuing legal education programs to a lesser extent tend to
focus solely on building individual skills in isolated areas of prac-tice;
some examples include trusts, wills, estates, real estate closings,
and securities deals. While these skill-based courses are essential to
the practice of law, they teach very little about how to practice law.
Law school clinics have been attempting to address the gap between
teaching "the law" and practicing law. Clinics also tend to encourage
collaboration. Almost no clinics or law school courses, however, ad-dress
how lawyers might work in coalition to share power with client groups
and community-based organizations. Furthermore, few clinics
arrange their work to replicate the functioning of an actual law office.
RECOMMENDATIONS 67 FORDHAM LAW REVIEW 1771 (1999)
And, significantly, even fewer clinics or other courses focus on law practice management.
As to management, lawyers are usually managers or co-managers of an
office. Lawyers must learn to delegate tasks to and collaborate
with personnel inside and outside their own offices, such as secretar-ies,
assistants, paralegals, investigators, interns, accountants, apprais-ers,
and title searchers, to name a few. As to collaboration, lawyers must
learn to collaborate with co-equal professionals and service
providers as discussed above. (Footnote 16)
This type of collaboration does not simply occur spontaneously through
the good will of all those in-volved.
Collaboration is the product of hard work and deliberate sys-tems for
working jointly. For instance, business schools spend a great
deal of time and effort on teaching these type of management and collaboration
skills. Law schools, however, tend to atomize their stu-dents,
pitting one against another. Collaboration is rarely encouraged.
Poor management skills will tend to force a lawyer to do tasks that
other staff should be doing, and imperfect collaboration will tend to
force a lawyer to engage in work for which the lawyer is not qualified.
As a result, a lawyer unskilled in collaboration and management will
tend to do less lawyering for fewer clients, less competently. In conclusion,
if lawyers for low-income people were taught how to manage
and collaborate effectively, they would greatly expand the quantity
and quality of their representation.
43. We encourage law schools to collaborate with university schools
and departments of business, management, and public
policy to develop courses, continuing education programs, and research
partnerships for maximizing the organizational and
technological capacity of law firms and organizations to incor-porate
nonlawyers to serve low-income clients and
communities.
Explanation: This recommendation expands upon the previous rec-ommendation.
Essentially, we encourage law schools to avoid
reinventing the wheel. Business, management, administration and public
policy schools have long been interested in effective manage-ment
and collaboration. Law schools need only tap into these vast resources,
especially where the law school is part of a university that
has one of these other schools, in order to begin the process of devel-oping
law practice management and collaboration clinics and/ or
courses. These other disciplines would most probably be delighted with
the prospect of providing some structure and systemization to the
practice of law. In the 1980s, some of the larger firms even employed
management consultants to improve the efficient and effective deliv-
RECOMMENDATIONS 67 FORDHAM LAW REVIEW 1772 (1999)
ery of service. There is no reason why lawyers for low-income people
should not employ the same knowledge to their practices.
In addition, law schools should seek to collaborate with members of
scientific disciplines, such as psychologists, physicians, and computer
scientists, to develop collaborations to expand the impact and effec-tiveness
of legal work for low-income people. For instance, many low-income
elderly people suffer from depression. An elder-law professor could
invite a psychologist to share his or her perspective on mental
illness to aid students in understanding lawyering to such a client.
A professor teaching public benefits law could invite a physician to share
his or her knowledge about the impact of certain injuries on a person's
ability to work and how that ability is assessed. Finally, if law profes-sors
merge their legal knowledge with computer scientists' technical knowledge,
together they may develop powerful tools that low-in-come
people and their nonlawyer advocates may use to seek justice. It is
essential, therefore, that law schools collaborate with other disci-plines
in order to foster collaboration among their graduates.
Explanation: The Group found that there were a variety of issues
concerning the nature and type of regulation that might be appropri-ate
for nonlawyer use and activity. In addition, any analysis of regula-tion
would have to be highly context-specific. With these
considerations in mind, the Group concluded that we ought to pro-pose
a framework for assessing whether regulation of nonlawyer use
and activity is justified. The Group rejected a parsing of the minutiae
of any particularized reform.
