IAALS Releases National Framework for New Tier of Legal Professionals

As you know, and we have discussed in this blog many times, a number of states have programs that recognize "non-lawyer" legal professionals who can provide certain types of legal services.  Some of these programs have been a success, while others have struggled but they continue to be part of the debate as to options for the market of legal services.

Today I am writing to report that the Institute for the Advancement of the American Legal System at the University of Denver recently released a new report called Allied Legal Professionals: A National Framework for Program Growth which includes multiple research-informed recommendations to help standardize a new tier of legal professionals across states, with the goal of increasing the options for accessible and affordable legal help for the public.  You can read the report here.  The announcement of the publication is here.

IAALS releases report and unveils website on unbundling legal services

The Institute for the Advancement of the American Legal System at the University of Denver (IAALS) recently released a new report highlighting key takeaways from a national 2021 conference on the benefits of unbundling legal services.  You can read the report here. 

In addition, the IAALS unveiled a resource center on its website, which will help consumers, lawyers, and courts get "how-to" information on promoting and utilizing unbundled legal services.

As the press release announcing these developments explains, "[u]nbundled legal services, or limited-scope representation, is one way that people who are unable to afford a lawyer—and would end up representing themselves in court—can still receive legal assistance in their case. While typically lawyers handle all aspects of a case from beginning to end, a lawyer providing unbundled legal services works on and charges for only certain legal tasks within the broader case, often based on what their clients can afford and need help with most. Unbundled legal services are becoming a more popular and less expensive way to help people get legal assistance, which usually leads to better legal outcomes than forgoing legal assistance altogether."

ABA Committees solicit comments on discussion draft document on possible amendments to the Model Rules

The ABA Standing Committees on Ethics and Professional Responsibility and Professional Regulation have developed a Discussion Draft of possible amendments to the Comments of Model Rules of Professional Conduct 1.0 (Terminology), 1.1 (Competence), and 1.2 (Scope of Representation and Allocation of Authority between Client and Lawyer). The amendments contained in the Discussion Draft provide guidance on lawyers’ client due diligence obligations under the ABA Model Rules of Professional Conduct.  The Discussion Draft is available here.

The Committees have not yet decided whether to present any Model Rule amendments on this subject to the House of Delegates. Your comments will assist the Committees in determining whether and how to proceed.  

You may provide comments in one of two ways:

First, the Committees will host a roundtable discussion on Friday, February 11, 2022, from 1:30 to 3:30 p.m. at the Grand Hyatt Seattle, 721 Pine Street (room location forthcoming in January 2022). If you would like to comment at this roundtable, please RSVP to Natalia Vera (Natalia.vera@americanbar.org).

Second, you may communicate your thoughts and suggestions by providing written comment to the Committees.  Written comments on the Discussion Draft must be submitted by email to Natalia Vera by February 15, 2022.  Please note that the Committees may post your written comments on the ABA website.

ABA issues new ethics opinion on the duty not to counsel clients about, or assist in, committing a crime or fraud

At the end of April, the ABA's Standing Committee on Ethics and Professional Responsibility issued a new Formal Opinion (No. 491) titled "Obligations Under Rule 1.2(d) to Avoid Counseling or Assisting in a Crime or Fraud in Non-Litigation Settings." You can read the opinion here.

In my humble opinion, it does not add much that we did not know already but it is always nice to have guidance on important questions.  What it does, perhaps without realizing it, is provide support for an argument with regard to a number of other duties -- more about that below.  Here is the summary of the new opinion:

Model Rule 1.2(d) prohibits a lawyer from advising or assisting a client in conduct the lawyer “knows” is criminal or fraudulent. That knowledge may be inferred from the circumstances, including a lawyer’s willful blindness to or conscious avoidance of facts. Accordingly, where facts known to the lawyer establish a high probability that a client seeks to use the lawyer’s services for criminal or fraudulent activity, the lawyer has a duty to inquire further to avoid advising or assisting such activity. Even if information learned in the course of a preliminary interview or during a representation is insufficient to establish “knowledge” under Rule 1.2(d), other rules may require the lawyer to inquire further in order to help the client avoid crime or fraud, to avoid professional misconduct, and to advance the client’s legitimate interests. These include the duties of competence, diligence, communication, and honesty under Rules 1.1, 1.3, 1.4, 1.13, 1.16, and 8.4. If the client or prospective client refuses to provide information necessary to assess the legality of the proposed transaction, the lawyer must ordinarily decline the representation or withdraw under Rule 1.16. A lawyer’s reasonable evaluation after inquiry and based on information reasonably available at the time does not violate the rules. This opinion does not address the application of these rules in the representation of a client or prospective client who requests legal services in connection with litigation.

