Far-Reaching Changes to the Practice of Law in Arizona, Part I of III
Lawyers, Get Ready for “Legal Paraprofessionals”
Sometime starting next year, your opposing counsel might not be a lawyer.
And yet that person may be able to do pretty much everything you can do, such as negotiate, file motions, conduct discovery, appear in court, maybe handle appeals, but might not even have a bachelor’s degree, let alone a JD, and didn’t have to pass the bar exam.
If you haven’t already done so, this is a good time to wrap your head around the fact that in 2021, qualified non-lawyers will be able to represent clients in family law and relatively low-level civil and criminal matters.
Get ready for Legal Paraprofessionals (“LPs”).
The Supreme Court’s Task Force on the Delivery of Legal Services – I served it as an expert consultant – last year proposed that the court adopt LPs. If you haven’t read the task force’s report, get it here. If you haven’t read the rule-change petition and other documents that arose out of the task force’s, read them here.
The Supreme Court adopted the LP program as part of its rule changes in August. Here’s the order.
The nuts and bolts about LPs – qualifications, requirements, scope of practice – don’t appear in the Supreme Court rules but are contained in the Arizona Code of Judicial Administration. The Arizona Judicial Council, which is a policy-making body that oversees the judicial system in Arizona, adopted new ACJA § 7-210 at its October 22, 2020, meeting. On November 4, 2020, the Supreme Court adopted (here) the new AJC-approved section.
The Supreme Court’s rule changes and the new ACJA section take effect January 1, 2021.
Here are some questions (many posed to me by lawyers) and answers about LPs. Although this blog post is really long, it does not purport to discuss everything related to LPs. Review the source documents before taking any actions.
Aren’t only lawyers able to represent clients and practice law?
That’s the baseline presumption, but there are about three dozen exceptions in Rule 31, Ariz. R. Sup. Ct. (By the way, effective January 1, 2021, Rule 31 has been reorganized into four sections and clarified.)
Why didn’t the task force or the court simply give more authority to LDPs instead of creating a whole new tier of legal professional?
At the beginning, I personally thought that’s what should happen. We already have a regulatory system for legal document preparers (LDPs), who are able to help people fill out forms. But they’re not supposed to give legal advice or appear in court. I eventually agreed with the task force’s recommendation that a new licensing category and system would be best. LDPs still will serve a niche in the legal profession, while LPs will serve a different niche.
Won’t LPs just be glorified paralegals?
Not at all. Under current Supreme Court Rule 31(a)(2)(C), Ariz. R. Sup. Ct., “legal assistant/paralegal” is a person qualified by education and training who performs substantive legal work requiring a sufficient knowledge of and expertise in legal concepts and procedures, who is supervised by an active State Bar member, and for whom an active State Bar member is responsible, unless otherwise authorized by Supreme Court rule. The new Supreme Court Rules 31 through 31.3, which take effect January 1, 2021, do not include this definition, because in Arizona, paralegals are not licensed (although they may hold certifications from voluntary paralegal organizations) and thus do not need to meet specific education requirements.
LPs, on the other hand, will be licensed and able to practice law, just within a confined universe. Perhaps most significantly, they are not required to work under the supervision of a lawyer. That means an LP will be able to hang out a shingle and have his or her own practice just like any lawyer can. Think of an LP as the nurse practitioner of the legal profession.
Why did the Arizona Supreme Court buy into this idea when the Washington Supreme Court, which adopted the first paraprofessional-license program with much fanfare, has nixed its program?
In June 2020, the Washington court said it had determined that its limited license legal technician (LLLT) program, which it had adopted in 2012, was “not an effective way” to increase access to legal services because of the “overall costs of sustaining the program and the small number of interested individuals.”
Arizona’s LP program is distinctly different from Washington’s program, which had more requirements. Although Washington required only an associate degree in a paralegal program as base education, it also required 15 additional credits at an ABA-accredited law school plus 3,000 hours working under the supervision of a licensed lawyer. Also, as originally adopted, LLLTs could not appear in court.
As for why the Supreme Court adopted LPs, here’s what Chief Justice Robert Brutinel said in the court’s August 27, 2020, press release:
“The Court’s goal is to improve access to justice and to encourage innovation in the delivery of legal services. The work of the task force adopted by the Court will make it possible for more people to access affordable legal services and for more individuals and families to get legal advice and help. These new rules will promote business innovation in providing legal services at affordable prices.”
Who will regulate LPs?
Similar to lawyers, the Administrative Office of the Courts’ certificate and licensing division, along with a committee, will handle applications and administer a licensing examination.
The State Bar will investigate and, if necessary, prosecute complaints about LPs, just as it does with lawyers. The current lawyer disciplinary system will handle those complaints.
LPs will be “affiliate” members of the State Bar. [Rule 32(c)(3), Ariz. R. Sup. Ct. (effective 1/1/21)]
Wait -- they’ll be State Bar members?! But isn’t the State Bar only for us lawyers?
