Surveying the field
The State of Washington is not the only jurisdiction experimenting with new models of legal professionals. Indeed, a range of efforts are under way across the country seeking to introduce paraprofessional legal technicians and other individuals without J.D.’s to improve access to justice and legal service delivery. Below, we sample some prominent examples of how states and other countries are institutionalizing new roles that often challenge the boundaries of the legal profession. Consensus around any one approach remains elusive, but states (and even other jurisdictions) are innovating different forms of paraprofessionals in law to address an array of problems in the delivery of legal services.
In 2003 the Arizona Supreme Court sanctioned “legal document preparers” (LDPs), certified to offer factual legal information—but not legal advice—to pro se individuals in the absence of a lawyer. To obtain certification, an aspiring LDP must be a citizen or legal resident, age 18 or older, of good moral character (providing fingerprints for criminal background checks), and in good legal standing. In addition, they must pass a legal document preparer examination administered by the Arizona Supreme Court and have one of seven possible combinations of education and legal experience.
For nearly two decades, California has allowed for two types of legal paraprofessionals: legal document assistants (LDAs) and unlawful detainer assistants (UDAs). LDAs, as their titles suggest, are authorized to help facilitate legal documents and provide factual information to pro se litigants. UDAs are authorized to assist or otherwise advise parties in unlawful detainer claims, primarily comprising landlord-tenant disputes. Both types of paraprofessionals register at the county level and are required to file a surety bond of no less than $25,000 upon application. More recently, the State Bar of California’s Civil Justice Strategies Task Force recommended the introduction of paraprofessionals more akin to LLLTs in a 2015 report, but there has been no action since.
Like Arizona, Nevada allows individuals without J.D.’s to offer document preparation services. What’s unique about Nevada is that, rather than going through the bar association or court system, document preparers register with the Nevada Secretary of State’s office. The qualifications are largely similar to those in Arizona, and Nevadan document preparers are prohibited from providing legal advice. Registrants are permitted to provide their document preparation services without the supervision of a lawyer—unlike an unregistered paralegal—provided they file a surety or cash bond of $50,000 as a measure of protection for their clients.
Another route that some states have considered is the way of the New York Court Navigators program, which comprises three separate pilot programs centered on trained volunteers assisting pro se litigants through their interactions with the court system. The Access to Justice Navigators program operates on a navigator-for-the-day model, primarily assisting litigants in debt collection cases. The Housing Court Answers Navigators program, as one would expect, deals with issues of housing, working out of the Brooklyn Housing Court with a focus on the earlier stages of the litigation process such as document preparation. The University Settlement Navigators program also sends its trained volunteers to the Brooklyn Housing Court, who tend to work with pro se litigants throughout the entire process, with a primary focus on eviction cases. There are few restrictions regarding who can be a navigator—although attorneys and minors are excluded—and most volunteers tend to be college students. For a deep dive into these programs, check out Rebecca L. Sandefur’s research into their design and effectiveness.
A number of states have voluntary certifications for paralegals. Texas offers an archetypical example, boasting the oldest “state associated” certified paralegal program established in 1974 by the Supreme Court of Texas. The benefits of the credential do not extend into any tangible legal authority, but it allows paralegals to distinguish themselves as having additional expertise in several practice areas, such as real estate or family law. The requirements for earning certification include five years of paralegal experience (with three in Texas), working under a licensed attorney, having half of one’s paralegal work focused in the defined practice areas, continuing education seminars, and completion of one of six different variations of education or other certification. According to the program’s website, fewer than 400 of the several thousand paralegals in Texas have opted for this voluntary certification.
The Utah Supreme Court is in the process of officially approving licensed paralegal practitioners (LPPs) to practice law in a limited capacity. According to a recent Utah State Bar Board of Bar Commissioners meeting, LPPs would be authorized to provide legal services including landlord-tenant disputes, debt collection, and family law. As of March, the Utah Supreme Court was considering how to write the LLP licensing test. Oregon is progressing down a similar path, evidenced by the Oregon State Bar’s Future of Legal Services Task Force recent recommendation for the establishment of a paraprofessional licensure program.
North of the border, paralegals in Ontario can actually obtain a license to practice a limited range of legal services without the supervision of a lawyer, including offering legal advice, drafting legal documents, and representing clients in settings like small claims court and even criminal court. Of course, these paralegals are carefully regulated by the Law Society of Ontario, which requires a Paralegal Licensing Exam, “good character,” as well as other eligibility criteria such as graduating from a paralegal education program accredited by the Law Society. This system has been in place for more than a decade, and there is recent debate around expanding paralegals’ scope of practice to include family law as well—not unlike the charge of LLLTs.
The United Kingdom is home to a variety of professional roles in the law. Separate from paralegals (see “Waiting for the Golden Ticket to the Chocolate Factory”), legal executives are their own distinct paraprofession in England and Wales with roots that run deep in U.K. history. In the aftermath of the Second World War, the United Kingdom suffered from a scarcity of experienced lawyers as the fighting prevented young would-be lawyers from training. Solicitors’ managing clerks helped address that demand, and over time they worked with the Law Society to establish the permanent role of “legal executive,” which today encompasses a range of legal services such as drafting wills and representing clients in court.
Which way is the tide moving?
The above are just a handful of prominent examples where individuals without J.D.’s are gaining increasingly autonomy within the U.S. legal profession and beyond. It remains unclear if these recent changes will continue to catch on in more states or if the potential of paraprofessionals as access-to-justice specialists will ebb as other solutions present themselves. The results in states like Washington in the coming years will most likely carry significant weight one way or the other in answering the question: Is it time to rethink the boundaries of the legal profession?