Now, why do I think that this opinion is important for rules not mentioned in the opinion?  Because it addresses the duty of the lawyer to act to "find out more" when the duty is expressed in a rule that takes effect if the lawyer has "knowledge."  Model Rules 1.9(b), 1.10(a), 1.13(b), 4.1 and 8.4(f) are all based on knowledge, for example.  

When I teach the duties related to perjury we discuss the notion of selective ignorance and how much investigation a lawyer has a duty to do before being able to claim they did not "know" something, given that knowledge is a subjective state of mind but can be proven with objective evidence of the circumstances.  This opinion provides some guidance on that issue.

[By the way, before anyone writes to me about this, No, Rule 8.4(g) is not based on knowledge.  8.4(g) is based on a negligence standard. Read it carefully.  So is 3.6.]

UPDATE: 1/18/21:  Louisiana Legal Ethics has a comment on the opinion here.

Arizona joins other jurisdictions in recognizing limited legal technicians to provide some legal services

The Innovation for Justice Program at the University of Arizona James E. Rogers College of Law, in partnership with the Arizona Supreme Court and Emerge! Center Against Domestic Abuse has announced a new program for survivors of domestic violence in Arizona.

From fall 2020 to fall 2021, the pilot program will evaluate civil legal assistance provided by Licensed Legal Advocates. Licensed Legal Advocates are a new tier of legal professionals who are not licensed attorneys but who will be equipped to provide legal advice to domestic violence survivors with respect to critical domestic-violence-related legal issues, such as the need for a protective order, divorce, child custody, consumer protection or housing assistance.

Prior to the creation of this pilot, only licensed attorneys could provide legal advice to domestic violence survivors. The pilot will be authorized by an Arizona Supreme Court administrative order, so that the LLAs can provide legal advice within unauthorized practice of law regulations.

Lawyer Ethics Alert Blogs has more information and links here. 

Utah begins its licensed paralegal practitioners program

Back in September and again in November I reported on Utah's move to allow non-lawyers to provide certain legal services.  See here and here. 

Today, I want to add that Above the Law is reporting that Utah’s first group of licensed paralegal practitioners has only four members, but state officials expect the program to grow significantly in the years to come. According to the report, Utah Supreme Court Justice Deno Himonas said he anticipates there will be 20 LPPs in two years and 200 in a decade.  Go here for more information.

How to define "the practice of law"

If you are interested in professional responsibility matters, you know that courts and scholars have struggled over the years to define exactly what constitutes "the practice of law."  (Here is an old example.  An ABA commission at one point abandoned an attempt to come up with a model definition, in fact.

Whether it is to deal with issues related to unauthorized practice of law, multijurisdictional practice, practice by non lawyers, sharing of fees with non lawyers and so on, having a standard definition would be helpful.  But the attempts at defining what is practicing law usually end up being over or under inclusive, thus making it difficult to definitively say that, for example, the work of an accountant doing tax code advising for a client is or is not practicing law.

I am writing about this today because I just saw a recent post at MyShingle.com asking "What would be the effect of simply exempting matters smaller than $10k from the definition of the practice of law?"

The author's argument is that we could define the practice of law this way:  "Any matter that involves courts, contracts, wills, advice on rights or obligations that has a value of less than $10,000 is not the practice of law.  Admission to the bar is not required to represent clients in this category of matters."

As she says, this seems arbitrary, but, on the other hand, it is also practical. Why?  Because "[o]ne of the reasons that parties are often unrepresented in certain matters is because lawyers turn down cases that don’t make sense from a financial perspective."

