Report to the Utah Supreme Court of the Supreme Court Study Committee on the Delivery of Legal Services
September 5, 2002
Table of Contents
- Background and purpose of Committee
- Committee membership
- Course of Committee deliberations
- Response to legislative findings
- Response to legislative request for study by the Judiciary
- Additional conclusions and recommendations
- Appendix of materials considered by the Committee
- Appendix of actions already taken to alleviate identified problems
Background and purpose of Committee
The Utah State Bar Association began as a voluntary group, but evolved into the Utah State Bar in 1931 when it was vested with legal authority to regulate the practice of law. From the time of statehood until the revision of the judicial article of the Utah Constitution in 1984, that authority to regulate was found both in statute, vested in the Utah State Bar, and in common law, vested in the courts. Courts have always possessed, and retain today, the authority to control membership in the bar. With the change in the Utah Constitution in 1984, the authority of the Utah Supreme Court to control the practice of law was expressly recognized. Between 1984 and 1997, it was generally presumed that the Supreme Court, working through the agency of the Utah State Bar, was the legal authority for controlling who did, and who did not, have the right to practice law.
In 1997, the Supreme Court issued its opinion in Board of Commissioners of the Utah State Bar v. Benton Peterson, 937 P.2d 1263 (Utah 1997), addressing in part the authority of the court over those accused of the unauthorized practice of law. Mr. Peterson was not a member of the Bar. He had prepared wills, divorce papers, and pleadings, as well as conducting legal research on behalf of clients, all for a fee. He had been trained as a paralegal through a nine-month correspondence course, but he was not employed by or acting under the supervision of a licensed attorney in his law-related work. His activities came to the attention of the Board of Bar Commissioners, who filed a formal complaint under the Unauthorized Practice of Law (“UPL”) statute, section 78-51-25 of the Utah Code.
At the time, the UPL statute said, in part:
"No person who is not duly admitted and licensed to practice law within this state nor any person whose right or license to so practice has been terminated...shall practice or assume to act or hold himself out to the public as a person qualified to practice or carry on the calling of a lawyer within this state."
Mr. Peterson filed two pretrial motions. The first sought to declare the UPL statute unconstitutional as over broad and vague. The second challenged the statute's constitutionality under the Utah Constitution as a violation of both the separation of powers reserved to the judicial department of government, and the specific grant of power to the Supreme Court for the regulation of the practice of law. In declining the opportunity to declare the UPL statute unconstitutional, the court made some consequential holdings.
In rejecting the vagueness argument, the court offered a description of the practice of law, saying,
Although "the practice of law" has not been exactly defined, an "ordinary reader" would understand that certain services, when performed on someone else's behalf, are part of such practice. Such services would include not only appearing in court, but also drafting complaints, drafting or negotiating contracts, drafting wills, counseling or giving advice on legal matters, and many other things.
The court went on to quote an earlier description of the practice of law found in its opinion in Utah State Bar v. Summerhayes & Hayden, Public Adjusters, 905 P.2d 867 (Utah 1995):
The practice of law, although difficult to define precisely, is generally acknowledged to involve the rendering of services that require the knowledge and application of legal principles to serve the interests of another with his consent. It not only consists of performing services in the courts of justice throughout the various stages of a matter, but in a larger sense involves counseling, advising, and assisting others in connection with their legal rights, duties, and liabilities. It also includes the preparation of contracts and other legal instruments by which legal rights and duties are fixed.
In both instances, the court defined the "practice of law" in terms of services rendered, not in terms of education or licensure. As such, when one is authorized by law to supply these services, one is authorized to practice law. The Peterson court clearly declared the legislative objective of Section 78-51-25 to be "to protect the public" from "people claiming to be qualified to practice law even though they are not so qualified."
The court drew a distinction between those licensed to practice law and those not so licensed. The court noted in Peterson the significant safeguards applied to those licensed to practice:
In order to obtain a license to practice law within Utah, an applicant must be a graduate of an accredited three-year law school, must provide the state with evidence of good moral character, must pass a comprehensive exam testing her knowledge of both national and state law, and must pay license fees. The applicant then must pledge to uphold the laws of the United States and the State of Utah and to be subject to the Rules of Professional Conduct, which govern the practice of law within the state. [citation omitted] Once granted a license, the attorney must regularly participate in continuing legal education courses and is subject to all laws and rules regulating the practice of law, including those laws which hold attorneys responsible for the actions of their paralegals.
