It’s been a busy month in the legal profession as some would argue the final siege is underway to tear down the walls of the castle holding out the millions of non-lawyers from ‘sort of’ practicing law and allowing the unwashed masses (tongue-in-cheek) and corporations a chance to show everyone they really don’t need a formal legal education to represent themselves or others, just forms.

Let’s face it, they claim, even though the average citizen in this country could never understand the law (never mind read the law) …it’s okay to give them ‘access to justice’ through DIY companies and lay people because, well, lawyers are simply too expensive.

According to a study conducted in late April by the U.S. Department of Education and the National Institute of Literacy, 32 million adults in the U.S. can’t read. That’s 14 percent of the population. 21 percent of adults in the U.S. read below a 5th grade level, and 19 percent of high school graduates can’t read.

Yes, access-to-justice is this decade’s battle cry and it has been heard loud and clear.

I am being not just a little facetious and sarcastic here because lawyers have an attitude that no one else can do their work.  And the public can’t possibly effectively represent themselves.  It is this attitude which is going to catch many lawyers up short because the world will pass them by as they sit on the sidelines of business wondering why clients have foresaken them.  I and others have accepted the inevitable and in many important ways I don’t advocate swimming against the tide on this one because it is too exhausting, not profitable for attorneys to do so, and at the end of the day you don’t really get very far.

This post isn’t going to debate the pros and cons. It is going to provide an overview of what is currently going on. Smart readers will know how to work with this information, maybe even hire a super paralegal and/or create a forms division of their own, thereby redefining their value proposition.

Let’s visit with North Carolina.

North Carolina, who shouldered a huge burden by taking on Goliath LegalZoom, worked themselves into quite the lather to maintain the status quo and the current definition of ‘unauthorized practice of law”.  Finally, and to their credit, Senate Leadership has not so gently pushed the NC Bar to compromise and apparently they have.  The end result is a (potential) new bill.  Here is the proposed language for HB 663. (Starts at ’2′)

(2)   The production, distribution or sale of materials, provided that:

(a)     The production of the materials must have occurred entirely before any contact between the provider and the consumer;

(b)    During and after initial contact between the provider and the consumer, the provider’s participation in creating or completing any materials must be limited to typing, writing, or reproducing exactly the information provided by the consumer as dictated by the consumer or deleting content that is visible to the consumer at the instruction of the consumer;

(c)    The provider does not select or assist in the selection of the product for the consumer; provided, however, (i) operating a website that requires the consumer to select the product to be purchased, (ii) publishing descriptions of the products offered, when not done to address the consumer’s particular legal situation and when the products offered and the descriptions published to every consumer are identical, and (iii) publishing general information about the law, when not done  to address the consumer’s particular legal situation and when the general information published to every consumer is identical, does not constitute assistance in selection of the product;

(d)   The provider does not provide any individualized legal advice to or exercise any legal judgment for the consumer; provided, however, that publishing general information about the law and describing the products offered, when not done  to address the consumer’s particular legal situation and when the general information published to every consumer is identical, does not constitute legal advice or the exercise of legal judgment;

(e)    During and after initial contact between the provider and the consumer, the provider may not participate in any way in selecting the content of the finished materials;

(f)     In the case of the sale of materials including information supplied by the consumer through an internet web site or otherwise, the consumer is provided a means to see the blank template or the final, completed product before finalizing a purchase of that product;

(g)    The provider does not review the consumer’s final product for errors other than notifying the consumer (i) of spelling errors, (ii) that a required field has not been completed, and (iii) that information entered into a form or template by the consumer is factually inconsistent with other information entered into the form or template by the consumer;

(h)    The provider must clearly and conspicuously communicate to the consumer that the materials are not a substitute for the advice or services of an attorney;

(i)      The provider discloses its legal name and physical location and address to the consumer;

(j)      The provider does not disclaim any warranties or liability and does not limit the recovery of damages or other remedies by the consumer; and

(k)    the provider does not require the consumer to agree to jurisdiction or venue in any state other than North Carolina for the resolution of disputes between the provider and the consumer.

For purposes of this subsection, “production” shall mean design, creation, publication or display, including by means of an internet web site; “materials” shall mean legal written materials, books, documents, templates, forms, or computer software; and “provider” shall mean designer, creator, publisher, distributor, displayer or seller.

Of course, the real sticky wicket is going to be (j) which doesn’t allow the provider of the forms to disclaim any warranties or limit liability on recovery for damages.  Not sure how this will fly.  But look at this as a guidepost because chances are it will be coming to a jurisdiction near you soon in some form or other.  Work to incorporate forms providers into your marketing and bread and butter activities.

Next foray into the space is Connecticut.

The Connecticut Bar Association Task Force on the Future of Legal Education and Standards of Admission has recommended that state regulators allow persons other than licensed lawyers to practice law under certain restrictive guidelines. In evaluating various procedures and practices in Connecticut, the task force has suggested, among other things, that court rules be modified so as to permit non-lawyers to provide basic legal services to legal consumers….the task force recognized that “much legal work is already being performed by individuals with credentials less than fully licensed attorneys” and that there is and would still be a demand for these sorts of professionals.

So, in their quest for access-to-justice Connecticut recognizes there are many pro se individuals who need guidance who can’t afford lawyers.  The courts need help with all the pro se parties ultimately clogging the docket so this is a way to perform bypass surgery and get the heart pumping again.  They also recognize it will not remove demand for attorneys…just the type of work attorneys perform on the more mundane, routinized side.

Under the proposal, the super paralegals could hang out their owns shingle or work within the structure of a law firm.

Shluger referred to the concept of a “nurse practitioner model” in the medical field, where some nonserious illnesses are treated by specially trained nurses, without the supervision of a doctor. “You certainly have paralegals who are under the supervision of an attorney doing the work right now, and lots of lawyers delegate work to paralegals who prepare documents that are then handed to lawyers five minutes before [a hearing],” Shluger said.

Read more: http://www.ctlawtribune.com/id=1202660333539/Is-Connecticut-Ready-For-Super-Paralegals#ixzz394WqGmWW

Opportunities abound here as well for the industrious and fast-moving solo.

Just so you know, Washington and California have already adopted similar programs to the one proposed in Connecticut.  Just 47 more states to go.

I repeat.  The walls of the castle have been breached

As you contemplate how you will move forward, enjoy a little Mellencamp as he serenades you in his penny loafers belting out ‘Crumblin’ Down’.