Maryland Explores Tiered Legal Services to Expand Access to Justice

ACCESS TO JUSTICE COMMISSION | INNOVATIVE SOLUTIONS

Maryland Explores Tiered Legal Services to Expand Access to Justice

BY REENA SHAH, ESQ.

THE AMERICAN BAR ASSOCIATION ASSERTS that all individuals should be guaranteed a right to legal counsel in civil matters where physical liberty is at stake and in matters related to “basic human needs,” including shelter, sustenance, safety, health, and child custody. Regardless, at least one party lacks legal representation in about 75% of the 20 million civil cases filed in U.S. state courts each year. This includes approximately 461,000 cases annually in Maryland.

Maryland is exploring innovative solutions through its Innovations in Tiered Legal Services Task Force, including modernizing its unauthorized practice of law (UPL) rules.

In most instances, unrepresented parties do not have the means to hire an attorney.

This is not surprising, given that roughly 40% of Marylanders cannot afford basic necessities, let alone an attorney at market rates. This includes 10% of households living below the Federal Poverty Level and another 29% below the ALICE (Asset Limited, Income Constrained, Employed) threshold.

While Maryland has some limited provisions for legal counsel in certain civil cases, it falls far short of meeting national standards. Unfortunately, a lack of representation often results in devastating outcomes, such as the loss of a home or parental rights.

It also perpetuates inequities for marginalized communities and erodes public trust in the justice system.

To close this gap in access to justice, Maryland is exploring innovative solutions through its Innovations in Tiered Legal Services Task Force, including modernizing its unauthorized practice of law (UPL) rules to allow for new tiers of legal professionals and legal technologies. The Task Force, a high-level partnership between the Maryland Judiciary, Maryland State Bar Association, and the Maryland Access to Justice Commission, studies the nationwide movement in expanding access to civil legal services through regulatory reform.

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Despite Maryland’s expanding civil right to counsel and limited use of non-lawyer civil legal assistance and representation, a vast unmet legal need persists among Maryland’s ALICE and FPL populations.

Current Use of Non-Lawyer Assistance in Maryland Non-lawyer legal assistance providers, also known as allied legal professionals (ALPs), are an effective and affordable solution already in use in some areas. The Institute for the Advancement of the American Legal System (IAALS) notes that ALPs provide highquality legal services at about half the cost of attorneys.

Maryland permits non-lawyer assistance and representation in limited state and federal proceedings.

State Matters and Proceedings Maryland has carved out exceptions to its UPL statutes, allowing non-lawyers to assist in specific matters before various state courts and agencies. For instance, in Maryland District Courts, non-lawyer representation is permitted for small business claims, county employee grievance procedures, common ownership community disputes, and by insurance company staff counsel.

in the Maryland Tax Court, where a partner or corporate officer may represent their respective business.

Furthermore, nonlawyer agents can represent claimants or employers at the Maryland Department of Labor, though claimant representatives cannot charge a fee; a case example highlights a Legal Aid paralegal who successfully appealed a denial of unemployment benefits, securing all backpay for the client.

Non-attorneys, such as union representatives who are knowledgeable about the process, can also represent State employees in grievance and disciplinary appeals at the Maryland Department of Budget and Management.

The Maryland Office of Administrative Hearings (OAH), an independent office with administrative law judges, allows nonlawyer representation in a wide range of administrative appeals. Additionally, the federal Individuals with Disabilities Education Act (IDEA) permits non-attorney advocates to assist parents in special education matters.

Sarah Parsons, a Senior Case-Handling Paralegal with Maryland Legal Aid, emphasizes that in rural, economically depressed areas, these advocates are often the only resource available and that much of the required knowledge is not taught in law school or tested on the bar exam.

Crucially, non-lawyers can also represent landlords in eviction cases and, under specific conditions, tenants. This has yielded successful outcomes, as demonstrated by a recent case in which a Maryland Legal Aid Senior Case-Handling Paralegal represented a tenant facing eviction in court, resulting in rescission of the notice and establishing a safety plan.

Federal Matters and Proceedings Non-lawyers are also already authorized to assist in several federal legal and administrative matters in Maryland.

These include proceedings before the U.S. Department of the Treasury (IRS), where nonlawyer Enrolled Agents and Certified Public Accountants (CPAs) can represent taxpayers.

These professionals pass rigorous exams and are held to continuing education standards.

Non-lawyer representation is also allowed

The U.S. Department of Veterans Affairs

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(VA) allows VA-accredited non-lawyer representatives for veterans' service organizations (VSOs) and Claims Agents to provide free representation for benefits claims. Similarly, in the U.S. Social Security Administration (SSA), non-attorney representatives (EDPNAs) can advise and assist claimants and are eligible to receive direct payment for their services. They must have a bachelor's degree or equivalent experience, pass an exam, and complete continuing education. Case examples show Legal Aid paralegals successfully representing clients in disability claims, securing favorable decisions, and obtaining essential benefits.

