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  1. 1. Edited for the Bellow-Sacks Project This document may be used for discussion purposes only. General distribution prohibited. ACCESS TO JUSTICE: REFORMING UNAUTHORIZED PRACTICE LAW, LEARNING FROM ADVANCED PRACTICE NURSING REGULATION Kristin Sostowski Legal Profession: Delivery of Legal Services Jeanne Charn May 2001 1
  2. 2. Edited for the Bellow-Sacks Project This document may be used for discussion purposes only. General distribution prohibited. Much as the health care delivery system has undergone a sea-change in the past decade, moving away from providing service on demand and excessive reliance on the most intensively trained service providers, the crisis of access in the judicial system will force us to recognize the need for systemic reform. The collision of limited resources and increasing demand compels the invention of a new paradigm for thinking about both resources and needs. The judicial system must reassess its purposes with all users in mind and reallocate limited resources according to priorities that do not shut out the economically disadvantaged.1 Introduction In the past decade, while substantial public attention has been devoted to the problem of escalating medical costs pricing health care consumers out of the market for care, relatively little attention has been paid to a similar crisis in the delivery of legal services. The private sector cost of basic legal services is beyond the means of the vast majority of Americans. Comparing the accessibility of health care and legal services for low- to moderate-income people reveals a wide disparity in the availability of services that are both essential at one time or another to the well being of virtually everyone. While in the health care arena, publicly funded entitlement programs and the provision of free care to patients who are unable to pay in many clinics and teaching hospitals ensure that every needy patient will get at least some care, no comparable guarantee exists in our legal system. The level of federal government funding allocated to provide legal services is completely inadequate, and the private bar has failed to commit a sufficient number of pro bono or reduced fee hours to bridge the gap between the demand for legal assistance and the available legal services. A large number of proposals have been put forward for how to address the problem of unmet legal needs in this country. One promising proposal that has been receiving increased attention in recent years would modify or eliminate unauthorized practice laws which restrict the 1 The Honorable Denise R. Johnson, Part Three: Multiplying Models: The Legal Needs of the Poor as a Starting Point for Systemic Reform, 17 YALE L. & POL’Y REV. 479, 488 (1998). 2
  3. 3. Edited for the Bellow-Sacks Project This document may be used for discussion purposes only. General distribution prohibited. “practice of law” to licensed attorneys. In conjunction with a shift away from unauthorized practice laws, some propose that lay practitioners such as paralegals should be recognized by law as limited substitutes for attorneys and regulated. Typically justified on grounds of consumer protection,2 unauthorized practice laws have effectively guaranteed the legal profession a monopoly on the provision of legal services, including many services that are simple enough to be performed competently by nonlawyers.3 The repeal of unauthorized practice laws or their modification to permit nonlawyers to provide a limited set of legal services would be one means of increasing accessibility and lowering the cost of routine legal services needed by a large number of Americans every year. In determining the best way to reform unauthorized practice laws, a great deal can be learned from the experience of states that regulate advanced practice nursing. In recent decades, states have expanded the scope of nurse practice acts to permit nurses with advanced training to provide primary health care services previously considered to be within the exclusive domain of 2 Many commentators have argued that unauthorized practice laws do not actually serve to protect consumers from harm resulting from unskilled providers. See, e.g., Deborah L. Rhode, Professionalism in Perspective: Alternative Approaches to Nonlawyer Practice, 22 N.Y.U. REV. L. & SOC. CHANGE 701, 703 (1996) (“Although courts and bar associations maintained that their sole concern was protecting the public, their focus in reported decisions seemed poorly suited to that end. Virtually all of the cases enjoining nonlawyer practice rested on unsupported empirical claims about the potential harm to consumers receiving any lay assistance. Yet none of these decisions offered any evidence of significant injury. Nor did they acknowledge the social costs of lawyers’ monopoly, particularly for low-income consumers who could neither afford an attorney nor proceed without some legal assistance.”). 3 Many advocates of increased access to justice for low- to moderate-income people object to the term “nonlawyer.” Members of the Working Group on the Use of Nonlawyers at the 1999 Conference on the Delivery of Legal Services to Low-Income Persons at Fordham Law School pointed out that “the legal profession is the only profession that uses this sort of negative description of the lay populace which provides legal services. By contrast, one never hears of a ‘non-doctor,’ but rather there are nurses, paramedics, orderlies, and so on. The term ‘nonlawyer,’ however, has gained general usage and acceptance among lawyers, referring broadly to anyone who is not authorized to practice law.” Conference: Report of the Working Group on the Use of Nonlawyers, 67 FORDHAM L. REV. 1813, 1813 n.2 (1999) [hereinafter Conference Report]. Alan Morrison, director of the Public Citizen Litigation Group, has been similarly quoted, “Speaking of the term ‘non-lawyer,’ every time I use it I ask myself about it. If you go home at night and find your house full of water, you call a plumber. But if you wanted to call somebody else who is not a plumber, would you ever refer to him or her as a non-plumber? Or would you refer to someone else as a non-doctor, or a non-dentist? The only people who manage to divide the world into their profession and everybody else’s by putting a ‘non’ in front of them are lawyers.” Jon Stubenvoll, Does Government Protect Or Harm Consumers By Allowing Them To Choose A Nonlawyer? 52 OR. ST. B. BULL. 21 (1992). 3
  4. 4. Edited for the Bellow-Sacks Project This document may be used for discussion purposes only. General distribution prohibited. physicians. The increased use of advance practice nurses in the provision of primary care has resulted in lower health care costs and increased accessibility for many low- and moderate- income health care consumers, particularly those in underserved urban and rural communities that have had difficulty attracting and retaining physicians. This article argues that states should follow a similar course in the legal context. Modifying or eliminating unauthorized practice of law statutes and adopting statutory structures for “advanced legal assistant practice” similar to those currently in place for advanced practice nurses would improve access to and decrease the cost of “primary” or routine legal services for low- to moderate-income consumers. The Story of Rosemary Furman In 1976 and 1977 Rosemary Furman was the owner and proprietor of Northside Secretarial Service, a Jacksonville, Florida business that sold, along with other services, “do-it- yourself divorce kits.”4 The business served principally low-income clients who otherwise may not have had access to Florida’s domestic relation courts. With no formal legal education or training, Furman successfully assisted clients wishing to represent themselves in divorces.5 Rosemary Furman performed every step necessary to dissolve a marriage with the exception of filing divorce papers and representing clients at their court hearing.6 She offered limited advice on virtually every step in the divorce process because she understood that her clients were generally inexperienced with the legal system. Furman’s intake process was simple. Clients seeking assistance with a divorce were asked to fill out an intake form, and if the client was illiterate and/or unfamiliar with legal terminology, Furman obtained the information orally.7 4 See Florida Bar v. Furman, 376 So.2d 378, 379 (Fla. 1979). 5 See id. at 379. 6 See id. at 380. 7 See id. at 381. 4
  5. 5. Edited for the Bellow-Sacks Project This document may be used for discussion purposes only. General distribution prohibited. With this information, Furman prepared the Petition for Dissolution of Marriage and provided the client with instructions on how to file the papers.8 In addition to helping clients file for a divorce, Furman offered clients a briefing session, preferably the day before the scheduled divorce hearing. During this session, she advised clients on what to expect in court and provided them with important practical information such as how to locate the correct Court chambers and how to interrogate witnesses.9 For this complete range of services, Rosemary Furman charged her clients no more than fifty dollars,10 making her assistance affordable to clients who would otherwise have been financially unable to seek advice from a private sector attorney. Furman never held herself out as being an attorney when providing services to the public.11 Her advertisement in the local newspaper, the Jacksonville Journal, stated that she sold “do-it-yourself divorce kits” and in no way suggested that she was an attorney or licensed to practice law in Florida.12 In fact, Furman’s standard practice was specifically to inform customers that she was not an attorney or licensed to practice law.13 In 1977, the Florida Bar sued Rosemary Furman for unauthorized practice of law, alleging that Furman, a nonlawyer, had given legal advice and was rendering legal services.14 Based upon the findings of a court-appointed referee, the Supreme Court of Florida found that Furman’s activities constituted the practice of law and permanently enjoined her from any 8 See id. 9 See id. 1 10 See id. at 379. 1 11 See id. 1 12 See id. 1 13 See id. at 380. 1 14 See id. at 379. 5
