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The Utah Supreme Court's Committee on the Delivery of Legal Services has completed its work and on September 5, 2002 submitted its report to the full Court. The report and its conclusions
should be of interest to every Utah lawyer. At the risk of oversimplification,1 the essence of the Committee's work has been to focus on which co-equal branch of government (the Legislature or the Court) governs the "practice of law"; survey the ways in which legal services are being delivered cost effectively to Utahns; and explore avenues by which competent legal assistance may be provided on a larger and more efficient scale to more citizens (particularly the middle class).
Many members of the Bar have seen Justice Michael J. Wilkins' (the Chair of the Court's Committee) excellent powerpoint presentation at either the mid-year meeting in St. George
or elsewhere that explains the issues and the work of the Committee. In short, when the Bar and others realized that the Legislature in its 2001 repeal of certain statutes had also
mistakenly repealed the unauthorized practice of law statute, legislation was introduced to reinstate the statute. Some legislators saw an opportunity to focus on the overall delivery of
legal services in our state, based on their perception that there is a significant unmet need for legal services in the state and that the need is linked to the high cost of those
services. An informal House committee held a hearing and proposed legislation. The result was that an unauthorized practice of law statute was enacted with a short sunset provision
(originally set for May 1, 2002 and later extended to 2003) and the Court was requested to study six legislative findings.2
The Court immediately formed a committee,
taking the unusual step of having two of its own members, Justice Leonard Russon and Justice Wilkins, serve on the Committee. Other members of the Committee are five legislators, one
trial court judge, the state court administrator, the current and a former bar president, the bar's executive director, a public law representative and a public member. It was
particularly worthwhile to have five legislators3 actively participate in the Committee's deliberations. The Committee discussions were constructive and probing. Full consensus was not reached on all points, but no issue divided the Committee or resulted in the offering of a minority report or position.
The Committee held nine monthly meetings in which it studied and heard presentations on a number of broad topics, including standardized court forms, use of technology,
alternative dispute resolution, multidisciplinary practice (MDP), multijurisdictional practice (MJP), the role of paraprofessionals, self-represented litigants, charitable legal
assistance, legal insurance and limited scope practice.
The Committee report takes issue with several of the legislative findings. For example, the Committee challenged "the
suggestion that any broad category of non-attorney professionals currently provide competent legal assistance care to Utah's citizens with both low total costs and adequate guarantees of
professional competence in areas previously reserved by law to attorneys."4 Concerning the increasing frequency of pro-se litigation, the Committee acknowledged that self-representation is a fundamental constitutional guarantee but observed that the exercise of that "right at times may not be necessarily in the best interests of some citizens" and imposes significant burdens on our court system. Pointedly stated by the Committee, just because a citizen has the constitutional right to control the course of treatment over his own body does not mean that he would be wise to take out his own appendix. Finally, with respect to the dramatic increase in the quantity of legal information available to the public, the Committee concluded that technology "has not yet met the challenge of assuring that the information relied upon by our citizens is both accurate and applicable to the questions at hand."
The Committee concluded that the Legislature may define the unauthorized practice of law under current applicable case law, but the Utah Supreme Court, by constitutional
mandate, exclusively governs the practice of law. The Committee encouraged cooperative efforts between the Court and the Legislature in undertaking any changes in the means of providing
legal services. The Committee had high praise for the State's award-winning Online Court Assistance Program (OCAP) and felt that there is a need for the creation of additional reliable
and legally accurate forms and an opportunity to better educate the public about the availability of these resources. The Committee strongly endorsed the use of alternative forms of
dispute resolution. The Committee concluded that the suggestion that officers of small businesses be allowed to represent their companies in court was conceptually flawed. Certain
business entities, like corporations and limited liability companies, are treated as distinct and separate persons for legal purposes so as to provide protection to their owners and
managers from personal liability. If that shield to personal liability is to be maintained, then it becomes problematic to allow a business owner or officer - who may place his personal
interests over those of other owners or shareholders - to represent the business entity.
The Committee's report embraces the conclusion that "competence is a bedrock notion of
legal service." The Committee opposes any changes by which legal services "provided to the public would result in a decrease in the competence of those authorized to provide
legal care." The Committee was supportive of the adoption of MJP5 and felt that further study should be given to the concept of "unbundled" legal services.6 Non-legislators on the Committee felt a need to emphasize that many of the Committee's recommendations carry a significant price tag to implement (e.g., assistance to self-represented litigants, government funding of alternative forms of dispute resolution, or support of lower cost attorney assistance provided on court premises). Currently, virtually all of the legal assistance for Utah citizens is financed by persons other than the State.
Finally, the Committee concluded that the Bar can assist in providing more helpful information and lower cost legal services to the public. The Bar leadership believes that there
are both unutilized and under-utilized competent and experienced lawyers who can provide legal services on a cost-effective basis to Utah citizens. Debra Moore, the President-Elect, is
chairing a task force to study this subject and consider the feasibility of developing a web-based system to assist the public in tapping into the resources lawyers can offer. For more
details, see the side bar article by Debra Moore. Providing legal services to a greater segment of our fellow citizens is an opportunity and responsibility that we as a profession should
not shun, but eagerly address and be at the forefront in shaping solutions. We will keep you informed about the Bar's efforts in this regard and keep you updated about the actions of the
Court and Legislature.
Footnotes
1.
My intent in this article is to present a fair summary of the Committee's report. However, the views I express are my own - from my perspective as a Bar representative and as a single Committee member - and not necessarily those of the entire Committee.
2.
The six legislative findings were: (1) There is a significant unmet need for legal services within the State of Utah; (2) This need for legal services is linked in part to the high cost of those services; (3) This unmet need for legal services adversely impacts the health, safety, and welfare of Utah citizens; (4) In many situations, non-attorney professionals now provide, at low cost to consumers with adequate protections, services previously reserved by law to attorneys; (5) The right of a person to represent himself and his interests in a court of law is a recognized right in our legal system; and (6) Recently enhanced technological capabilities have helped people access information needed to handle their own legal issues.
3.
Senators Michael Waddoups (R - Taylorsville) and Karen Hale (D - Salt Lake City) and Representatives Greg Curtis (R - Sandy), Steve Urquhart (R - St. George) and Patrice Arent (D - Holladay).
4.
The Committee, however, did acknowledge the law-related activities of CPA's, real estate agents and brokers, title insurance and real estate closing agents and the reliable counsel they provide in their individual areas of expertise.
5. It should be noted that Justices Russon and Wilkins abstained from votes about MJP since a Bar petition to allow MJP was then pending before the Court.
6.
Unbundled legal services would permit a lawyer to perform certain clearly-defined, discrete tasks without assuming responsibility for other aspects of a client's legal matter.
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