So You Want to Implement an Allied Legal Professional Program, Part 2
IAALS’ report, Allied Legal Professionals: A National Framework for Program Growth, summarizes the discussions at our 2022 convening, including convergence on best practices for allied legal professional programs, areas of divergence between program approaches, and lessons learned from existing programs.
In a previous post, we highlighted the first four recommendation areas for allied legal professional programs—a focus on establishing appropriate titles, delineating clear roles and responsibilities, ensuring effective representation within court proceedings, and the scope of attorney representation. Now, we’re taking a look at some additional interdependent components that contribute to the successful implementation of these programs.
5. In-Court Representation
ALP programs should endorse in-court representation by ALPs without attorney supervision. In-court representation is a contentious issue in ALP program design, with states showing variation in their approaches. Minnesota and Arizona permit ALPs to fully represent clients in certain cases without the supervising attorney present in court. Utah, Washington, and Oregon allow for limited representation, often referred to as “reactive representation.” It’s essential to consider that court hearings can be a particularly challenging stage for self-represented litigants, and ALP representation could significantly assist in presenting evidence and defending their case.
In addition, judicial education about ALP programs and the role of ALPs in the courtroom is critical to any ALP program. The varying levels of ALP representation allowed across states have led to confusion among judges about ALPs’ role in the court. In states permitting limited in-court representation by ALPs, judges have reportedly underutilized ALPs or expected more proactive roles than permitted. To mitigate such issues, judges should be educated about the scope of ALP representation and provided with detailed guidelines outlining what ALPs can and cannot do in the courtroom. This can help in optimizing the use of ALPs, enhancing courtroom efficiency, and ensuring fairness.
6. Eligibility, Education & Practical Training
ALPs should undergo the same or similar character and fitness application process that is applied to attorneys, given the overlap in services. The age eligibility for ALPs varies between 18 and 21 across states, with most states applying their attorney character and fitness requirements to ALPs. The character and fitness application is an important tool in determining the moral fitness of applicants for practicing law, an attribute that is as crucial for ALPs as it is for attorneys.
Education and training requirements for ALPs should be carefully balanced so as not to be overly burdensome on potential providers. States must take into account the cost of education and ensure it remains affordable for aspiring ALPs. The cost of ALP education, which is significantly less than that of attending law school, provides an opportunity for individuals from diverse backgrounds to obtain an ALP license, providing more accessible legal services to consumers.
The implementation of clinics and in-class assignments can provide an opportunity for ALPs to fulfill required training hours without creating overly burdensome post-education requirements. Practical training—which is required for ALPs but not attorneys—is seen as beneficial in providing valuable networking opportunities and insights into running a business. While important, this requirement can become a barrier if the required training hours are too extensive, hence the need for alternatives such as clinics and in-class assignments.
States should consider varying education and practical training requirements for ALP applicants depending on their prior education and experience, avoiding a one-size-fits-all approach. This recognizes the diverse backgrounds of ALP applicants and can involve tiered education and practical training requirements. For instance, an ALP applicant with a JD may not be required to take additional courses or complete practical training, while an applicant with an associate or bachelor’s degree in a field other than legal studies may have additional requirements. Differentiating requirements in this manner can provide more tailored pathways to licensure for people with varying levels of education and experience.
In the development of ALP licensure, states should focus on determining what is needed for minimum competency and subsequently devise methods to measure that, rather than simply replicating the bar exam. Currently, most ALP programs have adopted a similar approach to licensing attorneys, involving standardized education and testing. However, concerns have been raised about the flaws in the current bar exam model—particularly the lack of an agreed-upon definition of minimum competence.
States considering a portfolio approach to ALP testing should partner with professional educators who have experience in assessing competence through portfolios. As part of this exploration, states should evaluate how feasible it will be for licensing bodies to assess portfolios when dealing with a large volume of applicants. Oregon, for example, is developing a combination of portfolios and a written examination. The portfolio may include work samples demonstrating competency in designated legal areas or verification of completed specific assessments. This approach provides a promising alternative to the traditional bar exam model.