Texas Supreme Court Calls on Nonlawyers to Shrink Justice Gap
In an article released by The Texas Lawbook, LSC President Ronald S. Flagg provides supportive commentary on the Texas Supreme Court decision to allow select nonlawyers to provide civil legal aid to low-income Texans.
After an exhaustive, 22-month process, the Supreme Court of Texas on Tuesday issued a set of preliminary rules that will allow select nonlawyers — licensed paraprofessionals and court-access assistants — to provide limited civil legal services to low-income Texans.
The Court’s order places the efforts of the Texas Access to Justice Commission and SCOTX at the finish line for this slice of their ongoing effort to help close the civil justice gap in Texas.
They’ll cross the finish line after Nov. 1, the deadline the court set for the public to provide their input on the proposed new and amended rules (found here in the order). The rules are expected to take effect Dec. 1. Those who wish to weigh in can email rulescomments@txcourts.gov.
Citing a recent study by Legal Services Corporation, the nation’s largest funder of civil legal aid organizations, the Texas Supreme Court noted in its announcement that an estimated 92 percent of low-income Americans receive no or inadequate legal assistance for their civil legal needs. This is a 6 percent jump from LSC’s 2017 study, which found 86 percent of low-income Americans’ civil legal needs to be unmet.
The rulemaking process began after Texas Supreme Court Justice Brett Busby, the court’s liaison to the Access to Justice Commission, wrote a letter to TAJC Chair Harriet Miers asking the Commission to examine the existing rules for allowing nonattorney paraprofessionals to provide limited civil legal services and proposing modifications on issues such as how the paraprofessionals would be licensed; what the qualifications, licensing and oversight should look like; whether compensation for providers should be limited to certain sources; and eligibility criteria for clients. SCOTX also asked the Commission to consider modifications that would allow nonattorneys to have economic interests in legal service provider entities while preserving professional independence.
Calling the 92 percent statistic “unacceptable,” Justice Busby told The Texas Lawbook that he, Chief Justice Nathan Hecht and the other SCOTX justices decided to send the letter because civil access to justice has been a longtime passion and priority of the Court.
The new and amended rules will allow individuals with certain qualifications (current paralegals included) to apply for licensure as paraprofessionals to represent qualified low-income individuals in certain areas of family law, estate planning, probate law and consumer debt law before the state district courts and county courts. The rules also allow licensed court-access assistants sponsored by approved legal assistance organizations to represent low-income individuals in justice court.
Justice Busby said that the rules already allow nonlawyers to help clients with some issues in the justice of the peace courts, but that this option has not been widely used.
“What we did was look at what some other states are doing, and frankly what they’re doing in the medical profession to figure out how to increase our supply since the legal profession is a monopoly and you have to get licensed to practice and it’s created by regulation,” Justice Busby told The Lawbook. “There are good reasons for that: We want people competent to practice law [who are] ethical, but when you have a monopoly and a limited supply of lawyers, there are going to be unmet demands … for civil legal services.”
Justice Busby has been a long-time advocate of access to justice. He kept an active pro bono docket while still in private practice and then found other ways to help address the issue — such as getting involved with TAJC — once he became a judge.
“The scope of the problem is so staggering that I think that the more you learn about it, the more you realize that there has to be a multipronged approach to address the justice gap,” Justice Busby said. “Pro bono work is essential, and legislative funding for legal aid is essential, but they’re obviously not closing the gap — it’s only widening.”
To answer the Supreme Court’s call, the Access to Justice Commission formed a working group — and subcommittees of the working group — that met five times throughout 2023, collecting input from various stakeholders and the public — such as the State Bar of Texas, nonprofits, legal aid organizations and lawyers in private practice — before producing a final report of recommendations in December 2023.
Part of that process, Justice Busby said, included looking at similar efforts in other states, including Arizona, Utah and Alaska, and meeting with leaders of those efforts.
One of those leaders, Justice Busby said, was Alaska’s Nikole Nelson, CEO of nonprofit Frontline Justice, which aims to close the civil justice gap by utilizing nonlawyer frontline justice workers.
Last month, Nelson was among four access to justice advocates (including Chief Justice Hecht) who testified in a U.S. Senate Judiciary Committee hearing to provide their two cents on why Congress should increase funding for Legal Services Corporation. During her testimony, Nelson discussed Frontline Justice’s efforts as well as her previous work as the executive director of Alaska’s sole stateside legal aid organization, LSC-funded Alaska Legal Services Corporation, which under her leadership implemented its Community Justice Worker Project. Similar to Texas’ new approach, the program utilizes nonlawyer community justice workers to provide limited civil legal services to low-income clients under the training and supervision of ALSC staff.
In an interview Tuesday, LSC president Ron Flagg told The Lawbook that the program has been a “gamechanger” for closing the civil justice gap in Alaska and that the addition of the roughly 400 community justice workers to ALSC’s full-time staff of 40 increases the organization’s ability to serve clients “tenfold.” Flagg said he has collaborated with Chief Justice Hecht and Justice Busby on access to justice issues before and commended SCOTX and the Commission for their latest efforts.
“I think it’s a necessary development, not just for the state of Texas but the type of thing that needs to be done around the country,” Flagg said. “I’m excited that the Texas Supreme Court commissioned [TAJC] to do the work that it did and has identified some meaningful steps, both in terms of representation by licensed paraprofessionals or by court-access assistants. That’s exactly the sort of rethinking of who is eligible to help people with their legal problems [that we need] if we’re going to make a meaningful dent in the justice gap.”
The Commission’s working group was led by Hon. Michael Massengale, appellate lawyer Lisa Bowlin Hobbs and Scott Douglass & McConnico partner Kennon Wooten and was assisted by TAJC Chair Harriet Miers and TAJC executive directors April Faith-Slaker and former state District Judge Lora Livingston, as well as representatives from the National Center for State Courts.
“I feel privileged to have co-led this effort to study innovative ways to increase access to the justice system for Texans who have significant needs but feel shut out from the courthouse and the legal world simply because they are poor,” Hobbs said in a Facebook post.
Written by Natalie Posgate for The Texas Lawbook
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