A discussion of the scope and content of limited practice legal education

Regulatory reform efforts are underway in Arizona, see Ambrogi, “Arizona Task Force Calls for Wide-Ranging Practice Reforms, Including Eliminating Ban on Nonlawyer Ownership,” LawSites, Oct. 15, 2019, and Utah,  Ambrogi, “Utah Task Force Calls for ‘Profoundly Reimagining the Way Legal Services Are Regulated’,” LawSites, Aug. 27, 2019, with emerging movements in California, Illinois, and elsewhere proceeding apace, see Jayne Reardon, “Re-regulating Lawyers for the 21st Century,” 2Civility, July 18, 2019 (summarizing various state reform efforts).

One of the key elements of these proposed reforms is to widen access to legal services among those in need through the use of legal professionals who are not licensed lawyers.  See, e.g., Terrell, “New Mexico to study letting non-lawyers give legal help,” Las Cruces Sun News, May 22, 2019.  Debate rages over the scope of services that can and ought to be provided by these non-lawyers.

Setting aside the normative debate over the use of such professionals in a wider set of circumstances, it is well worth exploring the practical question of how these individuals might be trained to provide these services.  More specifically, what can law schools do to help develop expertise among these individuals, short of educating them to become, with the passage of a state bar exam, credentialed lawyers? And, relatedly, what kind of credentialing would meet the objectives established by this proposed new regime?

Setting out the educational objectives

The task for educational institutions is both ambitious and complex.  We want allied legal professionals (for this purpose, I will abandon the unhelpful phrase “non-lawyers”) to have the skills necessary to serve specific consumer needs. So, in the case of Arizona, for example, we look to these allied legal professionals (ALPs) to provide potential help in a myriad of areas, including family law, landlord-tenant disputes, consumer bankruptcy, and administrative hearings of different kinds.

As we go down this road, here are three fundamental questions about ALP training that must be answered:

  1. Scope of education. Should these ALPs, in order to provide limited practice in circumstances defined by the state rules of court, have education in legal concepts and areas more general than the areas in which they will practice?
  2. Specific ALP Curriculum. If the answer to question #1 is “yes,” what should be the content of this education?
  3. Validation/Qualification. What should be the scheme of validation to ensure that the ALPs are properly trained?

The third question (validation/qualification) raises some uniquely complicated issues. Thus, for the purposes of this post, I’ll focus on the scope of ALP education and the some of the specific content that should be part of any ALP curriculum.

Scope of ALP Education

It behooves state authorities to require of their ALPs some basic education in the law to undergird more specialized training.  The model of paralegal education provides a good analogue, but I am not convinced that the traditional models of such education provide a suitably dense and broad education in the law to give ALPs the adequate context for their performance.

We can finesse the question of whether these ALPs are practicing law in any meaningful sense.  The valence of this phrase “practicing law” ultimately distracts from these foundational questions, steering us into the morass of disentangling unauthorized from authorized practice of law and, as well, insisting on the idea that the practice of law is, by hypothesis, within the sole province of those have gone through the gauntlet of formal legal education and a bar exam.

Let’s step back from this and ask instead the practical question of how much legal education an ALP needs to do their work in a specific domain of practice. Below is my three-fold answer.

First, ALPs need a reasonable grounding in the structure of the American legal system, including our constitutional (federal and state) system of government.  They need to understand the role of the legislature in making law, the the executive branch in executiong of law, the role and function of the judiciary, and the contours of the administrative state.  This is a tall order,  yet it’s necessary for all ALPs to have this basic, foundational education.  Law schools can and should provide this basic education, and it can be done in a manageable time frame.  In my view, state authorities should expect nothing less from those who are charged with providing education to these ALPs as a condition for their credential.

Second, ALPs need appropriate education in professional ethics – not necessarily the ethical rules that pertain specifically to licensed lawyers, but rules that are of particular salience to ALPs who would provide services to consumers through their limited practice authority.  These rules would need to be developed, and they assuredly would be developed, as part of the emerging protocols for the limited practice environment.  It would be a mistake to equate the fact that there are distinct ethical rules for lawyers with the idea that ALPs have no obligations to behave in an ethical manner.  Tailored rules that focus on the limited practice space are appropriate, and they should be covered as part of the process of developing limited practice schemes by state authorities.

Third, and finally, there should be a sufficient exposure to the practical elements of written and oral communication and of the components of advocacy and representation to enable ALPs to serve effectively the needs of their clients.  To be sure, the goal here is not to create “lawyers lite,” but to provide the education necessary for these ALPs to furnish legal services–even if these services are, in some settings, limited to providing mostly advice and counseling, and not representation before a judge in court.

