Yesterday, I was at much of the excellent Symposium Until Civil Gideon at Fordham Law School. The panel on non-lawyer practice was particularly suggestive. After listening to the panel, I have some thoughts.
Leadership is all. Chief Judge Lippman, by spurring discussion of the topic, and appointing a Task Force (on which I serve) has made a “far out” idea part of the mainstream. I believe that as a result of this leadership, we will see real progress in New York soon, and that that progress will have a major impact nationally.
That the formal decisions about the scope of the unauthorized practice prohibition are determined in criminal and enforcement civil actions often means that we have bad facts making bad law. Things are made worse by the fact that the governing statutory interpretations are often decades, sometimes many, decades old. We need to find a way to pull back and make regulatory progress in an era of a much more flexible educational system, technology, innovation, and obvious inability of lawyers to meet access to justice needs.
In particular, the use of technology based information, forms programs, diagnostic tools, flow charts, etc., can make it possible for people with less formal legal education to provide high quality assistance, particularly when they have been trained in the substantive area in which they practice. As Chief Judge Lippman said at the While House this spring, “Sometimes an expert nonlawyer is better than a lawyer non-expert.”
As a general matter, we have not paid enough attention, as pointed out by Prof. Gillian Hadfield at the Symposium, to the success that paralegals have had at assisting hearing officers understand and get the facts and law out in administrative proceedings. That should provide reassurance to those who fear that those without three years of law school can not handle a hearing, at least when the judge has been trained in the techniques of bringing out needed information.
Let’s keep talking about this critical area of innovation.