Furthermore, the BIA Recognition and Accreditation Program in the U.S. Department of Justice (DOJ) authorizes non-lawyers to represent immigrants in proceedings before Immigration Courts and the Board of Immigration Appeals. These BIA-accredited representatives must be affiliated with a recognized non-profit organization, meet character and fitness requirements, and demonstrate knowledge of immigration law.

This pathway is crucial for serving low-income clients and combating notario fraud, where unqualified individuals pose as legal experts.

Recently, a BIA-accredited representative successfully secured bond for a detained client, allowing him to reunite with his family. Many BIA representatives are bilingual and share cultural experiences with their clients, which fosters trust and improves communication.

They also free up attorneys to handle more complex cases.

Expanding Civil Access Through Tiered Legal Services Despite Maryland’s expanding civil right to counsel and limited use of non-lawyer civil legal assistance and representation, a vast unmet legal need persists among Maryland’s ALICE and FPL populations.

An emerging movement, led by state supreme courts, is creating new tiers within the legal profession that enable allied legal professionals and legal technologies to help people who both qualify for civil legal aid and those who may just be over the threshold for free legal services, but nonetheless cannot afford an attorney at market rate. Tiered

legal services refer to a system where legal services are made available at different levels of experience, cost, and complexity based on factors like the nature of the legal issue or the type of assistance needed. There is ample research and empirical evidence that non-lawyer providers, trained in specific areas of law and legal process, are competent, effective, and can help people solve their legal problems.1 One such tier is Legal Practitioners (LPs), licensed, non-lawyer providers that can offer legal services in specific high-need areas of civil law that attorneys do not currently serve. Like Nurse Practitioners in medicine, LPs would be required to meet rigorous educational and training standards, pass exams, and adhere to ethical and other professional obligations, similar to attorneys.

They would serve the ALICE population, who are ineligible for legal aid but cannot afford an attorney, and seven states have already authorized LP programs.

Another tier consists of "frontline helpers" known as Community Justice Workers (CJWs), who are cross-trained to provide essential legal help under the supervision of a lawyer, usually from a civil legal aid organization. CJWs are envisioned to be professionals who are already serving the community, but in a field other than law. For example, Community Health Workers, who are immersed in the community, could be trained to help the clients they already serve with filing out a Medicaid application and learn to give legal advice on this very limited topic.

CJWs would typically not charge fees and would serve communities where lawyers are scarce.

The ABA has recently urged states to adopt CJW programs, recognizing that lawyers alone cannot solve all legal problems. Further, the Conference of Chief Justices and the Conference of State Court Administrators adopted a resolution to encourage states to examine whether authorized justice practitioners could be beneficial in expanding access to legal representation.

Finally, legal technologies, such as artificial intelligence (AI), can create efficiencies in repeatable tasks like client intake, form 1

completion, and providing legal information.

Further, access to justice-minded technology companies are also developing direct-to-consumer Turbo Tax-like tools to help consumers navigate complex laws for a flat fee. These companies may be allowed to serve exponentially more people if they could provide legal advice. Current UPL rules hinder innovation in this area, and modernizing these rules would facilitate the development of new tools to assist unrepresented individuals. The AI Policy Consortium on Law and Courts recently released a policy paper on how to modernize UPL to allow for technology to meet consumers’ civil legal needs at an unprecedented scale.

Conclusion Ultimately, the significant gap in access to justice in Maryland continues to cause devastating consequences for hundreds of thousands of unrepresented individuals each year. While the state has made some progress by allowing limited nonlawyer assistance in certain proceedings, this is not nearly enough to meet the overwhelming demand for affordable legal services. Maryland can build a more equitable legal system by exploring innovative solutions, such as modernizing UPL rules and creating new tiers of legal professionals like Legal Practitioners and Community Justice Workers. These allied

legal professionals, alongside new legal technologies, offer a powerful and proven pathway to ensure that all Maylanders, regardless of their income, have access to the legal assistance they need to protect their homes, families, and livelihoods. Studying these reforms and recommending solutions that fit the specific needs of Maryland is the charge of the Innovations in Tiered Legal Services Task Force. Nationwide, these reforms and innovations are fast becoming an essential toolset in fulfilling the promise of equal justice under the law.

Maryland can build a more equitable legal system by exploring innovative solutions, such as modernizing UPL rules and creating new tiers of legal professionals like Legal Practitioners and Community Justice Workers.

Rebecca L. Sandefur, Legal Advice from Nonlawyers: Consumer Demand, Provider Quality, and Public Harms, 16 Stan. J. C.R. & C.L. 283 (2020).

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