Recommendation 4: New AdvocatesBack to table of contents
Recommendation 4. Bring many new advocates—service providers who are not lawyers—into the effort to solve civil justice problems.
Lawyers remain the essential partners in any effort to improve civil justice. But they are not, and cannot be, the sole providers of legal or law-related services. The need is too great to rely exclusively on bar-enrolled lawyers to handle every legal matter. And civil justice advocates of many kinds have already proven their abilities to deliver valuable services, sometimes at strikingly lower costs than lawyers.
The legal establishment has taken notice. In 2016, the Commission on the Future of Legal Services of the ABA endorsed the expanded use of trained, supervised individuals without formal legal education to help people who would otherwise receive no legal assistance.44 The Conference of Chief Justices, the Conference of State Court Administrators, and the National Center for State Courts have issued similar endorsements.45 The field is changing, and a large cohort of young Americans, including those recruited and placed by the innovative new program Partners for Justice, is eager to help.46
Some nonlawyer advocates already perform well-defined roles in civil justice. Legal technicians, employing skills that paralegals have long used in law offices, help clients fill out forms and understand legal procedures, though they cannot represent clients in court. Court navigators are laypeople who volunteer their time to assist in court and agency procedures. They provide practical information, help litigants access and complete court-required simplified forms, attend settlement negotiations, and accompany unrepresented litigants into the courtroom. In New York City courts, if judges ask factual questions, navigators are authorized to respond. In 2013, in a report called Narrowing the “Justice Gap,” the New York City Bar recounted many valuable legal services that civil justice advocates were already providing in limited circumstances: in court proceedings dealing with landlord-tenant matters like evictions, foreclosures, consumer credit, and family matters, as well as in Native American tribal courts; and in administrative proceedings concerning Social Security benefits, immigration, unemployment insurance, and workers’ compensation.47
Rebecca L. Sandefur and Thomas M. Clarke evaluated Washington State’s program for legal technicians and New York City’s program for court navigators and found both to be successful.48 They described the legal technician program as “an innovative way to extend affordable legal services to a potentially large segment of the public that cannot afford traditional lawyers” and concluded that the court navigator program “can result in financial savings to society as well as a reduction in the hardships experienced by unrepresented litigants in civil cases.”49 The program had high success rates in eviction cases, for example, at half the cost of legal-aid lawyers.50
These successes indicate a way forward for many who cannot find an affordable lawyer, as well as for legal aid agencies struggling to meet the demands on their services. In the absence of nonlawyer advocates, the pool of legal experts is too small to serve even a small fraction of potential clients. In Cook County, Illinois, where Chicago is located, approximately 30,000 evictions are filed each year.51 Legal Aid Chicago, the Midwest’s largest legal services organization, represented 415 tenants in 2018, winning 96 percent of the cases. That is also the organization’s average annual success rate in eviction cases—a superb record. Yet Legal Aid Chicago helped less than 1.5 percent of those threatened with eviction. And while the organization’s lawyers are not the only ones to represent tenants in the city, tens of thousands lack representation each year. Civil justice advocates can help address that large need.
State laws against unauthorized legal practice are the main obstacles to the recruitment, training, and engagement of many more civil justice advocates. Although the rules are intended to maintain standards of legal practice, they have the effect of restricting access to civil justice for people who need important assistance, including work that lawyers generally choose not to do. Most evidence suggests these laws are overly broad in protecting lawyers and blocking other kinds of civil justice advocates from taking on roles they are capable of performing.
The ABA has encouraged broader thinking and innovation to address the civil justice gap, including Model Regulatory Objectives directed at state authorities, since the highest court in each state is responsible for making regulations for legal practice. Still, lawyers in many states are actively maintaining or even strengthening regulatory obstacles. As David F. Levi, Dana Remus, and Abigail Frisch wrote in Dædalus in 2019, “There is no question that the profession is falling short in the provision of legal services to poor and low-income people, and that it can no longer maintain a monopoly over work that it has long failed to perform.”52
The legal scholar Elizabeth Chambliss has proposed a concrete yet simple solution to this problem, one that would remove any risk of unauthorized legal practice through the establishment of new categories of licensing for the most widely useful kinds of civil justice advocates. In this model, the licensing of legal technicians and court navigators would resemble certification processes for nurse practitioners and physician assistants in healthcare. Efforts to authorize and develop training for other legal services professionals besides lawyers are underway in the states of Arizona and New York.53 A California task force on reform similarly opened avenues for civil justice advocates to work in access-to-justice efforts, and the trustees of the state bar voted to move forward with that effort.54 And the state of Utah, led by the Utah Supreme Court, launched a “regulatory sandboxes” program at the request of the state bar association. Each “sandbox” is a focused experiment that allows participants to create new legal services products—for example, apps for handheld digital devices—based on market demand. Sandbox programs will gather data about the use of any new product: the extent of the demand, the effectiveness of the product, the risks of using it, and whether to encourage its continued use. The state and the legal profession in Utah are undertaking other focused experimental reforms as well, including revisions to state restrictions on legal representation by civil justice advocates.55 Work by these and other states points to genuine prospects for significant and meaningful reform.56
Another major idea that bar leaders, scholars, and others are considering is adoption of the model used in the United Kingdom to regulate the practice of law. The British model “reserves” activities for lawyers (the right to appear before a court, to conduct litigation, to administer oaths, and three other basic “reservations”), while allowing people who are not lawyers to engage in other activities commonly associated with the legal profession: providing legal advice or assistance in connection with the application of the law or with any form of resolution of legal disputes; and engaging in any activity that does not fall within one of the six reserved legal activity categories. The United States should continue to explore this model.