On the other hand, the court noted, while all of those safeguards are in place to protect the public from negligence or misdeeds by licensed attorneys, no such similar safeguards existed with respect to those who practice law without a license. Only the UPL statute stood between an unsuspecting public and the unqualified practitioner, ready to impose harsh and immediate sanctions. Although the Supreme Court obviously retained the ability to order an unauthorized practitioner to cease unauthorized practice, it would not be until such an order were violated that the court would have the ability to apply a sanction to the offender, using its contempt powers. As a result, the opinion concluded that the statute did not overlap with the Supreme Court's authority to govern the authorized practice of law, because absent the UPL statute, there would be no readily available control or remedy imposed on those who are unqualified but hold themselves out as qualified to practice law.
These distinctions between authorized and unauthorized practice of law took on new significance in the Legislature’s 2001 General Session. The Legislature made an effort to remove from the code those existing statutes addressing the practice of law both to reduce the size of the code and to eliminate any appearance that the Legislature was trying to usurp the Supreme Court's authority to regulate the practice. Included in the revocation was the UPL statute.
After later considering the import of the Peterson opinion, the Utah State Bar, among others, sought to have the UPL statute reenacted so that authority to promptly address unauthorized practice would be clearly established. Such a bill was introduced and considered favorably by the Utah Senate in the first Special Session of 2001. However, when the bill reached the House, it passed in committee but died in the Rules Committee. An informal House committee was formed to consider the bill, the unauthorized practice of law, the nature of the Utah State Bar's involvement in prosecuting the unauthorized practice, and other issues. What ultimately resulted was passage of H.B. 2003 in the second Special Session of 2001.
H.B. 2003 had two distinct provisions. First, it enacted Section 78-9-101, a prohibition on the unauthorized practice of law, granting responsibility for enforcement to the Board of Commissioners of the Utah State Bar. This prohibition, and the authorization to enforce it, were originally set to expire May 1, 2002, leaving less than seven months from enactment to repeal.
The second provision resulted in the formation of the Supreme Court Study Committee on the Delivery of Legal Services. It made findings regarding the availability of legal services to the citizens of Utah, and requested that the Judiciary study five specific issues the Legislature believed were related to the apparent deficiency in the legal services available to our citizens.
The requested study topics concern questions about what is and what is not properly within the regulation of the practice of law. Since that responsibility is one solely vested in the Supreme Court by our constitution, the court accepted responsibility for responding to the legislative request and formed the Supreme Court Study Committee on the Delivery of Legal Services. The Committee includes two justices of the Supreme Court, one trial judge, five members of the Legislature, representatives of the Bar and the Administrative Office of the Courts, nonlawyers, and others.
The Committee held its first meeting within 20 days of the effective date of the new law. It was immediately obvious to the Committee that a meaningful review of the topics described in the Legislature's request would be impossible prior to the 2002 general legislative session, since the Committee's report would have had to be in final form in less than two months, months containing Thanksgiving, Christmas and other public holidays. The sponsor of H.B. 2003, who had also agreed to serve as a member of the Committee, indicated that an extension of the UPL statute was likely since the court had agreed to undertake the study. During the 2002 General Session of the Legislature, the effectiveness of the statute was extended into 2003.
In its early meetings, the Committee struggled with the breadth of the requested investigation. The legislative request falls into two primary categories: first, what can be done to help the public access the judicial system, such as forms and technological tools; and, second, who should be allowed to engage in activities previously thought to be the exclusive province of lawyers. Based on those categories, the Committee set a study agenda covering the following topics:
1. Standardized court forms;
2. Technology used in the courts;
3. Mediation and arbitration, including court annexed, private, and mandatory;
4. Multidisciplinary practice;
5. Multijurisdictional practice;
6. The role of paralegals and other paraprofessionals, their current status in Utah, and their status and experience in other states;
7. Self-represented litigants;
8. Charitable legal assistance;
9. Legal insurance;
10. Possible revisions of law school curriculum to allow training for limited-scope practice;
11. Existing legal and ethical restraints; and
12. The use of court rules to resolve some issues of availability and complexity.
The purpose of the Committee was to consider those topics raised by the Legislature's request to the Judiciary, as well as those others clearly related, and to report to the Supreme Court on its conclusions. Although a likely consequence, the Committee was not asked by the Supreme Court to formulate a legislative agenda or to suggest other legislative action. The Committee has, however, taken the prerogative of including in this report specific suggestions for further study and/or action by both the Supreme Court and the Legislature, relating to the Committee's conclusions.
