In Judges and the Deregulation of the Lawyer’s Monopoly, co-authors Jessica K. Steinberg, Anna E. Carpenter, Colleen F. Shanahan, and Alyx Mark make a surprising discovery, with significant implications for the current debate concerning the delivery of legal services.
To understand their paper—and why it’s so important—a bit of background is necessary.
Right now, across the United States, lawyers’ monopoly over the provision of legal services is getting overdue scrutiny—and, in some states, professional lines are in flux. Arizona, Washington, Minnesota, and Utah have licensed legal technicians, essentially nurse practitioners for law.1 In New York, a nonprofit provider called Upsolve has filed an innovative and well-coordinated legal challenge to curtail that state’s unauthorized practice of law restriction, insisting that the law, as applied, violates the First Amendment. And, in a number of other states, including California, Colorado, Michigan, and North Carolina, policymakers are exploring whether—and how—to welcome new legal service providers into the fold.
In the face of this budding reform activity, critics have rallied to defend status quo, predicting that a parade of horribles awaits consumers and attorneys after the monopoly ends. Some, for example, have called the notion of relaxing unauthorized practice restrictions a “catastrophe waiting to happen.” Others have lamented that deregulation would open the market to “an unsuspecting and ultimately unprotected public [that would then] receiv[e] legal services from unqualified and potentially unscrupulous actors.” Or, as one lawyer put it, while opposing possible (and ultimately, doomed) reforms in Florida: “The opportunity for abuse of the legal system would be made limitless, and legal!”
Embedded within these alarmist predictions are several questionable assumptions. First, critics seem to assume that the civil justice system currently works well for most Americans, and we shouldn’t fix what isn’t broke.
The reality, however, is otherwise.
Our courts are in the grips of an alarming pro se crisis. In state courts, at least one side is unrepresented in an astonishing three-quarters of all civil cases. Our federal courts fare only marginally better. Within the federal system, more than a quarter of claims are filed by pro se plaintiffs, and the majority of appeals are pursued by unrepresented individuals.
Then, below the pro se crisis lies a larger but hidden crisis. That consists of what I call the “lumpers.” These are tenants, debtors, workers, abused spouses, insureds, accident victims, and others who have legal problems but take no action in the face of those problems. They are, therefore, entirely excluded from the civil justice system. The most recent national survey found that only 14% of civil claims “involve courts,” which indicates that as much as 86% of Americans’ legal needs fall into this category. They go entirely unmet.
Summing up this sorry state, the World Justice Project creates a comprehensive rule of law index by assessing countries along various metrics. It ranks the United States 126th out of 139 countries on accessibility and affordability of civil justice. That puts us dead last among countries within our income bracket—and it also places us behind Uzbekistan and Angola, among others.
In addition to (wrongly) assuming that the status quo is tenable, critics of regulatory reform also assume that all legal services today are actually provided by lawyers—that deregulation would be a “catastrophe” because it would involve a sudden and dramatic shift.
Steinberg and her three coauthors show that this assumption is similarly unfounded. After spending two years carefully observing roughly 275 court proceedings involving cases in which petitioners sought domestic violence protective orders, the authors discovered that, if you actually look under the hood of state court processes, we aren’t on the cusp of deregulation; deregulation is already here.
In fact, legal services in domestic violence proceedings have been effectively deregulated for years, thanks to a large shadow network of nonprofit-employed, and Violence Against Women Act-funded “advocates,” who are deeply integrated into the day-to-day operations of courts. These advocates are generally not licensed, regulated, or even formally recognized by state supreme courts or bar associations.
Yet they are effective.
The authors found that, across hundreds of court hearings and spanning three different research sites, nonlawyer advocates offered crucial support to women navigating the labyrinthian system. The advocates drafted court petitions, developed and produced evidence, prepared pleadings, explained legal options and procedural rules, counseled petitioners about how to achieve their goals within the confines of the legal system. Sometimes, they even appeared physically in court.
These findings inform current debates for at least three reasons. First, Steinberg and her co-authors torpedo the notion that status quo involves lawyers providing help exclusively. Nonlawyers already play important roles in civil courts. The question, then, is not necessarily whether lay advocates should or shouldn’t provide legal assistance. It’s whether their help should take place in the open (where it can be scrutinized, licensed, and regulated) or, rather, in the shadows.
