The recent focus on Civil Gideon triggered by the pending US Supreme Court case, Turner v. Rogers (please track the Turner Symposium here on Concurring Opinions, when the decision comes down), has set me thinking about the relationship between Civil Gideon and our current unauthorized practice of law (UPL) rules. By UPL rules, I mean the current sets of laws that generally fence off large areas of legal activity, making it unlawful for anyone without a law degree to provide services in those areas in any context at all. I do not mean the general concept that legal services of different kinds can be regulated.
Here’s my question: In the end, isn’t a ruling that there is no right to civil Gideon assistance in a case really the same as a ruling, at least in significant stake state deprivation cases, that the case is simple enough that people can do it on their own – even if technically the court is more likely to use a balancing test saying that the case is easy enough that it is unfair to make the state pay for counsel. See, e.g. Lassiter v. Dept of Social Services, 452 U.S. 18, 33 (1981) (analyzing, in Part III, limited impact on the outcome on the specific facts, of lack of counsel); Turner v. Rogers, Transcript of Oral Argument, at 20-21, (Associate Justice Alito questioning petitioner’s counsel Seth Waxman as to whether it would be sufficient if the Court were to require judicial engagement when determining the issue of whether defendants are in civil contempt for having “willfully” refused to pay, except in harder cases — “And then if you run into some of these complicated legal problems or arguably complicated legal problems that you referred to, maybe in particular cases there would be need for the appointment of counsel.”)
Insofar as the Court denies a right to counsel for matters that are too simple, wouldn’t that also eliminate any basis for UPL rules? After all, the premise of UPL rules is that a matter is too complex to be handled by non-attorneys. The main other argument for ULP rules is that there is a need for the activity to be regulated as to the “character” of the person helping and the quality of the service, but that is really a different matter, that could be taken care of in many ways other than requiring a legal education and the passing of the bar exam — see below.)
Put another way, where is the justification for the legal system to say, in any important matter that triggers due process concerns, that it is OK to require that a lawyer, and only a lawyer be allowed to help, and then to refuse to make one available? Either the case is simple enough for non-lawyers to help, in which case the UPL prohibitions make no sense (and are arguably unconstitutional in such circumstances), or it is too complicated for a non-lawyer. If it is too complicated, there must be help from a lawyer, and one should be provided to those unable to pay. Indeed Professor Tribe points out the unconstitutionality of requiring the use of a legal path, and then making it financially impossible, Boddie v. Connecticut, 401 U.S. 371 (1971) (holding that if state prescribes only one method of dissolving marriage – judicial divorce, it can not deny the route to those who can not afford it; here the state is requiring that help must come from an admitted lawyer, and then refusing to provide one to the indigent.)
Any claimed middle group of cases — that a case is complicated enough that you can not allow non-lawyers to help, but simple enough that people can not do it on their own, just makes no ultimate sense. I suppose one could assert that there is so much easier for a self-represented litigant to handle their own case than for a non-lawyer to help them that you can require people to handle their own cases. But the only reason I could think of for this would be that the process of drawing out what someone else’s actual problem is, is so difficult that you need a law degree to do it. But we all know that the skill of drawing out from someone what their problem is, is hardly taught in law school at all — more likely in social work school.
As to the skill of legal “issue spotting,” that would be just as much needed by the self-represented as by any helper, and if needed in a case, should move it into the category of those needing counsel. Remember too, at least in this country, the structure of UPL rules cannot be justified as preventing unregulated commercial exploitation of the vulnerable.
In this country those rules reach to any activity that is substantively considered the practice of law, regardless of the relationship between the helper and the helped, regardless of whether provided by a non-profit or one in business, and regardless of whether money changes hands. So the rigor and comprehensiveness of ULP rules can not be justified in such ethical and protective terms, but only in skill terms. There are, of course, legitimate concerns about the ethics and quality of services provided by non-lawyers (as by lawyers), but there are many regulatory ways of taking care of this. Abolishing or modifying the rules governing UPL is not the same as having no consumer protection regime. Such an appropriate protective regime might potentially include registration, an insurance requirement, a complaint mechanism, and/or limitation to certain activities, including possibly to non-profit practice. Moreover, getting the line right would make it easier for appropriate consumer protection enforcement.
You could also argue, I suppose, that UPL rules do no harm, because, after all, you can always represent yourself, and a lawyer is denied only in cases where it would make no difference. But surely that is a matter for the person providing or receiving the help to decide, and, to the extent we might be talking about associational or commercial relationships, that relationship can only be reasonably, not unreasonably, regulated. (Indeed the prohibition, particularly in the associational non-commercial contest, might raise First Amendment questions. It may well be that these First Amendment implications and the over and under inclusiveness of the current structure of UPL are what might doom the current bright line between lawyers and non-lawyers and between legal practice and non-regulated activities.)
In the end, I would hope that this insight — if it is that — will help us all focus more comprehensively on the whole access issue with its many components, and on the need not to focus on battles about small parts of it.
Final Note: Although I have focused this early pre-post on the possible UPL implications of Turner, this is, of course, just one aspect of the much larger conversation we are anticipating once Turner comes down.