The New Position: The Legal Practitioner

For quite a while, the issues of unaffordability of legal representation, deregulation of lawyers, form farms for the unwary and the structural failure of the law to provide adequate services to those who need it while leaving vast numbers of new lawyers un- and under employed, have been on the table. 

I said I had an answer, and Labor Day seems an appropriate time to cut loose.

I propose the creation of a new professional position, the Legal Practitioner.  It’s modeled after the concept of the Nurse Practitioner/Physicians Assistant.  It would require specified and regulated education, though significantly less than would be required for a lawyer and at a substantially reduced cost.  It would require testing and licensure to make reasonably certain that it’s practitioners possessed minimum competencies and that the public was safeguarded from incompetents or, in the alternative, had redress.

The function of these Legal Practitioners would be to provide representation to member of the public in non-litigation aspects of the law, such as wills, contracts, uncontested divorces, real estate closings.  The most critical function would be to distinguish between those legal functions they are fully capable of performing and those that require an attorney.

The most important aspect of this new position is that it would entitle the practitioner to function independent of lawyers.  While they could operate within the law firm structure, they would be trained and authorized to practice as a stand alone professional, to hang out a shingle of their own.

I foresee this position as being appropriate as an intensive undergraduate major, or as a master’s level degree. It would necessarily include the basics of legal thinking, responsibility, research, and then include certification in specified areas of practice.  In other words, a Legal Practitioner would be certified to do some or all of the legal functions now done in specific niches of the law.  The practitioner would be certified to do trusts and estates, or contracts, or uncontested divorces.  Or, the practitioner can acquire certification in all niches, should that be their desire, by satisfying the coursework and achieving sufficient tested competence.

The point of all this is to provide society with a low cost, yet trained, responsible and qualified, alternative to lawyers.  By substantially lowering the barrier to entry, and limiting the scope of practice to office functions, we can find a qualified middle ground to the cheap but dangerous alternatives that are cropping up in the hope of taking advantage of the cost gap between what people can afford and what lawyers charge.

As has been suggested many times, the full range of a legal education isn’t necessary to perform many of the basic functions of the law.  Yet that doesn’t mean that anybody can practice law either.  Not only must the Legal Practitioner possess the knowledge to perform the functions permitted, but the wisdom to distinguish those functions that aren’t ordinary, but require a lawyer.  Sure, it will be challenging to make the line clear, but that is why it’s necessary to make sure that this new position is truly professional, and not merely ministerial.

Why not just let the existing paralegals open up shop?  While many have learned, through education, experience and practice, much of what will be taught to the Legal Practitioner, the position of paralegal was never intended to create an independent professional. Some may well be capable, but some will not. None were trained to perform this function, and the position was always meant to serve under the supervision of a lawyer. 

Moreover, the position of paralegal carries baggage, the impression that it’s a specialized secretary, that will impair the creation of a new professional position that holds public respect.  Critical to the success of this position is the public perception that they are truly competent professionals, and not some second-rate, cheapola version of lawyers for people who can’t afford the real thing.  Acceptance of Legal Practitioners as a respected professional performing necessary and important legal functions that can be accomplished with every assurance that it fully serves the public’s needs at a cost that is affordable and proportionate is of critical importance.  Anything less will fail to satisfy the public’s rightful expectation of receiving the excellence in legal services they are due.

Clearly, there is much still to be fleshed out in making this idea viable, but I believe it to be far superior to the alternatives provided by the companies who want to push one-size-fits-all forms into the public’s hands, or the cries for deregulation of the law so that the assistant manager at Dairy Queen can open up a law office tomorrow. 

While there are plenty of problems with the barriers to entry to practice law as an attorney, and I remain of the view that we should establish the dichotomy of solicitor and barrister, and end the fallacy of all lawyers being generalists in a specialist profession, this option seems to be the one that will do the most to both protect the public interest while providing the public with the legal services they require at a cost they can better afford.

39 thoughts on “The New Position: The Legal Practitioner

  1. John Burgess

    Sounds good to me.

    How long will it after this reorganization is approved for the American Legal Practitioner Association, offering CLEs, cheap insurance, and lecture cruises to be established? I ask, because I see $big bucks$ on the horizon.

  2. Cole

    Very similar to the solicitor/barrister distinction in the UK. As I understand it (and I may well be wrong), solicitors do transactional work and barristers are retained when litigation enters the picture. It seems to work well there so I imagine it could work well here too.

  3. SHG

    While there are similarities, it is hardly the same, which is why I don’t try to unduly simplify the idea to the point of confusion and worthlessness. I would appreciate your not doing so either, especially since you don’t actually know what you’re talking about.

