Balancing Consumer Protection and Consumer Access with Alternative Legal Service Providers

Over the past 10 years—since Washington State implemented the first allied legal professional (ALP) program—there has been a steady increase in states interested in developing their own program. Alongside this increased desire has also been increased skepticism from attorneys that someone without a Juris Doctor can provide competent legal services. However, this concern for consumer protection—whether altruistic or coated in protectionism—comes at the expense of increased access to justice and is inconsistent with what we know to be true about these programs. 

First, these professionals from ALP programs have taken required and rigorous courses, passed examinations, and fulfilled around 1,500 hours of legal training all within the areas of law they intend to practice in. Attorneys, on the other hand, have no such practice area-specific requirements. The current system assumes (wrongly) that lawyers have the minimum competence required to practice law as soon as they pass the bar exam, a test that no longer includes many common practice areas like family law. Second, states that have implemented ALP programs are tracking grievances filed against them, and they are no greater than grievances filed against attorneys. And third, there is a long history of successful professionals without a Juris Doctor who have been providing legal services to members of their communities who either lack the means to hire an attorney or who would otherwise not have received help from legal aid. 

Now, let’s take a closer look at some of these lesser-known legal professionals, including their backgrounds, the services they provide, and whether they are doing more harm than good.

Court Navigators

There are over 30 court navigator programs spread throughout the country, with the oldest program dating back to 1981. These programs are often created in partnerships that include the judiciary, access to justice commissions, legal aid leaders, and bar foundations with a primary goal of improving access to justice. Court navigators come from a variety of backgrounds, including court staff, AmeriCorps members, and college/graduate students. They help people on matters related to family law, domestic violence, elder abuse, housing, and debt collection—matters that often have the highest rates of self-represented litigants (SRLs) and that comprise a majority of legal matters in our civil justice system. 

While court navigators cannot give legal advice, they do help in a variety of other ways. They assist SRLs in finding their way around the courthouse, in completing court documents, and by accompanying them during their hearing to provide emotional support and answer factual questions asked by a judge. They can also communicate with opposing parties to help resolve matters. 

There is almost always some form of supervision, but the extent of that supervision and who provides it differs between programs. Supervision is often performed by attorneys, but in some programs the supervisor is a nonprofit or court staff member. Most supervisors are on site at all times, providing continuous supervision, while others provide more periodic supervision with the understanding that they are always available by phone or email. 

Regardless of the differences between each of these programs, one thing they all have in common is that SRLs are benefitting from court navigators’ services. IAALS’ 2016 Cases Without Counsel qualitative empirical research study found that many SRLs struggle to even understand the court process—in fact, they find this unknown to be the most stressful part of their experience. With the help of navigators, SRLs feel more confident about the legal steps they need to take, file more accurate documents, feel better prepared to proceed with their legal issue, and obtain better legal outcomes. These are obvious benefits to SRLs themselves, but the benefits reach further. The better prepared SRLs are and the more accurate their filings are, the less time and resources courts need to expend to make up for the lack of knowledge SRLs have about court processes.

Legal Document Preparers 

A few states across the country permit professionals who are not attorneys to prepare legal documents for people not represented by an attorney, including California and Arizona. Both California’s Legal Document Assistant (LDA) program and Arizona’s Legal Document Preparer (LDP) program were implemented in the early 2000s, existing now for around 20 years. 

In the supreme court order to adopt LDPs, former Arizona Supreme Court Chief Justice Charles Jones noted that while there is a need to protect the public from possible harm caused by “nonlawyers” providing legal services, that harm “must be balanced against the public’s need for access to legal services.” It is clear though, in both Arizona’s and California’s programs, that consumer protection and the competency of LDPs/LDAs are top priorities. 

In Arizona, LDPs must complete one of a variety of educational pathways, from obtaining a high school diploma plus two years of supervised legal experience to a Juris Doctor degree. They must also pass a criminal background check and an LDP knowledge exam that covers legal terminology, client communication, document preparation, and ethical issues. Similarly in California, LDAs must obtain a high school diploma plus two years of law-related experience under the supervision of an attorney, a baccalaureate degree plus a minimum of one year of supervised law-related experience, or a certificate of completion from a paralegal program that is accredited by the American Bar Association.

The types of services that LDPs/LDAs can provide differ slightly from state to state. In California, LDAs can only provide their clients with legal documents and forms that have been published or approved by an attorney. Arizona LDPs, on the other hand, can provide and prepare legal documents without attorney supervision. Both LDAs and LDPs are allowed to provide legal information but cannot provide specific legal advice, opinion, or recommendation. LDAs and LDPs can also file their customers’ legal documents in the appropriate courts. 

While the types of services that LDPs can provide are limited, there are immense benefits to the work they do. In 2018, IAALS conducted design sprint workshops in four states across the country to understand from SRLs the greatest problems they faced in divorce and separation cases. We had them work alongside court staff to develop prototype solutions that could be tested and redesigned in real time. One of the most frequently cited problems—which was addressed in many of the prototype solutions—was the difficulty with understanding and completing court forms. LDAs and LDPs provide SRLs that important knowledge—like which forms to use and how to fill them out—and they do so at an affordable price point. 