  6. 6. Edited for the Bellow-Sacks Project This document may be used for discussion purposes only. General distribution prohibited. further unauthorized practice.15 The court arrived at this holding despite the fact that Furman (1) did not hold herself out to be an attorney, (2) had not harmed any client,16 and (3) was performing a needed service for low-income clients. The court took note that Furman’s case highlighted the problem of access to legal services for low-income clients and responded to the “continuing problem” by directing the Florida Bar to begin a study “to determine better ways and means of providing legal services to the indigent.”17 With this move, the court pushed the responsibility for policing the provision of legal services back to the Florida Bar. More than two decades after the Furman case, one of the most striking lines in the Florida Supreme Court’s opinion is an analogy that the court draws between legal and medical practice. Writing about Rosemary Furman’s work, the court wrote that “[t]he fact she is an expert stenographer does not give her any legal right to engage in divorce and adoption practice anymore than a nurse has the right to set up an office for performing tonsillectomy or appendectomy or a dental assistant to do extractions or fill teeth.”18 Twenty years later, as we experience major structural changes in the provision of health care in the United States, the court’s assessment of unauthorized practice is quite ironic. While the provision of health care has not reached the point that the Furman court suggested as the ultimate absurdity, in most states advanced practice nurses do exercise a degree of independent authority that the court 1 15 See id. 16 The Florida bar did not contend that Furman held herself out as a lawyer or that her clients suffered any harm from her services. See id. 1 17 Id. at 382. 1 18 Id. at 381. Interestingly, both sides of the unauthorized practice debate have employed medical-legal analogies to illustrate their position. For example, Robert Ellickson has been quoted as saying that retaining a lawyer for many legal needs is like hiring “a surgeon to pierce an ear.” See Hal Lancaster, Rating Lawyers: If Your Legal Problems are Complex, a Clinic May Not Be the Answer, WALL ST. J., July 31, 1980, at 1, 8, quoted in Deborah L. Rhode, Professionalism in Perspective: Alternative Approaches to Nonlawyer Practice, 22 N.Y.U. REV. L. & SOC. CHANGE 701, 709 n.32 (1996). 6
  7. 7. Edited for the Bellow-Sacks Project This document may be used for discussion purposes only. General distribution prohibited. would have likely found similarly unbelievable two decades ago. The expansion of the roles of nurses as independent practitioners in the medical profession and the regulatory response of states to this development offers important lessons for advocates of the relaxation or repeal of unauthorized practice laws in the legal field. The Problem of Unmet Legal Needs The problem of unmet legal needs discussed in Florida Bar v. Furman has regretfully not subsided in the two decades since the decision of that case. In recent years, a number of studies have attempted to assess the magnitude of the problem.19 The largest scale study, commissioned by the ABA’s Consortium on Legal Services and the Public in 1994, concluded that although about half of all low- and moderate-income households20 in the United States face a situation that raises a civil legal issue each year, the overwhelming majority of these situations are never brought to the attention of the courts of other public dispute resolution avenues.21 The ABA study found that seventy-one percent of legal situations facing low-income households and sixty- one percent of those facing moderate-income households are not resolved through the justice system. Lawyers are retained in only twenty-one percent of the situations faced by low-income households and twenty-eight percent of situations faced by moderate-income households.22 1 19 See generally, ABA COMM’N ON NONLAWYER PRACTICE, NONLAWYER ACTIVITY IN LAW-RELATED SITUATIONS: A REPORT WITH RECOMMENDATIONS E-1 (1995) (citing legal needs studies conducted from 1985-1995 by 18 jurisdictions) [hereinafter 1995 REPORT]. 2 20 The ABA COMPREHENSIVE LEGAL NEEDS STUDY defined low-income households as those with an annual income at or below 125 percent of the federal poverty line (the eligibility level for publicly funded legal services). Moderate- income households were defined as households with income above 125 percent of the poverty line, but below $60,000. Households in the top quintile of the income distribution were excluded from the study. INST. FOR SURVEY RESEARCH AT TEMPLE UNIV., FINDINGS OF THE COMPREHENSIVE LEGAL NEEDS STUDY: REPORT ON THE LEGAL NEEDS OF THE LOW- AND MODERATE-INCOME PUBLIC 3 (1994) [hereinafter TEMPLE UNIV. REPORT]. 21 See ABA CONSORTIUM ON LEGAL SERVICES AND THE PUBLIC, AGENDA FOR ACCESS: THE AMERICAN PEOPLE AND CIVIL JUSTICE vii (1996). 2 22 See 1995 REPORT, supra note 19, at 75. 7
  8. 8. Edited for the Bellow-Sacks Project This document may be used for discussion purposes only. General distribution prohibited. Cost concerns consistently rank at or near the top of the list of factors causing individuals to forego legal services. In the ABA study, cost concerns were the second most common reason cited for why low-income households chose not to seek help from the justice system and the fourth most cited reason for moderate-income households.23 The problem of high legal fees in the private sector presents a particularly serious barrier for “near poor” households – those that have income above the federal poverty line, yet cannot afford lawyers’ bills without sacrificing other necessities. These households are particularly vulnerable because the current method of determining eligibility for federally funded legal services fails to recognize that income falls along a continuum, with “no bright line delineating ability or inability to pay lawyers’ fees.”24 Under current guidelines, individuals become ineligible for free legal services at 125 percent of the poverty line, regardless of the fact that a person with one dollar of income above this line has no greater ability to pay legal fees than a person with one dollar less income. A 1990 Pennsylvania legal needs study explained that: [T]hese people, many of whom hold minimum wage jobs, are struggling to eke out an existence. They pay a large percentage of their income for minimal shelter. They often have no health insurance, and, after paying for necessities, have nothing left…. It is clear that there is a large population between the bottom economic stratum of people who are eligible for free legal services … and those in the middle class who can afford at least some legal representation. This group of the near poor is virtually denied any legal representation.25 2 23 TEMPLE UNIV. REPORT, supra note 20, at 25. The reason most commonly cited by low-income households was not thinking it would help to seek assistance from the justice system. In moderate-income households, the perception that a situation was not really a problem, not believing the legal/justice system could help, and wanting to handle the situation on one’s own were the most highly ranked responses. 24 1995 REPORT, supra note 19, at 78. 25 PA. BAR ASS’N, REPORT OF THE PENNSYLVANIA BAR ASSOCIATION TASK FORCE FOR LEGAL SERVICES TO THE NEEDY 6 (1990), cited in ABA COMM’N ON NONLAWYER PRACTICE, NONLAWYER ACTIVITY IN LAW-RELATED SITUATIONS: A REPORT WITH RECOMMENDATIONS 76 (1995). 8
  9. 9. Edited for the Bellow-Sacks Project This document may be used for discussion purposes only. General distribution prohibited. While the “near poor” population is the group most likely to forego purchase of legal services, studies demonstrate that even moderate-income individuals who are able to afford some legal services frequently decide against seeking legal representation when they face serious legal situations. These moderate-income households frequently feel that their problems are not sufficiently serious to justify paying large legal fees or believe that lawyers do not give clients sufficient value to justify the costs of their services.26 There is little doubt that modifying or eliminating unauthorized practice laws would provide low- to moderate-income people with more affordable legal services options. As this article discusses in greater detail later, the experience of states which have relaxed their unauthorized practice laws demonstrates that there is a market of underserved consumers whose need for affordable services is not being met by the current lawyer-monopolized market. While cost is a major concern for low- to moderate-income households, it is not the only factor creating unmet legal need. Low- to moderate-income households in many communities find that despite an extremely high concentration of attorneys in the United States, few actually practice in the areas of law most needed by this client population. The ABA Commission on Nonlawyer Practice notes that “[i]n many communities, there appear to be few, if any, lawyers experienced or willing to handle certain types of cases—for example, those of handicapped children seeking alternative school placements, battered women seeking temporary protective orders, claimants challenging denial of disability and unemployment claims and cases involving veterans’ claims and criminal child neglect, which often carry very low statutory fee limitations.”27 While approximately sixty percent of all civil cases filed in the United States 2 26 See 1995 REPORT, supra note 19, at 76. 2 27 Id. at 81. 9
  10. 10. Edited for the Bellow-Sacks Project This document may be used for discussion purposes only. General distribution prohibited. involve domestic relations matters, only a small fraction of legal resources, including lawyers and courts, are devoted to this area of practice.28 A number of factors may explain why so few attorneys provide the legal services that low- to moderate-income clients need most. Over the past few decades, the trend in legal practice has been towards increased specialization.29 Motivated by high overhead costs, escalating law school debts, and desire to make a profit, lawyers are becoming increasingly concentrated in large law firms that principally serve corporate clients. Lawyers in smaller practice environments serving individual clients find that they are often unable to provide the legal services most needed by low- to moderate-income clients at prices they can afford. Many of the legal problems commonly faced by low- and moderate-income people are also infrequently addressed in law school curricula. For example, “[s]chools do not generally teach, and bar exams do not test, ability to complete routine forms for divorces, landlord-tenant disputes, bankruptcy, immigration, welfare claims, tax preparation, and real estate transactions.”30 Deborah Rhode notes that “[a]ttorneys who do specialize in these fields often delegate form preparation tasks to paralegals or secretaries…”31 As a result of increased legal specialization and the content of law school curriculum, most lawyers are actually ill equipped to provide the services that low- to moderate-income clients need most frequently.32 2 28 See id. 2 29 See Deborah L. Rhode, The Delivery of Legal Services by Non-Lawyers, 4 GEO. J. LEGAL ETHICS 290, 215 (1990). 30 Rhode, supra note 2, at 709. 3 31 Id. 3 32 The inexperience with many attorneys in these routine areas of legal practice obviously has consequences for cost. Deborah Rhode points out that “[a]ttorneys who lack experience in a particular substantive area may be less able to provide cost-effective routine services than experienced legal technicians.” See id. at 230. 10
