Utilization Committee Update – Regulatory Reform Affecting Paralegals in North Carolina and Beyond
North Carolina Regulatory Reform Update
It has been two years since the State Bar’s Subcommittee to Study Regulatory Change had its first meeting on June 4, 2020, to study various types of regulatory reform (e.g., limited licensing, court navigators, regulatory sandbox).
Highlights:
- On June 3, 2021, the Bar’s Subcommittee Studying Regulatory Change voted to recommend that the Bar create a separate ad hoc committee to lay out a plan for limited licensing.
- On July 15, 2021, the Executive Committee approved an ad hoc committee to develop a limited licensing plan. However, no action was taken on that vote. After that date, the Regulatory Subcommittee continued its work of exploring a regulatory sandbox and other initiatives.
- On January 7, 2022, Chairman Mark Henriques completed the Subcommittee’s final report on its work over the past 18 months. He presented this report to the Issues Committee on January 19, 2022, with continued discussion on April 20, 2022, and July 20, 2022. The report includes the following recommendations:
- Pursue a Limited License for Nonlawyers/Paraprofessionals
- Pursue a Regulatory Sandbox
- Recommend a Court Navigator’s Program to the Administrative Office of the Courts
- Refrain from Pursuing Alternative Admission to the Bar at this Time
- Explore Necessary Changes to Permit Alternative Business Structures and Fee Sharing with Nonlawyers
- Explore the Possible Liberalization of the Unauthorized Practice of Law Statutes
Read the report to learn more.
- On July 20, 2022, representatives of the North Carolina Justice for All Project (JFAP) (Rachel Royal and S.M. Kernodle Hodges) attended the North Carolina State Bar Issues Committee meeting in Wilmington, North Carolina, where the committee discussed the future of regulatory reform in North Carolina.
- On July 21, 2022, Alicia Mitchell-Mercer watched the Executive Committee meeting to hear the State Bar’s plan for recommendations made by the Regulatory Subcommittee in its January 2022 report.
After nearly two years of study by the Regulatory Subcommittee, The State Bar is creating another Access to Justice Committee to further study the Regulatory Subcommittee’s recommendations, including limited licensing, the regulatory sandbox concept, and other initiatives. Listen to the discussion (time stamp: 1:03:54 – 1:06:04) here.
The makeup and scope of the Access to Justice Committee have yet to be determined. We will update you when we have more information.
California Legislature Moves to Block Regulatory Reform (Limited Licensing and Regulatory Sandbox)
Lawmakers in California have approved a bill shutting down two experimental programs investigating whether relaxing regulations on legal services in the state could make them more affordable and accessible.
The California Senate’s judiciary committee amended the state bar’s annual funding bill to severely constrain two state bar working groups that were pursuing the changes.
One of the working groups is examining modifying ethics laws to allow non-lawyers to share legal fees or own law firms as part of a regulatory “sandbox” program but has yet to issue any recommendations.
The other has recommended allowing specially trained non-lawyers called paraprofessionals to provide limited services in areas such as employment and consumer debt.
Those projects are intended to further the bar’s mission of protecting the public and increasing access to justice.
The legislature appears to be smacking the California Bar on the hand for not properly policing the attorney population (read more about that here, here, and here), but many stakeholders believe this is a carefully orchestrated plan by those who fear competition to “kill” regulatory reform.
You can read more about this issue from an attorney, Natalie Knowlton, at the Institute for The Advancement of the Legal Profession in Denver, Colorado, here.
New Hampshire Approves Limited Licensing
Introduced: 2021-11-20
Passed: 2022-06-22 House Signed by Governor Sununu
Track Bill: https://legiscan.com/NH/research/HB1343/2022
Following a Public Hearing, a bill passed into law on June 17, 2022, allowing paralegals to represent clients in court.
In August, the co-chairs of the Utilization Committee, Alicia Mitchell-Mercer, and S.M. Kernodle-Hodges, spoke with the bill’s Sponsor, Representative Ned Gordon, and gleaned the following information.
A public hearing was held on Jan. 26, 2022, on the bill that creates a pilot program for non-attorneys to provide representation for underserved people in New Hampshire circuit courts.
The new law allows qualified paralegals working under the authority of a licensed attorney to represent clients who earn up to 300 percent of the federal poverty level in family court and landlord-tenant matters.
State Representative Ned Gordon, the prime sponsor of HB 1343, began his testimony by reminding the committee that until the 1980s, “virtually all” litigants in divorce and custody matters were represented by attorneys.
“Now, in our circuit courts, 80 to 90 percent of the people who appear in our family division are unrepresented,” he said, adding that while the Court has established mediation programs and attempted to make the process more understandable and user-friendly, “there is no substitute for legal representation.”