Justice Michael J. Wilkins, chair
Utah Supreme Court
P.O. Box 140210
Salt Lake City, Utah 84114-0210
Justice Leonard H. Russon
Utah Supreme Court
P.O. Box 140210
Salt Lake City, Utah 84114-0210
Judge Rodney S. Page
Second District Court
800 West State Street
Farmington, Utah 84037
Representative Patrice M. Arent, (D) Salt Lake, Minority Whip
6281 South Havenbrook Circle
Salt Lake City, Utah 84121
Representative Greg J. Curtis, (R) Sandy, Assistant Majority Whip
P.O. Box 2084
Sandy, Utah 84091
Representative Stephen H. Urquhart (R) St. George
37 West 1070 South, Suite 102
St. George, Ut 84770
Senator Karen Hale (D) Salt Lake, Minority Caucus Manager
2564 Maywood Drive
Salt Lake City, Utah 84109
Senator Michael G. Waddoups (R) Salt Lake
2005 West 5620 South
Taylorsville, Utah 84118
Daniel J. Becker, State Court Administrator
Administrative Office of the Courts
P.O. Box 140241
Salt Lake City, Utah 84114-0241
John C. Baldwin, Esq., Executive Director
Utah State Bar
645 South 200 East
Salt Lake City, Utah 84111
John A. Adams, Esq., President, Utah State Bar
Ray Quinney & Nebeker
36 South State Street, Suite 1400
Salt Lake City, Utah 84111
David Nuffer, Esq., Past President, Utah State Bar
192 East 200 North, Third Floor
St. George, Utah 84771
Ray O. Westergard, CPA
Grant Thornton LLP
170 South Main Street, Suite 1000
Salt Lake City, Utah 84101
Stewart P. Ralphs, Esq.
Legal Aid Society of Salt Lake
225 So. 200 East, No. 200
Salt Lake City, Utah 84111
Matty Branch, Esq., Appellate Court Administrator
D. Mark Jones, Esq., District Court Administrator
Richard Schwermer, Esq., Assistant State Court Administrator
Course of Committee Deliberations
November 1, 2001
Organizational meeting: orientation and introductions, discussion of study agenda and topics to be considered
December 13, 2002
Holly M. Bullen, Assistant State Court Administrator, gave a presentation about the forms process and history in the courts to date. Kim Allard, Director of Information Services for the Administrative Office of the Courts, demonstrated the On-line Court Assistance Program (“OCAP”) which provides assistance to pro se parties in preparing documents for filing in landlord/tenant matters and in simple divorces.
January 3, 2002
Presentations on Alternative Dispute Resolution (“ADR”) on both the local and national level were made by the following: James Holbrook, Salt Lake City attorney, who specializes in mediation and arbitration, Bill Downes, Director of Utah Dispute Resolution Center, Kathy Elton, Director ADR/Mediation for the Utah State Courts, and Len Haws, Professor, University of Utah Department of Communications.
March 13, 2002
Joni Seko, Deputy General Counsel in charge of Admissions for the Utah State Bar, and Tracy Fowler, chair of the Utah State Bar’s Multijurisdictional Practice Rule Task Force, reported as to the current requirements for admitting lawyers to the Utah State Bar and as to the rule proposed by the Task Force to offer reciprocal admissions to members in good standing of bar associations in neighboring states. David Nuffer, past president of the Utah State Bar, and Michael Blackburn, a Salt Lake City attorney who chaired the Bar Commission’s Task Force on Multidisciplinary Practice, advised as to the benefits they believe result from permitting lawyers to form multidisciplinary practices. Robert Burton, chair of the Supreme Court’s Advisory Committee on the Rules of Professional Conduct , and Third District Court Judge, Ron Nehring, a member of the rules committee, presented their concerns as to the multidisciplinary practice proposal supported by the Bar Commission.