  11. 11. Edited for the Bellow-Sacks Project This document may be used for discussion purposes only. General distribution prohibited. Evidence suggests that in addition to being frustrated by high legal fees and the difficulty of finding an attorney, many potential legal consumers are also repelled by the idea of relinquishing the control of their situation over to an attorney. The large percentage of pro se litigants, proceeding either entirely on their own or with limited assistance from an attorney or lay practitioner, indicates that a substantial number of potential legal consumers are dissatisfied with the legal service options currently available. Faced with the prospect of high legal fees, difficulty finding an attorney, and loss of control, many low- to moderate-income households simply opt out of the legal system altogether, even when faced with a serious legal situation. Evolution of Unauthorized Practice Statutes in Law and Medicine While no definitive history of unauthorized practice law in the United States has been compiled,33 the story that emerges from the few sources that have attempted to tackle the subject is one of private, economic motive bolstered by public rhetoric. Most scholars trace the modern movement against unauthorized practice laws to the Depression era.34 Although contemporary unauthorized practice laws have some historical antecedents in England and colonial America,35 it was not until at least a century later that most states had unauthorized practice laws on their books. 3 33 The most commonly cited source on the historical background of unauthorized practice laws is Barlow F. Christensen, The Unauthorized Practice of Law: Do Good Fences Really Make Good Neighbors—or Even Good Sense? 1980 AM. B. FOUND. RES. J. 159 (1980). Yet Christensen himself notes that this article was not intended as a work of legal history, and no attempt was made, except for some statutes and case law, to utilize original sources. Id. at 161. 3 34 Deborah Rhode notes that the relative inattention paid to the history of unauthorized practice laws in the United States may be explained by the fact that “those most active in charting the movement’s progress confront an embarrassing absence of antecedents for their efforts prior to the Depression.” Deborah L. Rhode, Policing the Professional Monopoly: A Constitutional and Empirical Analysis of Unauthorized Practice Prohibitions, 34 STAN. L. REV. 1, 6 (1981). 3 35 See generally, Christensen, supra note 33, at 161-69. 11
  12. 12. Edited for the Bellow-Sacks Project This document may be used for discussion purposes only. General distribution prohibited. According to Christensen’s history of unauthorized practice laws, statutes in place before 1870 tended to address only two major areas of concern: appearances in court by unlicensed persons and prohibition of the practice of law by certain public officials, such as court clerks, bailiffs, and sheriffs.36 A broader definition of unauthorized practice did not begin to take root until the period between 1870 and 1920. Amidst growing concern about the business corporation as a possible competitor to attorneys, the bar became increasingly alarmed about the out-of-court legal activities of nonlawyers, such as giving legal advice, drafting contracts, collecting debts, adjusting claims, dealing with tax issues, and organizing corporations.37 Christensen suggests that the most important development of the period from 1870 to 1920 was not the broadened definition of unauthorized practice, but the shift in rhetoric put forth by the bar to justify unauthorized practice laws. As the bar began to advocate a broader ban on what constitutes the practice of law, it also shifted its language away from the economic motive of the bar to focus on a public protection rationale for unauthorized practice laws: From the earliest times the profession’s motivation had been expressed as a blend of the public interest and the private interests of the bar, although the private interests of the bar were urged openly and without self-consciousness. So, too, in the early literature of the 1870 to 1920 period, the bar’s concern, although yoked with public interest justifications, was clearly directed at the supposed threat to lawyers’ practices and livelihoods. But in the latter part of this period, and particularly in the reasoning of the courts, we see the private interests of lawyers being pushed to the background and the public interest being offered as the primary motivation.38 3 36 See id. at 180. 3 37 See id. at 186. See also Rhode, supra note 34, at 7 (explaining that concern about unauthorized practice developed earlier in New York than in most states due to the “rapid growth of business corporations in areas overlapping traditional legal work.” The first committee on unauthorized practice was established in New York in 1914 and focused on cases against corporations.) 38 Christensen, supra note 33, at 187. 12
  13. 13. Edited for the Bellow-Sacks Project This document may be used for discussion purposes only. General distribution prohibited. The most commonly articulated rationale for unauthorized practice laws at this time emphasized the critical importance of a lawyer’s professional independence, including the fact that lawyers, unlike corporations and lay practitioners, are subject to discipline by the court system and the bar.39 While unauthorized practice of law was recognized by some state legislatures and bar associations as a problem prior to the 1930s, it was not until the Great Depression that an explosion of organizational activity occurred around the issue. Most scholars agree that the timing of this tremendous surge in activity against unauthorized practice was no coincidence, but related directly to “the anxieties of lawyers about their livelihoods” during the economic downturn. 40 The ABA began its active role in opposition to unauthorized practice in 1930, appointing its first Committee on Unauthorized Practice of Law, which over the following decades served as a catalyst for the movement against unauthorized practice.41 By 1940, approximately four hundred state and local bar associations had also established unauthorized practice committees with primarily educational and investigative responsibilities.42 In order to support the flurry of activity against unauthorized practice throughout the nation, the ABA’s Committee began publishing the periodical Unauthorized Practice News in 1934. Produced periodically until 1977, Unauthorized Practice News served to inform bar leaders of recent developments in the field with digests of recent cases, provide materials to guide the 3 39 Id. at 188. 4 40 Id. at 214. 4 41 See id. at 190; Rhode, supra note 34, at 8. 42 Christensen, supra note 33, at 189. 13
  14. 14. Edited for the Bellow-Sacks Project This document may be used for discussion purposes only. General distribution prohibited. development of local unauthorized practice programs, and encourage state and local bar action around unauthorized practice.43 The rise in attention to unauthorized practice was also reflected in the amount legislation passed between the 1920 and 1960. Twelve states passed unauthorized practice legislation for the first time, and many states with existing unauthorized practice laws broadened their scope through additional legislation.44 The statutes that were passed during this period tended to be more broadly worded than earlier unauthorized practice statutes, allowing courts to extend the application of the laws to lay practitioners.45 Current Status of Unauthorized Practice of Law During the 1960s, several significant court decisions had the effect of limiting the scope of unauthorized practice law. In a line of major cases, the U.S. Supreme Court held that organizations such as the NAACP and labor unions are protected by the First Amendment against unauthorized practice of law prosecution for providing their members with legal services.46 Christensen points out that with this line of cases, “in the space of four years, the Supreme Court overturned an important body of case law that had been developing for many years.”47 In Arizona, a 1961 state supreme court decision48 imposing severe restrictions on the 43 Christensen, supra note 33, at 190; Rhode, supra note 34, at 8. 44 The twelve states passing unauthorized practice laws during this time period were Arizona, Connecticut, Georgia, Indiana, Maine, New Hampshire, New Jersey, Ohio, Pennsylvania, Tennessee, and Wyoming. Christensen, supra note 33, at 191. States updating their unauthorized practice of law statutes during this time period were North Carolina and Rhode Island. See id. 45 See id. at 191-92. 46 See UMW Dist. 12 v. Illinois State Bar Ass’n, 389 U.S. 217 (1967) (involving representation offered for workmens’ compensation claims); Brotherhood of R.R. Trainmen v. Virginia ex rel. Virginia State Bar, 377 U.S. 1 (1964) (involving representation offered to members for personal injury claims; NAACP v. Button, 371 U.S. 415 (1963) (involving representation offered to members for civil rights claims). 47 Christensen, supra note 33, at 199. 4 48 See State v. Arizona Land Title Co., 90 Ariz. 76, 366 P.2d 1 (1961). 14