So if people need help with work that requires advise on legal matters that most lawyers don't want to help with, why not let others who want to help do it?

You can read the article here.

As you know, a couple of jurisdictions already have programs that allow non lawyers to participate in the legal process by helping claimants, and participants in divorces, etc.    My most recent post on this subject, with links to older ones, is here.

Resolution before ABA House of Delegates regarding companies that offer legal documents online is withdrawn

At a recent meeting of the ABA, the ABA House of Delegates was due to consider a resolution that proposed model rules for companies that offer legal documents online, but the resolution was withdrawn after the ABA Center for Innovation, the Standing Committee on the Delivery of Legal Services, the Business Law Section and the Section of Dispute Resolution argued the proposed guidelines needed more work before going forward.

You can read the proposed resolution here.

According to a story in the ABA Journal, there were concerns regarding warranties, intellectual property and dispute resolution. There was also uncertainty over whether the proposed guidelines would apply to courts offering online forms.  The ABA Journal has more details here.

Article on using non lawyer legal services to provide better access to legal representation

Because statistics show that the vast majority of people don't have access to legal representation, for years there has been a debate about whether jurisdictions should allow non-lawyers to provide certain types of legal services in order to provide better access to representation.  I have posted many comments, links to articles and podcasts, most recently here, here, and here. 

Yet, to date, only Washington and Utah have actually created programs to do something about it by recognizing and regulating "legal technicians" (or LLLTs for "limited license legal techinicians").  The requirements of the program in Washington are explained here.

Last week, the ABA Journal published another article on the subject (here).  The title of the article asks "Can licensed legal paraprofessionals narrow the access-to-justice gap?"  It is an odd question to ask, in my mind, because at this point the answer should be obvious.  Yes!  The question is whether the legal profession wants to make the commitment to see it done and to see it done well.  Two states have, but the rest don't seem to be interested or are extremely slow in following their example. 

First group of non lawyer technicians in Utah is expected to be licensed in 2019 -- UPDATED

Since 2015, there has been a lot of discussion on whether non lawyers should be allowed to provide some legal services.  Back then, Washington created a program to certify "Limited Licensed Legal Technicians" (or "LLLTs") who, after completing a course of study, would be allowed to represent clients without the supervision of a lawyer in limited circumstances.  You can read my original posts on this topic here, here, here, here, here, and here.  For many months, there was a debate as to whether this was a good idea, and whether other states would follow Washington's lead.  Some states did appear to be ready to do so, but in the end only Utah followed through.

Now comes news that new rules regulating paralegal practitioners in Utah are set to take effect Nov. 1 and that the first paralegal practitioners are expected to be licensed in 2019.  This will make Utah and Washington the only states that allow non-lawyers to practice law. The new rules will allow the licensed paralegals to provide limited legal services without a lawyer’s supervision in the following areas: cases involving temporary separation, divorce, cohabitant abuse, civil stalking, custody and support, name changes, cases involving forcible entry and debt collection matters in which the dollar amount in issue does not exceed the statutory limit for small claims cases.

Licensed paralegals will not be allowed to appear in court, but they will be permitted to perform the following services:

Interview clients to understand their objectives and obtain facts relevant to achieving that objective.

Handle forms, which includes being able to inform, counsel, advise, and assist in determining which form to use and give advice on how to complete the form; sign, file, and complete service of the form and to obtain, explain, and file any document needed to support the form.

Review and explain documents of another party.

Inform, counsel, assist and advocate for a client in mediated negotiations.

Fill in, sign, file and complete service of a written settlement agreement form in conformity with the negotiated agreement.

Communicate with another party or the party’s representative regarding the relevant form and matters reasonably related thereto.

Explain a court order that affects the client’s rights and obligations.

Although the Supreme Court has approved the program, it has not yet published the final regulations. Those are due to be published by the end of September.

Law Sites has more details.

Ethical Grounds has a comment here.

Where Avvo Legal Services left off, Text-a-Lawyer may pick up...

Earlier this month I reported that Avvo Legal Services was shutting down; but I also stated that I was sure ALS' demise would not be the last time we hear about client-lawyer matchmaking services.  Where Avvo left off, someone else will pick up...

