There is a fascinating dichotomy in thinking developing with regard to just who can offer legal services to the public. A few weeks ago, Governor Dannel Malloy signed a bill which raised the penalty for the unauthorized practice of law by non-lawyers to a felony.
While lawyers had been pushing for several years to increase the penalty, they never made it across the finish line until the Chief State's Attorney joined the fray. He pointed out some really egregious cases where suspended lawyers or persons who were simply scammers had taken serious money for worthless legal services. He argued that even though there had clearly been conduct deserving criminal prosecution, under the then existing regime the penalty was so minimal that he could not justify devoting his limited prosecutorial resources to the effort. He was joined at the legislature by representatives of the Connecticut Bar Association who argued that real harm was being done to the public, there were few responding to the problem and increasing the jeopardy would have a deterrent effect.
At the same time, some have been suggesting that Connecticut should consider allowing non-lawyers to provide legal services directly to the public. A recent Law Tribune editorial ("Is Time Right For Non-Lawyer Legal Techs?" May 31) pointed to a program being developed in Washington state which would license paralegals to provide legal services directly to the public. The Washington program includes minimum training and educational standards, a test and continuing legal education.
A growing chorus is suggesting that in a world where many, if not most, of the litigants at some court sessions are not represented, some lawyering at a reasonable price would go a long way towards unclogging court dockets and guaranteeing that folks shut out of the legal aid system can have access to justice. For instance, in Massachusetts housing courts, I understand that paralegals have been engaging in limited representation and advocacy with the approval of the administrative judges. They apparently don't have rules that allow this, but have adopted a "don't ask, don't tell" approach. Many tenants in Connecticut's housing courts are unrepresented, and the Massachusetts model might provide some needed help, but it is hard to envision starting a program which basically turns a blind eye to what is going on.
All of this pains many lawyers who believe that the practice has been suffering death by many small cuts. They feel a better approach is to enable lawyers to make a living while serving this need. And though I understand the need for such a program, I wonder how we will keep disbarred lawyers from refashioning themselves into "law-like" enterprises and continuing to prey on the public. Any properly fashioned program is going to need a credentialing and disciplinary regime, all of which is going to take time and money to design and implement.
Nevertheless, this all can be done. For instance, in immigration courts, there is a very well designed program that allows advocacy by accredited representatives from non-profits, persons of repute, lay representatives and others. The bankruptcy courts allow non-lawyers to prepare petitions; the Department of Labor allows agents to advocate for employers; and the IRS allows "registered representatives" to advocate for taxpayers.
So how do we reconcile these seemingly contradictory efforts — encouraging non-lawyer representation while at the same time raising the criminal penalties for doing so without authorization? Remember, the unauthorized practice of law regime does not mean that only lawyers can practice law. It simply means that the practice of law by non-lawyers must be "authorized." And the entire enterprise is not turf protection for lawyers but consumer protection for the public.
It's probably time for some deep discussions on how we marry the need with the supply and work together to increase access to justice for the poor, the working poor, and the middle class who are increasingly foregoing the traditional model of "full boat" legal assistance. In this exchange, we should also address how we can use law students, who are increasingly demanding a "hands-on" component to their education, retired lawyers, as well as paralegals and other technicians.
One bright spot in all of this is the Judicial Branch's pro bono committee headed up by Judge William Bright. Having a judge in charge of a committee which is willing to ask hard questions, where no ideas are off limits, and where it is clear that if a good idea gets traction, it will come to the attention of the right authorities, is a real game-changer. It means that the usually glacial process of change may be giving way to the overwhelming need for new ways of figuring out how to get the most legal services to the biggest audience possible. •