  15. 15. Edited for the Bellow-Sacks Project This document may be used for discussion purposes only. General distribution prohibited. activities of nonlawyers in the context of real estate transactions served as the catalyst for mobilizing a movement led by realtors for a constitutional amendment permitting realtors to draft all real estate documents. The proposed amendment was placed on the 1962 ballot and approved by Arizona voters, one of the first state legislative measures to narrow the scope of unauthorized practice law.49 These and other court decisions somewhat reduced the broad scope of unauthorized practice laws and focused enforcement attention away from organizations and towards lay practitioners and corporations. However, the momentum surrounding these decisions did not produce additional reform of unauthorized practice laws in the years that immediately followed. Unauthorized practice laws have for the most part remained in effect and the bar’s professed public interest rationale for continuing to regulate unauthorized practice of law has not waned. Unauthorized practice law varies widely between jurisdictions.50 In most states the unauthorized practice of law is regulated through some combination of case law, statute, and/or court rules. All states have statutes that restrict the practice of law to licensed attorneys,51 but the commonality between states essentially ends there. Unauthorized practice laws are notorious for being vaguely worded, so the precise meaning of unauthorized practice of law depends on the jurisdiction. As of 1994, 35 jurisdictions claimed to have a definition of the practice of law.52 However, even where a definition exists in case law, a court rule, or a state statute, the 49 See Christensen, supra note 33, at 197. 5 50 See Appendix B for a 50 State Survey of Unauthorized Practice Statutes; see also ABA STANDING COMM. ON LAWYERS’ RESPONSIBILITY FOR CLIENT PROT., 1994 SURVEY AND RELATED MATERIALS ON THE UNAUTHORIZED PRACTICE OF LAW/ NONLAWYER PRACTICE 55-248 (1996) [hereinafter 1994 STUDY] (surveying case law, statutes and legislative materials, court rules, and administrative and executive materials dealing with unauthorized practice of law for all 50 states). 51 See Derek A. Denckla, Responses to the Conference: Nonlawyers and the Unauthorized Practice of Law: An Overview of the Legal and Ethical Parameters, 67 FORDHAM L. REV. 2581, 2587 (1999). 52 1994 STUDY, supra note 50, at 5. 15
  16. 16. Edited for the Bellow-Sacks Project This document may be used for discussion purposes only. General distribution prohibited. definitions of unauthorized practice themselves are frequently so vague that it can be difficult to determine precisely which activities fall within their ambit. States also differ significantly in enforcement methods and remedies available against an individual determined to be engaging in the unauthorized practice of law. Remedies range from enjoining the party from engaging in further unauthorized practice, to holding the party in contempt of court, to imposing criminal penalties.53 One state, Arizona, has no mechanism for enforcing its prohibition against the unauthorized practice of law.54 Several states that have enforcement mechanisms on their books no longer actively prosecute unauthorized practice of law cases.55 In recent years a significant number of states have begun creating exceptions to their unauthorized practice laws permitting lay practitioners to engage in a limited number of legal activities. While these changes are too numerous to detail in full, a few examples will be useful to help illustrate the range of exceptions that have been adopted by the states.56 Since 1983,57 5 53 Injunctions are available as a remedy in 40 states, contempt in 26 states, and criminal penalties in 34 states. 1994 STUDY, supra note 50, at 7. 5 54 See 1994 STUDY, supra note 50, at 63. See generally Ryan J. Talamante, We Can’t All Be Lawyers … Or Can We? Regulating the Unauthorized Practice of Law in Arizona, 34 ARIZ. L. REV. 873 (1992). 5 55 For example, the California bar stopped prosecuting unauthorized practice cases in 1989 when its board of governors passed a resolution stating that legal technicians contribute to greater public access to legal services. The California bar refers complaints of unauthorized practice of law to local district attorneys who may, but seldom do, prosecute. See James Podgers, Legal Profession Faces Rising Tide of Nonlawyer Practice, A.B.A.J., Dec. 1993, at 51, 52. 5 56 It should be noted that several states, included California and New Jersey, considered far more comprehensive overhauls of their unauthorized practice laws that would have allowed paralegals greater independent practice opportunities. Unfortunately, all of these proposed measures failed in the respective state legislatures. See generally Kathleen Eleanor Justice, Note, There Goes the Monopoly: The California Proposal to Allow Nonlawyers to Practice Law, 44 VAND. L. REV. 179 (1991) (discussing the efforts of California and seven other jurisdictions to modify their unauthorized practice laws); Marilu Peterson, New Jersey Rejects Legal Assistant Licensing Recommendations, 12 UTAH B.J. 22 (1999). 5 57 The Washington Supreme Court adopted Rule 12 following a 1981 decision in which it held that a state statute allowing laymen to perform certain real estate transactions unconstitutionally infringed on the court’s power to regulate the practice of law. See Bennion, Van Camp, Hagen & Ruhl v. Kassler Escrow Inc., 63 P.2d 730 (1981); Bill Winter, State Ponders Limited Lay License, 68 A.B.A.J. 662 (1982). 16
  17. 17. Edited for the Bellow-Sacks Project This document may be used for discussion purposes only. General distribution prohibited. Washington has permitted “certified closing officers” to select, prepare, and complete certain pre-approved legal documents for closing real and personal property transactions.58 Washington Supreme Court Rule 12 requires that in order to be certified as a closing officer, an applicant must be at least eighteen years old, possess good moral character, and pass an examination and background check prescribed by the Limited Practice Board.59 In order to remain certified, closing officers must also fulfill continuing education requirements and be able to demonstrate that they are financially capable of paying damages resulting from the officer’s acts or omissions.60 Rule 12 clearly indicates that it is not undermining the state’s unauthorized practice law. While certified closing officers are permitted to complete approved forms, they are not authorized “to give legal advice without being licensed to practice law.”61 In the past ten years, Illinois, Iowa, Michigan, and North Dakota have passed statutes or adopted court rules permitting limited practice by domestic violence victim advocates.62 These provisions allow trained domestic violence advocates to assist victims in navigating the court system. Advocates are generally permitted to assist victims in seeking personal protection orders by helping them complete the necessary forms, accompany victims to court hearings (including 5 58 See WASH. SUP. CT. R. 12(d), providing that: a person certified as a closing officer under this rule may select, prepare and complete documents in a form previously approved by the Board for use in closing a loan, extension of credit, sale or other transfer of real or personal property. Such documents shall be limited to deeds, promissory notes, guaranties, deeds of trust, reconveyances, mortgages, satisfactions, security agreements, releases, Uniform Commercial Code documents, assignments, contracts, real estate excise tax affidavits, and bills of sale. See also Justice, supra note 56, at 193. 5 59 See WASH. SUP. CT. R. 12(c). 6 60 WASH. SUP. CT. R. 12(f)(2). 6 61 See WASH. SUP. CT. R. 12(g)(4). 6 62 See 750 ILL. COMP. STAT. 60/205(b) (Domestic Abuse Advocates); IOWA SUP. CT. R. 120.1 (Domestic Violence Victim Counselors); MICH. COMP. LAWS § 600.2950c (2000) (Domestic Violence Victim Advocate); NORTH DAKOTA ADMINISTRATIVE RULE 34 (Rule regarding domestic violence advocates). 17
  18. 18. Edited for the Bellow-Sacks Project This document may be used for discussion purposes only. General distribution prohibited. sitting and conferring with the victim in chambers and/or at the counsel table in court), and address the court at the discretion of the judge. While domestic violence advocates are by law permitted to function in many roles that would otherwise be considered unauthorized practice of law, their role is still fundamentally a limited one. Advocates cannot examine witnesses, argue before courts, or otherwise serve in a representative capacity for victims. California has adopted the most sweeping program permitting limited practice by nonlawyers. While California did not enact the radical overhaul of unauthorized practice law that many groups advocated in the early 1990s,63 it did pass legislation permitting “legal document assistants” to engage in a range of activities previously reserved for lawyers.64 Under California law, legal document assistants may assist consumers with “self-help services” with no attorney supervision.65 In order to be eligible to provide self-help services, legal document assistants must meet the education and/or experience eligibility requirements laid out in the statute,66 register with the county clerk in the county in which his or her principal place of business is located, and satisfy a bonding requirement.67 While California law gives legal document assistants far greater independence than paralegals and allows consumers of legal 63 See Justice, supra note 56, at 201-12 (discussing the California Bar’s proposal). 6 64 See CAL. BUS. & PROF. CODE § 6400 et seq. (2002). 6 65 See CAL. BUS. & PROF. CODE § 6401.6 (2002). 6 66 See CAL. BUS. & PROF. CODE § 6402.1 (2002). Under § 6402.1, to be eligible for registration as a legal document assistant, an applicant must possess at least one of the following: (a) A high school diploma or general equivalency diploma, and either a minimum of two years of law- related experience under the supervision of a licensed attorney, or a minimum of two years experience, prior to January 1, 1999, providing self-help service. (b) A baccalaureate degree in any field and either a minimum of one year of law-related experience under the supervision of a licensed attorney, or a minimum of one year of experience, prior to January 1, 1999, providing self-help service. (c) A certificate of completion from a paralegal program that is institutionally accredited but not approved by the American Bar Association, that requires successful completion of a minimum of 24 semester units, or the equivalent, in legal specialization courses. (d) A certificate of completion from a paralegal program approved by the American Bar Association. 6 67 See id. 18