April 4, 2002
Commissioner Scott Hadley of the Second Judicial District, and Debi Taylor, Domestic Case Manager in the Second Judicial District, made a presentation as to the domestic case manager program presently operating in Ogden. Deborah Calegory, Ann Streadbeck, and Marilu Peterson, members of the Legal Assistant Division of the Utah State Bar, discussed the role of legal assistants and paralegals in the delivery of legal services. Kelly DeHill, General Counsel for Westminster College, and the past director of the Legal Assistant Program at Westminster, advised as to the paralegal training currently available in Utah and her views as to the appropriate use and supervision of paralegals.
May 2, 2002
Kathleen M. Sampson, Senior Program Associate with the American Judicature Society, based in Chicago, Illinois, made a presentation concerning what is happening nationally as to self-represented litigants.
June 6, 2002
Charles W. Dahlquist, II, an attorney with Kirton & McConkie in Salt Lake City, advised as to legal insurance and attorney prepaid service plans. Linda F. Smith, a professor at the S.J. Quinney College of Law, University of Utah, discussed the pros and cons of developing a law school curriculum aimed at limited-scope practice.
August 1, 2002
Discussion and debate
September 5, 2002
Review and discussion of final draft report, final approval.
Response to Legislative Findings
In the course of enacting H.B. 2003, the Legislature made six findings pertinent to the study requested of the Judiciary. In considering the appropriate course of study and response to the request made in H.B. 2003, the Committee considered each of the findings and made the following response to each:
1. The Legislature found that "there is significant unmet need for legal services within the state of Utah"
While there seems little doubt that there does exist an unmet need for legal services among our citizens, the exact extent and nature of this need is not yet well defined by reliable data available to the Committee. Clearly, there are many who are required by the structure of our legal system to appear in our courts for criminal and civil matters who can neither afford nor are supplied with lawyers competent in the matters at issue. However, as suggested below, one possible solution to such a need for lawyers may be to supply public funding for such services. Another solution may be to decrease the need for court involvement in the lives of our citizens in matters such as divorce. While the Legislative finding of a significant unmet need for legal services may be correct, the scope, nature, and cause of the need are not yet clear, and would benefit from additional clarification prior to any meaningful attempt to satisfy such a need. Indeed, failing to correctly diagnose the problem may result in efforts at solution that dramatically miss the mark.
2. The Legislature found that "this need for legal services is linked in part to the high cost of those services"
The cost of competent legal assistance by duly licensed lawyers is certainly one element in the utilization and availability of those services by our citizens. However, as the Committee discovered, and as is discussed in greater detail below, cost is only one of a number of significant factors involved. Simply reducing the cost of services will not necessarily increase the supply of competent legal assistance to Utah's citizens. Moreover, the committee was unable to find an easy or quick mechanism for reducing the cost of competent legal services, and expressed no desire to meddle in the free marketplace that currently exists without a clear, thoughtful implementing strategy.
3. The Legislature found that "this unmet need for legal services adversely impacts the health, safety, and welfare of Utah citizens"
The committee agrees that greater availability of competent legal care for Utah's citizens would be to their individual and collective benefit.
4. The Legislature found that "in many situations, non-attorney professionals now provide, at low cost to consumers with adequate protections, services previously reserved by law to attorneys"
The Committee has been unable to specifically identify any instances meeting the description of the Legislative finding, with the possible exception of the use, under the direct supervision of licensed attorneys, of paralegals for document preparation, information gathering, and case preparation. The Committee takes issue with the suggestion that any broad category of non-attorney professionals currently provide competent legal assistance care to Utah's citizens with both low total costs and adequate guarantees of professional competence in areas previously reserved by law to attorneys. However, the Committee does recognize the law-related activities of Certified Public Accountants, real estate agents and brokers, title insurance and real estate closing agents, and the limited availability of lay-representation in certain tax matters. The Committee acknowledges that in their individual areas of expertise these non-lawyers provide reliable counsel to citizens of Utah.
5. The Legislature found that "the right of a person to represent himself and his interests in a court of law is a recognized right in our legal system"
The Committee agrees that such a right is a fundamental constitutional guarantee, but notes that exercising that right may at times not be necessarily in the best interests of some citizens. Just as any citizen has the constitutional right to control the course of treatment to one's own body, taking out one's own appendix may not be wise in most circumstances. The right to self-representation carries significant and often times misunderstood consequences in a legal system that relies on the adversarial presentation of positions to a neutral finder of fact. As discussed in more detail below, self-represented litigants present significant burdens that must be carried by the remainder of society, and, consequently, they present major policy decisions for legislative consideration. These pro se litigants also generate conflicts within the Judiciary itself, by often requiring the judge to modify the traditional role of neutral arbiter of the dispute, and become, to a lesser or greater degree, a legal advisor to the pro se litigant on the rules of procedure, evidence, and other court processes. Given the absence of the in-court counsel usually provided by attorneys, pro se litigants face monumental hurdles in self-representation that are not adequately addressed under the current overall system.