  4. Josh King

    California has taken a small step in this direction – one can be a “licensed document assistant”, authorized to do some routine legal tasks.

  5. SHG

    I envision this to be far bigger, deeper and more professional than document assistant.  I see a real, viable profession, fully capable of serving clients independently within the scope of their authority, and I see that authority as being reasonably broad, encompassing essentially all basic legal functions. Notably, this isn’t a fill in the blanks job, but a very real exercise of thought and discretion on behalf of clients.

  6. David Sugerman

    It’s an idea whose time has come. I don’t think it’s actually that big a leap from existing reality. I have used paralegals for years to extend my ability to provide service. A well-trained and experienced paralegal is more capable than a newly-minted lawyer. I imagine that there would be much devil in the details. Still, seems like there are a number of areas where this could work. One other suggestion. Oregon has mandatory professional liability insurance through a single fund for all Oregon attorneys. I would insist on the same, though at a lower level-perhaps, for these certified practitioners.

  7. SHG

    In some respects, it seems a natural progression. In others, it’s a huge change. Never has a non-lawyer been legally permitted to practice law, even if only within a limited scope. Paralegals may well be the biggest problem with this idea, as you unintentionally note in your positive comments.  They aren’t all well-trained and experienced, and they certainly aren’t all capable of independent representation of clients.  Everyone thinks the world of the good ones. Nobody like to mention the ones who aren’t so good.  This is why this is not about paralegals, and can’t be about paralegals.

    As for malpractice insurance, it would seem as prudent as for anyone else representing clients.

  8. AH

    There is no lack of “affordable” legal services. The larger the dispute, the more money will be spent on lawyers. A $10 million dollar dispute will merit at least $1 million to each side’s lawyers. A $10 thousand dollar dispute will buy at most a few thousand dollars of legal service; ie a few phone call and a quick negotiation.

    Mill type services already provide cheap affordable services. Lawyers who charge $500 per criminal case, will take 10 cases and plea them one morning.

    I used to think landlord-tenant was underserved (I would have not choice but to charge $2k for an eviction which is very reasonable for my time, which was two months rent to the landlord that he couldn’t afford to spend) I then discovered an eviction mill lawyer who represents many landlords. She charges $500 and has 10 cases up on the same day; offering the landlords affordable service.

    There are lots of affordable legal servies, so long as you understand that you won’t make a major litigation over low value cases.

  9. SHG

    First, note that all you speak to is litigation, which has nothing to do with this idea. Second, most (in fact, pretty much everybody, lawyers and lay-people) would disagree with you. I disagree with you.

  10. Andrew

    I like it. On the topic of “real estate closings,” do you envision this professional as being able to perform the attorney’s title opinion that lenders in some states (e.g., Iowa) seem to require?

  11. David Shulman

    When I started reading this post, I thought it was going to be satirical, like Jonathan Swift’s “A Modest Proposal.” But you’re serious. You are actually proposing that we eat our own children.

    Why in your example are you excluding litigators from being replaced by the Legal Practitioner? Can’t we send these same Legal Practitioners to some sort of acting and speech school? I’ve seen every single episode of Law & Order, and one time, I was able to watch Nancy Grace for an entire hour. Based upon that experience, I’ve decided that’s all that criminal lawyers do, right? Make fancy speeches?

    While I agree with you that “the most critical function [of the Legal Practitioner] would be to distinguish between those legal functions they are fully capable of performing and those that require an attorney,” I submit to you that that’s an impossibility.

    First, people are far too motivated by greed. A matter referred out is one they don’t get paid for. It’s bad enough when the PI attorney does a will for his neighbor.

    Second, issue spotting is difficult. I don’t trust most attorneys to do it and I’m certainly not going to trust a “Legal Practitioner.”

    On the other hand, I could probably make a killing by fixing –postmortem– all of their screw ups.

  12. SHG

    Yes, I’m proposing we eat our own children.  If we don’t, someone else will, and they will do worse than we will ever do.

    I exclude litigation because I don’t believe anything short of a full legal education, with appropriately gained experience, enables someone to handle litigation.  Bear in mind, there may be some here and there, but we’re talking about systemic authorization.  It might be argued that lower court litigation, whether misdemeanors or under $15k type civil, could be done by Legal Practitioners, but I don’t believe that these are as inconsequential to their litigants as others believe, and that they can be handled without a full legal education.

    As for the greed piece, it’s a problem, and why I emphasize that the most critical aspect of the job will be distinguishing what they can and can’t handle, with bright line tests and severe enforcement.  Not easy, but the only way to overcome the urge to “extend” one’s reach when there’s money at stake.