  19. 19. Edited for the Bellow-Sacks Project This document may be used for discussion purposes only. General distribution prohibited. services to make a less costly choice, the statute still prohibits legal document assistants from providing services that would too greatly infringe on a lawyer’s domain. Legal document assistants may not “[e]ngage in the unauthorized practice of law, including, but not limited to, giving any kind of advice, explanation, opinion, or recommendation to a consumer about possible legal rights, remedies, defenses, options, selection of forms, or strategies” and may complete documents only in the manner prescribed by statute.68 Paralegals and the Unauthorized Practice of Law In its 1994 survey on unauthorized practice of law, the ABA Standing Committee on Lawyers’ Responsibilities for Client Protection explained that “[a] combination of factors including the consumer movement, the rise of unmet legal needs as a consequence of an increasingly complex society, and the high cost of litigation spurred tremendous growth in the paralegal profession, especially by ‘independent’ paralegals.”69 As new groups of lay practitioners have increased in number in recent decades, concern about their “encroachment” on the bar’s “jurisdiction,” has sparked renewed concern about the public harm perceived to be caused by unlicensed practitioners. This increased attention focused on nonlawyer practice has created a new population vulnerable to prosecution for unauthorized practice. As the quote from the 1994 ABA study suggests, much of the recent attention to unauthorized practice of law focuses on paralegals. The paralegal profession is relatively new,70 but is considered to be one of the fastest growing professional occupations. According to the 6 68 See CAL. BUS. & PROF. CODE § 6411(e) (2002). 6 69 1994 STUDY, supra note 50, at xvi. Independent paralegals, like other paralegals, engage in a wide range of legal work. However, independent paralegals work without the supervision of a lawyer and no lawyer is accountable for their work. See Conference Report, supra note 3, at 1815. 7 70 The paralegal profession is approximately thirty years old. See Lynne D. Dahlborg, Gender Issues in the Paralegal Profession and in Paralegal Education, 13 J. PARALEGAL EDUC. & PRAC. 21, 21 (1997). 19
  20. 20. Edited for the Bellow-Sacks Project This document may be used for discussion purposes only. General distribution prohibited. U.S. Department of Labor Bureau of Labor Statistics, as of 1998 there were 136,000 people employed as paralegals in the United States.71 This number is expected to grow rapidly through 2008.72 The professional role of paralegals has been in flux since the profession began and varies widely between practice settings. The paralegal profession initially evolved from the occupation of legal secretary, but as greater demands have been placed on the legal system, attorneys have delegated increasingly substantive tasks to paralegals. Delegation of substantive work to paralegals permits attorneys to focus on the more challenging aspects of practice, perform their work more efficiently, and bill for more services.73 While paralegals were initially conceived of as support staff to attorneys and most continue to work in settings where they are under the direct supervision of attorneys, some percentage of paralegals work independently of lawyers. It is this subset of paralegals that have prompted renewed concern about unauthorized practice. The number of independent paralegals74 is difficult to estimate, but based on anecdotal evidence the profession appears to be growing. As one commentator explains, “[b]ecause regulatory structures for nonlawyer practitioners are practically nonexistent in any jurisdictions, there are no reliable estimates of the number of 71 See U.S. Dep’t of Labor, Bureau of Labor Statistics, Occupational Outlook Handbook: Paralegal, July 30, 2000, available at <http://www.stats.bls.gov/oco/ocos114.htm>. According to the Bureau of Labor Statistics (BLS), law firms employ the vast majority of paralegals and most of the remainder work for corporate legal departments and various levels of government. BLS recognizes that a “small number of paralegals own their own businesses and work as freelance legal assistants, contracting their services to attorneys or corporate legal departments.” BLS’s data apparently does not include independent paralegals who work without attorney supervision. See id. See also See 1995 REPORT, supra note 19, at 51 (citing U.S. DEP’T OF LABOR STATISTICS, BULL. 2450-5, SOCIAL SCIENTISTS AND LEGAL OCCUPATIONS 17 (1994)). 7 72 1995 REPORT, supra note 19, at 51. 7 73 See Dahlborg, supra note 70, at 22. Dahlborg notes that the first paralegals were hired not to increase the productivity of private sector lawyers, but to assist federally funded legal services lawyers working in poverty programs as part of the War on Poverty. Id. at 22. 74 While this paper uses the term independent paralegal to describe individuals who provide substantive legal assistance without the supervision of attorney, many alternate terms are used such as: legal technician, form preparer, document preparer, and notario. The intended meaning of these terms varies widely. See 1995 REPORT, supra note 19, at 47 (stating that the term “legal technician” in their report is used to describe “document preparers who also give advice concerning which forms to use and/or advice about how to fill them out”). 20
  21. 21. Edited for the Bellow-Sacks Project This document may be used for discussion purposes only. General distribution prohibited. paralegals who have struck out on their own, tempted by the potential for business and independence despite the danger of running afoul of unauthorized practice of law regulations.”75 Independent paralegals provide assistance in a variety of areas of law, including uncontested “no-fault” divorces, child support enforcement proceedings, personal bankruptcies, small estate probates, social security applications, name changes, visas, extensions of stay and other immigration matters, applications for credit, and eviction complaints and defenses.76 Despite the lack of accurate data on the number of independent paralegals currently practicing in the United States, these practitioners are having a critical impact on the unauthorized practice issue, provoking attention from all perspectives. Debate within the bar over whether independent paralegals should be (1) prosecuted for unauthorized practice, (2) regulated in some way, or (3) left alone entirely reflects the larger issue of stratification within the bar. While the bar typically frames unauthorized practice as a consumer protection issue, much attorney concern about unauthorized practice is clearly motivated by the threat of economic competition from nonlawyers and desire to maintain a monopoly on the provision of legal services. Deborah Rhode argues that “[p]articularly among attorneys with small, non- corporate practices, the desire to differentiate themselves from low-cost lay practitioners is likely to persist.”77 For the segment of the bar in practices that overlap with independent paralegals, the economic stakes are high.78 One report indicates that Americans pay lawyers as much as $1.9 7 75 Podgers, supra note 55, at 51-52. 76 See 1995 REPORT, supra note 19, at at 47. 77 Rhode, supra note 29, at 220. 7 78 Carl M. Selinger refers to this strata of the bar as “Main Street lawyers” and argues that “[i]ndependent paralegals, with presumably lower income expectations than lawyers, could in theory wreak havoc on Main Street lawyering.” Carl M. Selinger, The Retention of Limitations on the Out-of-Court Practice of Law by Independent Paralegals, 9 GEO. J. LEGAL ETHICS 879, 887-88 (1996). 21
  22. 22. Edited for the Bellow-Sacks Project This document may be used for discussion purposes only. General distribution prohibited. billion a year for divorces, bankruptcies, incorporations, and wills. However, nonlawyers typically charge a fraction of average lawyers’ fees for services like these and could cut this bill down substantially.79 A large segment of the bar would clearly prefer to keep nonlawyers at the margins working in “legal limbo” under the threat of prosecution for unauthorized practice.80 Despite resistance from this portion of the bar, however, a combination of several forces, including lack of consensus on this issue within the bar, the growing presence of lay practitioners, and public demand for affordable legal services, have opened the door for reform of unauthorized practice laws. Rhode notes that “[t]he bar’s elite, which feels relatively little economic impact from lay competitors’ routine services” has demonstrated a willingness to consider liberalization of unauthorized practice laws.81 Similarly, some judges have grown increasingly receptive to reforming unauthorized practice laws. Commenting on the problem of access to justice for low- to moderate-income people, Justice Denise R. Johnson of the Vermont Supreme Court has noted that: the monopoly [that] lawyers hold on the justice system has become an unacceptable barrier to change. The increasing use of paralegals has proven that non-lawyers may handle many legal matters, especially those that rely on forms, quite competently, with little or no actual supervision by a person admitted to the bar. Lawyers in candid moments will admit this, but the organized bar has kept a firm grip on rules relating to paralegals and the unauthorized practice of law.82 7 79 See Rhode, supra note 29, at 220 (citing Ralph Warner, founder of Nolo Press, a publisher of legal self-help books). 8 80 Meredith Ann Munro refers to the “legal limbo” in which independent paralegals find themselves. These practitioners perform their work with the knowledge that they are likely violating unauthorized practice law. If they avoid drawing too much attention to themselves, however, independent paralegals in many jurisdictions practice without facing any legal recourse because the bar does not actively seek their prosecution. See Meredith Ann Munro, Note, Deregulation of the Practice of Law: Panacea or Placebo? 42 HASTINGS L.J. 203, 204 (1990). 81 Rhode, supra note 29, at 220. 8 82 Johnson, supra note 1, at 488. 22