This recommendation is based verbatim on similar criteria proposed in the ABA Commission Report. (Footnote 17) The Group referred to this test as
17. See Commission on Nonlawyer
Practice, American Bar Ass'n, Nonlawyer Ac-tivity in Law-Related Situations
137 (1995). 22
RECOMMENDATIONS 67 FORDHAM LAW REVIEW 1773 (1999)
a the "Singsen Criteria" after its main proponent in the ABA Commission,
Gerry Singsen. In application, these criteria will insure that
any regulation of nonlawyer use and activity must be justified as:
(1) a valid use of the police power of the state (" a serious risk to the
con-sumer's
life, health, safety, or economic well-being"); (2) based upon an actualÐ
not perceivedÐ vulnerability of the potential client popu-lation;
and (3) of benefit to the public. Although this framework is quite
modest, much of the current regulation of nonlawyer activity
would not survive a test by these criteria. The Group proposes these
criteria for use by tribunals and legislative committees alike in assess-ing
alleged UPL violations as an alternative to the various test em-ployed
in the past.
45. We recommend further study concerning the repeal of crimi-nal statutes
that prohibit the unauthorized practice of law.
Explanation: In many states UPL is a crime by statute. While
UPL may pose serious risks to clients, there is no strong public policy
in
favor of criminalizing UPL. First, UPL crimes are rarely prosecuted,
whereas civil prosecutions are much more common. This suggests that
the criminal UPL statutes are unnecessary. The infrequence of prose-cution
of UPL criminal statutes suggests that these statutes are, quite
frankly, irrelevant and serve no justifiable penal purpose. Empirical
study might show that UPL criminal statutes are not required to deter
a wave of criminal conduct. The UPL criminal statutes, however, do
exert a chilling effect on legitimate innovation feared to fall within
its
ambit. Second, UPL criminal statutes are unnecessary and redundant.
UPL criminal conduct is covered necessarily and sufficiently by crimi-nal
fraud and other traditional penal laws. In fact, the aspect of UPL
most often prosecuted is holding oneself out as a lawyer when one is
not a lawyer. This is clearly fraud and does not require a separate
UPL criminal statute. Third, states do not use their prosecutorial re-sources
to address UPL violations. This suggests that the public does not support
UPL criminal prosecutions. Fourth, UPL statutes are ar-guably
void for vagueness because "the practice of law" is so loosely defined.
UPL criminal statutes provide insufficient notice to a poten-tial
defendant of what conduct might constitute UPL. All of these factors
suggest that states should undertake a review of the feasibility
of removing UPL criminal statutes.
The Group consciously targeted only criminal statutes but not crim-inal
sanctions. The Group did not conclude that a person who violated
a court's order after a civil trial for UPL violations should be shielded
from criminal contempt. In certain cases, a tribunal will find
that a person has engaged in acts that amount to UPL that have been
shown to injure others. In response, the court will order such a person
to cease the harmful activity. If that person fails to comply with
such a court order, he should not be shielded from the possibility of criminal
contempt.
RECOMMENDATIONS 67 FORDHAM LAW REVIEW 1774 (1999)
46. We encourage the development of a network and website to support
competent nonlawyer advocacy, including assisting
people involved in punitive actions related to the unauthorized practice
of law.
Explanation: The Group concluded that there was a need to de-velop
a rapid response network and website for people who would
provide legal assistance to lawyers and nonlawyers who were being prosecuted
for UPL. The Group envisioned this as a sort of "Nonlaw-yer
Legal Defense Fund" network. The Group decided that there was a need
to develop this type of network to protect those nonlawyers
and lawyers involved in innovative uses of nonlawyers to expand ac-cess
to justice for low-income people. The Group was aware of the
existence of an organization in Washington, D. C. that serves as a
clearinghouse on nonlawyer-use issues called HALT. (Footnote
18) At this time,
however, the Group opined that additional connection was required to
combat abusive prosecutions of UPL. The Group hoped that the
establishment of such a network would counter the chilling effect im-posed
by UPL criminal and civil statutes and regulation. The Group
also thought that such a network might provide assistance to lawyers
involved in the lawyer disciplinary process initiated by bar associa-tions.
In choosing which cases were meritorious to defend, the net-work would
employ the "Singsen Criteria" discussed above. The
network would not simply defend any UPL case. Only those meriting a
defense based on using nonlawyers in good faith and in aid of access
to justice would be selected.
18. See HALT, HALTÐ
An Org. for Legal Reform (last modified Mar. 3, 1999) <http:// www.
halt. org>. 24
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