    And still, as a new profession, it’s easier to create a culture of honoring professional limits than it is with a more established profession.

  13. Thomas R. Griffith

    Sir, the last time we talked about this topic ‘Irene’ was headed your way so it was cut short. BTW-Glad to hear everything’s fine.

    The Paralegal in the family (Gloria) appreciates you for championing the New Professional Initiative of 2011. You may recall her answers to calls for deregulation being summed up by asserting that Paralegals / Legal Assistants should be able to get licensed & certified.

    Those unable to pass the State approved *exam, *certification classes & *re-certification classes simply remain ‘UN-licensed’ until they pass. Legal Secretaries and Clerks can ascend the legal ladder by aspiring to become Paralegals / Legal Assistants. Leaving LPs to consider eventually ascending to becoming attorneys themselves.

    With a State approved Paralegal certificate being a prerequisite to testing for the Legal Practitioner of (Your State Here) exam – the industry, the public at large and the clients all win. Thanks.

  14. SHG

    I was hoping you would raise this issue. While I don’t see any reason why there needs to be a paralegal cert in the middle of this, I do think that there should be a transitional certification/examination that would allow current paras to take a course upgrade and test for the full position, so that they can function as independant professioanals if their experience has provided them with the knowledge needed to do so. 

    It would enable those who have learned through years of experience to make the transition without having to start over or stay where they are because the position didn’t exist when they started.

  15. anonymous

    I believe this is called a realtor. If I could get $1,000 for all the bad legal advice I have gotten from realtors…

  16. Thomas R. Griffith

    Sir, excellent idea on how to handle current paralegals interested in obtaining a state LP license. Buy not mandating a paralegal cert. in order to take the LP exam you allow others with legal knowledge and on the job training an opportunity.

    This “answer” has the potential of making history due to the mountain of positive side effects; *creation of higher paying jobs in every state, *more taxes being paid, more being collected, less unemployment, decline in request for charity & services, increase in home buying vs. renting and clients paying fair prices for professional work. To list a few.

    I truly hope that this initiative gains momentum and comes to fruition. Who needs to come on board in order to make it so? Ex: state bars, senators, state representatives, attorney generals, attorney associations, paralegal associations, voters, President Obama…? Thanks.

  17. SHG

    A realtors job is to sell property.  Why would anybody seek legal advice from someone whose job is to sell property.

  18. SHG

    Either an idea like this gains traction organically or it simply fades to black.  Now, it’s up to others to say whether they think it has legs.

  19. AH

    The best solution is to have law firm paralegals do this work at a reduced rate. There doesn’t have to be a certification for a “paralegal’. The best paralegals that I know are secretaries who never went to college but picked it all up on the job. Since a lawyer is ultimately responsible, and liable, the lawyer would ensure quality.
    This presently happens in real estate and sometimes in personal injury. Paralegals de facto run all real estate practices. The lawyer shows his face at the closing because clients expect to see their lawyer. In PI, the paralegal gathers all of the medical bills and documents from the client and deals with the day to day bill payment and compliance issues. In some practices, paralegals actually negotiate with the insurance adjustors.
    Jealous competitors sometimes make bar beefs against bid advertising PI lawyers whose paralegals take too much responsibility.
    If you want regulatory change, change the ethics rules so that paralegals, employed by an attorney, can overtly have more responsibility.
    There is no need for a new type of classification and quality is ensured because a licensed attorney is supervising.

  20. SHG

    I apologize for having been so lax in deleting stupid comments lately, giving the impression that anything that pops into a person’s head is appropriate.  While I have no idea what “AH” stands for, or why you have so utterly failed to understand the problem or why your solution is so completely and utterly wrong, but please consider that having a keyboard and internet access is not a reason to comment.  Control the urge.

  21. Thomas R. Griffith

    Yes Sir, we’ll do our part. In addition to some of the list above, I’m contacting the pres. candidates HQs and seeing which one replies to the invite to visit SJ & weigh in.

    Hopefully, a few will put their money where their mouths are regarding running on a “Jobs Creation” loop.

    The recent media blitz that brought cries for change in the legal industry in the name of the low income & poor has come and gone. Sparking an international discussion while leaving; ideas, plausible solutions and choices in its wake.

    Those in & out of the legal field are being challenged to support this initiative & asked to gain the support of others. Thanks.

  22. tab

    I agree with this proposal. I’ve thought of something similar. However, it can’t be a masters level program. It has to be an undergraduate level program. Just bring back the LLB.

  23. tab

    Heh! I meant in the European, non-graduate degree mode. After all the J.D. isn’t particularly intellectually rigorous. It just pretends to be.