6. The Legislature found that "recent[ly] enhanced technological capabilities have helped people access information needed to handle their own legal issues"
The Committee acknowledges that the advent of on-line information and assistance services have greatly improved the opportunity for individual citizens to acquire information about legal issues, legal actions, and court proceedings. However, these technological advances do not help citizens to distinguish between reliable and unreliable legal information. Further, the unique characteristics of some elements of state and local law make generally available legal information not only inapplicable, but occasionally dangerously incorrect. While technology has dramatically increased the quantity of legally oriented information available to our citizens, it has not yet met the challenge of assuring that the information relied upon by our citizens is both accurate and applicable to the questions at hand.
Response to request for study
As requested by the Supreme Court, the Committee initially addressed the five specific issues advanced in H.B.2003:
(a) increasing the availability of standardized legal forms for use in filing legal matters;
(b) increasing the use of technology to make legal services available to the public;
(c) allowing non-lawyers to provide charitable legal help;
(d) allowing duly-authorized officers to represent their business entities; and
(e) allowing independent lay professionals to perform certain functions now requiring an attorney.
The Committee's study agenda also included issues the Committee believed were directly related to a greater understanding of the circumstances giving rise to the above five issues. The topics fell into categories and are presented as such:
Standardized Legal Forms and Technology
The Committee found that the issues related to standardized legal forms and technology were greatly intertwined. Increasingly, forms for use in both court and non-court legal matters are available in electronic format. The Internet is the home of a vast array of legal forms, readily available to anyone with computer skills and access. A variety of persons and organizations produce and make available forms of distinctively varying quality and applicability in Utah. Only a small proportion of the forms available electronically are prepared by persons with identifiable expertise in Utah law. Of these qualified preparers, the Utah State Courts, in cooperation with the Utah State Bar and qualified and licensed attorney volunteers, have produced paper forms and electronic forms for use by citizens not trained in the law. These forms, available through the award-winning Online Court Assistance Program (OCAP) of the Utah courts, represent a first and on-going effort to meet this need. Utah's Administrative Office of the Courts has been hailed as a national leader in developing citizen-friendly resources for accessing the courts. In addition, more areas of individual legal need are currently under development by the same committees, including such areas as name changes, protective orders, guardianship, and others. Current reports indicate that approximately 10% of divorces are initiated using the OCAP-generated forms.
The Committee has concluded that there exists a need for the production of additional reliable and legally accurate forms for use by our citizens, and a need to increase public understanding of existing forms and the technological assistance presently available for use in dealing with legal matters. The Committee has also concluded that the development of additional on-line legal resources should be encouraged, with appropriate emphasis on both public and private sources, and with care as to which areas of legal need best lend themselves to the use of technologically based self-help. The Committee also recognizes that forms exist for many legal matters outside of the litigation setting, including real estate transactions, contracts of sale, as well as credit, investment, and numerous other common activities. These areas may benefit from a more centralized and formalized review and approval process to avoid unnecessary litigation as a result of inappropriate or incomplete drafting or incorrect application to a particular circumstance by the unwary.
As a caution, the Committee notes that assisting self-represented litigants in preparing for court is not the same as assisting self-represented litigants in their appearance in court. In the first instance, forms and technological assistance is increasingly available, increasingly more user-friendly, and increasingly more complete. However, forms and technology presently do not provide any meaningful assistance to self-represented litigants in negotiating the rigors of a court appearance. Self-represented litigants stand before the court without assistance in the process of court proceedings. The trial judge, or the appellate court panel, are obligated by law to act as unbiased, impartial neutrals. The rules of process and procedure are often complex and may be difficult or nearly impossible for the legally-untrained to master without the same degree of training and experience necessary for lawyers to master the same skills. As such, the judge or judges may be seen as unfair, or unwilling to help the self-represented. Neither is true: Judges are prohibited from assisting one party to the detriment of another in any matter before them.