It has been. However, the State Bar operates under Supreme Court authority. The Supreme Court is in charge of the practice of law in this state and gets to decide who can practice law and how anyone who is authorized to practice is regulated. The Supreme Court now has decided that the State Bar will include lawyers and LPs.
Will my mandatory State Bar fees subsidize them?
LPs will pay licensing fees, just like lawyers do, to help cover the regulatory system’s costs.
I’m already unhappy that the Supreme Court forces me to belong to the State Bar organization, and now I’ll be forced to be a member of an organization that includes non-lawyers. Will those non-lawyers be able to take over the State Bar?
As affiliate – as opposed to active – members, LPs won’t be eligible to vote in elections for the State Bar board of governors, let alone serve as an elected member of that board. Only active and judicial members may vote in elections (Rule 32(e)(2)(D)) and only active members may be elected (Rule 32(e)(2)(B)).
The Supreme Court, however, also appoints 10 members to the 26-member board. Four of those 10 appointments are called “public” governors who, by Rule 32(e)(4)(a), “must not be members of the State Bar and must not have, other than as consumers of legal services, a financial interest in the practice of law.” Three “district” governor appointments must be active members. [Rule 32(e)(4)(c)] The remaining three appointments – “at-large” governors – are not restricted (Rule 32(e)(4)(b)), so the court could decide to appoint one or more LPs. Even if the court used all of its at-large appointments for LPs, that would constitute only three of 26 seats.
I’ve invested seven years in higher education (four getting an undergraduate degree, three in law school), then had to take and pass the bar exam and go through character and fitness. What will LPs have to do?
They’ll have similar basic requirements of exam and character-and-fitness review. But for education, they have a wide range of options, including no educational requirement.
LP education options:
A juris doctor from an ABA-accredited law school. [ACJA § 7-210(E)(3)(b)(9)(e)]
A master of legal studies from an ABA-accredited law school that included specific coursework. [ACJA § 7-210(E)(3)(b)(9)(d)]
A master of laws from an ABA-accredited law school (obtained by a foreign-trained lawyer) that included specific coursework. [ACJA § 7-210(E)(3)(b)(9)(f)]
A four-year bachelor’s degree in law from an accredited college or university and approved by the court that included specific coursework. [ACJA § 7-210(E)(3)(b)(9)(b)]
An associate-level degree in paralegal studies or an associate-level degree in any subject plus a certificate in paralegal studies approved by the ABA or offered by an institution that is accredited by an institutional accrediting agency recognized by the U.S. Department of Education or the Council for Higher Education Accreditation and that requires successful completion of a minimum of 24 semester units, or the clock hour equivalent, in specific coursework. This section also requires that the applicant have one year of substantive law-related experience working under a lawyer’s supervision in the area of practice of each endorsement sought. [ACJA § 7-210 (E)(3)(b)(9)(a)]
A certification program for legal paraprofessionals approved by the Arizona Judicial Council. [ACJA § 7-210 (E)(3)(b)(9)(c)] This section further states: “Certification programs may be for credit or noncredit but must be offered through an educational institution that is at least regionally accredited. Certification programs must provide the subject matter courses that meet the credit hours or equivalent clock hours in the subject matter areas required for each subject matter area endorsement.”
Applicants who do not meet any of the education options have an alternate pathway: experience. Applicants who have completed seven years of full-time substantive law-related experience within the 10 years preceding the application may qualify to take the LP exam. [ACJA § 7-210 (E)(3)(c)(9)] They must have worked in a specific practice areas, with proof from their supervising attorney.
Will someone who graduated from law school and passed the bar exam but couldn’t get through character and fitness be able to be an LP?
The regulations specifically exclude from eligibility anyone who has been denied admission to the practice of law in this state or any other jurisdiction. [ACJA § 7-210 (E)(3)(b)(3)]
What about a disbarred or suspended lawyer?
The regulations do not specifically ban disbarred or suspended lawyers from being LPs. They would be eligible only if approved by Supreme Court. [ACJA § 7-210(E)(3)(b)(4)] This is similar to how a disbarred or suspended lawyer isn’t eligible to be an LDP unless approved by the Supreme Court. [See Rule 31.3(e)(4) (effective 1/1/21)]
In what areas will LPs be able to practice?
Per ACJA § 7-210(F)(2):
Family law;
Civil matters that may be or are before a municipal or justice court;
Criminal misdemeanor matters before a municipal or justice court if penalty does not include incarceration; and
Administrative law before any state administrative agency that allows it.
What will they be able to do?
Per ACJA § 7-210(F)(1):
Prepare and sign legal documents;
Provide specific advice, opinions, or recommendations about possible legal rights, remedies, defenses, options, or strategies;
Draft and file documents;
Negotiate on behalf of a client; and
Appear before a court or tribunal, including mediation, arbitration, and settlement conferences where not prohibited by the rules and procedures of the forum.
This list tracks the existing definition of the practice of law. [Current Rule 31(A)(2)(a); Rule 31(b) (effective 1/1/21)]
It’s one thing to appear in municipal or JP court, but will they be able to handle appeals?