And now we have a new participant in the market....  Say hello to Text A Lawyer, ("TaL") a service that will provide a platform for prospective clients to ask lawyers questions via text.  For now, the service is available only in Oregon and Washington but its developer plans to expand the service nationwide if he can find investors to help fund the project.  You can read more about Text a Lawyer here.

Aside from the fact that I have serious doubts that texting is a good way to discuss legal matters with a client a lawyer has not even met, the billing process used by TaL has already been criticized as having some of the same problems that got Avvo in trouble in so many jurisdictions.  You can read about it here.  Of course, if jurisdictions decided to change the applicable rules, then things might be different, but until then, the discussion we were having about Avvo Legal Services will continue.

Here is a video that explains the service (taken from its website).  What do you think?

Ghostwriting for clients?

The June edition of the ABA Journal has a short article on whether it is ethical for an attorney to "ghostwrite" a document for a client to be filed in court.  You can read the article here.

As you may know, there are a few ethics opinions available on the subject and they vary on a few details particularly whether the attorney must disclose the fact that the document was prepared with the aid of an attorney.

And just as this article was hitting the press, a Committee of the Mississippi bar issued the latest opinion on the question holding that ghostwriting is OK on “discrete aspects in a matter” without the need to disclose either the name of the attorney who prepared the document or that the document was prepared by a lawyer.   As the opinion states, the Committee was concerned that lawyers would be dissuaded from providing limited representation if required to disclose their involvement. You can read the opinion here.

Office Depot Legal Services is back

Back in March I reported that Office Depot was set to start offering a pre-paid legal services plan.  Yet, when I went to check their website, I found out the program had been deleted.  I wondered if the idea had been scratched but could not find out more information.

Fast forward to this week.... and voila'.  The service is back up and running.  I still don't know what happened back when they first rolled out the website, but now it is back and functioning.  You can go check it out here.

If I understand it correctly, the program is a pre-paid legal services agreement for small businesses, not a referral service, which is an important distinction.  Services are provided by a firm with which the services seems to have an exclusive agreement.

If you go to the website, you can type in a zip code to "find your nearest firm."  I typed the zip code for the Chicago suburb I live in and the result was one law firm in the city of Chicago.  I typed in the zip code for downtown Chicago (which we call "The Loop" by the way), and got the same result.  I tried the zip code for Los Angeles and, again, the result was just one firm.

In other words, this program seems to have only one firm available for the consumer, which is very different from the Avvo Legal Services model in which the service would generate a list of options for the client from where the client could choose their favorite, and from a referral service which chooses (or at least helps choose) a lawyer for the consumer.

I have not seen any reaction or comments on the service in other blogs or legal ethics sites.  But that is not necessarily surprising.  Other than the fact that the service is owned by Office Depot, I am not sure there is anything new here.  Pre-paid legal services plans have been around for a long time and are mentioned in Model Rule 7.2 and its comment, which states that a lawyer who accepts assignments from a legal service plan must act reasonably to assure that the activities of the plan are compatible with the lawyer's professional obligations.

Legal Talk Network: Podcast on Limited License Legal Technicians

Long time readers of this blog will remember the debate on whether non lawyers should be licensed to provide limited legal services and how Washington state became the first jurisdiction to recognize Limited License Legal Technicians (LLLTs).  See here, here, here and here, for some of my posts on this starting back in 2015.  Go here for a 2017 podcast on the subject.

Last week, the Legal Talk Network published a new podcast on the subject.  You can access it here.

Article on unauthorized practice of law and the possibility of providing access to legal services by recognizing limited legal technicians

Long time readers of this blog are familiar with the on-going debates on whether non lawyers should be allowed to provide some types of legal services.  As you recall, Washington state became the leader in this discussion when it approved rules to allow (and to regulate) the provision of limited legal services by state certified legal technicians (known as Limited License Legal Technicians, or LLLTs) in 2012.  Other states have had similar discussions.  For some posts on this topic go here, here, here, and here.  And, one controversial part of the discussion is whether the resistance from some lawyers, and bar associations is based on protectionism rather than on a concern for the public.  See here, for example.

