Changes to legal services Allowing nonlawyer legal document preparers help consumers.
Changes to legal services Allowing nonlawyer legal document preparers help consumers.
Why this petition matters
I am one of the many nonlawyer document preparers who strive to provide document preparation services to consumers who cannot afford an attorney, or consumers who choose not to retain an attorney. We stay within the rules regarding the unauthorized practice of law (UPL) as well as we can. It is extremely difficult for us to follow rules when we don't know what those rules are. We read the cases and try to glean from them the information that we can be in compliance. The consequences of breaking a UPL rule can be dire. In Tennessee UPL is a class A misdemeanor.
Historically the legal profession has been slow to adapt to new challenges. That is changing in some other states, and those changes needs to reach us in Tennessee.
Regulations in every state have given lawyers a monopoly on providing legal services. Until recently, only lawyers gave legal advice and prepared legal documents. Owning or operating a law firm was limited to lawyers.
Proponents of changing these rules posit that the restrictions on nonlawyer ownership of law firms, the ban on sharing legal fees with nonlawyers, and the prohibition against provision of legal services by nonlawyers are at fault for the difficulty many people have in accessing affordable legal services.
Despite lacking empirical proof for this theory, several states have moved aggressively to roll back traditional restrictions. Utah and Arizona have revised their legal ethics rules to let nonlawyers own or operate law firms. Lawyers in those states may freely share legal fees with nonlawyers and can pay “referral fees” to nonlawyers who send them clients. Other jurisdictions seem poised to follow suit, including populous states like California and Florida.
The Tennessee Supreme Court’s Access to Justice Commission is studying these issues but has not yet ventured into this new frontier.
In the United States, the current menu of consumer choice among legal advice providers is highly restricted. Licensed attorneys may offer legal advice, as can a few other kinds of providers in limited circumstances. Because choice is so restricted, consumption patterns reveal limited information about what services people would prefer: people can only consume goods or services that are available, that they know are available, and that they can afford. Take fruit as an example. If bananas and apples are cheap and widely available and we see people purchasing some of one and a lot of the other, that tells us something about fruit preferences. But if bananas are incredibly expensive and apples are illegal, the fact that bananas are routine only for the wealthy and an occasional treat for the rest, while virtually nobody is eating apples, does not mean that everyone hates apples and would love to buy more bananas if only they could afford them. When something (e.g., legal advice) can usually be offered by only one type of provider (e.g., lawyers), people cannot reveal their preferences for other kinds of providers by using existing providers’ services. The review of evidence about consumer demand for legal advice thus by necessity looks beyond preferences revealed by current U.S. consumer purchases to a range of other sources of information about what members of the public want when they face justice problems.
Nonlawyer document preparers are typically self-employed individuals or small businesses. We are not able to fight the Tennessee Bar. Some document preparers will close their business when faced with a Tennessee Bar UPL Committee investigation. A UPL investigation can be initiated by the Tennessee Bar itself, usually for "improper" language or word choice in an advertisement or on a website. For example, I am aware of several instances where a document preparer was told that he may not use the word "legal" in his business name; may not use the word "legal" anywhere on his website; and may not even use the word "legal" in his email address. I have looked everywhere and cannot find this rule.
A UPL investigation can also be initiated by any attorney. In theory, a UPL investigation initiated by an attorney would be to protect the overall integrity of the practice of law; in fact, an investigation initiated by an attorney is usually a vindictive act to protect his turf. Some attorneys believe that the existence of document preparers is a threat to their livelihood. This couldn't be further from the truth. Document preparers prepare forms. Document preparers do not compete with attorneys at all, document preparation services are just that. Document preparers may prepare forms, explain procedure, and provide legal information. Document preparers do not give legal advice or representation. Attorneys do not attend law school for three years to prepare forms.
Sometimes, during a UPL investigation a document preparer is presented with a Cease-and-Desist Order. The Cease and Desist may be all inclusive and serves to put the document preparer out of business then and there. If the document preparer refuses to sign the Cease and Desist, the investigation may then be referred to the State Attorney for prosecution. The document preparer is reminded in all correspondence that UPL is a class A misdemeanor, and a conviction could result in incarceration or fines. These are terrifying threats made to self-employed document preparers or owners of small businesses, who seek to close the "justice gap" enough is enough.
The justice gap is a known problem. Many consumers are unable to afford counsel when faced with a legal matter. Without document preparation companies these consumers might abandon their legal matter altogether and forego their rights. Or consumers sometimes postpone taking any legal action, and the delay makes their situation worse.
The State Attorney aggressive stance on investigating UPL not only harms document preparers, but also harms consumers. We ask the State Attorney to change their policies regarding investigation of UPL in the following ways:
1. Investigate UPL when there is consumer harm. Not when there is "potential" harm.
2. If the Tennessee Bar demands that we follow their rules, make those rules clear, and set out in a fashion in which document preparers can easily find and refer to the rules.
3. Lighten up on the investigation of document preparers altogether. We feel we are being bullied and harassed by an entity that does not supervise us. The State Attorney r is authorized to investigate UPL but putting document preparers out of business is counterproductive all around. Lawyers make mistakes, as do providers of legal services that are not lawyers.
4. Give us some recognition for what we do. We are part of the solution to the ongoing justice gap. Until consumers are being served fully, there is no need for us to be perceived as a threat to lawyers. At the same time, should be the consumer choice.
STATES TAKING ACTION ON NONLAWYER REFORMS
States across the country are considering changes to attorney regulations, or have made changes, that would open up the legal sector to more participation from nonlawyers.
Arizona's Supreme Court in 2018 set up a task force to examine how the state can change attorney regulation to improve access to justice. In October, the task force is expected to bring a proposal to the Arizona Judicial Council, including suggested amendments to the state's attorney ethics rules to allow lawyers and nonlawyers to join together to form legal service businesses. The AJC will then make its own recommendation to the state's Supreme Court.
Now that its public comment period has drawn to a close, the California State Bar task force charged with exploring new regulatory options will fine-tune its recommendations and submit them to the bar's board of trustees for a vote early next year.
The tentative proposed changes include creating exceptions to restrictions preventing the unauthorized practice of law and making changes to the state's rules of professional conduct to allow nonlawyers to engage in financial arrangements with lawyers.
District of Columbia
In the District of Columbia, nonlawyers are permitted to hold an ownership interest in law firms, as long as they provide professional services that assist in the firm's delivery of legal services and abide by all attorney ethics rules. D.C.'s rules of professional conduct have permitted such an arrangement since the 1990s.
The Illinois Supreme Court is considering loosening regulations on attorneys' ability to pay for recommendations for their services.
The state high court is also expected to set up a task force in the next month or two that will look at how additional changes to attorney ethics regulations can spur innovation in the legal sector and potentially create greater access to justice.
The New Mexico Supreme Court formed a working group earlier this year to explore whether to allow limited license legal technicians to practice in the state. The working group is expected to produce a final report by Jan. 1.
Utah's reforms are a little further along. Its Supreme Court unanimously voted Aug. 30 to move forward with an experimental "sandbox" in which legal service providers will propose and execute new business structures and methods of service delivery that are currently illegal or deemed unethical, while under the watchful eye of regulators.
Since 2012, nonlawyer paraprofessionals have been permitted to provide specific legal help to consumers on family law matters in the state without the supervision of a lawyer. These paraprofessionals, called limited license legal technicians, are trained and complete continuing legal education. They typically charge less per hour than a lawyer.