Reimagining Legal Services: How Texas is Tackling the Access to Justice Crisis

Sarah Lahlou-Amine, Director, Law Firm Pro Bono Project^®

In a groundbreaking move aimed at addressing the widening gap in access to legal services, the Supreme Court of Texas has recently taken steps toward licensing paraprofessionals and court-access assistants to provide legal services to low-income individuals. This development marks a significant shift in the traditional legal landscape and builds on a growing movement to expand access to justice through the use of nonlawyer legal service providers.

The Access to Justice Gap

The “access to justice gap” refers to the disparity between the need for legal services and the ability of individuals to obtain them. This gap disproportionately affects low and middle-income individuals who often find themselves priced out of the existing legal market.

• Scale of the Problem: The LSC’s 2022 Justice Gap Study revealed that low-income Americans do not get any or enough legal help with 92 percent of their civil legal needs.
• Affected Population: The study found that 74 percent of low-income households experienced at least one civil legal problem in the prior year, including issues related to health care, housing, education, veterans’ benefits, and domestic violence.
• Lack of Resources: In 2022, LSC-funded organizations were forced to turn away 49 percent of requests for services due to limited resources.
• Impact of COVID-19: The pandemic exacerbated the justice gap, resulting in a significant increase in legal needs related to unemployment, evictions, and domestic violence during this period.
• Geographic Disparities: The justice gap is particularly pronounced in rural areas, where there are fewer lawyers per capita and greater distances to travel to reach legal services. In these areas, the already staggering 92 percent statistic of unmet legal needs nationwide rises further to 94 percent.
• Awareness Issues: Many individuals don’t seek legal help because they don’t recognize their problems as legal issues or don’t know where to turn for assistance.

These statistics highlight the critical need for innovative solutions to bridge the justice gap. The traditional model of legal services delivery and representation, relying almost exclusively on licensed attorneys, has proven insufficient to meet the vast legal needs of low-income Americans.

Nonlawyer Legal Service Providers Movement: A Growing Trend

To address these issues, various jurisdictions have been exploring nonlawyer legal service provider models as part of the landscape for the delivery of legal services. There is no standard name for these individuals or their roles and responsibilities across jurisdictions, but they most commonly fall into three general categories: licensed legal paraprofessionals, community justice workers, and court navigators. See this chart generally summarizing the differences between lawyers and these legal service providers. The proposed licensed legal paraprofessional role in Texas is similar to corresponding roles in other states. The proposed court-access assistant role shares many of the attributes of community justice worker models in other states.

Types of Nonlawyer Legal Service Providers

• Licensed Legal Paraprofessionals: These individuals are typically trained, licensed, and employed to provide limited legal services in specified areas of law. Licensed paraprofessional programs are currently operating in several states, including Arizona, Oregon, and Utah.
• Community Justice Workers: These workers are trained to deliver specified legal services to members of their community. They are generally employed in other sectors and may include healthcare workers, social workers, librarians, teachers, and others, and they are cross-trained to assist with legal problems.  Some are volunteers, while some are employed by community-based organizations including legal aid organizations. Alaska is well-known for its robust Community Justice Worker program supervised by Alaska Legal Services Corporation.
• Court Navigators: These individuals help guide self-represented litigants (SRLs) through the legal system, providing information about forms, processes, and available resources. This two-part report shares research and insights on the important role court navigators play in the justice system.

The Innovative Approach to Nonlawyer Legal Service Providers in Texas

Recognizing the potential of nonlawyer legal service providers, the Supreme Court of Texas initiated a process to explore licensing paraprofessionals and court-access assistants to provide limited representation and legal services to low-income litigants. Key points of the Texas initiative include:

• Scope of Services: If implemented, the program would permit licensed paraprofessionals to provide representation in small claims matters in Texas and specified legal services in areas of (1) family law, (2) probate and estate planning, and (3) consumer debt matters. Licensed court-access assistants would also be permitted to provide legal representation and services to SRLs in small claims matters pursuant to a certificate of sponsorship by an approved legal assistance organization.
• Education and Training: The proposed rules set forth ethics and training requirements for both licensed legal paraprofessionals and court-access assistants. An ethics and subject matter examination would be required for licensed paraprofessionals, subject to limited exceptions. Court-access assistants would be required to complete specified trainings on professional conduct, court procedures, and substantive civil law matters.
• Oversight: Licensed paraprofessionals would be subject to application requirements of the State Bar of Texas and licensure by the Supreme Court of Texas. In addition to representation in small claims matters, they would be permitted to provide a long list of specified services in the three licensed subject areas (family law, probate and estate planning, and consumer debt matters) without lawyer supervision and a short list of additional family law services with lawyer supervision. Court-access assistants would be supervised by a lawyer at their sponsoring legal assistance organization.
• Client Communications: Both licensed paraprofessionals and court-access assistants would be required to advise the litigants they assist that they are not lawyers. The proposed rules make clear, however, that client communications with licensed paraprofessionals and court-access assistants are protected by the attorney-client privilege.
• Income Qualifications: Services by licensed paraprofessionals and court-access assistants under this program are limited to litigants with “low income,” defined as “at or below 200% of the federal poverty guidelines as published annually by the U.S. Department of Health and Human Services.”

