Alarmed by a rising tide of unrepresented litigants, roughly a dozen states have recently relaxed their rules to let some nonlawyers furnish some help in some instances, and, in an equal number of states, the idea is under active consideration. Predictably, however, not everyone applauds these developments. Some insist that only lawyers can furnish legal services with competence and integrity—and so these regulatory reform efforts, while well intentioned, are bound to backfire.

In a recent article, “Unauthorized Practice: Assessing Available Evidence,” Professor Nora Freeman Engstrom and Rhode Center Associate Director Natalie Knowlton get to ground on this enduring debate. Compiling nearly a century of research on nonlawyer providers, conducted at different times, in different places, and using a wide array of methodologies, Engstrom and Knowlton tackle an enduring question—can nonlawyers offer high-quality legal services?—with fresh insight.  Here, they discuss what they uncovered in their research and why this is particularly important today.

The article evaluates the wisdom of the longstanding ban on nonlawyer practice.  What is the unauthorized practice of law, and how do bans on unauthorized practice affect the delivery of legal services?

Natalie:  Unauthorized practice of law (UPL) rules restrict anyone who is not a lawyer from providing legal assistance.  And, while many people assume that UPL laws just restrict nonlawyers’ ability to appear in court, they actually extend much more broadly than that, to restrict the provision of targeted legal information.  For instance, the Mississippi Supreme Court has explained that “any exercise of intelligent choice in advising another of his legal rights and duties brings the activity within the practice of the legal profession.”  Or, in Arizona, legal assistance is defined as anything “which lawyers customarily have carried on from day to day.”  Under these definitions, even if a person wants help doing something simple—filling out a court form, for example—that help must come from a full JD.  A nonlawyer who lends a hand is subject to criminal prosecution.  In some states, the provision of legal advice without a law license is a misdemeanor; in others, it’s a felony.

Nora:  These UPL laws extend not just horizontally, but also vertically, meaning that they apply, not just to “regular” nonlawyers, but also to others, including courthouse staff and technology providers.  So, these laws not only restrict a person’s ability to seek assistance from a neighbor, friend, or social worker; they also restrict courthouse clerks’ ability to supply advice or answer litigants’ questions, and they simultaneously stunt the invention and development of litigant-facing technology.

You both do a lot of work on what you call the access-to-justice crisis.  How do UPL laws contribute to that crisis? 

Nora:  First, a note about the crisis, to give you a sense of its scope and scale: Currently in the United States, only about a quarter of cases see lawyers on both sides; three-quarters of the time, at least one side is unrepresented, a significant uptick from prior decades.

Worse, those pro se litigants—the unrepresented folks we see in courts around the country—are only a relatively small part of the story.  They are eclipsed by the tens of millions of additional Americans we do not see because, although they may be confronting a significant legal problem—and although they may well have a valid entitlement to relief under the formal law—they are taking no steps to protect their interests.

This inaction has both direct and cascading consequences: A person who cannot vindicate her rights to overtime pay, workers’ compensation benefits, or child support obviously suffers economically.  And, when laws are not enforced, the cost of disobedience drops.

Natalie:  UPL laws contribute to the crisis because UPL laws dramatically limit the supply of legal services.  It’s basic economics: When the supply of something is limited, the cost of that thing tends to go up.  Even relatively inexperienced lawyers these days cost roughly $300 per hour, and that’s more than most people can afford.

But not everybody supports efforts to relax UPL laws.  Why not?

Natalie:  Those who oppose relaxation efforts insist that only lawyers are competent to deliver legal services.  The rules’ relaxation, critics warn, will construct a “two-tiered market for legal services whereby only the monied” will be able to retain lawyers, while others will be condemned to a vastly inferior alternative.  Critics doubt that any matter is simple enough to be entrusted to “untrained individuals.”  And critics fret that, without robust UPL protection, “vulnerable” consumers will inevitably fall prey to “unqualified and unscrupulous” “opportunists.”  In writing this article, we took all these concerns seriously.

Nora:  Essentially, UPL restrictions rest on a simple premise.  They rest on the idea that (to quote one bar leader) only lawyers have “the education, training, experience, accountability and professional discipline necessary to provide effective legal services.”  If that’s right, then efforts to relax UPL laws are a bad idea.  Though reform efforts are well intentioned, they will hurt more than they’ll help.  If, however, nonlawyers can provide effective legal services, the justification for UPL laws, in their absolute form, fades.

