Arizona Weighs Role of Non-Lawyers in Boosting Access to Justice

Arizona may soon redefine the limitations of legal document preparers under the recommendations of a task force looking at the larger issue of how empowering non-lawyers can help increase access to justice.

The state’s Task Force on Delivery of Legal Services—formed under an Arizona Supreme Court administrative order late last year—during an Aug. 14 meeting in Phoenix endorsed several conceptual changes to the state’s legal document preparer program.

Currently, the certified professionals can offer some assistance to people who aren’t represented by an attorney, but can’t give legal advice. How far those services can go anchored the debate on recommendations touching on legal research and the types of documents that can be prepared.

The proposal is part of an effort by the panel to lower legal costs by boosting access to justice, efforts also in progress in other Western states.

Members will now refine the language of the proposed legal document preparer recommendations, which will go to the Arizona Judicial Council for consideration in the fall.

Clarity Sought

The task force proposal for legal document preparers includes a more detailed look at what they’re allowed to do. Members at the meeting disagreed over current permissions for the preparers and how to define each term.

The task force approved a recommendation to allow preparers to speak in court if addressed by a judge. The panel will also address the extent to which they can perform legal research as well as prohibitions on drafting “substantive legal motions” and appellate briefs.

Committee members and attendees debated the impact of those changes on the profession. Peter Swann, a judge on the Arizona Court of Appeals, said there’s inconsistency in prohibiting legal document preparers from giving legal advice but letting them speak in court.

“I don’t see what good we’re doing for the clarity of the law,” he said.

Other attendees said the definition of legal research and a “substantive” motion could limit some of the work legal document preparers have already been doing, with consequences for the public. There’s confusion about what’s allowed under the current program, committee members said.

“The question I have there is who is going to define what is a substantive motion? Who is going to define legal research?” asked Allen Merrill, an attendee representing Certified Legal Document Preparers, LLC.

The task force is also backing the ability for legal document preparers to help clients represented by counsel. Another recommendation includes launching an education campaign for the bench and bar members on the role of legal document preparers.

Unbundling Services

The task force is looking at other ways to help people navigate the legal system. Members endorsed efforts for courts to hire non-lawyer staff to answer general questions for people who are representing themselves, though they declined to define the extent of those services.

Members also recommended efforts to promote the unbundling of legal services—which can limit the scope of an attorney’s representation of a client, and reduce how much clients are charged. An Arizona rule already allows for the practice, but an administrative order could be helpful to show the Arizona Supreme Court endorses it, said Maria Elena Cruz, a judge on the Arizona Court of Appeals.

An administrative order, accompanying forms to use, and a notice of completion process could also give lawyers more confidence that they won’t be stuck representing a person forever, task force members said.

“This kind of cleans everything up and leads the charge of let’s make unbundled services much more of a viable and used option,” Maricopa County Superior Court Judge Joseph Kreamer said.

Movement Spreads

Task forces in California and Utah began studying similar issues about the same time as the Arizona panel. A small national bar group called the Association of Professional Responsibility Lawyers also plans to weigh in.

Yet so far, Arizona’s proposals have gone farther than any other group in its bid to allow nonlawyers to co-own legal operations, and to practice law in limited circumstances.

In a July 11 meeting, the Arizona task force voted to recommend scrapping Rule 5.4—which prohibits law firms from forming partnerships with nonlawyers, or sharing fees with them—in its entirety.

In a related move, the panel voted unanimously to amend the state’s ethical rules to allow lawyers and nonlawyers to form new legal services businesses known as “alternative business structures.”

These proposals require further approval, including from the Arizona Judicial Council, before they are set in stone.

The task force has recognized that if Rule 5.4 is actually eliminated, new regulations may need to be devised to oversee the new hybrid businesses, and also to protect against conflicts of interest and promote lawyer independence—two key reasons 5.4 has been voted into every state’s bar rules.

At the same time, the task force last month recommended that the Arizona Supreme Court develop a program to pave that way for licensed nonlawyers to provide legal advice and other services to clients “within specific limits,” including during administrative of judicial proceedings.

The task force’s final report is due to the state’s Judicial Council by Oct. 1.