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Access to Legal Services: The Market Provides
When I lived in Virginia in the 1990s, it was illegal for
a title agent to conduct a real-estate closing. Even though title agents
knew more about closings than the vast majority of lawyers, the state bar
ruled that title agents conducting closings were engaged in the unauthorized practice of law (UPL).
In 2007, U.S. Assistant Attorney General Joel Klein and the Federal
Trade Commission weighed in against Virginia’s rule, finding that it cost
nearly twice as
much to hire a
lawyer rather than a
title agent to conduct a real-estate
benefits. The state
rescinded the rule,
and now consumers
UPL requirements that are overly broad and zealously enforced create serious barriers to affordable legal
services. Allowing paraprofessionals to provide certain legal services
reduces costs and increases competition. Lawyers may not like that, but
Fortunately, Arizona provides greater access to nonlawyer legal services than any other state.
That happened at least in part by historical accident. Arizona had a
UPL statute that expired by sunset clause in 1985. Out of the sudden
void of regulation emerged a vibrant new industry: legal document
The vast majority of states require paralegals to work solely under the
direction of licensed attorneys. Nonlawyers can make legal forms
directly available to consumers, but they cannot fill them out or
file them. But in Arizona, legal document preparers did just that,
at prices far below those charged by lawyers.
The services offered by legal document preparers concentrate
in areas of the law that often use standard forms, such as bankruptcy, divorce, child support, wills and trusts, limited liability
corporations, and immigration. The legal document preparers
know which forms to use and how to file them, thus providing
enormously valuable legal services to ordinary people at low cost.
In 2002, a petition was filed asking the Arizona Supreme
Court for a rule requiring paralegals to work under lawyer supervision, which would have wiped out the entire industry.
Advocates for the rule claimed that hundreds of bar complaints
had been filed against legal document preparers; but it turned
out nearly all of them were UPL complaints filed by lawyers.
The document preparers fought back, forming the Arizona
to provide certain legal
services reduces costs and
Clint Bolick is vice president for
litigation at the Goldwater Institute.
Association of Independent Paralegals.
Then-Arizona Chief Justice Charles “Bud”
Jones formed an ad hoc committee to
resolve the issue, and compromise was
reached that achieved the twin goals of protecting consumers while providing access
to nonlawyer legal services.
Adopted in 2003, Arizona Code of
Judicial Administration Rule 7-208 provides for the certification of legal document preparers. Eligibility is based on a
combination of education and practical
experience—high school graduates, for
instance, may qualify if they obtain two
years of legal experience. The candidates
take an examination covering legal terminology, client communications, data gathering, document preparation, ethical
issues, and professional and administrative
Once certified, legal document preparers can provide general legal information
and factual information about legal rights.
Consumer complaints are adjudicated by a
board that is funded by application fees.
The Arizona certified document preparer rule was a major breakthrough for access
to legal services. In our increasingly complex society, people often need help with
even the simplest legal transactions, but
they should not have to pay lawyers’ hourly
rates—or seek out public assistance or pro
bono services—when the market is able to
provide low-cost, high-quality paraprofessional services.
I would love to see the entire UPL
regime disappear. The accounting profession flourishes without such legal constraints, and consumers freely may choose
from among certified public accountants
and regular accountants, based on their
needs and resources. Consumers are protected not by legal cartels but by choice,
competition, transparency, and the enforcement of fiduciary relationships.
But until that day, I’m happy to live in a
state that recognizes that more choices lead
to greater access to legal services. AZ AT