  23. 23. Edited for the Bellow-Sacks Project This document may be used for discussion purposes only. General distribution prohibited. Advanced Practice Nursing as a Model Although a critical mass of advocates for liberalized unauthorized practice laws has been building for some time, to date these advocates have failed to win any major legislative victories that would allow their movement to build greater momentum and generate wider public support.83 In formulating their next round of strategies, advocates of liberalized unauthorized practice laws should consider the experience of advanced practice nurses in seeking to reform medical practice acts to allow greater autonomy and authority for nurses.84 Comparison of the medical and legal professions reveals a strikingly parallel history of legal barriers designed to restrict who may practice. In the health care arena, practice by alternative providers85 has historically been restricted by state medical licensing law, which, like authorized practice of law statutes, define the “practice of medicine” broadly making it a crime for anyone other than a licensed physician to engage in these activities.86 State legislatures adopted licensure laws in the 1870s and 1880s87 as the result of a highly organized effort by physicians to obtain the exclusive right to practice medicine.88 As is true of unauthorized 8 83 Legislative initiatives seeking to liberalize unauthorized practice of law restrictions have failed in Connecticut, Montana, Nevada, New Mexico, Oregon, Texas, and Utah. See Podgers, supra note 55, at 52. 8 84 “Advanced practice nurse” (APN) is an umbrella term given to a registered nurse (RN) who has met advanced educational and clinical practice requirements beyond the 2 to 4 years of basic nursing education required of all RNs. APNs generally have either a certificate or a master’s degree. Four principal types of APNs fall under this umbrella: nurse practitioners, certified nurse midwives, clinical nurse specialists, and certified registered nurse anesthetists. See Antoinette DeBois Inglis & Diane K. Kjervik, Empowerment of Advance Practice Nurse: Regulation Reform Needed to Increase Access to Care, 21 J. L. MED & ETHICS 193, 194 (1993); Advanced Practice Nursing: A New Age in Health Care, at <http://nursingworld.org/readroom/fsadvprc.htm.> (last visited October 9, 2002). 85 Alternative providers is a broad term used to encompass health care providers other than physicians. 8 86 See Lori B. Andrews, The Shadow Health Care System: Regulation of Alternative Health Care Providers, 32 HOUS. L. REV. 1273, 1298 (1996). 8 87 See Elizabeth Harrison Hadley, Nurses and Prescriptive Authority: A Legal and Economic Analysis, 15 AM. J.L. & MED. 245, 250 (1989). 88 See Inglis & Kjervik, supra note 84, at 197. 23
  24. 24. Edited for the Bellow-Sacks Project This document may be used for discussion purposes only. General distribution prohibited. practice laws, medical licensing laws restricted the range of services that many health care professionals may provide, regardless of their competence to provide these services. Writing about alternative health care professionals generally, one commentator explains that: Because nearly all activities regarding health or disease fall within the scope of the medical licensing laws, an individual providing any health care information or service may be required to have a medical license. Moreover, many alternative professionals cannot offer the range of services of which they are capable because of restrictions in state licensing laws.89 In contrast to the virtually nonexistent state regulation of nonlawyers, nurses have been licensed in all states since the early part of the twentieth century. By 1923, all states then in existence had nurse certification statutes, the voluntary precursor to mandatory licensure laws.90 In 1938, New York became the first state to adopt a mandatory licensure scheme, the first law of its kind to define the practice of nursing and prohibit unlicensed persons from engaging in its practice.91 In order to avoid interprofessional conflict between physicians and nurses, legislators drafting nurse practice acts defined the practice of nursing as the performance of certain functions under the supervision of a physician.92 By requiring physician supervision of nursing, state licensure laws “required nurses’ services to be complementary to physicians’ services.”93 8 89 Andrews, supra note 86, at 1301. 90 See Hadley, supra note 87, at 249. 9 91 See id. 9 92 Under the original nurse practice acts, the practice of nursing was narrowly defined. The independent functions of nurses included only “the supervision of patients, observation of symptoms and reactions, and the accurate recording of facts. The remainder of nursing’s scope of practice was dependent or complementary to the physician.” Inglis & Kjervik, supra note 84, at 197. 9 93 Hadley, supra note 87, at 250. Hadley further explains that: “In the production of medical services, nurses can function both as complements to physicians and as substitutes. In surgery, for example, nurses are inherently complementary. But in other settings, particularly in the provision of primary care and in outpatient settings, nurses can function as substitutes for physicians.” See id. 24
  25. 25. Edited for the Bellow-Sacks Project This document may be used for discussion purposes only. General distribution prohibited. As the nursing profession developed during the mid-part of the twentieth century, the practice of nursing expanded to include many diagnosis and treatment functions that had formerly been the exclusive responsibility of physicians. While massive changes took place in the nursing profession with some nurses serving as physician substitutes in some practice settings, state legislatures failed to keep pace.94 Because the definition of nursing included in nurse practice acts did not reflect the realities of nursing practice, many nurses were put at risk for being charged with unauthorized practice of medicine for acts that they routinely and competently performed in their work.95 In the face of a perceived shortage and misdistribution of primary care physicians96 and growing numbers of nurses with advanced training, states eventually began to modify their nurse practice acts in the 1970s to free nurses from an exclusively complementary role. Idaho was the first state to legally recognize advanced practice nurses, the general term used to describe “registered nurses whose formal education and clinical preparation extend beyond the basic requirements for licensure, resulting in either a certificate or master’s degree.”97 In 1971, Idaho 9 94 The nursing field changed in part due to the emergence of nurse specialists who had obtained advanced education in specific areas of practice. The first formal nurse practitioner programs were established during the 1960s following the creation of Medicare and Medicaid, when the federal government predicted a shortage of primary care physicians. The developing women’s movement also contributed to changes in the nursing profession by fostering efforts to gain increased professional autonomy for almost exclusively female nurses and increasing demand for more women-focused medical services, such as nurse-midwifery. See Inglis & Kjervik, supra note 84, at 197 (discussing Barbara J. Safriet, Health Care Dollars and Regulatory Sense: The Role of Advanced Practice Nursing, 9 YALE J. ON REG. 417 (1992)). 9 95 See Hadley, supra note 87, at 249. 9 96 The shortage of primary care doctors has been particularly acute in rural and poor urban communities. Inglis and Kjervik note that advanced practice nursing “evolved historically in response to a lack of basic health services for certain populations, areas where physicians chose and continue to choose not to serve. APNs [advanced practice nurses] have provided a full range of care to people in rural and impoverished inner-city areas…. [A] sustained goal of APN deployment and preparation has been the provision of basic health care to populations that otherwise would have none.” Inglis & Kjervik, supra note 84, at 196. Inglis and Kjervik suggest that the huge disparity between specialty and primary care practice incomes is at least partly responsible for the shortage of primary care physicians. The shortage is not going away any time soon: practicing primary care physicians are aging, but are not being replaced by new residents in sufficient numbers. See id. at 193-94. 97 25
  26. 26. Edited for the Bellow-Sacks Project This document may be used for discussion purposes only. General distribution prohibited. amended its nurse practice act to recognize diagnosis and treatment as part of the scope of practice of advanced practice nurses.98 Over the past thirty years, virtually all states have followed suit, passing legislation to recognize advance practice nursing and permit at least some advanced practice nurses prescriptive authority.99 It is important to note that this major shift in medical practice and legal doctrine did not occur without resistance from the medical establishment. While physicians initially voiced little opposition to the development of the nurse practitioner profession,100 anti-nurse practitioner sentiment emerged in the 1970s as nurse practitioners pushed for greater autonomy from doctors. Both the American Medical Association (AMA) and the American College of Physicians (ACP) adopted positions indicating that doctors were unwilling to cede any control to nurse practitioners.101 In 1985, the AMA passed a resolution opposing any new legislation that would extend the right to practice medicine to advanced practice nurses and other alternative health care providers.102 Similarly, in 1990, the AMA resolved to “oppose any attempt at empowering Inglis & Kjervik, supra note 84, at 194 (1993). The term advanced practice nurse encompasses several distinct specialties, including certified nurse midwives (CNMs), certified registered nurse anesthetists (CRNAs), clinical nurse specialists (CNSs), and nurse practitioners (NPs). See id. at 194. In this article, I focus principally on nurse practitioners, as I feel that their focus on basic primary health care is most analogous to the role that independent paralegals could play in the legal arena. 9 98 See Hadley, supra note 87, at 249. While Idaho’s statute was a step in the right direction, its impact was limited by several additional stipulations. The legislation required (1) that acts of diagnosis and treatment by advanced practice nurses be jointly authorized by the Idaho boards of nursing and medicine and (2) that every institution that employed APNs develop guidelines and policies for their practices. These restrictions seriously undercut the impact of the law. See Inglis & Kjervik, supra note 84, at 197. 99 ANA Analysis and Comparison Chart: Analysis and Comparison of Advanced Practice Recognition with Medicaid Reimbursement and Insurance Reimbursement Laws 2000 Chart, at <http://nursingworld.org/gova/charts/ medicaid.htm> (last visited October 9, 2002). 1 100 See Inglis & Kjervik, supra note 84, at 196 (asserting that “[p]hysicians voiced little resistance, as the [nurse practitioner] movement was viewed by medical doctors as a physician-controlled method of increasing their profits or providing health care for less desirable markets (poor and rural populations)”). 1 101 See id. 102 See Safriet, supra note 94, at 429 (1992). 26
