City Bar Recommends Limited Roles for Nonlawyer Practitioners

Citing a “justice gap” that leaves more than 2.3 million low-income New Yorkers each year to navigate the civil justice system on their own, the New York City Bar Association recommends that nonlawyers be allowed to practice, with limitations, as “Courtroom Aides” and “Legal Technicians.” In a report released today, the City Bar’s Committee on Professional Responsibility, which has studied the issue of nonlawyer practice for almost two decades, points to a “continuing and growing crisis,” with litigants going unassisted in 99% of eviction and consumer-credit cases, and with requests for foreclosure assistance up a whopping 800% since the economic downturn of 2008. The Legal Aid Society is only able to respond to one out of nine requests due to lack of resources, and pro bono efforts by the private bar and by court personnel are insufficient to meet the demand. Unlike in criminal cases, there is generally no right to counsel in civil cases (apart from a very few narrowly defined exceptions), “even though many civil matters – landlord-tenant, foreclosure, debt collection, and other cases – may entail life-changing consequences comparable to the effects of criminal proceedings,” states the report. In making its recommendations, the Committee examined developments in the medical and other professions where practice is becoming more “team-based,” and it reviewed scenarios in which nonlawyers are already providing a range of law-related services in Washington State, California, Arizona, England and Canada. The Committee recommends adoption of the following approaches:

• Allow a nonlawyer in the role of “courtroom aide” to assist litigants in proceedings before selected courts and agencies, subject to varying degrees of regulation and oversight. In some settings, friends or relatives should be allowed to provide moral support and other assistance without formal training or regulation, subject to approval and oversight by the presiding judge or administrator, as long as the nonlawyer does so without financial compensation. The Committee also suggests considering whether, in a more limited range of cases, it may be appropriate for nonlawyers to render assistance for a fee, subject to formal regulation.

Assistance by a courtroom aide “can be expected to facilitate proceedings in ways that benefit the litigant, the tribunal, and the justice system as a whole,” the report states. “For individuals with educational, language, or cognitive limitations, the courtroom aide can be especially helpful, not only as a source of information and emotional and administrative support, but also as an advocate.”

• Allow trained and licensed nonlawyers, pursuant to a regulatory scheme to be developed, to provide for a fee certain specified services – e.g., explaining procedures, gathering facts and documents, and assisting in the completion of court forms – but not to participate in judicial and administrative hearings. This “legal technician” concept has already been adopted by the Supreme Court of Washington State.

Absent a system for managing nonlawyer practice, the report notes, other, less desirable services inevitably arise to meet the unmet need. “It is often fulfilled – inadequately – by notarios and others who operate in the shadows of our legal system, without training or competency requirements. The legal technician model offers an opportunity to bring that activity out of the shadows and expose it to regulation.”

• Consider additional roles beyond that of Courtroom Aides and Legal Technicians for nonlawyers, in order to significantly close the justice gap.

With regard to all of the recommendations in the report, the Committee urges that the following concerns receive additional consideration:

• Will nonlawyers be competent to perform the additional services? “The Committee acknowledges the need for detailed specifications of the additional tasks that nonlawyers may perform in particular settings, and the types of training and oversight necessary to ensure that those tasks are performed competently,” the report states.
• What kinds of regulatory regimes will be effective and practical?
• Will there be a market demand for the proposed services?
• And will expanding the role of nonlawyers promote a ‘two-tier’ justice system?”

On the last question, “[t]he Committee submits that we already confront a stark ‘two-tier’ system, in which represented parties often face pro se litigants, with typically lopsided results. Expanding the scope of nonlawyer assistance will reduce rather than promote the extreme inequalities of the present system. The Committee strongly supports efforts to increase access to traditional legal counsel through pro bono work, legal aid services, and other programs. At the same time, such efforts alone cannot close the justice gap. Much more is needed.” The report can be read here: http://bit.ly/1234h7p The Committee’s 1995 report on the topic can be found here: http://bit.ly/12l8W0d