Moreover, technology currently in use to assist citizens with legal issues is limited to just a few areas of the law, such as landlord and tenant disputes, domestic matters, and simple wills and contracts. In most areas of concern for which legal training is essential, forms and technology are neither readily available, nor likely to be easily crafted. Even the potential of such formula-type assistance is severely limited by the complex and changing nature of the statute-driven law describing those legal relationships and issues.
Non-lawyer Legal Assistance
The Legislature asked the Judiciary to study allowing non-lawyers to provide charitable legal help. This concept presents a number of interesting and slightly different policy considerations. At the outset, it calls for a review of the scope and purpose of licensing persons to practice law. It is the position of the Utah Supreme Court, vested by the State Constitution with responsibility for supervision of those admitted to practice law, that the licensing process is designed to assure minimum competence of legal practitioners in order to protect the public from inadvertently relying on incompetent legal service providers. The Committee recognizes that many citizens who are not themselves legally trained find it difficult to evaluate the competence of others offering legal services. This difficulty applies with most licensed professionals, regardless of occupation or specialty. For most citizens, the process of selecting any licensed professional is a combination of luck, trial and error, faith in the judgment of friends and acquaintances, and reliance on the licensing and disciplinary machinery of the state.
In no profession to date has competence to supply professional services been made dependent upon the provider’s willingness to waive compensation. The linkage between compensation and competence is not one of professional quality or education, but simply one of personal wealth or compassion. As a result, the Committee concludes that a willingness to offer legal services at no cost is not a sound basis on which to admit persons to the practice of law. However, encouraging persons who are able to demonstrate minimum legal competence to assist others in need without charge is, in the opinion of the Committee, worthy of continued and increased emphasis.
A frequently cited example of "unnecessary" prohibitions on non-lawyers representing others in court arises in juvenile court with the desire of a parent to speak on behalf of his or her child. Such a prohibition seems unreasonable at first. However, upon careful examination, the potential for greater difficulties surfaces. In some common situations, a parent and child may disagree about the wisest course of proceeding. A parent angry at the child for disruption, embarrassment, cost, or other reason, may have a very different point of view from the child. Given the backdrop of the Serious Youth Offender Act, which provides for enhanced penalties in the adult system as the result of behaviors proved or admitted in juvenile court, the consequences of such a parent-child disagreement may be monumental. Moreover, when the parent is the victim, such as in some cases of assault, theft, or other acts by the child, the parent is definitely in a position of conflict with the child, and acting for the child may not only be unfair, it may be in contravention of the child's constitutional rights to a fair and impartial trial. The Committee recommends that great care be applied to any action that is intended to authorize parents to legally represent their children in court, at least reserving to the Juvenile Court Judge the power to permit or prohibit that representation when the conflict between parent and child makes it clearly improper.
The Committee also strongly recommends that increased emphasis and public support be given to providing alternative forms of dispute resolution, reducing the complexity of legal requirements, and decreasing the mandated need for our citizens to utilize courts in the course of everyday living. To these ends, the Committee concludes that incentives for greater use of alternative forms of dispute resolution (“ADR”), both inside and outside the courthouse, is good public policy. In particular, legal support for the confidentiality of mediation, consideration of mandated ADR, and accessibility of ADR services deserve additional consideration and support.
Additionally, the Committee concludes that it would be in the best interests of our citizens to identify persons who are legally competent, such as retired lawyers and judges, lawyers from other jurisdictions not yet licensed in Utah, graduates of law schools who have not sought admission to the Bar, and authorize and encourage them to make their legal expertise available to citizens otherwise without legal care at little or no cost.
Allowing Duly Authorized Officers to Represent their Business Entities
The Committee has considered the impact on small businesses of the requirement that they be represented in court proceedings by a duly authorized and licensed lawyer. This requirement arises from the legislative decision to treat certain business entities (corporations, partnerships, joint ventures, limited liability companies, and others) as distinct and separate persons for legal purposes. Having made that determination, the Legislature has brought into play a substantial body of legal protections for the owners and managers of those business entities. Among the legal requirements for accepting those protections, is the requirement that the owners and managers treat the entity as a distinct and separate person for legal purposes.