Can nonlawyers provide high-quality legal services?  A lot rides on the answer to this question.  And, by compiling every scrap of evidence we could find, we set out to answer it.

In a nutshell, what did you find?

Natalie:  Ultimately, after sifting through dozens of studies and thousands of pages of records and testimony, we conclude that specially trained nonlawyers can, indeed, supply competent legal assistance across many domains.

Nora: Spanning different areas of law, in different types of tribunals, using different metrics, and deploying different methodologies, this research shows that knowledgeable and specially trained nonlawyers can provide effective legal services.  Indeed, in some instances, the services nonlawyers supply surpass the services provided by full JDs.

Natalie:  For example, one study evaluating nonlawyer representation in two federal agencies found that those represented by nonlawyers fared nearly as well as those represented by lawyers; the relative rate of success was 54.5% versus 59%.  Further, and not at all surprising, people with nonlawyers fared substantially better than those without any representation (who saw a success rate of 43.7%).  Another study evaluating professional assistance to pro se parties with state court forms found that consumers were comparatively more satisfied with services furnished by nonlawyer providers as against lawyer providers.  Interestingly, this study also found that consumers selected nonlawyers for a variety of reasons, not just cost.  Yet another study, evaluating nonlawyer practice before an administrative court in the District of Columbia, found comparable win rates between nonlawyers and lawyers appearing at hearings.  We could go on and on—and we do in the article.  It’s admittedly somewhat tedious.

But in some ways—the details are the point.  For years, opponents have been saying: “If you want to change things, you have the burden of proof that the changes you propose will work.”  The President of the Florida Bar has declared, for instance, that the rules that govern the legal profession should be changed if and only if reformers can show, with “clear and compelling empirical data” that the reforms they champion would be salutary with “little or no risk to the public.”  And the Bar President has staked his opposition to various reforms because of the asserted “absence of such data.”  We aren’t sure why, exactly, the burden of proof is placed on those who want to reform the system, not those who want to maintain it in its current form.  But putting that aside, the Bar President asked for the receipts.  In this article, we bring them.

Do you think this evidence will impact opponents’ stance on nonlawyer programs?

Natalie: We hope so.  If, as opponents claim, the real reason for their opposition to nonlawyer providers is public protection (and not trade protection), then you’d think this sort of evidence would be compelling.

Are there any other lessons we should take from your recent article?

Nora:  Again, the evidence we assemble suggests that in a range of domains, trained and licensed nonlawyer advocates perform legal services on par with the services provided by lawyers.  Yet, even while we show that nonlawyers pass this test, we also argue that this test is both rigged and unduly reductive.

The test is rigged because, as we explained at the outset, the reality is that today, lawyers are the exception, not the rule.  In three-quarters of cases, at least one side is currently muddling through, entirely without help.  Thus, the right question is not whether nonlawyers stack up well as against their JD-toting counterparts; it is whether having the assistance of a trained nonlawyer is markedly better than going it alone.  And critically, every study we identified that compares pro se litigants to nonlawyer-represented litigants finds the latter fare better than the former; one is significantly better off hiring a nonlawyer than forging ahead without assistance.

Meanwhile, in proceeding on the assumption that, to pass muster, the quality of legal services supplied by nonlawyers must be on par with the quality of legal services supplied by lawyers, the debate is also unduly reductive.

The problem is that the debate’s myopic focus on “quality,” to the exclusion of other values and attributes, distorts the relevant inquiry.

Generally, when a consumer, patient, or client evaluates goods or services, the consumer, patient, or client evaluates the quality of the good or service alongside other characteristics.  When buying even important things—like cars or infant car seats—or when seeking the services of professionals—including medical providers—we tolerate substantial quality differentiation, even when that means that some options in the marketplace are more dangerous and others are less dangerous.

Consider automobiles.  The Mitsubishi Mirage sees 205 deaths per million registered vehicles, while the Mercedes-Benz E-Class sees zero.  But nobody bans the Mitsubishi Mirage, and, with its $18,250 price tag, many consumers quite reasonably buy it, compared to the Mercedes, which costs roughly four times as much.

We authorize the sale of the Mercedes and the Mirage—and we also let patients visit anyone from a nurse practitioner to a podiatrist to a midwife to a surgeon—because there is, generally, an understanding that (1) competent adults should be able to choose for themselves among various offerings; and (2) the quality of a good or service is appropriately balanced against other variables, such as cost, comfort, and convenience.  There is no reason to depart from those general understandings here.