  27. 27. Edited for the Bellow-Sacks Project This document may be used for discussion purposes only. General distribution prohibited. nonphysicians to become unsupervised primary medical care providers and be directly reimbursed for case management activities.”103 Learning from Advanced Practice Nursing The experience of three decades of advanced practice nursing in the United States suggests two interconnected stories, both of which must be seriously considered in developing a new model for delivery of services in the legal context. The positive story indicates that advanced practice nurses have improved access to primary health care104 for underserved communities and individuals, providing quality treatment that is both more cost effective and frequently more holistic than care provided by physicians.105 Advanced practice nursing evolved in response to the lack of primary health care services available in many parts of the country. Thus, it is not particularly surprising that advanced practice nurses have been credited with improving access to basic health services in underserved communities where physicians tend not to practice. In many poor urban and rural areas, advanced practice nurses are the only available health care providers.106 While recent data is unavailable, data from 1980 shows that 47.3 percent of nurse practitioners worked in inner cities and 9.4 percent worked in rural areas. In both environments, more than half of the patients served by nurse practitioners had annual 1 103 See id. (quoting Board of Trustees, Independent Nursing Practice Models, AM. MED. ASS'N PROC. 192 (June 24-28, 1990)). 104 Primary health care is defined as “a basic level of health care, usually provided in an outpatient [or community] setting, that emphasizes a patient’s general health needs.” U.S. CONGRESS, OFFICE OF TECHNOLOGY ASSESSMENT, OTA- H-434, HEALTH CARE IN RURAL AMERICA 483 (1990) (quoted in Safriet, supra note 94, at 422). It is “the type of care usually sought at the patient’s initial contact with the health care system for the treatment of common (acute and chronic) illnesses.” Inglis & Kjervik, supra note 84, at 194. 1 105 The most comprehensive and widely cited policy analysis of advanced practice nursing concluded that “within their areas of competence, [nurse practitioners] … provide care whose quality is equivalent to that of care provided by physicians.” U.S. CONGRESS, OFFICE OF TECHNOLOGY ASSESSMENT, OTA-HCS-37, NURSE PRACTITIONERS, PHYSICIAN ASSISTANTS, AND CERTIFIED NURSE-MIDWIVES: A POLICY ANALYSIS 5 (1986) [hereinafter OTA REPORT]. 1 106 See Safriet, supra note 94, at 432. 27
  28. 28. Edited for the Bellow-Sacks Project This document may be used for discussion purposes only. General distribution prohibited. incomes of less than $10,000 per year.107 During the 1960s and 1970s, a significant minority of nurse practitioners worked in satellite offices where they were the sole providers of health care and received medical supervision from physicians working elsewhere.108 While the numbers of nurse practitioners working in this extension role is no longer as significant as it was two decades ago, large numbers of nurse practitioners continue to provide primary health care to populations served by an insufficient number of physicians. They have demonstrated their ability to enhance the delivery of care to populations such as the elderly, poor women and infants, children in school settings, and institutionalized persons.109 By virtually every measure, advanced practice nurses provide more cost-effective care than primary care physicians. Annual salaries for advanced practice nurses are substantially lower than those of primary care physicians. In 1999, the average salary of a nurse practitioner was $58,532, compared to $132,000 for general/family practice physicians in 1997.110 The costs to society of training a nurse practitioner are substantially lower than the cost of training a primary care physician.111 There is also data suggesting that advanced practice nurses use fewer expensive tests and tend to use lower cost treatments.112 Some studies have demonstrated that nurse practitioners tend to prescribe and use medications less often than physicians.113 107 See OTA REPORT, supra note 105, at 30. 1 108 See id. 109 See id. at 29 110 See Christine Leccese, Movin’ On Up: What a Difference Two Years Makes: Results of the Advance 1999 National Salary Survey of Nurse Practitioner, available at <http://www.advancefornp.com/npsalsurv99.html> (last visited October 9, 2002); U.S. Dep’t of Labor, Bureau of Labor Statistics, Occupational Outlook Handbook: Physicians, July 14, 2000, available at <http://www.stats.bls.gov/oco/ocos074.htm>. 1 111 See OTA REPORT, supra note 105, at 19. 1 112 See Andrews, supra note 86, at 1285. 113 See OTA REPORT, supra note 105, at 29. 28
  29. 29. Edited for the Bellow-Sacks Project This document may be used for discussion purposes only. General distribution prohibited. Comparison studies examining the quality of care provided by advance practice nurses and physicians have concluded that “within their areas of competence, [advance practice nurses] provide care whose quality is equivalent to that of care provided by physicians.”114 These studies show that advanced practice nurses generally have better communication, counseling, and interviewing skills than physicians. One literature review cited a number of variables for which nurse practitioners receive higher scores than physicians. These included: Amount/depth of discussion regarding child health care, preventive health, and wellness; amount of advice, therapeutic listening, and support offered to patients; completeness of history, including the recording of previous problems and followup of problems and therapies; completeness of physical examinations and interviewing skills, and patient knowledge about the management plan given to them by the provider.115 Nurse practitioners receive better results with certain types of patients because their methodology, particularly their emphasis on interpersonal skills, preventive care, and overall wellness, differs from that typically employed by physicians.116 For example, nurse practitioners are particularly good at working with patients who need continuity of care such as the chronically ill,117 elderly, and poor.118 Some commentators have also suggested that advanced practice nurses may have greater success working with patients who are women and people of color because advanced practice nurses are as a group far more diverse than physicians.119 They argue that “because minority 114 Id. at 5. 1 115 Id. at 19. 1 116 See Andrews, supra note 86, at 1277 (1996) (arguing that “[a]dvanced nurse practitioners … may be in a better position than physicians to provide primary care because nursing schools focus on disease prevention and a holistic approach to health while medical schools rely on sophisticated technology in specialized settings”). 1 117 See id. at 1278 (“[E]vidence suggests that licensed medical doctors are not particularly adept at meeting the needs of chronically ill people. With their super specialization, doctors are overqualified or misqualified for the treatment of routine health problems, or they may find the treatment of routine problems boring.”). 1 118 Safriet, supra note 94, at 432. 1 119 See Andrews, supra note 86, at 1282. 29
  30. 30. Edited for the Bellow-Sacks Project This document may be used for discussion purposes only. General distribution prohibited. practitioners are more likely than other professionals to serve minority patients, a more diverse workforce can improve the availability of services in underserved areas, overcome institutional prejudices that discriminate against minority patients and provide more culturally sensitive care.”120 While advanced practice nurses have been essential to improving delivery of health care to many populations during the last three decades, they have done so in the face of significant and persistent obstacles. The medical establishment’s strong opposition to increased professional autonomy for advanced practice nurses has had a substantial negative impact on the opportunities available to advance practice nurses. The powerful lobbying presence of the American Medical Association and other physicians’ organizations are at least in part responsible for the multiple legal and professional restrictions that advanced practice nurses deal with in their daily practice. A full discussion of the legal and professional restrictions placed on advanced practice nurses is beyond the scope of this paper. For the purposes of comparison with legal practice, this paper will focus on two forms of restrictions that are highly analogous to the legal setting – legal scope of practice restrictions and restrictions created by doctors’ attitudes.121 Although virtually every state now has legislation recognizing advanced practice nursing, significant law reform is still needed in order for advanced practice nurses to be able to fully utilize their range of skills in practice.122 Legal barriers continue to constrain opportunities 120 Linda H. Aiken & William M. Sage, Staffing National Health Care Reform: A Role for Advanced Practice Nurses, 26 AKRON L. REV. 187, 190-91 (1992), quoted in Andrews, supra note 86, at 1282. 1 121 While this paper limits discussion to these two types of restrictions, it is important to note that advanced practice nurses are also limited by a variety of other legal and nonlegal restrictions including prescriptive authority, third party reimbursement, hospital practices, and malpractice insurance. 1 122 One study attempted to estimate the costs to society of underutilizing advanced practice nurses. It concluded that if advanced practice nurses were used to their full potential, approximately $6.4 to $8.75 billion in health care costs would be saved annually. See Len M. Nichols, Estimating the Cost of Underusing Advanced Practice Nurses, 10 NURSING ECON. 343 (1992), quoted in Inglis & Kjervik, supra note 84, at 193. 30