If the Legislature wishes to eliminate the requirement that the owners and managers of a business entity treat the entity itself as a legally distinct individual, and permit the business entity to be treated as the alter ego or assumed name of the owners and mangers, any logical necessity for separate legal representation would also be eliminated. However, because of the interdependent nature of the rights and obligations of the corporate and other complex business forms, simply eliminating the requirement for separate legal counsel is difficult, as a matter of theory.
On the other hand, owners or managers of business entities not now allowed to represent their entity could be so authorized. However, doing so implicates the rights of other shareholders, partners, or owners, to seek redress from the legal representative for failure to adequately protect the interests of the other owners or shareholders. To extend the privilege of representation in court to owners or managers of business entities, while simple in implementation, would have complex and dramatic impact in terms of legal implications, and as a result, the Committee concludes that such a step requires careful study and debate of the policy involved prior to legislative changes.
Allowing Independent Lay Professionals to Perform Certain Functions Now Requiring an Attorney
The Committee has carefully considered the current status of lay professionals engaged in the legal profession. At present, paralegals in Utah are not required to demonstrate any particular level of legal understanding, legal expertise, or legal competence. They are, however, required to engage in their legally related activities under the supervision of a licensed attorney. This current system allows for great flexibility in the utilization of lay professionals, depending upon the nature of the legal issues involved and the most cost-effective use of the paraprofessional, while assuring the minimum competence necessary for protection of the public through the supervision and professional responsibility of the lawyer.
The information presented to the Committee by both lawyers, educators, and paralegals leads the Committee to conclude that to allow lay professionals to practice a limited measure of law would require a commensurate limited legal education or measurable practical experience, some form of competence testing, and some form of supervision by the Utah Supreme Court, Utah State Bar, or other professional regulatory agency. Initial indications are that persons interested in careers as paralegals are not seeking independent practice authorization, particularly when considered in light of the necessity for more structured training, testing, and licensing.
Additional Conclusions and Recommendations of the Committee
In the process of addressing the specific issues raised in the legislative request, the Committee has examined a number of other possible solutions to the questions posed and has reached the following conclusions that may be of use to the Supreme Court and the Legislature in further dealing with the subject.
1. Competence is a bedrock notion of legal service. The Committee opposes any modification of the existing legal and ethical framework by which legal services are provided to the public that would result in a decrease in the competence of those authorized to provide legal care.
2. Any solution identified should be equally applicable to all of the citizens of Utah, not just those located in the more populated areas. Changes in the law, changes in court procedure, and mechanisms of legal help must be equally available to all.
3. Although the Legislature may act to define what constitutes the unauthorized practice of law under the current applicable case law [State Bar v. Petersen], once the Legislature acts to include a category of persons within the practice of law, the authority to govern and set conditions for such a practitioner falls exclusively within the constitutional authority of the Supreme Court. As such, any changes in the scope and nature of the practice of providing legal services will, at the least, require a cooperative effort between the Legislature and the Supreme Court, and at most, be the exclusive province of the Supreme Court.
4. The Supreme Court should consider, and when appropriate, adopt rules that allow greater flexibility in the delivery of legal services. Such consideration might include:
a. authorization of arrangements between lawyers and other professionals that enhance the service, availability, and affordability of legal care, so called multidisciplinary practice;
b. authorization of admission of minimally competent legal professionals from other jurisdictions, so called multijurisdictional practice;
c. authorization for lawyers to "unbundle" legal services, that is, to break traditional legal services into smaller, less complex and expensive, constituent parts;
d. authorization for limited scope professional legal licenses addressing educational requirements and admission requirements for persons to competently deliver limited legal services; and
e. reduction of the complexity and extent of rules of practice and procedure to facilitate pro se representation and to decrease costs of litigation.
5. There currently exist unutilized and under-utilized legal assistance resources. Efforts should be made to encourage persons who have been trained as lawyers but who do not at present possess the license necessary to practice actively to offer assistance to those in need.
6. The existence and uses of currently available legal assistance resources is not well known by the general public, it appears. Greater efforts to publicize those available resources and services should be made.
7. Members of the Bar should be educated about the advantages to themselves, both individually and collectively, of participating in and supporting others in efforts to provide better public information and lower cost legal services to the public. Bar members need to better understand that the "burden" of providing effective legal care to those currently unable to meet their legal needs is a burden faced by society in whole, not just the Bar and its members.