Second, Steinberg and her co-authors show that nonlawyer advocates are not necessarily dislodging lawyers. They are, at least sometimes, addressing legal needs that would otherwise go unaddressed. In the courts the co-authors studied, in other words, it wasn’t a question of domestic violence petitioners relying on nonlawyer advocates instead of lawyer advocates; it was a question of domestic violence petitioners relying on nonlawyer advocates instead of proceeding pro se. That, very often, is the relevant question—and that subtle reframing ought to inform policymakers’ assessment of how to move forward.
Third, and most fundamentally, Steinberg and co-authors add to the stock of available evidence concerning the kind of work non-lawyers can perform—and the quality of the services they can render.
This is important, because at the heart of the push toward the deregulation of legal services is a big and brewing question concerning the wisdom of the traditional prohibition on the unauthorized practice of law. “The prohibition against the practice of law by a layman,” the Model Code explained, “is grounded in the need . . . for integrity and competence.” Or, as Steinberg et al. put it: “The basic justification for [lawyers’ professional] monopoly is quality control—that is, only a lawyer is qualified to render counsel and advice to a person with a legal problem.” (P. 1318.) Against that backdrop, scholars have asked for years how services provided by nonlawyers stack up against services provided by their J.D.-wielding counterparts, and whether it’s true that only those with law licenses are equipped to offer high-quality help. As should be obvious, that question looms large because if nonlawyers can furnish at least some legal services with integrity and competence, the flat prohibition on nonlawyer assistance becomes hard—if not impossible—to justify.
Even before Steinberg et al.’s study, the evidence of high-quality lay representation was starting to accumulate.
Decades ago, for example, Herbert Kritzer studied lay representation in Social Security Appeals. He found only a limited gap between the success rates of lawyer and non-lawyer personnel.
More recently, nonlawyers were found to be highly effective at helping pro se litigants in New York City’s Court Navigators Program. In an comprehensive evaluation of the program, Rebecca Sandefur and Thomas Clarke found that tenants helped by a nonlawyer Navigator were 87% more likely than unassisted tenants to have their defenses recognized and addressed by the court. In one of the three pilot projects they studied, not a single tenant helped by Navigators was evicted. In a similar AmeriCorps program in Illinois, 96% of self-represented litigants rated the help they received from non-lawyers as “excellent.” Similarly, in California, 97% of self-represented litigants who were assisted by trained nonlawyers found the service to be “very helpful,” while 95% felt able to prepare and file their own court forms.
Likewise, in child welfare proceedings, studies have found nonlawyers to match—or even surpass—lawyer effectiveness. One of the first empirical studies, from Donald Duquette and Sarah Ramsey in 1987, found that trained lay volunteers and law students, given a special child-welfare training curriculum, were more effective courtroom advocates than lawyers who lacked the specialized training. A raft of subsequent studies have found that lay advocates, such as a court-appointed special advocate (CASA), improved the chance that a child would be adopted and lowered the child’s chance of re-entering foster care.
Enriching this literature, Steinberg and co-authors show that, even when law assistants operate in something of a legal limbo—as they provide legal assistance while being formally forbidden from doing so—they nevertheless operate with loyalty and competence. (P. 1347.) Indeed, advocates are so effective that judges themselves find it hard to imagine court without them. As one judge noted approvingly, advocates “take the weight off of us.” (P. 1338.)
“Judges and the Deregulation of the Lawyer’s Monopoly” is hardly the final word on the wisdom of lawyer deregulation. More research is urgently needed—as we’d benefit from knowing much more about everything from the kind of services lay advocates can provide, to the quality of representation they can offer, to the regulatory framework under which they should operate. But this piece adds yet further evidence that, while lawyers may (still) have a monopoly on the “practice of law,” they haven’t cornered the market on effective or competent advocacy.
- Notably, in 2020, the Washington Supreme Court decided to sunset its Limited License Legal Technician (LLLT) program. For more on the program’s many accomplishments, even during its relatively short existence, see generally Jason Solomon & Noelle Smith, The Surprising Success of Washington State’s Limited License Legal Technician Program, Standford Center on the Legal Profession (2021).