Potential Impact

The Texas initiative to license paraprofessionals and court-access assistants has the potential to significantly improve access to justice for underserved communities.

• Empowering Litigants: With nonlawyer legal service providers available to provide legal representation in specified matters and proceedings, low-income litigants will be better positioned to address their civil legal issues. The anticipated direct benefits of these developments include improved legal outcomes and agency over one’s legal decision-making. But there are also a number of potential adjacent and indirect benefits, including improving litigants’ health and wellbeing, limiting time off needed for court proceedings, which may be mitigated by more effective case management and resolution strategies, and limiting personal and family conflict resulting from protracted legal actions.
• Faster Resolution of Legal Issues: With more providers available to handle routine legal matters, court dockets may move more quickly and efficiently. Nonlawyer legal service provider initiatives, particularly when combined with other measures directed to improve case management, may have the welcome effect of lightening the unsustainable load of judges, clerks’ offices, and other court staff whose roles are continually affected by limited court funding.
• Freeing Up Attorney Time: Bringing in new categories of providers tailored to specific legal needs will allow attorneys to focus their attention on more complex matters. In this way, nonlawyer legal service providers facilitate a more efficient legal landscape where lawyers get to perform the work they are uniquely qualified to do.

Addressing Concerns

Recognizing that no part of the legal system is without its challenges, the conversation around nonlawyer legal service providers is robust. Here are some concerns that have been raised, along with ways the Texas proposal appears to be addressing them:

• Quality of Services: Some raise concerns over the quality of legal services when attorneys are not providing the services directly, although this concern does not appear to be rooted in evidence with respect to the trending models for scope-specific nonlawyer legal service providers. In Texas, these concerns are addressed through numerous proposed rule requirements limiting the subject services to specified cases, substantive areas, and tasks for which education, training, and examination are required. Licensed paraprofessionals and court-access assistants would also be required to acknowledge and adhere to specified ethical standards and obligations.
• Impact on New Lawyers: Some suggest that the emergence of nonlawyer legal service providers will negatively impact the job market for newly licensed lawyers. This concern calls for a clarification of the role of these providers. Nonlawyer legal service providers do not replace lawyers. Rather, they complement the work of lawyers, freeing lawyers up to perform the work they are uniquely qualified to handle. Lawyers and clients alike benefit from the increased availability of lawyers to handle their more complex legal needs. Moreover, the vast majority of services that nonlawyer providers offer are directed to SRLs who cannot afford a lawyer to represent them, meaning that lawyers are not losing business to these providers.
• Complexity of Legal Matters: Some raise concerns that nonlawyer legal service providers may endeavor to handle matters beyond those for which they have the necessary training and experience. This concern can be addressed in a variety of ways, depending on the jurisdiction. Texas proposes a multi-faceted approach as the rules expressly list courts, subject areas, and tasks in which the nonlawyer legal service providers may provide representation and legal assistance.

Learning from Other Industry Models

The legal industry, like many others, is undergoing a transformation in response to societal changes, technological advancements, and a growing recognition of the need for more accessible services. Other industries have likewise adopted tiered models to meet changing demands for the delivery of services, with positive results:

• Healthcare: The introduction of nurse practitioners and physician assistants has significantly expanded access to medical care, particularly in underserved areas. These professionals work alongside doctors, handling routine cases and freeing up physicians to focus on more complex medical issues.
• Education: Teaching assistants and paraprofessionals play critical roles in supporting student learning, allowing teachers to spend more time on curriculum development and providing targeted attention where it is most needed.
• Financial Services: Financial advisors and planners have filled in the landscape of financial service providers alongside accountants and stockbrokers, providing specialized services to a broader range of clients.
• Technology: The rise of coding bootcamps and specialized certifications has created new pathways into the tech industry, complementing traditional career trajectories and degree programs and scaling a workforce needed for a rapidly growing industry.

Steps Towards a More Accessible Legal System

The continual evolution of a tiered legal services provider model appears to be as much of a natural next step toward increasing accessibility as other industries have witnessed. The legal community, policymakers, and the public will be watching closely as Texas embarks on this new and innovative step in its access to justice journey. As the Texas program and others like it continue to grow and evolve, pro bono lawyers will have the opportunity to provide much-needed support, strategy, and guidance as constituents convene to navigate regulatory processes and bring efforts like the Texas program to fruition.

Make Your Voice Heard

Public comment is an important and easy mechanism for weighing in on proposed court rules. Members of the public who would like to comment on the proposed rules for licensed legal paraprofessionals and court-access assistants in Texas can email their comments to rulescomments@txcourts.gov by November 1, 2024. The Court anticipates finalizing the rules after that time and establishing an effective date of December 1, 2024, for the new rules as amended and potentially revised in response to public comments.

Summary of Common Differences between Lawyers and Nonlawyer Legal Service Providers

Chart prepared by Riley Kelly, PBI Intern