A few days ago, the ABA Journal online published a short article on this topic called: "When UPL accusations against lawyer paraprofessionals are just protectionism."  Its conclusion:  "It’s time to embrace alternative delivery by removing barriers masquerading as ethical issues or provider ability accusations and refocus the discussion on client demand, not attorney supply."

How do we (or should we) define "the practice of law"?

How we define "the practice of law" has been a difficult question for a long time.  At one point, the ABA created a task force to propose a model definition which was eventually disbanded because it could not reach a viable solution.  And, more importantly, the answer to the question has tremendous implications.

The whole notion of regulation is based on the justification that there is something to regulate and that there is a reason for the regulation.  We have a hard time justifying it if we can't define what it is we are trying to regulate and why.  Likewise, the principle that lawyers need to be "admitted" to practice in a jurisdiction to be able to engage in the practice of law in that jurisdiction is equally shaky if we can't find a way to justify it.

Both principles are under attack.  There is an ongoing debate on whether lawyers admitted in one jurisdiction should be allowed to practice in all other jurisdictions.  In some jurisdictions, non-lawyers are allowed to engage in activities that could be considered to be the practice of law, and there are efforts in other jurisdictions to start allowing it.  Many are arguing for the elimination of rules that prevent lawyers from partnering up with non lawyers.  The use of technology has opened the door for computers to perform tasks that used to be performed by lawyers.  And now Congress is considering legislation that would affect the regulation of the profession.

Where will it all lead?  I don't know.   But the discussion starts with the basic question: what is the practice of law?

Prof.  Ronald Rotunda's most recent column at Justicia addresses the issue.  You can read it here.

Florida Supreme Court adopts new rules addressing collaborative law practice

The Florida Supreme Court has adopted new rules addressing collaborative family law practice.  You can read the details here.

Short comment on the different approaches to ghostwriting

A few years ago, the issue of whether it was proper for an attorney to "ghostwrite" documents for pro se litigants was hotly debated.  Some jurisdictions took the position that it was ok, other required lawyers to disclose their role.  See here and here for example. 

I had not see much on the issue since then until a few days ago, when I saw a short comment in Lawyerist summarizing the state of the law.  You can read it here.

Pennsylvania adopts new rule related to counseling clients in marijuana business

The Legal Profession blog is reporting that the Pennsylvania Supreme Court has adopted an amendment to its rules to add a new subsection (e) to Rule 1.2, which states: "A lawyer may counsel or assist a client regarding conduct expressly permitted by Pennsylvania law, provided that the lawyer counsels the client about the legal consequences, under other applicable law, of the client's proposed course of conduct." The rule adopted differs slightly from the proposed rule change published back in May. That original proposal allowed lawyers to counsel clients on conduct expressly permitted by the law of the state where it takes place or has its predominant effect. The adopted rule addresses only conduct permitted under Pennsylvania law.

As you may remember, several other states addressed the issue this year.  Ohio first banned lawyers from counseling clients, but later adopted a rule to allow it (see here and here).  Colorado amended the comment to its rules to address the issue.  See here and here.  For a general comment on the issue, go here.

Ohio Supreme Court adopts amendment to allow lawyers to advise clients in legal marijuana business

Just about a month ago, I reported that the Ohio board that oversees attorney conduct decided that attorneys aren’t allowed to help someone establish a legal medical marijuana-related business in the state because using, growing and selling marijuana remains a federal crime.  A few days later, I updated the story when it was reported that the Ohio Supreme Court would consider a draft amendment to the Ohio Rules of Professional Conduct to address the issue.

The Court not only prepared the draft, it just formally adopted the amendment. The amendment modifies Prof. Cond. R. 1.2(d)(2) by adding a new subsection, which reads:  “A lawyer may counsel or assist a client regarding conduct expressly permitted under Sub.H.B. 523 of the 131st General Assembly authorizing the use of marijuana for medical purposes and any state statutes, rules, orders, or other provisions implementing the act. In these circumstances, the lawyer shall advise the client regarding related federal law.”

Thanks to the Legal Profession blog for the update.