Bar Proposed Rule Could Establish Limited Non-Lawyer Practice in Washington State
By Ted Maloney
The beginning of an era in which nonlawyers can provide some legal services directly to the public may be just over the horizon. In a landmark decision, the Washington State Bar Association (WSBA) Board of Governors has unanimously adopted a proposed rule that would establish a "Practice of Law Board" with authority to recommend to the Washington Supreme Court opening limited areas of practice to nonlawyers as a means to provide greater access to affordable legal services.
Proposed General Rule (GR) 23, Practice of Law Board, and its companion proposal GR 22, Definition of the Practice of Law, were adopted by the WSBA Board of Governors on October 6, 2000, after more than two years of study, deliberations and public hearings. However, when these efforts began in 1998, they bore little resemblance to history in the making. What started as an effort to define the practice of law and confront UPL issues evolved only late in the game into a program to address the unmet need for legal services among poor and moderate-income persons.
How did this monumental shift take place? It took a combination of things: the visionary leadership of the Access to Justice (ATJ) Board, relentless advocacy by the Washington State Paralegal Association (WSPA), and the willingness of the Bar to listen and adjust its focus. Along with other advocates within Washington's civil equal justice network -- supreme court justices, paralegals, lawyers, paralegal educators, domestic violence advocates, and others -- the ATJ Board and WSPA were instrumental in re-directing the Bar's attention to the broader problem of unmet public need, rather than the narrower concern for public protection.
The seeds of this remarkable change were actually sown much earlier. But before tracing that history, let's take a closer look at these proposed rules.
GR 22 and 23: Companion Rule Proposals
Proposed GR 22 attempts to define the practice of law, but it goes much further. It exempts from UPL certain classes of nonlawyers who by statute or tradition have provided services that would otherwise be provided by lawyers (e.g., lobbyists, labor negotiators, mediators). In effect, it recognizes the reality that the practice of law by nonlawyers is already here, and has been for some time.
Proposed GR 23 would create a 13-member Practice of Law Board (PLB), composed of nine lawyers and four nonlawyers appointed by the Supreme Court. The PLB would have authority to:
recommend [to the WSBA and the Supreme Court] that nonlawyers be authorized to engage in certain defined activities that otherwise constitute the unauthorized practice of law as defined in GR 22.
GR 23(c)(4) (proposed).
In making such a recommendation, the PLB would be charged to first determine whether Supreme Court regulation is necessary to protect the public interest. The PLB must then determine that:
[1] access to affordable and reliable legal services will be enhanced
by permitting nonlawyers to engage in the defined activities . .
.;
[2] the defined activities . . . can be reasonably and competently
provided by skilled and trained nonlawyers; [and]
[3] . . . regulation is tailored to promote access to affordable
legal and law-related services while ensuring that those whose important
rights are at stake can reasonably rely on the quality, skill and
ability of those nonlawyers who will provide such services . . .
.
GR 23(c)(4)(A-C) (proposed).
These rules were the product of two separate but essential threads that eventually wound together to create a single innovative fabric.
The Access to Justice "Thread"
In 1991, a Bar long-range planning task force recommended greater involvement by WSBA in civil access to justice for the poor. This recommendation led to the Supreme Court's creation in 1994 of the Access to Justice Board. The ATJ Board was charged with overseeing the civil equal justice delivery system, and taking any necessary steps to deliver on the promise of equal justice under law to low and moderate income residents. The Board and the access to justice network it spawned across the state have been hailed as model for the nation.
In June 1998, the Board of Governors again confronted access to justice issues. A report by WSBA's Pro Bono and Legal Aid Committee documented the enormous, unmet need for civil legal assistance. The Governors adopted a unanimous resolution declaring that "civil access to justice is a chronic problem that has reached a crisis level in Washington state" and called for substantial increases in legal services funding.
A call for reform also came from the bench. In a May 1999 Bar News article entitled "Positive Approaches to 21st Century Access to Justice," Washington Supreme Court Chief Justice Richard P. Guy wrote:
As we prepare for the challenges and opportunities of the 21st century, we face our most challenging and significant of responsibilities: redesigning our civil justice system to provide efficient, fair and prompt civil justice services to all, including those who cannot afford the cost of conventional forms of legal representation and dispute resolution. To meet this challenge, all who are involved in the delivery of legal services . . . must work together to devise --and to try --- innovative, flexible and varied solutions.
Chief Justice Guy went on to suggest one of those possible solutions. "In any discussion of the scope of the practice of law, we must consider when non-attorneys should be licensed, regulated and permitted to engage in what may technically be the practice of law." (emphasis added)
The UPL "Thread"
In February 1998, the WSBA Board of Governors created the Committee to Define the Practice of Law (DPL). That committee was established after an ad hoc committee formed by the Bar to study UPL issues recommended that defining the practice of law should be done first. Among the many materials the DPL committee reviewed were: the ABA report on non-lawyer practice in the United States (1994); its own WSBA Report of the Task Force on Non-lawyer Practice of Law (1995); a report of the Oregon Definition of the Practice of Law Subcommittee; and a UPL rule from New Jersey.