8. The Court should direct the conduct of studies:
a. to ascertain accurately the scope and magnitude of the unmet need for legal services among Utah's citizens;
b. to resolve the definition of what is, and what is not, the practice of law;
c. to examine and evaluate the impact on the traditional role of the Judiciary of increased assistance to self-represented litigants by the Judiciary;
d. to consider supervision of the content and use of legal forms for both litigation and non-litigation legal matters promulgated for use by the public; and
e. to evaluate the costs to the Judiciary of supplying additional assistance to citizens by either the formation and extension of self-represented litigant help mechanisms, or the support of lower cost attorney assistance provided on court premises, or otherwise.
9. The Legislature should be requested to consider:
a. the exploration of incentives to promote the development and availability of legal care insurance for a majority of citizens;
b. the impact on the budget of the Judiciary of providing additional forms, technology-based assistance, and direct assistance to self-represented litigants;
c. the potential benefits and costs of increased government funding of alternative forms of dispute resolution, including mediation and arbitration;
d. the potential benefits and costs of increasing the scope of legal services provided to citizens at public expense by the Office of the Attorney General, the County and District Attorneys Offices, the Office of the Guardian ad Litem, court-annexed domestic case managers, and the like, including privately based organizations such as the Legal Aid Society; and
e. the possibility of funding additional citizen legal services through the imposition of modified or tiered filing fees or other user fees scaled to encourage less litigious action, such as a reduced court filing fee for those divorce cases resolved through mediation.
Most of the recommendations made by the Committee, and most of the suggestions coming from those who submitted testimony and materials for Committee review, carry a financial price that is significant. To date, nearly all assistance for citizens of Utah is financed by others. Should the Supreme Court, or the Legislature, decide to implement additional assistance for citizens, an important policy decision looms regarding the funding of that effort. Currently, legal assistance for indigent criminal defendants, and some parents facing termination of their parental rights, rests on the shoulders of Utah's counties. The State has funded, in part, the On-line Court Assistance Program through the Administrative Office of the Courts. All other funding has come from grants and donations from private, institutional, and federal sources. An appendix of these existing programs and efforts is attached.
A complete examination of options to make legal care more readily available to Utah's citizens is warranted. The preliminary study and evaluation undertaken by the Committee is just a start. A more detailed and thorough study and consideration of these issues and possible other solutions is needed. Tax and other incentives for generally affordable legal insurance has received practically no attention. State-funded assistance for self-represented litigants is worthy of consideration. Protecting the citizens from those who would do more harm than good by seeking to advise them as to their legal rights and obligations must remain a top priority.
The issues the Supreme Court has asked us to address, and those raised by the Legislature in its request to the Judiciary, are not simple, and, unfortunately, do not lend themselves to quick, easy, or inexpensive solutions. However, with care, solutions may be found that emphasize personal responsibility, charitable services by competent individuals, protection of public and individual interests, and preservation of the dignity and appropriate role of our courts in society.
Appendix of Materials
Attached under separate cover are copies of all materials presented to or gathered by the Committee in the course of its work. These materials are provided both as support for conclusions and recommendations of the Committee, and, hopefully, as starting points in the continuing effort to further clarify, understand, and resolve the important issues addressed in the report.
Appendix of actions already taken to alleviate identified problems
For the assistance of the Court, the Committee has attempted to make a non-exhaustive, representative listing of programs and activities that may already be working to improve the conditions considered by the Committee. These programs and activities reflect a variety of sponsors addressing the need to make legal services available to all of our citizens, and include the following:
1. OCAP, the Online Court Assistance Program, including terminals at court sites;
2. On-site assistance for those seeking protective orders;
3. Small Claims - simplified rules and processes;
4. Legal Aid/Legal Services;
5. Waine's Clinic, Salt Lake, Richfield, St. George, and Moab;
6. Similar program to Waine's Clinic in Provo through BYU law school;
7. Tuesday Night Bar;
8. Pro Bono Project;
9. Legal Services, funded to provide OCAP related support;
10. Forms online;
11. And Justice For All;
12. 1-800 Court Information Line;
13. Mediation - 9 programs;
14. Utah State Bar public education/assistance program for evaluation of legal need and of attorneys;
15. The third-year law student practice rule;
16. Pro-bono practice by attorneys with inactive bar membership;
17. Second District Court Case Manager Program;
18. Court Appointed Special Advocates (Casa volunteers);
19. Foster Care Citizen Review Board