Yes, in family law cases, assuming they meet additional requirements. [ACJA § 7-210(F)(2)(a)] The code doesn’t spell out those requirements, but instead says “unless the legal paraprofessional has met additional qualifications as established by the supreme court.”
Isn’t this going to take business away from me?
Data repeatedly has shown that many people who need legal services already can’t afford to hire a lawyer. So maybe it means LPs will serve those people or those who now receive legal-aid-type help.
If they’re supposed to fill the access-to-justice gap, will they have to charge low fees?
Nothing requires them to charge “low” fees. Just like lawyers, however, their fees must be reasonable. As a business matter, their fees also would need to be competitive.
I have to comply with the Rules of Professional Conduct but those ethical rules don’t apply to non-lawyers. So these LPs will be able to do whatever they want while I have to play by strict rules, right?
Not so. LPs will have to comply with the Ethical Rules, except for a few parts of ER 5.5 that don’t apply to them. [ACJA § 7-210 (J)(1)] They also must do pretty much everything lawyers have to do, including comply with Rule 43 (trust accounts) and Rule 45 (MCLE). [ACJA §§ 7-210(J)(3), 7-210(I)(2)]
How will I be able tell if my “opposing counsel” is not a lawyer but just an LP?
They’ll have to identify themselves on documents and they must disclose if asked. [ACJA § 7-210(F)(4)]
Will they be able to advertise?
Nothing prevents them from advertising like lawyers do.
Will they be able to call themselves lawyers or imply that they are lawyers?
No. They’ll also have to tell the client in writing that they aren’t lawyers. [ACJA § 7-210(J)(5)(e)]
This will be so bad for clients. Won’t an LP will get into a case and realize it’s over their head, or even not realize it’s over their head, so the client will suffer?
Just as with a lawyer, an LP will need to make sure they’re competent. ER 1.1 defines “competent representation” as requiring “the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” Comment [3] to ER 1.1 explains that competency can be achieved by obtaining additional education and training or by associating a lawyer – or, effective next year, an LP – “of established competence in a field.”
If a case truly is “over their head,” they should not take it or, if they’re already in it, withdraw because they won’t be able to provide competent service to the client.
What if an LP takes on a civil case in JP court and then the case is transferred to Superior Court?
ACJA § 7-210(F)(2)(b) does not authorize LPs to handle civil cases in Superior Court. My take: The LP would need to withdraw from the representation.
What if an LP takes on a criminal case in JP court and then that case gets consolidated with another case that includes possibility of incarceration?
ACJA § 7-210(F)(2)(c) does not authorize LPs to handle criminal cases in lower courts if incarceration is at issue. My take: The LP would have to withdraw from the representation.
What if an LP takes on a criminal matter for which there is the possibility of incarceration but the LP thinks he or she can get the prosecutor to drop the possibility of incarceration?
ACJA § 7-210(F)(2)(c) does not authorize LPs to handle criminal matters if incarceration is at issue. My take: The LP could not take on a representation if incarceration is still at issue, no matter how positive the LP is that he or she can convince the prosecutor to take incarceration off the table.
Will clients be able to claim attorney’s fees for work done by LPs?
This will depend on the statute or rule authorizing attorney’s fees. My take: The work may not have been done by a lawyer, but it was done by someone authorized to provide the legal services.
What about an attorney-client type of privilege?
New Rule 513, Ariz. R. Evid., provides an LP-client privilege:
A communication between a legal paraprofessional and a client is privileged if it is made for the purpose of securing or giving legal advice, is made in confidence, and is treated confidentially. This privilege is co-extensive with, and affords the same protection as, the attorney-client privilege.
Can I just ignore that LPs exist and not have anything to do with them?
Don’t ignore them. They’ll be representing clients, so you’ll have to deal with them if they’re on the other side of a case.
Also, new ER 8.3(c) imposes an expanded reporting obligation on lawyers:
A lawyer who knows that a legal paraprofessional or certified Alternative Business Structure entity has committed a violation of the applicable codes of conduct that raises a substantial question as to the person or entity’s compliance with the codes shall inform the appropriate authority.
As a result, lawyers will need to pay attention to LPs and their requirements.
I’ve changed my mind. I won’t ignore them. How could I use them?
A law firm could add one or more to its practice. A qualified LP could pretty much handle soup to nuts in simple DR cases. If the law practice includes lower-level court cases, an LP could do those (with the limit on criminal cases). Then, if the cases get too complicated or involve more than what the LP is authorized to do, a lawyer takes over.
Wait a minute! I’m a new law school graduate. I should be doing those kinds of cases to get experience! What about me?
It’ll be interesting to see how the legal profession accommodates LPs, won’t it?
Post updated 11/05/20 to include final ACJA § 7-210 adopted by Arizona Supreme Court.
Next up: Far-Reaching Changes to the Pratice of Law in Arizona, Part II of III: Lawyers, Get Ready for ABSs