  31. 31. Edited for the Bellow-Sacks Project This document may be used for discussion purposes only. General distribution prohibited. available to advanced practice nurses. One of the greatest impediments to reform is the lack of consistency across states.123 It is difficult to generalize about the legal barriers currently restraining advanced practice nurses because states have taken a variety of legislative approaches to extending the scope of nursing practice124 and use a multiplicity of titles for advanced practice nurses, making comparative analysis of state law extremely confusing. State regulatory systems are one source of indirect restrictions on the scope of practice of advance practice nurses. Although nursing practice is generally regulated by state nursing boards, over a dozen states regulate advanced practice nurses at least in part by the board of medicine, the regulatory entity that oversees physicians.125 These regulatory bodies are generally charged with the task of defining the scope of practice. The system of “mixed” or “multi- professional” regulation that exists for advance practice nurses in many states serves to indirectly limit their scope of practice. Where physicians play a role in this process, “ignorance of [advance practice nurses’] abilities and bias based on rigid notions of professional role and turf protection” creates “a strong possibility that anti-competitive motives will dictate restrictions that are not justified on public safety grounds.”126 In addition to facing indirect restrictions imposed by regulatory bodies, advanced practice nurses are also directly limited in their scope of practice by state statutes. State laws governing advanced practice nurses generally contain a requirement of a formalized practice relationship 1 123 See Safriet, supra note 94, at 454. 1 124 See id. at 445-46 (discussing the variety of approaches states have used to extend the scope of practice of nursing). 1 125 The nature of the regulation varies from state to state. In some states advance practice nurses are regulated by joint action of the board of nursing and the board of medicine. In others, the board of medicine alone regulates advance practice nurses. In others, a joint committee including APNs and physicians is responsible for regulation. See id. at 447. 1 126 Id. at 449. 31
  32. 32. Edited for the Bellow-Sacks Project This document may be used for discussion purposes only. General distribution prohibited. with a physician, and the laws may further require advance practice nurses to work under a written practice agreement or protocol developed with a supervising physician.127 States also typically mandate some form of physician supervision, the intrusiveness of which varies widely.128 Mandated supervision denies that advanced practice nurses are trained to use professional judgment – that they “[l]ike other professionals … know the boundaries of their competence, … when to consult with and refer to other health care providers, … and that they have both an ethical and a legal duty to do so when appropriate.”129 Furthermore, these provisions have perverse effects for the employment of advanced practice nurses. By effectively mandating that advanced practice nurses remain in a “life-long apprenticeship,” these restrictions condition the employment of advance practice nurses upon the consent and involvement of willing physicians, imposing oversight regardless of the amount of experience of the advance practice nurse, or the amount of inexperience of the physician.130 Physician supervision requirements also effectively require duplication of effort, increasing costs to patients and/or insurers. The claim that scope of practice restrictions are necessary to protect the public health is undermined by the fact that these restrictions are frequently combined with provisions relating to practice location. A number of states that require physician supervision suspend this restriction for advanced practice nurses who work in rural and/or inner city areas.131 One author argues that 127 Id. at 450. 1 128 Mandated supervision can range from “general” collaboration (physician need not be on the premises while the advance practice nurse practices) to “direct” supervision (physician must be available on the premises and within vocal communications range) to “immediate” supervision (physician must be presently in the room and performing actions or guiding and directing the advance practice nurse). Id. 1 129 Id. at 451. 130 Id. at 452. 131 Id. at 451. 32
  33. 33. Edited for the Bellow-Sacks Project This document may be used for discussion purposes only. General distribution prohibited. the lack of consistency between these restrictions and exemptions indicates that they are premised not on public health, but on physician turf protection.132 By now it should be clear that doctors and physician advocacy organizations have a tremendous amount of direct and indirect influence on the practice opportunities available to advanced practice nurses. The unfortunate reality is that even a complete improvement in the legal status of advanced practice nurses would not eliminate the control that physicians have over the scope of their practice. Even advanced practice nurses who practice independently must, by definition, work closely with physicians. Advanced practice nurses are primary care givers capable of providing a broad array of health care services, but still need to work in conjunction with physicians when their patients need more specialized treatment than they can provide. For all these reasons, physicians will continue to have an important influence on the practice opportunities of advance practice nurses. Conclusion: Building A New Model for the Delivery of Legal Services [L]awyers have made themselves a scarce resource, and it is difficult to sustain the argument that the poor are being protected by not receiving any legal advice at all. For clients who are poor, uneducated and powerless, and who may have language and cultural barriers that distance them even farther from access to justice, an adviser with a limited range of skills or knowledge is preferable to no adviser at all.133 As Justice Johnson’s quotation suggests, any comprehensive program to improve access to legal services for low- and moderate-income people must include, at its core, a plan to expand the group of professionals who are statutorily authorized to provide legal services. While the United States has more than enough attorneys to meet the demands of every person in need of 1 132 Id. at 455 (1992) (“One is left with the disquieting, but compelling, conclusion that the continuation of these restrictions has more to do with protecting the competitive positive of physicians than with protecting the public health.”). 133 See Johnson, supra note 1, at 488 (1998). 33
  34. 34. Edited for the Bellow-Sacks Project This document may be used for discussion purposes only. General distribution prohibited. legal services, the overspecialization and maldistribution of attorneys and their inadequate training in critical areas of practice make it unlikely that attorneys can meet the full range of legal needs. Furthermore, many common legal situations are sufficiently straightforward so that the advanced skills of an attorney are unnecessary. For these situations, consumers should have the option of employing the services of an independent paralegal or other nonlawyer advocate. The experience of advanced practice nursing regulation strongly supports the argument that access to services can be markedly improved through a combination of liberalized unauthorized practice laws and the creation of a regulatory structure for independent paralegals. States should pursue these priorities simultaneously by creating a new category of legal practitioners equivalent to advanced practice nurses in the health care field and by developing a regulatory structure to govern these “advanced legal assistants.” In order to be licensed or certified, advanced legal assistants should be required to meet educational, work experience, and bonding requirements. Advanced legal assistants should be authorized to provide a broader array of “primary legal services” to individual clients, including giving legal advice in these primary care areas. Such a structure should produce many of the same positive benefits that have resulted from the increased autonomy of advanced practice nurses in the last three decades. These benefits could include improved accessibility of services, particularly in poor urban and rural communities, reduced cost of basic legal services, increased focus on primary and preventive legal services, and improved consumer choice and consumer control. There are several potential drawbacks to a regulatory system based on the advanced practice nursing model. The legal profession is likely to respond to possible competition from lay practitioners in much the same way that the medical profession reacted to the development of advanced practice nursing – with hostility and vigorous efforts to protect the exclusiveness of the 34
  35. 35. Edited for the Bellow-Sacks Project This document may be used for discussion purposes only. General distribution prohibited. practice of law. In the best-case scenario of advance legal assistants, one could anticipate a new generation of statutes authorizing limited practice by lay practitioners that would quickly become like a crazy quilt – confusing to all. In the worst-case scenario, the legal establishment will lobby for and win partial or complete control of the regulatory structure governing lay practitioners, forcing these practitioners into a complementary role where they lack autonomy and are unable to provide the range of services of which they are capable. With this range of possible outcomes in mind, advocates for liberalized unauthorized practice laws need to proceed carefully rather than rushing to support regulatory systems which may not produce their intended results. In addition to considering the above proposal, advocates should also consider the possibility suggested by a number of commentators: perhaps total deregulation and a complete dismantling of the monopoly is the better long-term solution. Further research is needed to determine the likely benefits and harms to legal consumers that would result if unauthorized practice laws were completely eliminated. 35