This is especially beneficial for the majority of SRLs who are already tight on money and likely cannot afford an attorney. As SRLs utilize the services of LDAs and LDPs, they can rest assured that they will not have to later correct their court forms, which often results in additional fees and delays to their case. 

Community Justice Workers 

Legal aid organizations provide extremely beneficial and necessary legal services to those whose household income falls below 125% of the federally recognized poverty level. Unfortunately, though, many of these organizations do not receive enough funding—nor do they have the necessary resources—to keep up with the high demand. 

Up north, for example, Alaska Legal Services Corporation (ALSC) is the only statewide provider of free civil legal aid services, and there are only 1.13 ALSC attorneys available for every 10,000 Alaskans in poverty. To address this problem, ALSC launched a Community Justice Worker (CJW) program in 2019 in partnership with Alaska Pacific University and Alaska Native Tribal Health Consortium. 

Community Justice Workers are people without a law degree that are trained and supervised by ALSC to provide limited legal services. CJWs come from a variety of backgrounds, including paralegals, tribal legal advocates, tribal employees, village health aids, and undergraduate and law school students. ALSC trains CJWs on the Rules of Professional Conduct and on the substantive area of law that they will be practicing. Once trained, CJWs are matched with clients that live in their geographical region—spread throughout the state—providing clients with a trained legal professional that not only understands the law but also understands the types of challenges they are facing based on where they live. Since most ALSC attorneys live and work in urban areas of the state, they often do not have a firm understanding of the challenges that their rural clients face, and CJWs help fill this gap.

Initially, Community Justice Workers could only provide legal help on a couple case types—such as SNAP (food stamp) appeals and Indian Child Welfare Act (ICWA) cases—where they could advocate in administrative proceedings, draft letters and other documents, and provide legal information. At the start of each CJW/client relationship, the CJW provides their client with a written document disclosing that they are not an attorney and obtains written consent from their client to represent them. In addition to the legal training provided to CJWs, they are also supervised by ALSC or pro bono attorneys. In just a few short years, CJWs have achieved positive outcomes for clients in 74 of the 88 cases they have handled, while the other 14 cases are ones in which clients did not follow through with their cases. 

Due in large part to the successes of the CJW program, in late 2022 the Alaska Supreme Court adopted a waiver for “nonlawyers” trained and supervised by ALSC to engage in the limited practice of law. This waiver allows Community Justice Workers to now provide a wider variety of legal services—including in-court representation—on a wider variety of case types—including debt collection defense and domestic violence protective order advocacy.

Accredited Representatives 

While the three examples above are state-run programs, the federal government has also expanded who can provide legal services. The Department of Justice has a variety of programs that cover diverse areas of the law. One example is accredited representatives in immigration law. This program dates back to 1958, when regulations were first put in place to allow for accredited representatives to represent immigrants before the Department of Homeland Security and the Executive Office for Immigration Review, which includes the immigration courts and the Board of Immigration Appeals. Representatives are accredited through the Recognition and Accreditation Program, whose goal is to increase the availability of competent immigration legal representation for low-income and indigent persons. 

Accredited representatives can be either partially or fully accredited. Whether partially or fully accredited, representatives must work for a DOJ Recognized Organization, which are nonprofit, federally tax-exempt entities that have applied for recognition. Partially accredited representatives must complete a character and fitness review, must possess broad knowledge and adequate experience, and cannot be an attorney. Those applying for partial accreditation must submit a resume showcasing their education and immigration law experience; a list of all relevant training in immigration law and procedure, including at least one formal training course that provides a strong overview of the fundamentals of immigration law, practice, and procedure; and at least two letters of recommendation from people familiar with the applicant’s qualifications. 

Once partially accredited, representatives can assist people on forms submitted to the Department of Homeland Security. To become a fully accredited representative, applicants must complete the same requirements as partially accredited representatives, as well as show that they have developed litigation skills through training, education, or experience. Once fully accredited, representatives can represent clients before the immigration court and the Board of Immigration Appeals. 

As of 2020, there are around 750 DOJ-Recognized Organizations and over 2,000 accredited representatives. These organizations are providing low-cost or free services to tens of thousands of immigrants every year. Without these accredited representatives, the majority of these immigrants would go without legal representation, and immigrants are 12 times more likely to gain eligible relief when they are represented.  

Whether on the state or federal level, programs have existed for decades that use legal professionals who are not attorneys to provide some form of legal representation. There is still a strong need, though, to expand these programs. Allied legal professional programs aim to do just that, and they are more expansive in terms of what services the legal professionals can provide and to whom they can provide those services. Each of these programs focus heavily on ensuring their legal professionals are competent to handle the services they have been permitted to perform, and the data coming out of each program reflects that the continued concerns about consumer protection when a “nonlawyer” is involved are unfounded. 

While no program can ensure that all their legal professionals are perfect stewards of the legal profession with no complaints by clients, neither can state bar associations ensure that of attorneys. And, the desire for perfection should not get in the way of providing millions of people the proven, competent legal help they desperately need and deserve from allied legal professionals.