(Editor's Note: The complete report issued by the ABA Commission on Nonlawyer Practice is more than 250 pages long. Included in the complete report is an Executive Summary which highlights the Commission's findings and recommendations. Due to space limitations, the following excerpts were taken directly from the Executive Summary. In addition to the Commission's report, there were two minority reports issued. Both minority reports agreed with most of the Commission's recommendations, but disagreed with certain things. The first felt that the Report did not sufficiently emphasize that the protection of the public should be an essential factor in any proposal to increase the public's access to legal services. They disagreed that access to justice should be the paramount goal. The second minority report went even further. They felt that the ABA should take the lead in specifically defining the role of the lawyer and in distinguishing the differences between the lawyer, the paralegal, the legal assistant, the legal technician and the document preparer. They also felt that, given the overabundance of lawyers we have in this country, there are many ways to increase the public's access to justice and provide affordable lawyers, which the majority report ignored. At this time, the Bar has not reponded to the Commission's recommendations and it is uncertain if or when any action will be taken. For information on how to get a copy of the Commission's report and/or the Minority Reports (or just the Executive Summary), you may contact any of the TPJ editorial staff.

In 1992 the ABA established the Commission on Nonlawyer Practice, consisting of lawyers and nonlawyers with diverse backgrounds. The Commission was directed to ''conduct research, hearings and deliberations to determine the implications of nonlawyer practice for society, the client and the legal profession.''

A series of public hearings were held, beginning in December 1992 and continuing until August, 1994. The information received at the hearings was supplemented with extensive research. The Commission's report, first issued in April 1994 and revised in 1995, was titled "Nonlawyer Practice in the United States: Summary of the Factual Record Before the American Bar Association Commission on Nonlawyer Practice." Part One of the Report details the findings of the Commission. Part Two sets forth the Commission's analysis, conclusions and recommendations.

PART ONE: FINDINGS

Beginning in the 1930s, there were several decades in which the laws governing the unauthorized practice of law (UPL) were aggressively enforced. In the last 20 years, however, there has been a gradual decline in the enforcement of those laws. Today, individuals choose to act on their own behalf in many instances. The Commission found that an extensive array of federal and state administrative agencies allow nonlawyers to provide advice to self-represented persons and even to represent parties in agency proceedings. The Report categorizes these nonlawyers as "legal technicians."

Paralegals, as defined in the Report, are different from legal technicians by virtue of their working under the supervision of lawyers. They often perform complex substantive tasks or provide advice to clients with the supervision of a lawyer or for which a lawyer is accountable. An increasing number of paralegals have higher education, and two national paralegal organizations are urging broad adoption of voluntary certification systems for paralegals.

Several states have recently examined nonlawyer activity. State legislatures have considered a wide variety of measures to regulate legal technicians. The thoughtfulness of the varied state task force reports bolsters the Commission's general belief that most of the issues discussed in those reports can best be addressed at the state level.

PART TWO: CONCLUSIONS AND RECOMMENDATIONS

The Commission reached three major conclusions when it analyzed the record:

The most important conclusion of the Commission is that each state should conduct its own careful analytical examination, under the leadership of its supreme court, to determine whether and how to regulate the varied forms of nonlawyer activity that exist or are emerging in its jurisdiction.

The information that led the Commission to these conclusions also led it to formulate six major recommendations and to identify a variety of actions that practicing lawyers, bar associations, courts, law schools, and the federal and state governments might take. Part Two of the Commission's Report sets forth the bases for its conclusions, the recommendations they led to, and the actions that are needed to implement the recommendations.

A. Increasing the Public's Access to the Justice System and to Affordable Assistance with its Legal and Law-Related Needs is an Urgent Goal of the Legal Profession and the States.

B. Steps to Continue Improving Access to Justice.
A major opportunity for enhancing law practice and improving access to legal services involves more extensive utilization of paralegals. The Commission found that lawyers use the services of paralegals in innovative ways to save time and reduce costs to clients. Several lawyers recommended to the Commission that court rules be changed to permit paralegals to appear in court for their law firm employers on routine matters such as calendar calls or previously agreed to matters such as child support calculations and small estate probate hearings.

C. The Protection of the Public from Harm Arising from Incompetent and Unethical Conduct by Persons Providing Legal or Law-Related Services is an Urgent Goal of Both the Legal Profession and the States. When Adequate Protections for the Public are in Place, Nonlawyers have Important Roles to Perform in Providing the Public with Access to Justice.
The record before the Commission makes it clear that the expansion of access to justice through the services of document preparers, legal technicians, or other nonlawyer service providers carries with it both the risk of incompetent or even fraudulent services and the promise of excellent and high quality services. The states will have to take both risk and promise into account in their assessments.

D. As to Nonlawyers Whose Services are not Already Authorized Under Current States or Other Law, the Commission Recommends that States Should Assess Whether and How to Regulate Their Activities. The Commission recommends a specific analytical approach for use by the states in determining what level of regulation, if any, is appropriate. The approach will help in assessing whether a particular activity should be unregulated, regulated, or prohibited.

CONCLUSION

The Commission's Report amply demonstrates that nonlawyers provide services that in many instances impact upon or relate to the practice of law...The factual findings of the Commission demonstrate that nonlawyers, both as paralegals accountable to lawyers and in other roles permitted by law, have become an important part of the delivery of legal services. This has contributed to improvements in public access to affordable legal services. The work of the Commission has also uncovered imperfections among lawyers in providing professional services that give rise to increasing dissatisfaction with our profession by the public. The delivery of law-related services and their cost is a concern that will be debated by the public, not just by the legal profession. This Report should be viewed by the bar as an opportunity to take those steps that will protect the public and at the same time provide increased access. If this Report is to have any value, it will be in the thoughtful consideration of it by the bar, the judiciary and the public. In the first instance, the bar must continue to take the lead to assure that legal services are rendered in a manner that will enhance public respect for the institutions of justice.

RECOMMENDATIONS

  1. The American Bar Association, state, local and specialty bar associations, the practicing bar, courts, law schools, and the federal and state governments should continue to develop and finance new and improved ways to provide access to justice to help the public meet its legal and law-related needs.
  2. The range of activities of traditional paralegals should be expanded, with lawyers remaining accountable for their activities.
  3. States should consider allowing nonlawyer representation of individuals in state administrative agency proceedings. Nonlawyer representatives should be subject to the agencies' standards of practice and discipline.
  4. The American Bar Association should examine its ethics rules, policies and standards to ensure that they promote the delivery of affordable competent services and access to justice.
  5. The activities of nonlawyers who provide assistance, advice and representation authorized by statute, court rule or agency regulation should be continued, subject to review by the entity under whose authority the services are performed.
  6. With regard to activities of all other nonlawyers, states should adopt an analytical approach in assessing whether and how to regulate varied forms of nonlawyer activity that exist or are emerging in their respective jurisdictions. Criteria for this analysis should include the risk of harm these activities present. The highest courts should take the lead in examining specific nonlawyer activities within their jurisdictions with the active support and participation of the Bar and the public.
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