These should be the foundational elements of a curriculum that is designed for ALPs to meet the objectives of state authorities who entrust these individuals with the great responsibilities of serving consumers in legal matters, including serious legal disputes.  In saying so, I understand that this education is denser, broader, richer, and more ambitious than what reformers in these states might imagine are necessary to accomplish the specific objectives of enhancing access to justice.

These reforms must address the important needs of society to have well-trained, informed professionals provide these essential services, not just something good enough and minimally sufficient.  Educators, working with the bench and bar, must set their sights high, and work constructively to develop curricula that is appropriately comprehensive and sophisticated.

What might such a curriculum look like?

Toward an ALP curriculum

These three proposed cornerstone modules track my analysis on the scope of ALP education:

1. Course in the legal and regulatory process.  This would aspire to a foundational understanding in the structures of our American legal system, accounting for variation among the states to be sure, but focused on common elements.

For the past five years, I have taught such a course to students in Northwestern Law’s Master of Science of Law program for STEM professionals, in both a residential and online format.  This course begins with an overview of our constitutional structure, including a survey of the three branches of federal government, of our system of federalism, the power and function of the judiciary, the relation between state and local governments, and some limited discussion of constitutional interpretation.  It proceeds to a description of the anatomy of a lawsuit (from complaint through appeal), followed by an analysis of statutory interpretation.  In the second half of the course, we consider issues raised by regulatory administration (including a short overview of administrative law), and conclude with an examination of the use and impact of technology in the legal system.  This course is foundational for the advanced work in the program.

This course, in some form or fashion, should be a key part of any education for ALPs because it provides a good context for the student to understand the institutional ecosystem in which law is created and implemented, and in which legal disputes are resolved under our system of the rule of law.

2. Course in ethics and professional responsibility.  Again, the content of one or more courses in this area would need to track the ethical rules for ALPs that emerge from the limited practice arrangements forged within the states.  These rules may be elaborate or minimal, but there will certainly be rules and expectations.  A deep curricular dive into the content of these rules and how they are applied in real-world settings is necessary.  We expect this, of course, of all of our law students who aspire to become lawyers. Moreover, we test our students on this content through the multi-state professional responsibility examination.  Whatever the testing scheme that is ultimately set up by the state in regard to these ALPs, curricula must be designed to give students an adequate education in these vital issues.

3. Experiential education in oral and written communication.  Just as lawyers must master these skills to be effective counselors and advocates, ALPs who would advise (and in some circumstances, even represent) individuals should be adequately skilled communicators.  After all, consumers ought not to settle for sub-par professional advice merely because their ALPs have not gone through three years of extensive and expensive legal education with a strong experiential component.  We can and should tailor this ALP curriculum in acknowledgment of the limited practice functions undertaken by ALPs, but even with such tailoring we should aspire to strong education, with considered skills and experiential components, and proper assessment and accountability.

In addition to these three cornerstone modules, ALP education would obviously include training tied directly to the specific, specialized subject matter in which these ALPs will provide service.

What about the cost and burdens on the ALPs?

A robust ALP curriculum must account for the fact that aspiring ALPs will not go through a three-year, high-expense training to become proficient and licensed in the manner established by state authorities.  I can only speculate here about what exactly would be the length of such a curriculum, and what would be its cost to the students.  But I will say that this educational process should be long enough to provide good education consistent with the cornerstones described above plus the specialized area in which the ALPs will provide service.  My claim is that we need both; clients of these ALPs should expect of their advisor-representatives a solid, reasonably well-rounded, legal education.

At the same time, this curriculum should be provided in a format that is efficient and economical.  The goal, to be blunt, should not be to enrich existing law schools or new educational providers. Rather, the goal should be to work with well-intentioned and, preferably experienced, educational institutions to craft a modern, sophisticated curriculum designed to create a great new cohort of consumer-facing legal professionals.

There are many details to work out, and a more elaborate inquiry must await the development of specific initiatives to connect individuals with legal needs to ALPs in the settings are deemed acceptable for limited practice.  It is critically important that we think creatively about developing these curricula and, simultaneously, the modalities of assessment and credentialing to ensure that the key objectives are met.  The access to justice imperatives that undergird these important experiments in a growing number of states demand a relentless focus on best educational practices, hopefully along the lines I have sketched in this post.