  24. SHG

    I’m not kidding. Since LLB went to JD for government employment compensation purposes, it left a degree unused. It would be the perfect degree, as one that conveys that this is intended as a truly professional degree, with all the  rights and privileges, though not a JD. I sincerely think it’s a great idea.

  25. tab

    I think we’re thinking along the same lines. I didn’t know that about the LLB. Thanks.
    Also, people could still go to law school and get a J.D. if they felt like it.

  26. SHG

    Absolutely, no reason why someone who studied for this position couldn’t decide they wanted to continue and pursue a law school education. 

  27. Thomas R. Griffith

    Sir, I had to look it up.

    An LL.B. is the award of the degree of Bachelor of Laws. LL.B. is a Latin word. It stands for ‘Legum Baccalaureus’, signifying ‘Bachelor of Laws’.

    Now that I know, it makes perfect sense. We can add – revitalizing an abandoned law degree in the name of reforming to the pros column. Thanks.

  28. G Thompson

    What is being proposed here is very similar, other than standard litigation (though not tribunal representation), to what Paralegals currently do here in Australia

    Jill Cowley’s comparative “study of paralegalism in Australia, the United States of America, and England and Wales”, for her thesis at Southern Cross University in 2004 is an interesting look into the three common law countries differences.

    A quote from the abstract states succinctly what I suspect SHG is trying to convey here.

    “The legal profession is facing many challenges in the twenty first century, including the need to deliver better and cheaper legal services. Paralegals, as part of the legal service industry, are affected by the same tensions but are well placed to contribute to a more “streamlined” practice and to assist in providing greater access to justice for many disadvantaged Australians.

    Page 94 (and 95 even more so) of the thesis states the normal tasks of paralegals in Australia.

    Though even here the education of “Legal Executives” as the Government like to call them 😉 is somewhat adhoc, though there are signs it is becoming more comprehensive with maybe Advanced Diploma, or even Degree (Bachelor) based courses offered soon.

  29. SHG

    One of the things I’ve tried desperately to avoid is to have the idea watered down by comparison to existing positions, particularly paralegal.  This is not about giving paralegals greater authority, and efforts to compare the position with paralegals not only misses the point, but undermines the point. 

    The position of paralegal is, at its core, ministerial and requires direct supervision.  This is true even if some paralegals are excellent and can work independently, or even if they know more than lawyers.  This isn’t about “some paralegals,” but about a position given legal authority to represent people independently of lawyers.  That this distinction is so hard for many to grasp presents the difficulty in creating change: everything has to be like something we already know and can’t possibly stand alone and apart.

  30. David Sugerman

    I don’t think the distinction between paralegal and independent limited law practitioner is hard to grasp at all. The process of referring back to what exists and what we know is a natural, logical and practical way of promoting change. Nurse practitioners illustrate the point.

    While I know nothing about the evolution of that professional position, it’s clear that it involves work well beyond the traditional limits of the nursing profession.

  31. SHG

    The problem with relating it to existing positions is that it imputes baggage that shouldn’t be carried along.  Many paralegals think they’re every bit as qualified as lawyers, and should do whatever lawyers can do.  Many lawyers believe paras are glorified secretaries.

    By starting fresh, we can create what society needs without having to constantly clarify why it’s not what we already have that doesn’t serve society’s needs.

  32. Rebecca

    Your proposal is very similar to the civil law notary function in Louisiana. Here, notaries public are qualified to handle many transactional issues–such as drafting wills–without the supervision of an attorney. Like attorneys, they are commissioned by the state and must pass an exam. Theirs requires (among other things) the basic ability to do code-based research.

  33. Becky

    In recent years, the mental health profession has undergone a change. There are now “Peer Specialists”. These peer specialists are specially trained, uniquely qualified individuals who had all suffered (or are currently suffering) from some from of mental illness. The benefits to a person with mental illness in working with a peer specialist lets them know they are not alone, that recovery is possible and that a recurrence of the symptoms does not mean all is lost. As a peer specialist, I find it to be a “been there, done that” type of job in that there is very little my clients face which I have not faced and gotten through myself. There are some jobs I will never be able to do. I can never be a case manager, for instance, as that requires a degree in a narrow category of majors. My college course of study was in English (which is not in that category) but which I never completed anyway, having become ill during my 3rd year of college.

    Reading your proposal, I likened this new legal profession to that of peer specialists, without the “been there, done that” element. Certification as a peer specialist provides clearly defined job descriptions, duties and commands respect from social workers, doctors and psychologists. Certification in the legal profession, as a Legal Practitioner would do the same. It would free up the attorneys to do the job they do. It would also provide career opportunities to those who are passionate about the law but who can not afford to go to law school.

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