While the unauthorized practice of law has been a crime in Washington since passage of the State Bar Act in 1937, the authorized practice of law by nonlawyers in Washington is not without precedent. In 1982, after declaring unconstitutional (as a violation of separation of powers) a state law that authorized nonlawyer escrow agents to close real estate transactions, the Supreme Court adopted Admission to Practice Rule (APR) 12. APR 12 authorizes "certain laypersons to select, prepare and complete legal documents incident to the closing of real estate and personal property transactions . . . ."
The DPL committee eventually produced a draft that included a definition of the practice of law. But it went further than that, and opened the door to a debate about nonlawyer practice. The draft included a list of permitted activities by nonlawyers "whether or not they constitute the practice of law." These "exceptions and exclusions" allowed laypersons to serve as courthouse facilitators; represent clients before administrative agencies; act as mediators and arbitrators; serve as labor negotiators; assist in completing domestic violence protection forms; act as legislative lobbyists; and sell legal forms. This list also exempted federally pre-empted activities and provided a catchall provision to permit other activities as subsequently authorized by published opinion of the Supreme Court.
At a public hearing in May 1999, the DPL committee heard from many who argued for expanding this list of exceptions, especially to accommodate those who are unable to afford lawyers. The committee ultimately rejected a request to exempt independent paralegals, concluding that this should only be done pursuant to a regulatory system approved by the Supreme Court. Following the hearing, the committee forwarded its proposed rule to the Board of Governors, which approved it as proposed GR 22 in September 1999, and sent it on to the Supreme Court.
The Supreme Court published proposed GR 22 for comment. The Court also met with both the BOG and the ATJ Board to discuss the proposed rule and criticisms of it. In June 2000 the Court returned the proposal to the BOG with the comments the Court had received. Among these comments was a letter from the WSBA's Legal Assistants Committee urging the development of an alternative to GR 22 that would establish "a regulatory framework that allows nonlawyers to offer certain limited services under appropriate restrictions protective of the public."
Meanwhile, in anticipation of approval of proposed GR 22, the DPL committee had begun drafting a companion rule to implement GR 22. This rule would create a UPL Committee (following a New Jersey model) with authority to investigate, resolve and if necessary refer alleged UPL to local prosecutors. This was approved and sent on to the BOG.
At the same time, both the ATJ Board and WSPA were each independently drafting their own versions of a regulatory system that would allow limited nonlawyer practice.
The Threads Come Together
In May 2000, a symposium helped pull these separate threads together. The ATJ Board and Seattle University Law School co-sponsored an Access to Justice Symposium, focusing on the unauthorized practice of law. The conference attracted DPL committee members as well as representatives from throughout the access to justice network. One result of the gathering was the opening of some constructive dialogue with DPL committee members about the access to justice implications of their committee's work.
In May 2000, the BOG considered and then tabled the proposed "UPL Committee" rule. More significantly, the Governors directed the DPL committee to expand its membership to include other interested groups. Added were representatives from the ATJ Board, WSPA, and the court clerks and judges' associations. In August, the expanded DPL committee drafted and solicited comment for the first time on a set of proposed Criteria for Establishing Regulated Nonlawyer Practice of Law.
At the September 2000 BOG meeting, the expanded DPL committee presented two revised versions of the proposed rules. These were basically unchanged from prior drafts except for a provision allowing a proposed UPL Committee to make recommendations to the Supreme Court for limited practice by nonlawyers. After discussing whether this change went far enough, the BOG tabled the proposed rules again. It asked the DPL committee to redraft them to better reflect the broader purpose of enhanced public access to legal services.
The DPL committee did just that on October 3, and unanimously recommended its revised rules to the BOG on October 6. The Governors unanimously adopted them as proposed GR 22 and 23, and transmitted them to the Supreme Court.
What's Next?
If the Supreme Court follows its regular process, proposed GR 22 and 23 will be published for comment in January 2001 in the Washington Reports Advance Sheets. If the court adopts the proposed rule, it will be published in final form in July, and become effective September 1. If, as many expect, the Court adopts the proposed rules, the new Practice of Law Board could begin recommending limited practice areas for nonlawyers before the end of 2001.
Beyond the Horizon
Which area of practice will the new Board take up first? Family law is the best guess. The unmet need in this area is widely viewed as being the most critical. Other areas will surely follow.
The PLB will face some difficult decisions in delineating the scope of limited practice by nonlawyer practitioners. Some lawyers will have concerns about encroachment in their practice area, and questions about nonlawyer competence. Board members will need to be sensitive to those concerns, while at the same time ensuring that those who cannot afford a lawyer will get the quality service they deserve.
Paralegal education programs in Washington will be affected. Educators will want to review their programs' curriculum to determine how instruction and content will need to be modified to accommodate training of those who may soon be providing services directly to clients.
Conclusion
Proposed GR 23 is a bold first step toward achieving what Chief Justice Guy described in his May 1999 article: "to protect the public from being victimized by unqualified people, while expanding the assistance available to those who cannot afford full legal services."
A new era has indeed dawned.
(For the full text of proposed GR 22 and 23, visit the WSBA web site at www.wsba.org)
Ted Maloney is an attorney and chair of the WSBA Legal Assistants Committee. He is also director of the Skagit Valley College Paralegal Program in Mount Vernon, Washington. The views expressed are those of the author only, not the WSBA or the American Bar Association.