Real change will likely depend on a combination of these innovations to increase the number of experts and advocates able and authorized to help low-income Americans pursue civil justice.
- 44ABA Commission on the Future of Legal Services, Report on the Future of Legal Services in the United States (Chicago: American Bar Association, 2016).
- 45Sandefur and Clarke, Roles beyond Lawyers.
- 46Partners for Justice.
- 47New York City Bar, Committee on Professional Responsibility, Narrowing the “Justice Gap”: Roles for Nonlawyer Practitioners (New York: New York City Bar, June 2013).
- 48“Limited License Legal Technicians,” Washington State Bar Association, last updated June 15, 2020.
- 49Thomas M. Clarke and Rebecca L. Sandefur, Preliminary Evaluation of the Washington State Limited License Legal Technician Program (Chicago: American Bar Foundation, March 2017). Despite the positive evaluation, in June 2020 the Washington Supreme Court, by a vote of 7–2, ended the program on the grounds that the cost of running it exceeded its revenues. The decision created concerns for some that the court was giving in to pressure from the state bar to protect its turf. Lyle Moran, “Washington Supreme Court Sunsets Limited License Program for Nonlawyers,” ABA Journal (June 8, 2020).
- 50Sandefur and Clarke, Roles beyond Lawyers.
- 51“Eviction,” Lawyers’ Committee for Better Housing.
- 52David F. Levi, Dana Remus, and Abigail Frisch, “Reclaiming the Role of Lawyers as Community Connectors,” Dædalus 148 (1) (Winter 2019): 30–36.
- 53See “Become a Limited License Legal Technician,” Washington State Bar Association, last updated June 23, 2020. For information on the New York City Housing Court’s volunteer court navigator program, see “Court Navigator Program,” NYCourts.gov, last updated April 14, 2017.
- 54William Henderson, Legal Market Landscape Report (San Francisco: State Bar of California, July 2018). See also Bob Ambrogi, “California Bar Takes Giant Step towards Regulatory Sandbox,” LawSites, May 15, 2020.
- 55Thanks to Dan Rodriguez, Northwestern University Pritzker School of Law, for materials related to the rest of this paragraph. See also Utah Implementation Task Force on Regulatory Reform.
- 56For a good overview of these efforts, see Zachariah DeMeola, “Join Us in Unlocking Legal Regulation: More Legal Service Providers, More Access to Justice, and a More Sustainable Legal Profession,” IAALS Blog, October 31, 2019.
Force Multipliers of Civil Justice: Civil Justice Advocates in Alaska
In 2019, Alaska Legal Services (ALS) helped people in 197 of the state’s 331 communities.
Alaskans who seek out the services of organizations like ALS often do so because they need help getting food stamps through the federal government’s main program to combat hunger, known as the Supplemental Nutrition Assistance Program (SNAP). About one in nine Alaskans qualifies for this aid, which the state administers on behalf of the federal government. Alaskans getting SNAP benefits can buy milk, bread, fruits and vegetables, meat, fish, and poultry, as well as seeds and plants to grow food. If they live in isolated communities (only 10 percent of all communities are connected by roads to the rest of the state), they can use SNAP to buy fishing gear and guns to catch or kill food themselves. In 2019, households got an average of $410 a month—households with children received an average of $687 a month.
Alaskans can apply for SNAP benefits in person at a state office or over the phone, but most apply by mail, email, or online. The system is notably inefficient. The state’s responses are considered delayed for about 30 percent of the applications. When the state rejects applications, its reasons for denial turn out to be incorrect about 40 percent of the time. Many people who are denied SNAP benefits qualify for them. Only about 70 percent of Alaskans eligible for the program took part in it in 2016, according to the Center on Budget and Policy Priorities. Almost 90 percent of Alaskans who receive SNAP benefits live in households with incomes at or below the poverty line—and five in ten are at or below half the poverty line.
In 2019, ALS, through Alaska Pacific University, launched an online, self-paced training course, expected to take about three hours, to train SNAP advocates: generally young Alaskans, many of them members of Indigenous tribes. The goal is to provide them with knowledge and skills they can use to help speed up the SNAP application process and increase the percentage of successful applications. SNAP advocacy requires knowledge about the program and how it works, as well as skill in dealing with applicants and with the state government, but does not require a law degree. The ALS program, which was designed to avoid running afoul of the state’s rules against the unauthorized practice of law, equips advocates to provide information to potential SNAP applicants but not to provide legal advice or counsel.
ALS assigns potential SNAP applicants—whom it identifies through tribal community centers, medical-legal partnerships, and other gathering points—to advocates who have completed the advocacy program and are supervised by a legal services lawyer.
The training program offers five modules, of which SNAP advocacy is the first. The others train advocates on will drafting, protection against unfair debt collection, bankruptcy, and the Indian Child Welfare Act. Advocates who complete the last module are equipped to deal with the welfare act for the more than 230 recognized Alaskan tribes. They are expected to navigate the complicated federal statute that establishes standards for the placement of tribal children in foster or adoptive homes and seeks to prevent the breakup of tribal families.