New Hampshire Legal Assistance Executive Director Sarah Mattson Dustin, who also testified at the hearing, said most people involved in Circuit Court civil cases do not have an attorney.
“In most family law cases, both parties represent themselves,” she said. “[And] upwards of 90 percent of tenants facing evictions are going it alone.”
NHLA, a statewide nonprofit law firm that provides free civil legal aid to Granite Staters with low incomes, already utilizes paralegals, or “paralegal advocates” as they are referred to, on numerous cases, including unemployment insurance appeals, DHHS (Medicaid, TANF, Food Stamps) appeals, Social Security (SSDI and SSI) appeals, certain immigration proceedings, and others.
One example of a paralegal currently representing clients outside of court is NHLA’s, Abdoul Fofana, who does work on the Energy and Utility Justice Project. Last winter, his work allowed a man to receive much-needed heating assistance that had been denied by a Community Action Program (CAP) in Ashland.
“He was denied assistance because the CAP stated that because he was living with a longtime friend, he was functioning as a family unit or they were basically roommates,” Fofana said. “Once I figured out what was going on and that they had misapplied the law – it was not the same household – they ended up amending their procedure manual.”
Gordon provided various reasons why representation in court is critical for low-income individuals and the state’s commitment to broadening access to justice. (Merrill, 2022)
Oregon Approves Limited Licensing
“The Oregon Supreme Court voted unanimously to approve the Licensed Paralegal program, effective July 1, 2023. The licensed paralegal program will allow participants to provide limited legal services in family law, including divorces and custody matters, and in landlord and tenant cases. According to the state bar, those two areas have the greatest unmet need in Oregon.
Licensed paralegals will be able to assist clients in filing and drafting forms; observe depositions; represent clients in settlement discussions and mediation, and prepare clients for court appearances. They cannot argue in court themselves” (The North Carolina Justice for All Project, 2022).
New York – Upsolve, Inc. et al. v. James
“On January 25, 2022, Upsolve filed a First Amendment and civil rights legal challenge against NY state, fighting for a new civil right in America: the right to access your rights regardless of how much money is in your bank account. Rohan Pavuluri and his legal team challenged the constitutionality of laws that stop trained professionals who aren’t lawyers from providing free, vetted, and accountable legal advice to low-income families in their community.
Judge Paul Crotty published a landmark 33-pg opinion, ruling in favor of Upsolve in SDNY. The lawsuit is about a specific issue, but embedded is a central question about the future of the United States: do we want to live in a country where low-income and working-class families can access equal rights under the law? This ruling is a step towards achieving that fundamental American promise.
New York State appealed – the norm for landmark rulings – and Upsolve looks forward to making its case in the Second Circuit. Of course, JFAP continues to watch this case with great interest” (The North Carolina Justice for All Project, 2022).
Institute for the Advancement of the American Legal System (IAALS) Creating National Limited Licensing Model
IAALS, the Institute for the Advancement of the American Legal System at the University of Denver, announced in April that it is launching Allied Legal Professionals. This project seeks to help standardize a new tier of legal professionals nationally – to increase the options for accessible and affordable legal help for the public.
IAALS has been analyzing existing and proposed paraprofessional programs, their existing empirical research, and similar experiences and programs from other countries and professions (like nurse practitioners).
At a meeting scheduled for November 2022, IAALS will use this data and landscape assessment as a foundation for a convening among diverse leaders in this space. The convening will provide a venue for experts and national partners to develop recommendations and best practices for states developing what IAALS terms “allied legal professional” programs.
After the convening, IAALS will publish and disseminate the results and a framework for a new national model for allied legal professionals based on best practices. This nationwide model is supposed to ease burdens for states looking to adopt such paraprofessionals and help reduce barriers to legal representation. IAALS has invited Alicia Mitchell-Mercer to attend the November meeting and contribute to that discussion.
If you would like to weigh in on the requirements for limited licensing, which Alicia Mitchell-Mercer can then review and take with her to IAALS’ convening, please complete the survey here.
References
Institute for the Advancement of the American Legal System. (2022). Allied Legal Professionals | IAALS. IAALS. Retrieved July 29, 2022, from https://iaals.du.edu/projects/allied-legal-professionals
Merrill, S. (2022). Public Hearing Held For Bill That Would Allow Paralegals to Represent Clients in Court. New Hampshire Bar Association. Retrieved August 24, 2022, from https://www.nhbar.org/public-hearing-held-for-bill-that-would-allow-paralegals-to-represent-clients-in-court/
The North Carolina Justice for All Project. (2022). Oregon Approves Limited Licensing! JFAP Dispatch. https://shoutout.wix.com/so/94O920jTa?languageTag=en#/main
The North Carolina Justice for All Project. (2022). Upsolve, Inc. et al v. James. Retrieved July 29, 2022, from https://www.ncjfap.org/states-activities
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